Offences against public order

Question 1

What is the actus reus of breach of the peace? (common law offence).

Answer 1

Smith v Donnelly 2002 JC 65.
- “Conduct severe enough to cause alarm to ordinary people and threaten serious disturbance to the community” (para 17).

No specific mens rea, enough that the accused should have known that his conduct ran the risk.

Question 2

What are the requirements for breach of the peace?

Answer 2

• Actual alarm is not required (Montgomerie v PF Kilmarnock [2015] HCJAC 2).
  
  • Conduct should be genuinely alarming to any reasonable person and potential disturbance must be serious (Wotherspoon v PF Glasgow [2017] HCJAC 69, at para 26).
  • Not all inappropriate behaviour is made criminal (McConachie v Shanks [2018] SAC (Crim) 10). i.e. not enough for someone to be ‘upset’ or ‘annoyed’ (Lindsay v HMA 2005 JC 332).
  • Context matters (Walls v Brown 2009 JC 375).
  • CAN IT BE COMMITTED IN PRIVATE? Realistic risk of the conduct being discovered (Thompson v MacPhail 1989 SLT 637)? Some cases take a different view to what is “public conduct” (Bowes v Frame 2010 JC 297).

Question 3

What is the statutory offence of threatening or abusive behaviour?

Answer 3

Criminal Justice and Licensing (Scotland) Act 2010 s38.
Offence if:
- Behave in a threatening or abusive manner;
- Which would be likely to cause a reasonable person to suffer fear or alarm, and;
- They intended to cause fear or alarm OR were reckless as to whether their behaviour would do so.

Question 4

What is the defence to threatening or abusive behaviour?

Answer 4

For the person to prove that their conduct was “reasonable”.
- Paterson v Harvey 2014 SLT 857.
- Would a reasonable person suffer fear or alarm? OBJECTIVE TEST.

Question 5

What is the statutory offence of stalking?

Answer 5

CJL(S)A10 s39.
Offence if:
- Engages in a course of conduct which causes another person fear or alarm, and
- Intended to cause that person fear or alarm, or knew or should have known that their conduct was likely to have this effect.

Defence to show that their conduct was “reasonable”.
- Authorised by law or for the purpose of preventing or detecting crime.

Question 6

What is hate crime?

Answer 6

Not one crime but terminology used to describe any crime motivated by ill will or malice on the basis of a protected characteristic:
1. Race
2. Religion
3. Disability
4. Sexual orientation
5. Transgender identity
Treated as either (i) statutory offence or (ii) aggravation of a substantive crime.