Conduct that breaches the peace is “conduct severe enough to cause alarm to ordinary people and threaten serious disturbance to the community…conduct which does present as genuinely alarming and disturbing, in its context, to any reasonable people.”
(the above comes from the leading case on breach of the peace: Smith v Donnelly (2001 SCCR 800 – see below).
Breach of the peace is a common public order offence in Scots law. There are a wide range of actions that could potentially constitute a breach of the peace. The bog-standard variant is “[you did] shout, swear, conduct yourself in a disorderly manner and commit a breach of the peace”, but it can encompass a wide variety of conduct.
You can buy a 350-page book on the topic (breach of the peace, not what to feed horses), if you want.
The scope of breach of the peace has been scrutinised over the years, thanks partially to the development of human rights legislation. The matter came to a head in the case of Smith v Donnelly, which essentially asked the question: is “breach of the peace” such a vague crime, it breaches Article 7 of the European Convention on Human Rights (no punishment without law)?
Smith v Donnelly (2001 SCCR 800)
- Pamela Smith was charged as follows: “On 15 February 1999 on the A814, north gate entrance to HM Naval Base, Clyde, District of Argyll and Bute, you Pamela Smith did conduct yourself in a disorderly manner, lie down on the roadway, disrupt the free flow of traffic, refuse to desist when requested to do so and commit a breach of the peace.”
Smith was protesting against nuclear weapons at the Faslane naval base. She argued that she had engaged in this sort of conduct before, and it appeared to be arbitrary whether she would be arrested for it or not. Article 7 ECHR requires that citizens know what actions will break the law. Therefore, the crime of “breach of the peace” was so vague that prosecuting her for it was contrary to her human rights.
The High Court concluded that “The crime of breach of the peace can be committed in a wide variety of circumstances, and, in many cases, it is a relatively minor crime. It has therefore been said, more than once, that a comprehensive definition which would cover all possible circumstances is neither possible nor desirable.“
“if there is no evidence of actual alarm, the conduct must be “flagrant” if it is to justify a conviction. “Flagrant” is a strong word and the use of that word points to a standard of conduct which would be alarming or seriously disturbing to any reasonable person in the particular circumstances.”
Ms Smith’s appeal was refused. On the bright side, we wouldn’t have the clear(er) definition of breach of the peace without her, so…every cloud, amirite.
The test for breach of the peace is an objective one. In other words, the decisive question is not whether any witnesses to the conduct were actually alarmed or not. Their evidence may be helpful in putting the actions of the accused in some sort of context, but beyond that it should not be the focus.
Where there is no evidence of alarm, it has previously been suggested that the conduct has to be “flagrant” to constitute a breach of the peace. However the following case appears to draw back from that position:
- These were Crown appeals in three cases. The issue was the same in each case, so the appeal dealt with all three at once.
- Each case involved the accused being found to have no case to answer in respect of a charge of breach of the peace (aggravated by racial prejudice).
- The locus (place) for each charge was a different Scottish Premier League football match.
- Each accused had shouted racial remarks at opposing fans or players in the course of being a fan at the match.
- In each case, there was no evidence that anybody had been alarmed by the accused’s conduct.
- “it is likely to be more helpful to have regard to the whole circumstances surrounding the behaviour complained of in order to determine whether or not it amounts to a breach of the peace. The actual behaviour itself may in some instances justify the use of the word “flagrant”; but, even in cases where that is not so, the whole surrounding circumstances may nonetheless lead clearly to the conclusion that what has occurred can properly be described as amounting to a breach of the peace.”
- “[E]ven in the most basic cases of breach of the peace, where there is no evidence of actual distress or alarm, it is well accepted that the question which must be asked is: Would this conduct have been likely to cause distress or alarm to a reasonable person in the vicinity?”
- The Appeal Court held that, because the behaviour in question took place at football matches (where the potential for disorder is relatively high), was racist in nature, and was in the proximity of large numbers of opposing fans, it met the test for a breach of the peace. Therefore, the acquittals were wrong. Each case was sent back to the Sheriff with an instruction to proceed as if the accused had not been acquitted.
A breach of the peace can be committed in private, but there must be evidence that there was a realistic risk of discovery while it carries on, or immediately after it ends. In other words, there has to be a public element to it (e.g. shouting and swearing in private causing a commotion in the street as a result of the noise).
- Harris was charged with two breaches of the peace by making remarks to police officers, who were investigating him for other matters, to the effect that he knew where they (and family members) lived.
- These remarks were made in private. It was accepted by the Crown that there was no suggestion of police officers, if they had heard the remarks, taking the law into their own hands.
- It was held that a breach of the peace must have a public element. While Harris’ actions might have been enough to justify a charge of attempting to pervert the course of justice, they were not a breach of the peace. The appeal was allowed.
Perhaps as a reaction to cases like this, the Scottish Government created a new criminal offence: section 38(1) of the Criminal Justice and Licensing (Scotland) Act 2010.
As a result, charges of breach of the peace are now much rarer than they used to be, given the overlap between the two offences.