Breach of the Peace

What Is Breach of the Peace in Scotland?

Scottish case law sets a defined threshold for breach of the peace. The courts have held that the conduct must be severe enough to cause alarm to ordinary people and threaten serious disturbance to the community.

There must be a public element to the alleged conduct. This does not mean that an offence can only take place in a street or other public place. The circumstances surrounding conduct in a private setting can still require examination.

If you have been charged, a criminal defence solicitor can examine whether the alleged conduct meets the legal requirements and assess the evidence relied upon by the prosecution.

Breach of the Peace and Threatening or Abusive Behaviour

Breach of the peace should not be confused with the separate statutory offence of threatening or abusive behaviour.

Section 38 of the Criminal Justice and Licensing (Scotland) Act 2010 creates an offence where a person behaves in a threatening or abusive manner, the behaviour would be likely to cause a reasonable person fear or alarm, and the accused intends to cause fear or alarm or is reckless about that outcome.

The Act states that behaviour can include things said or otherwise communicated and actions. It can involve a single act or a course of conduct.

Your solicitor can identify the charge you actually face and explain the legal test that applies.

What Should I Do If I Am Charged With Breach of the Peace?

Taking practical steps early can help you and your solicitor prepare for what happens next.

What Evidence Can Be Used?

Evidence depends on the circumstances. It can include witness accounts, police evidence, CCTV, body-worn video, photographs, recordings, text messages and social media communications.

The location and context of the alleged conduct may be significant when the charge is common-law breach of the peace, given the requirement for a public element.

Evidence needs to be assessed as a whole. Your solicitor can review the material available and identify any issues concerning the prosecution case.

Which Court Deals With Breach of the Peace?

The court depends on how the prosecution proceeds and the seriousness of the allegation.

Justice of the Peace Courts deal with less serious summary crimes, and the Scottish Courts and Tribunals Service expressly lists breach of the peace among the offences that can be dealt with there.

Cases may be prosecuted in the Sheriff Court. More serious criminal proceedings can involve solemn procedure.

The procedure and sentencing powers vary according to the court and how the prosecution is brought. Your solicitor can explain the position relevant to your charge rather than relying on general sentencing information.

What Are the Possible Consequences?

A conviction can result in a criminal sentence. The outcome depends on the seriousness of the offence, circumstances, any previous convictions and other factors considered by the court.

Depending on the case and the court's sentencing powers, outcomes may include a fine, community-based disposal or imprisonment.

A conviction can have consequences beyond the sentence itself. Certain criminal records may affect employment, professional requirements or disclosure checks depending on the circumstances.

Legal advice based on your actual charge provides a clearer assessment of the potential consequences.

Frequently Asked Questions