You would imagine that ‘breaching’ the ‘peace’ would be (a) pretty self-explanatory and (b) if it wasn’t that there would exist a morass of helpful, clear common law definitions and explanations. Remarkably, neither appears to be the case.
Even the High Court has attempted clarity of the issue. In Smith v Donnelly (2002) JC 65 it stated that it 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.” You would imagine that is (relatively) clear but perhaps it would be of benefit to contextualise.
The accused had been charged for her role and actions in an anti-nuclear weapons demonstration at the Faslane Naval Base on the Clyde. Specifically, that she conducted herself in a ‘disorderly manner’, ‘disrupted the free flow of traffic’ (by laying down on the road) and ‘refused to desist when requested to do so’…………………………..and did (therefore) commit a breach of the peace.
Whether Smith’s conduct was ‘conduct severe enough to cause alarm to ordinary people and threaten serious disturbance to the community‘ is surely a matter of great and doubtless divided opinion. Unquestionably annoying, perhaps, immensely inconvenient, but behaviour that caused ‘alarm’..? Whilst we can now move away from Hume who described it as a form of ‘rioting’, its scope does now appear remarkably wide. Thirty to forty years ago, I suspect the most commonly prosecuted crime in (certainly the West of ) Scotland, (no, it wasn’t urinating in public, surprisingly) was ‘shouting and swearing in a public place’ and putting the lieges in a ‘state of fear or alarm’. Indeed, most of us (then, I stress) young pups cutting our teeth in the art of criminal defence law, would sit of a morning (although classically a Monday) in the old District Courts in St. Andrews Street, Glasgow and deal with the hordes charged with just that during an excitable preceding 48 hours. The profusion of such cases resulted in local PFs referring to them, collectively and colloquially, as a ‘two-cop breach’, as it was only the two polis (sorry Glasgow vernacular for Police) that gave any evidence.
Consider now that we have had cases appear in front of JP and Sheriff courts in relation to fighting, aggressively begging for money, kerb-crawling, kicking a ball in the street and even attempting to commit suicide. Amongst this plethora of common law examples, appears to be the commonality of, if you like, ‘anti-social behaviour’ which may upset, anger, disturb or alarm ‘others’, i.e. bystanders. Some interesting cases arise when the Prosecution elect to almost use the charge as a ‘catch-all’ for behaviour that actually could (and does) fall under different headings. So, in Hutchison v HMA (1998) SLT 679, the accused was charged with exposing himself and masturbation and could have faced a charge under both common law and statute (The Sexual Offences Act 2009, s.8) but rather breach of the peace was pursued instead. Which seems somewhat perplexing and bewildering.
It could be argued that the range of offences seems extraordinarily wide – especially when you consider that kicking a football in the street can be treated analogously with someone exposing themselves to others.
Those of us in academia (especially if we have also practiced) have long suggested that there is a cloud of ambiguity and far too wide a range of possible offences for this ‘crime’. The High Court (sitting as an Appeal Court) disagreed in Smith (above) but it did concede that, as Lord Coulsfield quoted,…”in some cases breach of the peace had been held to be established on grounds which might charitably be described as tenuous“. A thinly veiled rebuke indeed.
As ever, there is simply no escaping the ‘human rights’ issue and in particular the European Convention. There have been suggestions that breaches have occurred of Articles 7,10(1) and 11(1), to name but three, in relation to charges of ‘breach’. However, any rights under the Convention are not unfettered and that they necessarily come with a sense of restriction in order to ensure public order is maintained. So, in terms of of both Arts. 10(1) and 11(1), Arts. 10(2) and 11(2) provide that if issues arise in respect of public safety then restrictions can be imposed.
The issue however, in my view, is whether we should be giving any credence from now on to the fact that playing football in the street at night can ever really constitute a ‘serious disturbance’ to the community (as per Smith, above). An element of proportionality surely has to be the all encompassing factor?
This came to a head in Harris v HMA (2010) JC 245 when the Appeal Court again reiterated the ‘public disturbance’ element. Further, in Hatcher (2011) Lord Bonomy quashed the conviction of an individual who had ben convicted of a breach of the peace by ‘shouting and swearing at his wife within the family home’. It was quashed because it could not be said that there would likely be a ‘serious disturbance’ to ‘the community’. Lord Bonomy spoke of a ‘lacuna (a gap) in the law’ but, of course reiterated one of our founding principles that it is for Parliament and not the Judiciary to create or change the law.
To cut a long story short, this ‘gap’ has now been firmly closed thanks to the Criminal Justice and Licensing (Scotland) Act 2010 (s.38) which deals with ‘threatening or abusive behaviour’. s.38(1) now states that…..
‘A person (“A”) commits an offence if—
(a) “A” behaves in a threatening or abusive manner
(b) the behaviour would be likely to cause a reasonable person to suffer fear or alarm, and
(c) “A” intends by the behaviour to cause fear or alarm or is reckless as to whether the behaviour would cause fear or alarm
Jobs a good’un. We now have a much more satisfactory situation and, in reality, ‘breach of the peace’ (as was) will be seen much more rarely as the new s.38 offence , principally because of the overlap. A salutary glance at s.38 shows us that we now have ‘intent’, ‘reasonableness’ and a Cawthorne-esque sense of recklessness (indifference even?) as to whether the behaviour does cause any fear.
It’s issues such as this that I am forever trying to impress upon my students from entry level to university to take an interest in, research and comment on.
It’s what makes the difference between competence and dedication.