Albert v Lavin [1981] UKHL 6 (03 December 1981)

Albert assaulted an off-duty plain-clothes police constable who was restraining him to prevent a breach of the peace at a bus stop. The House of Lords confirmed that every citizen has the right and duty to take reasonable steps, including detention, to prevent a breach of the peace.

Facts

The appellant, Albert, attempted to ‘jump the queue’ at a bus stop. The respondent, Lavin, a police constable who was off-duty and in plain clothes, was at the head of the queue. The magistrates found that Lavin had reasonable grounds for believing a breach of the peace to be imminent and therefore obstructed Albert from boarding the bus out of turn. Albert’s subsequent conduct while being restrained amounted to a continuing breach of the peace. After being told that Lavin was a constable, Albert struck him five or six blows in the stomach. The magistrates found that Albert honestly but unreasonably disbelieved Lavin’s claim to be a constable.

Issues

Primary Legal Questions

Two questions were raised for the High Court:

1. Whether a constable who reasonably believes a breach of the peace is about to occur is entitled to detain any person without arrest to prevent that breach in circumstances which reasonably appear proper.
2. Whether a person detained in such circumstances who does not accept that the detainer is a constable may be convicted of assault on a constable in the execution of his duty if he uses no more force than reasonably necessary to protect himself based on a mistaken and unreasonable belief.

Judgment

Lord Diplock delivered the leading judgment, with all other Lords agreeing. The House of Lords held that there is a well-established common law exception to the principle against detaining someone without arrest:

“every citizen in whose presence a breach of the peace is being, or reasonably appears to be about to be, committed, has the right to take reasonable steps to make the person who is breaking or threatening to break the peace refrain from doing so; and those reasonable steps in appropriate cases will include detaining him against his will. At common law this is not only the right of every citizen, it is also his duty, although, except in the case of a citizen who is a constable, it is a duty of imperfect obligation.”

The Court noted that this exception had been overlooked in the Divisional Court proceedings. Consequently, even if Albert’s belief that Lavin was a private citizen rather than a constable had been correct, it would not have made his resistance lawful.

Certified Question

The Divisional Court had certified a question regarding whether a person charged with assault may be convicted if acting under an honest but unreasonable mistaken belief in self-defence. However, Lord Diplock stated:

“the Divisional Court were mistaken in thinking that that question of law was involved in the appeal that they were hearing. It is a hypothetical question upon which it has not been necessary, nor would it have been proper, for your Lordships to hear argument; and your Lordships should decline to answer it.”

Implications

This case affirms the important common law principle that every citizen, not just police constables, has the right and duty to take reasonable steps to prevent a breach of the peace, including detaining someone against their will. This means that resistance to such lawful detention cannot be justified even where the person being detained mistakenly believes the detainer is acting unlawfully. The case clarifies that the lawfulness of preventive detention in breach of the peace situations does not depend on the detainer being a police officer.

Verdict: Appeal dismissed. The conviction of Albert for assaulting a constable in the execution of his duty was upheld.

Source: Albert v Lavin [1981] UKHL 6 (03 December 1981)