Lecture 10: Breach of the Peace and Stalking

Vocabulary flashcards covering public order offences, common law breach of the peace, Section 38 threatening or abusive behaviour, and Section 39 stalking under Scots law.

Public order offences

Offences that criminalise behaviour that is offensive or could cause public disorder, which must be balanced against Article 10 ECHR and Article 11 ECHR.

Article 10 ECHR

The European Convention on Human Rights provision protecting freedom of expression.

Article 11 ECHR

The European Convention on Human Rights provision protecting freedom of assembly.

Harm principle

A principle that helps determine whether behaviour should be criminalised by considering whether it causes harm, threatens harm, or is merely offensive or annoying.

Common law breach of the peace

An offence requiring conduct sufficiently serious to alarm ordinary people and threaten serious disturbance to the community, accompanied by a public element.

Smith v Donnelly 2002 JC 65

The case that narrowed common law breach of the peace, holding that conduct must be genuinely alarming and disturbing to ordinary people and threaten serious disturbance to the community under an objective test.

Harris v HM Advocate 2010 SCCR 15

The case holding that common law breach of the peace must have a public element and cause or threaten disturbance to the public peace, confirming that swearing at police or refusing to cooperate does not automatically suffice.

Public element

A necessary component of common law breach of the peace requiring that conduct causes or threatens disturbance to the public peace, which is not required under Section 38.

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

The statutory provision that creates an offence of behaving in a threatening or abusive manner likely to cause a reasonable person fear or alarm.

Actus reus of Section 38

Threatening or abusive behaviour likely to cause a reasonable person fear or alarm, which can consist of words, other communications, or actions, occurring as a single act or a course of conduct.

Mens rea of Section 38

Intention or recklessness regarding the causing of fear or alarm.

Section 38(2)

The statutory provision providing a defence where the accused can show that their behaviour was reasonable in the particular circumstances.

Rooney v Brown 2013 SCCR 334

The case demonstrating that Section 38 focuses objectively on the likely effect on a reasonable person rather than the actual reaction of those present.

Paterson v Harvie 2015 JC 118

The case confirming that Section 38 is assessed objectively and that the actual effect on persons witnessing the behaviour is irrelevant provided threatening or abusive conduct and mens rea are established.

Objective test

A legal assessment determining how a reasonable person would view conduct in its context, used in common law breach of the peace and Section 38 rather than requiring actual fear or alarm.

Section 39 of the Criminal Justice and Licensing (Scotland) Act 2010

The statutory provision creating the offence of stalking, which requires a repeated course of conduct on at least two occasions and actual fear or alarm suffered by the victim.

Course of conduct (Section 39)

A pattern of repeated behaviour occurring on at least two occasions, required to establish the actus reus of statutory stalking.

Actus reus of Section 39

A repeated course of conduct that actually causes the victim fear or alarm.

Mens rea of Section 39

Intention to cause fear or alarm, or knowledge (including where the accused ought in all the circumstances to have known) that conduct would be likely to cause fear or alarm.

Actual fear or alarm

A mandatory requirement under Section 39 stalking meaning the victim must genuinely experience fear or alarm, unlike Section 38 and common law breach of the peace where an objective standard applies.

McBride v HM Advocate 2016 SCL 758

The case confirming that actual fear or alarm suffered by the victim must be proved to secure a conviction for stalking under Section 39.

Section 39(6)

The subsection listing ten forms of behaviour that may constitute stalking, such as following, loitering, spying, monitoring communications, and interfering with property.

Section 39(5)

The statutory subsection providing three defences to stalking: conduct authorised by law, conduct carried out to prevent or detect crime, or conduct that was reasonable in the particular circumstances.

Serious disturbance to the community

A required element for common law breach of the peace that the accused's conduct must threaten, which is not required under Section 38.

Preventing or detecting crime

One of the three statutory defences set out under Section 39(5) available against a charge of stalking.