1

Terms of Section 38

Section 38 of the Criminal Justice and Licensing (Scotland) Act 2010 establishes an offence of
partaking in ‘threatening or abusive behaviour’. Subsection 1 specifies that it’s an offence for a
person to behave in a ‘threatening or abusive manner where that behaviour would be likely to cause
a reasonable person to suffer fear or alarm, he or she either intends by the behaviour to cause fear
or alarm or is reckless as to whether the behaviour would cause fear or alarm.’1 Subsection 1 refers
to any behaviour, things said or done and can manifest in single or multiple acts.2 Subsection 2 states
that a defence can be made if the behaviour, considering the circumstances was ‘reasonable’.3 The
facts in Baig v Harvey exemplify a typical s38 contravention.

The Facts in Baig v Harvey

The appeal case4 concerned a conviction of a breach of s 38 (1) of the 2010 act where the appellant
(along with his brother) involved himself in an altercation with two parking attendants after
receiving a penalty charge. The appellant threw the parking ticket to the ground and his behaviour
towards the attendants was described as ‘confrontational’, ‘aggressive’ and ‘verbally abusive’5.
Moreover, the accused followed the attendants to their vehicle after saying ‘Ye, I'll follow you about,
it's alright’; ‘Ye, I will, I will just follow youse down the road then’ and ‘Now you can't handle it, no
it's okay, we'll just, I'll go wherever youse want to’.6 The appellant also accused one of the
attendants of calling him a ‘foreign p[***]k’,7 using the phrase repeatedly on the phone to the
police. Finally, the appellant was shouting at members of the public ‘watch out guys there's a couple
of racist traffic wardens over here…’8 Having considered all the evidence, including an audio-video
recording of the incident lasting over seven minutes, the appeal was refused.

The Defence Created by s 38 (2)

in relation to the defence, context is paramount. Subsection 2 of s 38 provides that for a defence it
must be shown that ‘the behaviour was, in particular circumstances, reasonable’.9For example, a
person who acts in a threatening and abusive manner towards another who perhaps, is committing
a serious offence would not be guilty of breaching s38 under the defence in subsection 2. But if the
same conduct was reported to have happened in a church, that person would likely be guilty.

In Relation to Breach of the Peace

Courts commonly deal with breach of the peace cases but nowadays, following the introduction of s
38, they are becoming less common.10 The high quantity of these cases was due to the multitude of
acts which could constitute the offence.11 This raised valid inquiry as to what exactly embodies a

1
Criminal Justice and Licensing (Scotland) Act 2010, s 38 (1)
2
ibid s38 (3)
3
ibid s38 (2)
4
Baig v Harvie [2015] HCJAC 109; 2016 S.L.T. 67; 2016 S.C.L. 108
5
2016 S.L.T. 67 at 68
6
ibid
7
ibid
8
ibid
9
Criminal Justice and Licensing (Scotland) Act 2010, s 38 (2)
10
Pamela R Ferguson and Claire McDiarmid, Scots Criminal Law: A Critical Analysis (2edn, Edinburgh University
Press 2014) 426
11
ibid 416
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breach of the peace. The uncertainty peaked in the well-known case of Smith v Donnelly12 where
the accused argued that a breach of the peace charge could cover a range of behaviours so vast, that
it violates article 7 of the European Convention on Human Rights (ECHR). Article 7 states that ‘no
one shall be held guilty of any criminal offence on account of any act or omission which did not
constitute a criminal offence under national or international law.’13 The argument here was that
breach of the peace is an ‘all-encompassing charge which has been used to cover any type of
behaviour deemed inappropriate…and is therefore too vague to be aligned with the [Convention].’14
Lord Coulsfield, concerning this case, contended that defining what exactly the requirements are for
a breach of the peace conviction is an impossibility. Also, with reference to older cases (Ferguson v
Carnochan15, Raffaelli v Heatly16 and Young v Heatly17), he laid out an objective test which must be
met in order for a breach of the peace conviction to be made. The conduct must be ‘…severe enough
to cause alarm to ordinary people and threaten serious disturbance to the community.’18 These
criteria became the hallmarks of a breach of the peace offence. Nevertheless, that test has fallen
under scrutiny in several cases based on both a lack of a mens rea19 and the absence of a public
element20. S 38 of the 2010 act was passed with these critiques in mind, filling in the gaps and
necessarily resolving the problems highlighted above. It is separate from, but has effectively
replaced breach of the peace.

12
Smith v Donnelly [2002] JC 65
13
ECHR art.7 1
14
Smith v Donnelly [2002] JC 66
15
[1889] 16 R (J) 93
16
[1949] JC 101
17
[1959] JC 66
18
ibid at 71 per Lord Coulsfield
19
See Butcher v Jessop 1989 JC 55, where fighting broke out between players on the pitch of a football match.
The court ruled that proving intention wasn’t necessary and that the accused’s conduct should be deliberate
and carried out with knowledge of the context.
20
See Hatcher v Harrower 2011 JC 90, where ‘oral abuse’ and ‘unruly behaviour’ directed at one domestic
partner by another in a family home while children were present did not constitute breach of the peace due to
a lack of disturbance to the community.