IX. Possible preventative action against stalkers

A. Arrest for breach of the peace

Although breach of the peace is not an offence in common law, a person may be arrested without warrant for this. There is a power of arrest where a breach of the peace has been committed in the presence of the person making the arrest; or the person making the arrest reasonably believes that a breach of the peace is imminent; or where a breach has been committed, and it is reasonably believed that a renewal is threatened. A breach of the peace occurs whenever harm is actually done or is likely to be done to a person or in their presence to their property, or a person is in fear of being so harmed through an assault, an affray, a riot, unlawful assembly or other disturbance. A person arrested for breach of the peace may be charged with an offence which has a breach of the peace as an element of the offence, or bound over to keep the peace and to be of good behaviour, or simply released.

The powers of judges and magistrates to bind over to keep the peace or to be of good behaviour is derived from common law and from statute. Preventive action can be taken against potential offenders before an offence is committed. The purpose is to prevent breaches of the peace before they occur, not to punish the arrested person for breaching the peace. The courts have wide discretion about whether or not to bind over. A binding over order can be made if a judge or magistrate is satisfied that there is a risk that the person before the court is likely to cause a breach of the peace in the future.

section 109I of the Criminal Procedure Ordinance ( Cap. 221 ) gives judges and magistrates the power to require any person before the court to enter into a recognisance with or without sureties to keep the peace for a specified period of time and be of good behaviour. Failure to comply may lead to imprisonment and, if there is a further breach of the peace, all or part of the recognisance may be forfeited. There is no power to commit to prison for breaching the recognizance.