This judgment deals with three appeals simultaneously. This is made clear by the leading case on s38 offences: In other words, it doesn’t matter whether the witnesses to the behaviour were actually scared or alarmed by it, provided that fear or alarm would have been a reasonable reaction in the circumstances. The “reasonable person” part means that the behaviour is to be judged objectively. “Alarm” suggests more than mere surprise at the behaviour an element of concern is implied. “Fear or alarm” means that only one of the two is required, not both. “likely to cause a reasonable person to suffer fear or alarm” sending several threatening letters over the course of various days or weeks). shouting and swearing aggressively at one’s partner during a single argument) or a course of conduct (e.g. S38(3)(b) says that the behaviour in question can either be a single act (e.g. For example, I have represented people charged with s38 offences for sending false bomb threat letters to schools and to the operator of the Forth Road Bridge. So, words alone (spoken or written) could be enough. S38(3)(a) makes it clear that the actus reus of this offences is “behaviour of any kind including, in particular, things said or otherwise communicated as well as things done”.
What constitutes a “threat” or “abuse” depends on the particular circumstances of the case. The behaviour only needs to be threatening or abusive, not both. The press reports from the time were clear on this point:įrom the terms of the statute at the top of the page, we can see that a s38 offence has the following elements:Īs with breach of the peace, there is a vast range of actions that could be threatening or abusive in any given context. As such behaviour was perceived to be an important element of domestic abuse, the Scottish Parliament intended s38 to make sure that the perpetrators of such abuse could be safely convicted. In other words, disorderly (but not necessarily physically violent) behaviour taking place in private would not be covered by breach of the peace. S38 was designed to close what was regarded as a loophole in the law relating to the public element of breach of the peace. Indeed, it is commonly referred to as “statutory breach of the peace”. It has effectively replaced the crime of breach of the peace (although breach of the peace still exists), given the significant degree of overlap between the two. Since coming into force on 6th October 2010, “section 38” has become one of the most common charges in Scottish criminal law, if not the most common.
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