Breach of The Peace - Public Order - Scotland

Scotland

There are major differences between English law and Scots law with respect to dealing with breach of the peace; unlike England and Wales where criminal penalties apply to the behaviour leading to or liable to cause a breach of the peace, it is a specific criminal offence in Scotland which is prosecuted daily in the Sheriff Courts and due to its common law definition it can be applied to a number of scenarios. The maximum punishment if a case is remitted to the High Court remains imprisonment for life although such severe punishment is now rarely applied, usually being associated with breaches of licence during an existing life sentence.

The Scots Law definition of a breach of the peace is "conduct severe enough to cause alarm to ordinary people and threaten serious disturbance to the community."

A constable may arrest any person, without warrant, who commits a breach of the peace. A member of the public may not arrest a person for behaviour which amounts to no more than a breach of the peace (i.e. an arrest is not always for the offence for which someone is eventually prosecuted but can be for a more serious crime that appears to be occurring).

Breach of the peace can include, but is not limited to, any riotous behaviours (which includes 'rowdiness' or 'brawling') and any disorderly behaviour. This behaviour doesn't have to be noisy but still of a nature that would cause concern to other people. Examples include 'Peeping Tom'-type behaviour, persistently following someone, delivering 'threatening' letters and 'streaking' or 'mooning'.

To prove a Breach of the Peace the most important things to prove is that someone was Alarmed, Annoyed or Disturbed by the incident.

This offence can take place anywhere i.e. a house, a public street, a private office or any public space.

One of the leading cases in Scots Law is that of Smith v Donnelly, a case concerning a Faslane protester.