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Breach of the Peace (Scotland)

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What is the definition of Breach of the Peace?

Firstly, it is important to define what breach of the peace is. Breach of the peace prior to the case of Smith v Donnelly[1], had been broadly defined in the case of Raffaelli v Heatly[2], per LJC Thomson:

"Where something is done in breach of public order or decorum which might reasonably be expected to lead the lieges being

  • alarmed or
  • upset or
  • tempted to make reprisals at their own hand, the circumstances are such to amount to a breach of the peace."

This broad definition showed that a charge of Breach of the Peace can arise from virtually any conduct which caused or (can generally be regarded as being reasonably likely to cause) either alarm, annoyance, upset or embarrassment to another person or person." This effectively means that you can be charged with breach of the peace for doing absobluty anything. Any person can has the power of arrest if there is grounds for someone commiting breach of the peace. It states on know your rights, "The police and any other person have a power of arrest where there are reasonable grounds for believing a breach of the peace is taking place or is imminent".

In fact LJG Emslie even went as far as to state that:

“There is no limit to the kind of conduct which may give rise to a charge of breach of the peace." (Montogomery v. Mc Leod) [1977 S.L.T. (Notes) 77].

One of the reasons why breach of the peace is such a broadly defined crime is that there is no precise conduct required for the actus reus. Instead the effect of what the accused did is taken into consideration and each case is judged on its individual facts and circumstances. Many claim that it is a tool of social control, a law specifically designed to make sure whenever the public threaten to behave in a manner that may be seen as unpeaceful, the police can intervene.

Mens Rea

Futhermore, mens rea is not considered in many cases. The cases such as of Butcher v Jessop [1989 S.C.C.R. 119] and Hughes v Crowe [1993 S.C.C.R. 320] have considered the means rea of breach of the peace. Both these cases suggest that the means rea of breach of the peace is the knowledge of the circumstances which might render the actions a breach of the peace.

Ralston v HM Advocate[3] indicates that it is not relevant to the courts that a breach of the peace was committed to highlight or to right a percieved wrong.In this case a protest by a prisoner on the roof of a prison was found to be a breach of the peace even though the action had been taken to highlight what the prisoner belived to be poor conditions within the prison concerned.It was however relevant to the courts that the day to day operation of the prison had been disrupted.

It may, however, be relevant if the Breach of the Peace was committed with the intention of preventing a crime or assisting in its detection. Such circumstances were examined in MacDougall v Dochree[4]. It was decided that a breach of the peace had not taken place when members of the public looked into a toilet cubicle which they suspected was occupied by a "peeping tom".

Changes to the Law

A number of cases during recent decades have seen the definition of Breach of the Peace being redefined from one of a more flexible interpretation, to a much more restrictive and accountable one, primarily on account of the impact of the Human Rights Act 1998[5].

The definition of the charge was enlarged in Alexander v Smith 1984 in which a vendor of the National Front newsletter 'Bulldog' was arrested and charged with a breach of the peace when, asked to desist his vending and move on from outside a football ground busy with agitated spectators, refused, and was subsequently found guilty on the finding that the context of an act was sufficient to establish the charge. Still though many believe that the definiton is far to broad.

This enlargement of the charge's definition proceeded in Colhoun v Friel 1996[6] when actions during a peaceful protest which caused alarm was sufficient behaviour to constitute a breach of the peace.

This tendency was reversed in the case of Smith v Donnelly 2001[7] in which the Human Rights Act 1998 caused a restatement of the law by which a person must be told the specific reason for any breach of the peace with which they are charged, thereby narrowing the definition by requiring its legal justification.

Dyer v Brady 2006[8] similarly affirmed that a low-key protest was not a criminal offence under the Law of Scotland, overturning older authorities such as Deakin v Milne 1882[9] (The famous Heckler's Veto" case) and ensuring the civil right to peaceful protest without fear of arbitrary interference or prosecution.

See also


  1. Smith v Donnelly (Procurator Fiscal, Dumbarton) 2001 SLT 1007, [2001] ScotHC 121, 2001 GWD 26-101, 2001 SCCR 800, 2002 JC 65 (28 September 2001)
  2. Raffaelli v Heatly 1949 JC 101 at p104, [1949] ScotHC HCJ_1, 1949 SLT 284
  3. Ralston v. H.M. Advocate 1989 S.L.T. 474
  4. MacDougall v Dochree 1992 JC 154
  5. Human Rights Act 1998, 1998 Chapter 42
  6. Colhoun v Friel 1996 SCCR 497
  7. Smith v Donnelly (Procurator Fiscal, Dumbarton) 2001 SLT 1007, [2001] ScotHC 121, 2001 GWD 26-101, 2001 SCCR 800, 2002 JC 65 (28 September 2001)
  8. Dyer v Brady [2006] HCJAC 72
  9. Deakin v Milne (1882) 10 R(J) 22
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