Breach of the Peace - Common Law Flashcards
Central criterion of Breach of the Peace from (Smith V Donnelly) (2001 SLT 1007)
The accused must be shown to have engaged in conduct serious enough to alarm ordinary people and which threatens to cause serious disturbance to the community.(Smith V Donnelly) (2001 SLT 1007)
Test in Wilson v Brown 1982 SLT 361.
Whether the proved conduct may reasonably be expected to cause any person to be alarmed, upset or annoyed or to provoke a disturbance of the peace. Positive evidence of actual alarm, upset, annoyance or disturbance created by reprisal is not a prerequisite of conviction .
Examples of Breach of Peace
Swearing and cursing in public in the early hours of the morning (Ferguson v Carnochan (1889( 16R 93)
Peering in at lighted windows causing fear & alarm(Rafaelli v Heatly (1949 SLT 284)
Swearing and making ovscene gestures to the opposing fans at a a footbal match in circumstances likely to provoke a disturbance (Wilson v Brown 1982 SLT 361)
Stopping people in the street to ask for money and cigarettes (Wyness v Lcokhart 1992 SCCR 808) BUT begging itself is not a breach of the peace but can be made so by the circumstances of the case
Following one’s wife by car from bus stop to bust stop (lees v Grier 1996 SLT 1096)
Repeatedly driing slowly past a group of teenaged girls while staring at them (Faroux v Brown 1997 SLT 988)
Wearing reflective glasses staring into a shop through the window, sat across road watching the premises and repeatedly joining and leaving the queue for the till was sufficient to cause alarm and amount to breach of the peace McKenzie v Normand 1992 SLT 130.
Peering through a hole in lavatory into a ladies solarium to spy on women in state of undress (MacDougall v Dochree 1992 JC 154)
Approaching persons in the street, patting them on the shoulder and asking for money - no alarm caused in the instances but an old lady might have been alarmed - convicted and upheld at appeal (Wyness v Lockhart 1992 SCR 808)
Lying down in the road in protest, refusing to leave when asked and disrupting traffic (Smith V Donnelly) (2001 SLT 1007)
Firing a gun into the air in a residential area to stop some drunk and disorderly youths creating a disturbance and breach of the peace. The firing of the gun was itself a breach of peace and no defence that he was tyring to stop another crime from taking place (Palazzo v Copeland 1976 JC 52)
Ordering an orange band to aply as they passed a roman catholid church (McAvoy v Jessop 1989 SCCR 301) - B of P because it was conduct which might provoke a disturbance (same as shouting obscenetities to football rivals)
Man dressed as woman, wearing make up and loitering in red light district - breach of peace as likey to cause a disturbance among men who might approach “her” and then discover “she” was male (Stewart v Lochhart 1991 SLT 835)
Abused 2 sons during contact visitis and charged with breach of hte peace by threatening to harm his sons should they give information about the abuse to any person. Not sufficient. discovery is not to be taken as encompassing a 3rd party receiving at a remote place and on a subseqent occasion a report of the earlier actings of an accused. “Realistic risk of the conduct being discovered” should refer to the risk of hte conduct of the accused beeing come upon (seen or heard, by a 3rd party or being brought to their attention, whilst that conduct continues or int he immediate aftermath of the conduct having come to an end. May be borderline cases where the reporting to 3rd parties is so immediately related in time and place to the conduct complained of that it can be regarded as part of the same event.” WM v HM Advocate [2010]HCJAC 75)
Accused entereed a flat where a woman was being reated by paramedics and swore at them and the woman. Because of the location of hte flat the court decided that it was reasonable to suppose that there would be persons passing by and living nearby and they might have heard the abuse which rendered the conduct such as to threaten serious disturbance to the community.(case which is very much dependent upon its own facts but illustrates that just because on private property, does not mean it will not be a breach of peace) (McINtyre v Nisbet [2009] SCCR 506)
Potential disturbance of a small group of people in a house may suffice as the public element (Harris v HM Advocate [2009] HCJAC 80) but “the conduct need not be directly observable by the 3rd parties but, if in private, there must be a realistic risk of it being discovered”
37 year old male visiting friend of the family made unwanted sexual advances towards the 17 year daughter of the fmaily in the kitchen of the family home while parents were sitting in an adjacent room. Breach of peace - the conduct does not require to cause serious disturbance to the community, it is sufficient it threatens such distrubance. The conduct of a mature man towards an adolescent girl was such that , if discovere, was likelky to casue a serious reaction among other adults. - ths case is not a case of conduct occurring and having its potential effects exclusively within a family - here a family friend.
(Paterson v HM Advocate [2008]SCCR 605)
Husband rowing with wife, children 12 and 15 in the house at the time. Husband persistently questioned wife for hours, was agitated angry and refused to allow her to remain in bed by pulling hte bed clothes from the bed. Wife was upset alarmed, fearful and called police. Complainer does not believe the kids were aware. Not breach of peace as it occurred within areas of the family home exclusively occuplied then by the couple and did nto threaten the public peace. Occured entirely in private and was not a public disturbance. Even if kids had been aware, the threat of the disturbance to the children within the household by father’s tirade to mother does not contain any element that can be characterised as “public” - Conduct in a private house may occur in circumstances which provide the necessary public element but what is envisaged is that the conduct in private will raise the realistic risk of the public peace being disturbed
(Hatcher v Hamilton [2010] SCCR 903
Sit down protest - in determining whether or not there has been a breach of hte peace regard must be had both to the nature and quality of the conduct complained of and also the likely consequneces of that conduct and to the context in which it too place, and that what wa required was conduct severe enought to cause alrma to ordinary people and threaten seirous disturbance to the community Dyer v Brady - 2006 SCCR 629
CHECK ONES BELOW ARE RIGHT!! _ TAKEN FROM others notes.
