Breach of the Peace Scotland | Section 38

FAQ Breach of the Peace (Section 38)

Accordion Sample Description
Accordion Sample Description

If you have been charged with Breach of the Peace, get in touch with us as soon as possible. Breach of the Peace is an offence that can be applied to a number of scenarios as it is any incident where a person’s conduct causes fear or alarm or a disturbance to the community. The inclusion of ‘disturbance of the community’ means the offence is not limited to threatening behaviour; it also includes lewd conduct and other disturbing behaviour such as following people. A police officer can arrest anyone who commits a breach of the peace without the need for a warrant.

Breach of Peace charges can be dealt with by either the Justice of the Peace Court, the Sheriff Court, or the High Court. The maximum penalty in the Justice of the Peace Court is 60 days’ imprisonment or a fine of £2500. The maximum penalty for a Breach of the Peace offence in the Sheriff Court is a 12-month prison sentence, or a fine of up to £5000, or both. It is also possible, but less common, to be prosecuted on an indictment for Breach of the Peace, for which the maximum penalty is up to 5-year prison sentence.

Contact our Breach of the Peace Solicitors in Glasgow, Scotland

Contact our solicitors as soon as possible if you have been charged with Breach of the Peace. Our solicitors are highly experienced in the criminal field and have successfully defended many Breach of the Peace clients. We will fight your corner to ensure you have the best outcome possible. Our lines are open 24 hours, 7 days a week. Call us today on 0141 471 9296 or contact us via our online contact form.

What is a Section 38 Offence?

Section 38 of the Criminal Justice and Licensing (Scotland) Act 2010

Section 38

In recent years a charge under Section 38 Criminal Justice and Licensing (Scotland) Act 2010 has become one of the most prosecuted criminal offences in Scotland.

Where someone is accused of threatening or abusive behaviour, instead of being charged with a breach of the peace, you are now more likely to be charged under this statutory offence instead. The 2010 Act lays down the type of behaviour likely to form a Section 38 offence.

Namely, threatening or abusive behaviour that is likely to cause a reasonable person to suffer fear or alarm. That behaviour has to be intended to cause fear and alarm or is reckless as to whether the behaviour would cause fear or alarm. The types of behaviour likely to be charged under section 38 are similar to what would have been previously charged as a Breach of the Peace, e.g:

  • Shouting and swearing
  • Fighting
  • Abusive or threatening behaviour
  • Abusive or threatening telephone calls, text messages and social media posts.
  • Disorderly conduct
  • Domestic abuse

Section 38(1) introduced an objective test which means that if your conduct was likely to cause a “reasonable person” fear or alarm, then you could be found guilty irrespective of whether or not any of the witnesses were in a state of fear or alarm. This test was confirmed in the leading case of Paterson v Procurator Fiscal Airdrie [2014] HCJAC 87.

 

Penalties for Conviction under S38

For less serious offences on summary complaint, imprisonment for a term not exceeding 12 months, or a fine not exceeding the statutory maximum, or both. Although it is rare for this type of charge to be prosecuted on indictment, the sentencing is much greater, imprisonment for a term not exceeding 5 years, or a fine, or both. Please note that most charges of this type will not result in a custodial sentence. It will depend on the nature of the conduct and the individual circumstances of a person convicted.

 

Defence to Threatening or Abusive behaviour

There is a statutory defence for a person charged with a section 38 offence, and, that is to show that the behaviour was, in the particular circumstances, reasonable. We have an experienced team of criminal solicitors, who had successfully defended numerous cases involving Section 38 offences.

Section 38  Lawyers Scotland

If you have been charged with this, or any other criminal offence, you should call us, without delay, on any of the telephone numbers provided on this webpage to arrange a free initial interview. Along with advice about the charge or charges you may face, we will be able to check your eligibility for Legal Aid. If you do not qualify for Legal Aid we can advise you on our reasonable fixed fees for this type of work. There is no obligation to instruct us at this meeting.

Breach of the Peace Scotland

What is a Section 38 Offence?

Section 38 of the Criminal Justice and Licensing (Scotland) Act 2010

Section 38

In recent years a charge under Section 38 Criminal Justice and Licensing (Scotland) Act 2010 has become one of the most prosecuted criminal offences in Scotland.

Where someone is accused of threatening or abusive behaviour, instead of being charged with a breach of the peace, you are now more likely to be charged under this statutory offence instead. The 2010 Act lays down the type of behaviour likely to form a Section 38 offence.

