Breach of the peace is Scotland’s very own ‘catch-all crime’. If I were to compare it to an offence south of the border I would have to say it was used in a similar way to the Public Order Act 1986, s.5 in England.
In order to understand what breach of the peace means we must look to the courts for it has been the Scottish courts who have defined this crime. The leading case on the matter is Smith v Donnelly 2001 SLT 1007. Until this case any conduct which caused, or was capable of causing, mere embarrassment, upset or annoyance to another person was usually sufficient to furnish a conviction.
The case of Smith v Donnelly has given us the definition of the crime currently used today and it is probably the most important decision of the court relating to Breach of the Peace. The case was merely a three judge decision, but its reference to the jurisprudence coming from the European Court on Human Rights has given it added weight. The decision was accepted as correct by a full bench sitting in the case of Jones v Carnegie 2004 SLT 609.
The court in Smith v Donnelly does draw upon dicta from earlier ‘leading authorities’ when reaching its conclusions, it should be noted that this does not mean that the court endorses the actual decisions reached in those cases relating to the facts in these authorities.
The Modern Actus Reus of Breach of the Peace
For the benefit of the lay people out there reading this entry, the actus reus of a crime is essentially the guilty action which when coupled with the mens rea (explained later) and proven to the required standard would lead to conviction in a court of law.
The actus reus of breach of the peace, according to Smith v Donnelly, is
“conduct which [presents] as genuinely alarming and disturbing, in its context, to any reasonable person” (Smith v Donnelly 2001 SLT 1007 at )
Conduct will be ‘alarming and disturbing’ if it is of the sort (such as fighting, or challenging persons to fight, in the street) which would cause a reasonable person to fear that the peace of the immediate neighbourhood would be broken (in the sense that it would be likely that a serious disturbance of that peace would ensue) if that conduct were allowed to continue or be repeated (see Stair Memorial Encyclopaedia, Criminal Law, Para 442)
Actual evidence that the witnesses to or the complainers of the conduct were alarmed and disturbed by the conduct is not needed. The court has set an objective test: the reasonable person (if a reasonable person would not have been alarmed to that degree, then the conduct is not sufficient for breach of the peace (Jones v Carnegie 2004 SLT 609)). The conduct itself has to be ‘flagrant’ (which is essentially another way of stating that the conduct must be of sufficient seriousness that it would lead to the inference that it would be likely to result in serious disturbance of the community). It follows that conduct which presents as merely embarrassing or annoying or irritating or inappropriate (which is probably what is meant by ‘a breach of decorum’) will not be of sufficient gravity to satisfy breach of the peace: something ‘substantially greater than mere irritation is involved (see both Smith v Donnelly and Jones v Carnegie).
The Mens Rea of Breach of the Peace
For the benefit of the lay people out there reading this entry, the mens rea of a crime is essentially the guilty mind.
As breach of the peace is a common law crime it follows that there must be a mens rea element to the crime. However, the mens rea has not been adequately discussed in any reported case. We can look to a case which pre-dates Smith v Donnelly for some guidance on the matter (although it should be noted that given the fresh look of breach of the peace following Smith v Donnelly it cannot be said whether this can be relied upon). We can look to the case of Hughes v Crowe 1993 SCCR 320. In this case the courts view was that:
“in this case it can reasonably be said that the evidence described a course of conduct persisted in for a substantial period of time which indicated a gross lack of consideration for others who might be present in the other flats in the block at the time” (Hughes v Crowe 1993 SCCR 320 at 323F)
It would appear, that from this, there is a suggestion that there needs to be some form of negligence or even recklessness, in the sense of indifference to the consequences, was what was thought to be relevant in that case. We can presume that the consequence here was the potential for the conduct to provoke severe disturbance of the peace. However, it was recognised in Smith V Donnelly that there is a need to apply breach of the peace to a wide variety of circumstances. This means that Hughes v Crowe cannot be relied upon as a general account of the required mens rea.
Breach of the Peace and Human Rights
Prior to the landmark decision of Smith v Donnelly, breach of the peace was not sitting all that comfortably with the European Convention on Human Rights and Fundamental Freedoms 1950 (ECHR).
Article 7(1) of the ECHR requires that offences are clearly defined in law and that applies to common law crimes as well as statutory ones. It is highly doubtful that breach of the peace, in the form it existed prior to Smith v Donnelly, met this requirement and this was put to the test in Smith v Donnelly.
There are other considerations in relation to the ECHR and breach of the peace, but I have decided not to explore those in this entry.
Disclaimer: This blog article is not intended as a full and authoritative explanation of breach of the peace. It should not be relied upon as an accurate explanation of the law relating to breach of the peace (and indeed it is not, it only touches the surface in many areas of the crime). It is merely intended as an article to give lay people an insight into how complex the criminal law can be and also as an opportunity for legal professionals not familiar with Scots Law to learn a bit about it. You should not use this article to replace seeking advice from a properly qualified solicitor and should you find yourself in court charged with breach of the peace I suggest that you use the duty solicitor or get yourself another solicitor to give you proper and sound legal advice.