??????- rude hand gestures and abusive language to people supporting opposite team - not guilty - behaviour to be expected at football matches.(Wilson v Brown 1982 sccr 49)
Charged with inceitment- siad he knew personal details about police officers families, police officers (fear and alarm) (Harris v HMA)
THompson v MacPhail - injected unknown solution into himself in toilet cubicle in restraurnt - blood on floor and wall
Logan v Jessop - swearing at 2 police officers, accused appealed, successful as nobody else heard what he siad to the police officers,
Hughes v Crowe - loud music, banged on floor, sang, played guitar, vacuummed floor.
Public/Private?
Both - but if it is in private there must be a realisitic risk of the public peace being disturbed (Harcher v Harrower 2010 SCCR 903
Mens Rea
That the conduct is voluntary and deliberate, and in that sense intentional. Need not have intended to cause or provoke a disturbance or intend a breach of the peace. Accused’s conduct, looked at objectively is calculated or likely to lead to a disturbance.
Hughes v Crowe 1993 SCCR 320 - loud music, banged on floor, sang, played guitar, vacuummed floor. - time of day, nature of accomodation, degree of noise, duration all fall to be taken together in considering whether breach of peace established - the actings complained of had to be of sufficient quality to enable the inference to be drawn of mens rea - ie an inference to be drawn from the nature and quality of the acts complained of.
DEFENCES
.Self defence can be brought to a charge (Derrett v Lockhart)
Provocation is unlikely to operate as an exculopatory defence
Stopping another person committting breach of peace not a defence.(Palazzo v Copeland)
Disorderly Crowd
If a group committed breach of peace can charge as “forming part of a disorderly crowd did shout etc and commit a breach of the peace - but it is just charging each person in the group as being an actor or art and part and normal proof against each accused will be needed for the charge against each bei it committing hte acts himself or participating in a common purpose.
Harrassment
Until recently no statutory offence so typically harrasment type offences were dealt with a breach of Peace.
Statute?
Although it remains competent for a prosecutor in Scotland to bring a charge of breach of the peace, crimes of disorderly conduct are now more commonly prosecuted under Section 38(1) of the Criminal Justice and Licensing (Scotland) Act 2010
Following cases in CLT but not got details of:
Bryce v Normand 1997 SLT 1351
Grogan v Heywood 1999 SCCR 705
Jones v Carnegie 2004 Jc 136
Sinclair v Annan 1980 SLT (Notes) 55
Young v Neatly 1959 JC 66
Lauder v Heatly 1962 unrep
Craig v Herron 1976 SCCR Supp 152
Farrell v NOrmand 1993 slt 793
Biggins v Stott 1999 SCCR 595
Duffield v Skeen 1981 SCCR 66 (Shouting inflamatory political or sectarian slogans)
McAvoy v Jessop 1989 GWD 21-876(Orange lodge march)
Kelly v Tudhope 1987 SCCR 445 (distribution of leaflets)
Julian Turner - 1972 SCCR Supp 30 (distribution of pamphlets)
Cardle v Murray 1993 SCCR 170 (breakdancing)
Fisher v Keane 1981 SLT notes 28 (gluesniffing)
Thompson v MacPhail 1989 SCCR 266 (gluesniffing)
Taylor v Hamilton 1984 SCCR 393 (Glue Sniffing)
Shannon v Skeen (1977) SCCR Supp 180 (persistent conduct becoming breach of peace)
Colhoun v Friel 1996 SCCR 497
Conn v Hamilton 1994 GWD 35-2230
Ralston v HMA 1989 SLT 474
Butcher v Jessop 1989 SCCR 119
Woods v Normand 1992 SCCR 805
Hughes v Crow 1993 SCCR 320
Derrett v Lockhart 1991 SCCR 109
Fletcher v McKinnon 1987 GWD 26-968
MacNeil v McTaggart 1976 SCCR Supp 150
MacNei v Robertson 1982 SCCR 468
Tudhoe v Morrison 1983 SCCR 262
Winnik v Allan 1986 SCCR 35
Tudhope v O’Neill 1983 SCCR 443
Dyer v Brady 2006 SCCR 629.
s38 Criminal Justice and Licensing (Scotland) Act 2010
Threatening or abusive behaviour.
(1) A person (“A”) commits an offence if— .
(a) A behaves in a threatening or abusive manner, .
(b) the behaviour would be likely to cause a reasonable person to suffer fear or alarm, AND .
(c) A intends by the behaviour to cause fear or alarm or is reckless as to whether the behaviour would cause fear or alarm. .
(3) Subsection (1) applies to— .
(a) behaviour of any kind including, in particular, things said or otherwise communicated as well as things done, and .
(b) behaviour consisting of— .
(i)a single act, or .
(ii)a course of conduct. .
(
s38(2) DEFENCE
It is a defence for a person charged with an offence under subsection (1) to show that the behaviour was, in the particular circumstances, reasonable.
Sentencing - s38(4)
A person guilty of an offence under subsection (1) is liable— .
(a) on conviction on indictment, to imprisonment for a term not exceeding 5 years, or to a fine, or to both, or .
(b) on summary conviction, to imprisonment for a term not exceeding 12 months, or to a fine not exceeding the statutory maximum, or to both. -
this is from the act but don’t know if it has been updated.
