S.38 criminal justice act PDF

Preview

Summary

Download S.38 criminal justice act PDF

Description

Case Comment Milne v Harrower 2016 SCCR 392 Throughout the case of Milne v Harrower 1 (hereafter known as the Milne Case) there is an obvious breach of Section 38 of the Criminal Justice and Licensing (Scotland) Act 2010 (hereafter known as the 2010 Act) as there is proven ‘threatening or abusive behaviour’. This case emphasises the key difference between Section 38 and Breach of the Peace and how case law has been able to differentiate between the two. FACTS On the 13th March 2015, there was an organised foxhunt being held around the Snaigow Estate. The appellants had been warned about the activities and were keen to find out whether the hunt was legal. After the complainers (Angus and Edward Broad2) had successfully shot one fox, they moved onto another area. This is where the appellants appeared dressed in dark jackets, combat style trousers, hats and snoods. 3 Shortly after, the complainers aborted their hunt, however were still followed by the appellants over country and private roads for an additional two hours.4 All three appellants were charged with having had behaviour deemed as threatening or abusive in relation to S.38 (1) of the 2010 Act5. DEFENCE The appellants defence came from quoting section 38 (2) of the 2010 Act which states ‘it is a defence for a person charged with an offence under subsection (1) to show that the behaviour was, in the particular circumstances, reasonable6’. The appellants believed that their behaviour could have been deemed reasonable as they had only wanted to find out whether the hunt was legal. The appellants brought the case to the Sheriff Court through an appeal. From here this was denied as it was claimed that ‘it is simply not reasonable for masked individuals to follow people in a car and on foot for two hours and then argue that this did not constitute threatening behaviour7 contrary to s.38. The judge believed that the clothing of the appellants and their actions in following the two gentlemen would cause any reasonable person fear or alarm.

ALTERNATIVES The Criminal Justice and Licensing (Scotland) Act was formally known as the common case law offence ‘Breach of the Peace’. It was expanded due to the case between Smith v Donnelly 8 as it was within this case that it was understood that two elements must be apparent for someone to be convicted of breaching the peace, saying it must require ‘conduct severe enough to cause alarm to ordinary people and threaten serious disturbance to the community’9. Breach of the peace today is only applicable if the crime was in a public place. Due to this key element of the crime having to be public it was very hard to get a conviction of Breach of the Peace when the activity took place in private, such as domestic cases that take place in the family home. This was highlighted in the Hatcher v Harrower10 case where over the course of the evening, a husband had been orally abusive to his wife, swearing and shouting at her, causing her to become upset enough to call the police. The complainer was genuinely upset and alarmed.11 The High Court quashed the eviction, holding the evidence was insufficient in law as it had no public element and did not threaten

1 Milne v Harrower [2016] SAC (Crim) 26 2 Milne v Harrower, official transcript, para 7, [2016] SAC (Crim) 26 3 Milne v Harrower, official transcript, para 7, [2016] SAC (Crim) 26 4 Milne v Harrower, official transcript, para 8, [2016] SAC (Crim) 26 5 Criminal Justice and Licensing (Scotland) Act 2010, S.38 asp 13 (Scottish Act) 6 http://www.legislation.gov.uk/asp/2010/13/section/38 7 Milne v Harrower, official transcript, para 12, [2016] SAC (Crim) 26 8 Smith v Donnelly 2001 SLT 1007 9 Smith v Donnelly 2001 SLT 1007, p1011, per lord brodie 10 Hatcher v Harrower 2011 SCL 114 11 Hatcher v Harrower, official transcript, para 2, [2011] SCL 114

serious disturbance to the community. Therefore, the introduction of s.38 as it criminalises private behaviour. The necessity of s.38 is obvious in this case as without the 2010 expansion of Breach of the Peace, Angus and Edward Broad would have no case to put forward due to the lack of a public action. Here the appellants would have been able to get away with their behaviour, that in fact is criminal due to its threating or abusive manner. SECTION 38 OF THE CRIMINAL JUSTICE AND LICENSING (SOCTLAND) ACT The appellants were rightly charged as they did behave in a threatening or abusive manner which was likely to cause a reasonable person to suffer fear and alarm, contrary to s.38 of the ‘2010 Act’ 12. Through their relentless following and choice of clothing it is extremely obvious that the appellants were intentionally causing fear or alarm to the complainers. According to s.38 the mens rea must show that the accused intends by the behaviour to cause fear or alarm or is reckless as to whether the behaviour would cause fear or alarm13. As the court came to the decision that the actions of the appellants could not be deemed reasonable the Sheriff concluded that the combination of the actus reus of following the men around, masking their identity over a period of two hours, mixed with their recklessness and intention (mens rea) that the appeal should be rejected due to the fulfilment of all three elements of s.38. For the case in hand s.38 of the 2010 Act is much more appropriate than Breach of the Peace due to the findings from Smith v Donnelly (2001)14. Here it was understood that if behaviour is deemed threatening or disturbing to the community then a Breach of the Peace conviction is required. Using the objective test, we see that the Milne Case lacks a public disturbance and so s.38 is much more applicable.

12 Milne v Harrower, official transcript, para 2, [2016] SAC (Crim) 26 13 Criminal Justice and Licensing (Scotland) Act 2010, Section 38 (1)(c) 14 Smith v Donnelly 2001 S.C.C.R 800...