Breach of the Peace is an offence at common law in Scotland. A prosecution for breach of the peace may be brought where someone is accused of disorderly conduct which is liable to cause fear, alarm or disturbance to others. If you have been charged with Breach of the Peace, call us now on 0131 557 9151
The scope of breach of the peace is wide, ranging from relatively minor allegations of shouting and swearing to sending abusive text messages and very serious allegations of sustained, violent behaviour and brandishing weapons.
Although it remains competent for a prosecutor in Scotland to bring a charge of breach of the peace, crimes of disorderly conduct are now more commonly prosecuted under Section 38(1) of the Criminal Justice and Licensing (Scotland) Act 2010.
A typical charge under this legislation might read as follows:-
“On 12th December 2012 at Lothian Road, Edinburgh, you [name of accused] did behave in a threatening or abusive manner which was likely to cause a reasonable person to suffer fear or alarm in that you did shout and swear, threaten others with violence, repeatedly kick a door and refuse to desist when requested
CONTRARY to Section 38(1) of the Criminal Justice and Licensing (Scotland) Act 2010”
The Appeal Court was recently called upon to consider a number of interesting cases where prosecutions had been brought under Section 38(1). The discordant views expressed by Judges in the cases of Rooney v Brown 2013 SCCR 334 and Jolly v Her Majesty’s Advocate 2013 SCCR 511 were reviewed by a Bench of five Judges in the case of Paterson v Procurator Fiscal Airdrie [2014] HCJAC 87 and two associated Appeals. Jolly was overruled and the Appeal Court has now reaffirmed the ‘objective’ test for prosecutions under this Section.
As a result, a Sheriff or Justice of the Peace can find a charge under Section 38(1) proved if they are satisfied that the conduct was likely to cause a ‘reasonable person’ fear or alarm, whether or not there is evidence of actual fear or alarm to witnesses in the context of the case.
In terms of Section 38(2) of the 2010 Act, it is a defence for a person charged with an offence of behaving in a threatening or abusive manner to show that the behaviour was, in the particular circumstances, reasonable. In all cases, however, it is for the prosecution to prove any charge beyond reasonable doubt.
In certain circumstances, self-defence can be advanced as a defence to a charge of breach of the peace, particularly where there is an allegation of fighting with another or others. This was discussed in the case of Derrett v Lockhart 1991 SCCR 109.
The maximum penalty for an offence under Section 38(1) prosecuted in the Sheriff Court at summary level is 12 months imprisonment, or a fine of up to £5000, or both. ‘Statutory’ or common law breach of the peace charges can also be brought in the Justice of the Peace Courts where the maximum penalties are 60 days imprisonment or a fine of up to £2500. Offences of this nature are rarely prosecuted on indictment but a conviction at that level can attract a sentence of up to 5 years imprisonment.