Namely, threatening or abusive behaviour that is likely to cause a reasonable person to suffer fear or alarm. That behaviour has to be intended to cause fear and alarm or is reckless as to whether the behaviour would cause fear or alarm. The types of behaviour likely to be charged under section 38 are similar to what would have been previously charged as a Breach of the Peace, e.g:

  • Shouting and swearing
  • Fighting
  • Abusive or threatening behaviour
  • Abusive or threatening telephone calls, text messages and social media posts.
  • Disorderly conduct
  • Domestic abuse

Section 38(1) introduced an objective test which means that if your conduct was likely to cause a “reasonable person” fear or alarm, then you could be found guilty irrespective of whether or not any of the witnesses were in a state of fear or alarm. This test was confirmed in the leading case of Paterson v Procurator Fiscal Airdrie [2014] HCJAC 87.

 

Penalties for Conviction under S38

For less serious offences on summary complaint, imprisonment for a term not exceeding 12 months, or a fine not exceeding the statutory maximum, or both. Although it is rare for this type of charge to be prosecuted on indictment, the sentencing is much greater, imprisonment for a term not exceeding 5 years, or a fine, or both. Please note that most charges of this type will not result in a custodial sentence. It will depend on the nature of the conduct and the individual circumstances of a person convicted.

 

Defence to Threatening or Abusive behaviour

There is a statutory defence for a person charged with a section 38 offence, and, that is to show that the behaviour was, in the particular circumstances, reasonable. We have an experienced team of criminal solicitors, who had successfully defended numerous cases involving Section 38 offences.

Section 38  Lawyers Scotland

If you have been charged with this, or any other criminal offence, you should call us, without delay, on any of the telephone numbers provided on this webpage to arrange a free initial interview. Along with advice about the charge or charges you may face, we will be able to check your eligibility for Legal Aid. If you do not qualify for Legal Aid we can advise you on our reasonable fixed fees for this type of work. There is no obligation to instruct us at this meeting.

Breach of the Peace Scotland

What is a Section 38 Offence?

Section 38 of the Criminal Justice and Licensing (Scotland) Act 2010

Section 38

In recent years a charge under Section 38 Criminal Justice and Licensing (Scotland) Act 2010 has become one of the most prosecuted criminal offences in Scotland.

Where someone is accused of threatening or abusive behaviour, instead of being charged with a breach of the peace, you are now more likely to be charged under this statutory offence instead. The 2010 Act lays down the type of behaviour likely to form a Section 38 offence.

Namely, threatening or abusive behaviour that is likely to cause a reasonable person to suffer fear or alarm. That behaviour has to be intended to cause fear and alarm or is reckless as to whether the behaviour would cause fear or alarm. The types of behaviour likely to be charged under section 38 are similar to what would have been previously charged as a Breach of the Peace, e.g:

  • Shouting and swearing
  • Fighting
  • Abusive or threatening behaviour
  • Abusive or threatening telephone calls, text messages and social media posts.
  • Disorderly conduct
  • Domestic abuse

Section 38(1) introduced an objective test which means that if your conduct was likely to cause a “reasonable person” fear or alarm, then you could be found guilty irrespective of whether or not any of the witnesses were in a state of fear or alarm. This test was confirmed in the leading case of Paterson v Procurator Fiscal Airdrie [2014] HCJAC 87.

 

Penalties for Conviction under S38

For less serious offences on summary complaint, imprisonment for a term not exceeding 12 months, or a fine not exceeding the statutory maximum, or both. Although it is rare for this type of charge to be prosecuted on indictment, the sentencing is much greater, imprisonment for a term not exceeding 5 years, or a fine, or both. Please note that most charges of this type will not result in a custodial sentence. It will depend on the nature of the conduct and the individual circumstances of a person convicted.

 

Defence to Threatening or Abusive behaviour

There is a statutory defence for a person charged with a section 38 offence, and, that is to show that the behaviour was, in the particular circumstances, reasonable. We have an experienced team of criminal solicitors, who had successfully defended numerous cases involving Section 38 offences.

Section 38  Lawyers Scotland

If you have been charged with this, or any other criminal offence, you should call us, without delay, on any of the telephone numbers provided on this webpage to arrange a free initial interview. Along with advice about the charge or charges you may face, we will be able to check your eligibility for Legal Aid. If you do not qualify for Legal Aid we can advise you on our reasonable fixed fees for this type of work. There is no obligation to instruct us at this meeting.