Breach of the Peace and Stalking Flashcards
What is breach of the peace?
When the reasonable person believes that an act is likely to cause fear or alarm to the person or community
What is the case authority for Smith v Donnelly 2002?
Actual alarm is not the prerequisite of the crime and conduct severe enough to cause or alarm to ordinary people and threaten serious disturbance to the community is required to constitute the crime
Are context and circumstances of behaviour relevant?
Yes.
Wilson v Brown showed that swearing and gesticulating at a football match was breach of the peace as the behaviour was likely to lead to a disturbance if allowed to continue
Can use of offensive language be considered breach of the peace?
Yes.
Saltman v Allan - accused was shouting and swearing at police officers and appeal was refused and it was no argument that it was only the accused and the police officers present it still constituted breach of the peace
What happens if there isn’t any evidence of actual alarm?
In the absence of actual alarm the conduct had. to be flagrant and severe enough to cause alarm to ordinary people and to threaten serious disturbance to the community
Where is breach of the peace defined?
s.38 Criminal Justice (Scotland) Act 2010
What is the actus reus of breach of the peace?
Conduct must be threatening or abusive enough to cause the reasonable person fear or alarm.
What is the mens Rea of breach of the peace?
An intention to cause fear or alarm or recklessness regardless as to whether fear or alarm is caused by the particular behaviour
Is there a defence for breach of the peace?
A defence is available under s.38 where an accused can show that the behaviour in the particular circumstances was reasonable
What occurred in the Rooney v Brown case?
Accused found guilty of breath of the peace.
He was shouting, swearing and uttering racial threats of violence in a police car with two officers present.
It did not matter that the police officers did not feel fear or alarmed, other officers may have been or a member of the public who happened to overhear.
Where is the statutory defence of stalking defined?
s.39 Criminal Justice and Licensing (Scotland) Act 2010
What is the actus reus of stalking?
Conduct must occur on more than one occasion and must cause or intend to cause fear or alarm
What is the mens Rea of stalking?
When the stalker engages in the conduct with intention to cause the person fear or alarm
What are conducts that may cause fear or alarm?
Following a person, contacting or attempting to contact a person, publishing a statement or other materiel falsely alleging from a person, entering premises, watching/spying
Does there have to be a course of conduct in stalking?
Yes.
Hay v HM Advocate - repeated instances of accused following girls in his car causing fear and alarm, however no course of conduct so therefore breach of the peace and not stalking
