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A: It is often not that simple, once you have made a complaint, it cannot simply be withdrawn.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,.

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:

  • Abusive or threatening behaviour
  • Domestic abuse
    • S38 Domestic, eg your partner/wife/ex-partner feels threatened
    • An assault on a partner  whilst shouting and screaming
    • Altercations with partner/ex-partner whilst shouting and screaming
    • Neighbour complain of altercation and call police
    • Wife calls police on partner / Husband calls police on partner
  • Shouting and swearing
  • Fighting
  • Engaging in a stand-up fight in the house or in the street. 
  • Challenging others to a fight / “a square go
  • Disorderly conduct

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 (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. 

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.