Breach of the Peace Lawyers in Scotland
Breach of the peace is a common law offence in Scotland, which means it comes from case law rather than from an Act of Parliament. It is used to deal with disorderly or alarming behaviour, and a charge can arise from a wide range of incidents, from a heated argument in the street to a fight outside a pub. If you have been charged, or think you may be, speak to a solicitor before you say anything to the police or the Procurator Fiscal.
Call us on 0141 890 5555. We are available 24 hours a day for clients in police custody.
What is breach of the peace in Scotland?
The test the courts apply is whether the conduct was severe enough to cause alarm to ordinary people and to threaten serious disturbance to the community. This was set out in the case of Smith v Donnelly in 2002. The Crown does not have to prove that anyone was actually alarmed, but it does have to show that the behaviour was genuinely alarming or disturbing in its context. Behaviour, including words, can amount to a breach of the peace depending on where and how it happened.
Threatening or abusive behaviour
Many charges that might once have been brought as a breach of the peace are now brought under section 38 of the Criminal Justice and Licensing (Scotland) Act 2010. This offence covers behaviour that would be likely to cause a reasonable person to suffer fear or alarm, where the accused intended to cause that fear or alarm or was reckless about it. It is a defence to show that the behaviour was reasonable in the circumstances. Unlike the common law offence, it does not depend on a public disturbance. The maximum penalty is 12 months in prison on summary conviction and five years on indictment.
What can happen if you are convicted?
The sentence depends on how serious the incident was, whether anyone was hurt, and your previous record. Most cases are dealt with in the Justice of the Peace court or the sheriff court, and the outcome can range from a fine or a community payback order to custody in more serious cases. A conviction is a criminal conviction and can affect your work and your ability to travel, so it is worth defending a charge properly even if it seems minor.
How we can help
We act for people charged with breach of the peace and threatening or abusive behaviour at every stage, from interview at the police station through to trial. We look closely at whether the behaviour really reached the legal threshold, how reliable the witnesses are, and whether the Crown can prove its case. Where it is right to do so, we also speak to the Procurator Fiscal about the charge. See our pages on court and police station representation, crimes of disorder and crimes of violence.
Frequently asked questions
Can I be charged if I only shouted?
Yes. Words alone can be enough if they were genuinely alarming in the circumstances, although the court will look at the context, including where you were and who else was present.
Do I need a solicitor for a breach of the peace charge?
It is strongly advisable. The charge can look minor but the outcome can be a criminal conviction, and the evidence is often finely balanced.
Is breach of the peace the same as threatening or abusive behaviour?
No. Breach of the peace is a common law offence. Threatening or abusive behaviour is a statutory offence under section 38 of the 2010 Act, with its own test and penalties. You may be charged with either, and a solicitor can explain which applies to you.
Speak to a solicitor today
If you have been charged with breach of the peace or threatening or abusive behaviour, contact us today. Your call is confidential and there is no obligation.
