What is Breach of the Peace and how can we help?

The crime of breach of the peace was originally a common law offence in Scotland. The circumstances in which the crime could be committed were very wide and covered a whole host of scenarios.  These ranged from having a heated debate with a neighbour, protesting the local naval base, or even on occasions,  following someone. It was also historically determined that a breach of the peace could be committed in the privacy of your own home. In determining whether or not your actions amounted to a breach of the peace, this depended on whether or not your actions were considered “reasonable” in the circumstances.

The common law definition of breach of the peace has been criticised over the years for being too vague. The definition arising from the landmark case of Smith v Donnelly in 2001 provided that an accused’s behaviour towards another must be severe enough to cause, or be likely to cause, fear or alarm,  and that it caused something of a public disturbance. As human behaviour changed over the decades and certain issues relating to public confrontations became clear, it meant that the law had to develop to take account of changing attitudes.

Section 38 and Breach of the Peace

In October 2010, the Criminal Justice and Licencing (Scotland) Act came into force with Section 38 providing a statutory offence of threatening or abusive behaviour. This is often referred to as statutory breach of the peace or ‘Disorderly Conduct’, and the Act states that if your actions towards another cause fear or alarm, or are likely to cause fear or alarm, or were intended to cause fear or alarm, you may have committed an offence. Unlike the common law breach of the peace, there is no requirement to show that the conduct caused a public disturbance, meaning those affected by “unseen” threatening behaviour have protection under the legislation.

The test is now effectively whether an independent bystander of reasonable human tolerance would likely feel that the behaviour complained of, was threatening or abusive. A recent example of this can be found in the case of Burnett v Procurator Fiscal, Hamilton [2017] SAC note on the law society website here.

Defences to Breach of the Peace

Charges for breach of the peace in Scotland can be successfully defended if, for example, the person’s behaviour was reasonable taking into account all circumstances.

Our expert criminal defence team at Nellany and Co have the knowledge and experience required to defend breach of the peace charges in Scotland. We can help navigate this stressful process in an efficient and friendly manner.


If you have been charged with a contravention of section 38, please don’t hesitate to contact us immediately. A  conviction can result in a fine of up to £2,500, or a custodial sentence of up to 12 months, or both, even if prosecuted only on summary complaint. There are also various ways that an s38 offence can be made worse, for example, where there is a domestic element to the allegation.

Although less likely, conduct can also be prosecuted on Indictment, although this is usually where there are other charges or where the matter is so serious or where the accused has a list of serious previous convictions. On Indictment, the offence can carry a fine of up to £5000.00, a custodial sentence of up to 5 years, or both.

Contact our Breach of the Peace Defence Lawyers now

We have over 30 years of experience in dealing with these matters successfully. Make sure you are in the right hands and that you are effectively represented from police interview through to representation in court.

Contact our criminal defence lawyers on 01294 464175 or make an online enquiry using our form here.