Introduction and Breach of the Peace Flashcards
R v Brown
Consent to harm
o Tried to prosecute for assault
o Tried to defend it by saying it was consensual so no assault, and court shouldn’t intervene in private matters
o Court said it amounted to violent assault rather than sex due to some of the acts involved.
o But what about other acts that regularly inflict actual bodily harm that are not criminalised? Eg. Drinking and smoking to excess.
R v Wilson
o Guy branded his initials on his wife’s bum with her consent.
o Appeal court said, of his conviction, there was no evidence that it was any more dangerous or painful than tattooing.
R v Emmett
o Guy put a tied plastic bag over woman’s head and then set fire to her, with her consent.
o Goes back to private life.
o Considerable degree of danger to life.
o Also public life/policy.
Raffaeli v Heatly
o Idea that where you might reasonably cause the liege’s harm or upset this could be considered breach of the peace.
o Objective test: according to the reasonable person. The test of breach of the peace is whether it would cause the reasonable person harm or upset.
o ‘Reasonable person’ because people have different temperaments – don’t want question of criminal liability to hang on the question of how fragile is the victim.
o If it does harm and alarm witnesses, it could be helpful to the prosecution to form an argument that a reasonable person would
Smith v Donnelly
o This case made a significant impact on the offence of breach of the peace in Scotland.
o Accused was part of a protest at a naval base about nuclear weapons. Civil disobedience: laying down in the street and refusing to move and resisting arrest.
o Charged with breach of the peace.
o She argued the offence was so wide that it breached art 7 of the European convention of human rights (no punishment without law).
o Cannot be held responsible for something that wasn’t a criminal offence at the time of the act.
o She argued breach of the peace was being used retrospectively.
o Art 7 – criminal law must be clearly defined, otherwise people do not know whether they’re committing offences.
o Court said although this is true, they said it is possible to read breach of the peace if it were compatible with art 7 if we narrow the actus reus slightly.
o If we do this, breach of the peace is compatible with art 7.
o Instead of reviewing previous cases, they drew a line in the sand.
o New definition of breach of the peace:
o Conduct severe enough to cause alarm to ordinary people AND
o Threaten serious disturbance to the community
o Test is objective.
o Don’t have to prove that harm WAS caused; just that harm WOULD be caused.
o Case also said robust approach should be taken to swearing.
Naked Rambler
o Was trying to walk from lands end to john o groats naked.
o Wasn’t properly arrested until Scotland.
o In a cycle of constant arrest and jail because he was demonstrating he thought he had a right to walk naked if he wanted to.
Breach of the peace?
Hatcher v Hamilton
Domestic violence case
Court took the view that it was occurring in private so it wasn’t breach of the peace.
However, this does not mean it wasn’t still a criminal action.
Young v Heatly
A deputy headmaster was convicted of breach of the peace by making sexually improper suggestions individually in private to a number of boy pupils
Now thought to be wrongly decided.
Court excluded conduct committed in private from the Scots common law definition of breach of the peace.
Harris v HMA
An individual was charged with breach of the peace because he made comments to police officers, putting them in a state of fear and alarm.
More threatening than loud and violent.
No one else heard this conversation.
Overruled.
Bowes v McGowan
Comments made during a taxi journey by driver to woman in the taxi.
No one else heard the sexual remarks.
She said she was threatened and alarmed by this.
Taxi driver was convicted because court said that the roads where it happened were public, and it occurred in publicly licensed taxi, available to members of the public.
Has sufficient elements of public in it to constitute bofp.
Been discredited by later cases saying it isn’t public enough, such as Hatcher v Hamilton.
Paterson and others v PF Airdrie
Section 38 (threatening or abusive behaviour) Criminal Justice and Licensing (Scotland) Act 2010.
Before Paterson there had been a disagreement in the courts as to what the actual test was.
This is also an objective test i.e. with regards to the reasonable person. BUT, prior cases had read into this legislation that had to ask whether the actual person had been afraid and alarmed themselves (i.e. made it a subjective test).
Paterson clarified this issue, reiterating that the test is objective.
The judge said that a reasonable person is someone who is not of abnormal sensitivity. Even if the individual person in the case was not alarmed, if the conduct could have alarmed a reasonable person it is caught by s38.
McGuiness
Guy threaten a women. She locked herself in her car. He appealed his bofp conviction. He said it wasn’t public enough. Conviction overturned. Court took the view that there was no evidence of potential serious disturbance to the community.
Borwick v Urquhart
The appellant had filmed on video a girl of 13 while she was drunk, the girl being upset and angry when she found out what had happened.
However, a conviction for wilfully supplying alcohol to the girl knowing that its consumption could be dangerous to her life and health and causing and procuring the consumption of alcohol by her was sustained (following Khaliq)
