Breach of the Peace - Notes for 1st semester Scottish criminal law PDF

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Notes for 1st semester Scottish criminal law...

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Criminal Law

02/09/18

Breach of the Peace This is a very common offence. The latest figures show that these offences number 137,012 which is just over half, (52%) of all the offences recorded in Scotland in 2017-18. The breach of the peace accounted for 39% of all the offences. It is important to consider the harm principle as beach of the peace is an offence against public order as it can harm a community.    

Was the conduct offensive, annoying or inconvenient? Did the conduct harm a person or property? Did the conduct pose a ‘threat’ or ‘risk’ of harm? Was there a criminal responsibility attached to the conduct?

Common Law Breach of the Peace:  Smith v Donnelly JC 2006 65: actual alarm is not a prerequisite of a crime so the fact that a person has been alarmed doesn’t mean a breach of peace has been committed. Someone was lying on the ground disrupting traffic outside of a military base. The outcome of this case found that breach of the peace was very wide and circumstantial. They pointed out that mere annoyance must be severe enough to cause alarm and threaten serious disturbance to the community.  Raffaelli v Heatly 1949 JC 101: This is an example to disturbance to the community. In this case, Raffaelli peered through a slit in a window and there was no innocent interpretation for the repeated peering through the slit. This is referred to as the peeping Tom case. This is when a reasonable person might be expected to be alarmed or upset.  Wilson v Brown 1982 SLT 361: Wilson swore and gesticulated at a football match but was found not guilty as there was no evidence of alarm or anyone being upset but the crown appealed and argued that the way he was acting would cause alarm. They considered the fact that a disturbance would’ve happened if Wilson had been allowed to continue. The accused was convicted.  Hughes v Crowe 1993 SCCR 321: There was loud noise in a flat and the neighbour reported it. This was every week early on a Saturday morning and this happened persistently for an hour each week. The court found the mens rea could be inferred from all the circumstances.  Saltman v Allan 1989 S.L.T. 262: Accused shouted and swore against the police officers which argued that there was no way the public would be harmed as he was in the back of a police car, so he appealed but the

Criminal Law

02/09/18

appeal was refused. This is because the accused was not entitled to say that the police officers could take the abuse because they were police as they were human too.  Logan v Jessop 1987 S.C.C.R. 604 There are other cases that are charged as a breach of the peace that cause actual alarm to the public.  Farrell v Normand 1993 SLT 793: Accused beckoned a 10-year-old girl in a park asking if she would like a drink etc. However, he was not charged as a subjective view of circumstances were not taken.  McConachie v PF 2018 SAC10: alarm caused by the victim (12-year-old) being upset at the actions made by an older man. Conviction was overturned by appeal as the courts said while the actions of the older man were disturbing and inappropriate, a crime that is socially unacceptable is not a breach of the peace. The court must address the evidence from an objective POV from the stand point of the reasonable person observing or experiencing the conduct.  Montgomery v Harvie 2015 HCJAC 2: accused argued on appeal that the conduct was not severe to fulfil the Smith v Donnelly criteria. The appeal was rejected as he carried out the same action repeatedly and over a long period of time in the same location. A very key case for a breach of the peace of public alarm. This case constituted what public alarm defined.  Harris v HMA 2009 S.L.T. 1078: Accused made veiled threats to police officers by knowing personal details about the police officers but he was held not guilty as it didn’t affect the community at large as it only affected 2 individuals. This case constituted that a private act cannot be a breach of peace.  Angus v Nisbet 2011 JC 69: Accused passed a piece of paper to a 12-yearold with a message and a phone number on a public street. He was charged but that was overturned as while it was inappropriate, it was a private matter between 2 people. There must be a public element of a breach of the peace to be constituted as a disturbance or a criminal offence.

Criminal Law

02/09/18

 Wotherspoon v PF 2017 HCJAC 69: There was no actual alarm, but the action of the man was unusual but not illegal. He dressed in a ballet costume which disturbed his neighbours. S38 Offence: This was introduced to address Breach of the Peace offences where threatening and abusive behaviour is concerned to address the previous loopholes like paedophilic actions. This involves behaviour that cases fear or alarm to a reasonable person as the actus reus. This doesn’t need to involve serious disturbance and can be a single act or a consistent act with no requirement for a public element. The courts would apply an objective test to determine whether a reasonable person would suffer fear or alarm in similar consequences. The mens rea of the s38 offence is when an accused can show that their behaviour was reasonable in those circumstances then it can act as a defence.  Rooney v Brown 2013 S.C.L. 615: The accused was charged with s38 offence as he was shouting, swearing and threatening police with sectarian threats of violence with racial and religious prejudice. The accused appeal was rejected as other officers without the knowledge of the accused’s insult might have been alarmed, along with any other member of public who overheard.  The actus reus of a case was displayed in the Orr v Paisley 2018 SAC 11 case. The accused stood outside a catholic church with a sign saying that ‘God hates all Catholics’. They found that someone could’ve been alarmed or disturbed which was sufficient for a criminal offence....