Since coming into force on 6th October 2010, “section 38” has become one of the most common charges in Scottish criminal law, if not the most common. It has effectively replaced the crime of breach of the peace (although breach of the peace still exists), given the significant degree of overlap between the two. Indeed, it is commonly referred to as “statutory breach of the peace”.
s38 was designed to close what was regarded as a loophole in the law relating to the public element of breach of the peace. In other words, disorderly (but not necessarily physically violent) behaviour taking place in private would not be covered by breach of the peace. As such behaviour was perceived to be an important element of domestic abuse, the Scottish Parliament intended s38 to make sure that the perpetrators of such abuse could be safely convicted. The press reports from the time were clear on this point:
From the terms of the statute at the top of the page, we can see that a s38 offence has the following elements:
“threatening or abusive behaviour”
As with breach of the peace, there is a vast range of actions that could be threatening or abusive in any given context.
The behaviour only needs to be threatening or abusive, not both. What constitutes a “threat” or “abuse” depends on the particular circumstances of the case.
s38(3)(a) makes it clear that the actus reus of this offences is “behaviour of any kind including, in particular, things said or otherwise communicated as well as things done”. So, words alone (spoken or written) could be enough. For example, I have represented people charged with s38 offences for sending false bomb threat letters to schools and to the operator of the Forth Road Bridge.
s38(3)(b) says that the behaviour in question can either be a single act (e.g. shouting and swearing aggressively at one’s partner during a single argument) or a course of conduct (e.g. sending several threatening letters over the course of various days or weeks).
“likely to cause a reasonable person to suffer fear or alarm”
“Fear or alarm” means that only one of the two is required, not both. “Alarm” suggests more than mere surprise at the behaviour; an element of concern is implied.
The “reasonable person” part means that the behaviour is to be judged objectively. In other words, it doesn’t matter whether the witnesses to the behaviour were actually scared or alarmed by it, provided that fear or alarm would have been a reasonable reaction in the circumstances. This is made clear by the leading case on s38 offences:
Paterson v PF Airdrie (2014 HCJAC 87)
This judgment deals with three appeals simultaneously. In each case, the accused had been convicted of a s38(1) offence, but there was no evidence of the target(s) of the behaviour suffering fear or alarm.
Ewan Paterson had acted in a threatening and abusive manner during arrest by the police, and while in a police vehicle. Neither of the two police witnesses spoke to being scared or alarmed by this.
David Bow, in the course of his employment as a bin man, had repeatedly shouted and sworn – including racial abuse – at a car driver whose driving he had taken exception to. The driver was not scared or alarmed by this.
Jamie Love had posted various sectarian comments on Facebook. The person who reported the comments to the police said that they were upset and offended by them, rather than scared or alarmed.
The Lord Justice-General: “A reasonable person is someone who is not of abnormal sensitivity. If a reasonable person would have suffered fear or alarm, it follows on the objective test that it is no defence if the behaviour causes no fear or alarm to the individual complainer, who might be, for example, an intrepid Glasgow police officer.”
So, the accused cannot argue that, because witnesses did not themselves suffer fear and alarm, they should be acquitted of a s38 charge.
Paterson v PF Airdrie was generally bad news for accused people everywhere, as it definitively removed a potential defence. That said, you may still be able to use the “abnormal sensitivity” line to argue that the person who reported you to the police is (to use the word du jour) a snowflake, for what little it’s worth.
“[the accused] intends by the behaviour to cause fear or alarm or is reckless as to whether the behaviour would cause fear or alarm”
This is the mens rea element of the offence, and is to be judged from the particular facts and circumstances of the case.
Intending to cause fear or alarm (again – only one of the two is required) is clear enough.
Recklessness is a commonly-used word in Scots criminal law. Generally, it means:
• the accused did not think about the consequences of their actions when they ought to have, or;
• the accused was indifferent to (i.e. did not care about) the consequences
The s38(2) Defence: “[to] show that the behaviour was, in the particular circumstances, reasonable.”
Reasonableness of the accused’s behaviour depends on the facts and circumstances of the case. It’s possible to imagine various things that could make objectively threatening or abusive actions into reasonable actions in the circumstances.
For example, rushing towards a stranger in the street shouting and swearing at them could well be construed as threatening or abusive behaviour. However, if the accused was able to show (by leading some evidence, which need only be the accused themselves speaking to it) that the reason for their actions was to warn the stranger of an ACME anvil plummeting towards them from a great height, then that would almost definitely result in acquittal due to s38(2).
Understandably, most cases relying on s38(2) defences are more borderline than the above.
The accused had been convicted of “[behaving] in a threatening or abusive manner which was likely to cause a reasonable person to suffer fear or alarm in that you did shout, swear and brandish a sword at Constables Rory Duncan and Ian Bailey of the Police Service of Scotland then in the execution of their duties”
A number of police officers had gone to the accused’s home address in order to enforce a warrant for his arrest. They gave evidence that they had repeatedly shouted “police” and tried to force the door open.
Once police had gained entry, the accused had brandished a sword at the police officers and repeatedly shouted and sworn at them. He was eventually persuaded to lower the sword.
The accused argued that he had no idea who had come to his door, and was under the impression that he was about to be assaulted and/or robbed. Therefore, his shouting, swearing and use of the sword had been reasonable in the circumstances.
It was held that, “if the police evidence was accepted – as it must have been – looking at matters objectively, the accused’s behaviour could not, on any view, be characterised as having been reasonable. He could not reasonably have thought that he was dealing with intruders or was otherwise in need of defending himself”.
The appeal was refused.