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Section 38

The crime of section 38 of The Criminal Justice and Licensing (Scotland) Act 2010 came into force in October of 2010. It has effectively replaced the crime of breach of the peace (although breach of peace still exists), given the significant degree of overlap between the two. Indeed, it is commonly referred to as a “statutory breach of the peace”.

Breach Of The Peace “Section 38” FAQ

A: Yes. After lockdown started there was an enormous increase in activity due to the pressure of lockdown, almost always in a domestic setting.
A: Normally, we defend persons charged with crimes, such as your partner. However, in certain circumstances, we may be able to liaise with the Procurator Fiscal (PF) on behalf of victims/witnesses in relation to issues they may have with the prosecution of their partner.
A: It is often not that simple, once you have made a complaint, it cannot simply be withdrawn. The Police will be required to investigate and this will take on a life of its own. A warrant could be granted forcing you to attend court. This is why it is vital that you contact us early on about speaking to the PF.
A: In the "lower" court (Justice of the Peace Courts) where the maximum penalties are 60 days imprisonment or a fine of up to £2500. In the Sheriff Court there are two types of cases: Summary case (Sheriff sitting alone) 12 Month maximum and/or a fine of £5000 or another disposal. *or* Solemn Case / Inditement case (Sheriff with Jury, very rare for these type of case ) max is 5 years imprisonment, or a fine of up to £5000, or both. We at Graham Walker Solicitors have a great track record of achieving non-custodial results in these types of cases. Either not guilty or non-custodial.
A: The Crown is required to prove your guilt "beyond a reasonable doubt". They also require to corroborate their case with sufficient evidence. We at Graham Walker solicitors are highly adept at defending such cases and identifying weaknesses that may exist in the case against you. We have a great track record of securing not guilty results or non-custodial disposals. Domestic abuse cases such as s38 are more likely to be prosecuted than other cases as a result of the zero-tolerance approach taken in Scotland.
A: "On September 5th 2020 at 123 High Street, Glasgow, you [name of accused] did behave in a threatening or abusive manner which was likely to cause a reasonable person to suffer fear or alarm in that you did shout and swear, threaten others with violence, and then throw a pint glass at Mrs Smith CONTRARY to Section 38(1) of the Criminal Justice and Licensing (Scotland) Act 2010”
A: The scope of breach of the peace is very wide, ranging from relatively minor allegations (such as throwing a glass of water over somebody) or shouting and swearing or sending abusive text/Whatsapp/Facebook messages (worse if late at night or into the workplace) and very serious allegations of sustained, violent behaviour and brandishing weapons. We deal with more s38 than any other prosecution.
A: Section 39 is more stalking and harassment, hanging about peoples houses or work,.

Section 38 was designed to close what was regarded as a technicality or loophole in the law whereby if a disturbance or breach of the peace took place in a private setting for example at home and not in public then the law could not cover that scenario. In other words, disorderly (but not necessarily physically violent) behaviour taking place in private would not be covered by the common law of breach of the peace. As such behaviour was perceived to be an important element of domestic abuse, and given the zero-tolerance approach to such domestic crimes the Scottish Parliament intended s38 to make sure that the perpetrators of domestic crimes could be convicted.

Elements of a Section 38 charge

“threatening or abusive behaviour.”

As with the old breach of the peace type cases, there is a wide range of situations that could be threatening or abusive in any given context.

The behaviour only needs to be threatening or abusive, not both. What constitutes a “threat” or “abuse” depends on the particular circumstances of the case.

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 are done”. So, words alone (spoken or written) could be enough. 

s38(3)(b) says that the behaviour in question can either be a singular act  (e.g. shouting and swearing aggressively at one’s partner during a single argument) or a course of conduct (e.g. sending several threatening letters over the course of various days or weeks).

Section 38 – “likely to cause a reasonable person to suffer fear or alarm.”

“Fear or alarm” means that only one of the two is required, not both. “Alarm” suggests more than mere surprise at the behaviour; an element of concern is implied. A breach of peace charge is therefore relatively common.

The “reasonable person” part means that the behaviour is to be judged objectively. 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. So, a person with an s38 charge cannot argue that, because witnesses did not themselves suffer fear and alarm, they should be found not guilty.

“[the accused] intends by the behaviour to cause fear or alarm or is reckless as to whether the behaviour would cause fear or alarm.”

Intending to cause fear or alarm (again – only one of the two is required) is clear enough.

Recklessness is a commonly-used word in Scots criminal law. Generally, it means:

  • the accused  consider or the consequences of their actions when they ought to have, or;
  • the accused was indifferent to (i.e. did not care about) the consequences

Penalties for Conviction under S38 Breach of peace

For less serious offences on summary complaint (eg Justice of the Peace Court (laypeople,  not judge usually)  with and Sheriff Summary case), 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 (Solemn cases with a jury),  the sentencing is much greater and these are more serious, 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. 

What defence is there to a breach of the peace charge?


If you are charged with s38, then a defence to it may be that your actions were reasonable in all the circumstances. This is known as the reasonableness defence. Reasonableness depends on the facts and circumstances of each case. There is an evidential burden on the accused person to provide sufficient evidence to the court that their behaviour was reasonable. If that is done then, the prosecution lawyer must prove beyond a reasonable doubt that the defence is not valid.

In Scotland, you can be acquitted as either not guilty or not proven. Our lawyers have experience with many cases that have resulted in both and lead to an acquittal.

Call our specialist lawyers if you have a Breach of the Peace / section 38 charge.

If you are facing a statutory breach of the peace charge / a section 38 charge, then contact us immediately. Our specialist lawyers have a wealth of experience in defending those accused of an s38 charge. 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.

From the very first discussion with Matthew Berlow, I was put at ease. He was very professional at all times. I was delighted at the successful outcome. Excellent work.