Breach of the Peace Scotland

What is a Section 38 Offence?

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

Section 38

In recent years a charge under Section 38 Criminal Justice and Licensing (Scotland) Act 2010 has become one of the most prosecuted criminal offences in Scotland.

Where someone is accused of threatening or abusive behaviour, instead of being charged with a breach of the peace, you are now more likely to be charged under this statutory offence instead. The 2010 Act lays down the type of behaviour likely to form a Section 38 offence.

Namely, threatening or abusive behaviour that is likely to cause a reasonable person to suffer fear or alarm. That behaviour has to be intended to cause fear and alarm or is reckless as to whether the behaviour would cause fear or alarm. The types of behaviour likely to be charged under section 38 are similar to what would have been previously charged as a Breach of the Peace, e.g:

  • Shouting and swearing
  • Fighting
  • Abusive or threatening behaviour
  • Abusive or threatening telephone calls, text messages and social media posts.
  • Disorderly conduct
  • Domestic abuse

Section 38(1) introduced an objective test which means that if your conduct was likely to cause a “reasonable person” fear or alarm, then you could be found guilty irrespective of whether or not any of the witnesses were in a state of fear or alarm. This test was confirmed in the leading case of Paterson v Procurator Fiscal Airdrie [2014] HCJAC 87.


Penalties for Conviction under S38

For less serious offences on summary complaint, imprisonment for a term not exceeding 12 months, or a fine not exceeding the statutory maximum, or both. Although it is rare for this type of charge to be prosecuted on indictment, the sentencing is much greater, imprisonment for a term not exceeding 5 years, or a fine, or both. Please note that most charges of this type will not result in a custodial sentence. It will depend on the nature of the conduct and the individual circumstances of a person convicted.


Defence to Threatening or Abusive behaviour

There is a statutory defence for a person charged with a section 38 offence, and, that is to show that the behaviour was, in the particular circumstances, reasonable. We have an experienced team of criminal solicitors, who had successfully defended numerous cases involving Section 38 offences.

Section 38  Lawyers Scotland

If you have been charged with this, or any other criminal offence, you should call us, without delay, on any of the telephone numbers provided on this webpage to arrange a free initial interview. Along with advice about the charge or charges you may face, we will be able to check your eligibility for Legal Aid. If you do not qualify for Legal Aid we can advise you on our reasonable fixed fees for this type of work. There is no obligation to instruct us at this meeting.