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Breach Of The Peace Essay

1414 words - 6 pages

The crime of breach of the peace in Scottish criminal law

The crime of breach of the peace in Scottish criminal law will be explained and it will be shown why the crime has been redefined in recent years. In doing so, various case law and academic opinion will be assessed and it will be shown whether there is a clear definition of such crime or whether it is rather confusing and difficult to establish because of the array of case law that has attempted to define such activity. It will be shown that the law in this area is somewhat ambiguous and produces many problems because of the broad definition of breach of the peace; however it is apparent that much of the case law has attempted to ...view middle of the document...

This evidentially causes much ambiguity and creates harsh debates on this topic.

In accordance, it seems that in many instances the offence of breach of the peace contravenes with ones Human rights under article 6 of the European Convention on Human Rights. Thus, it is provided in this article that the accused must be “informed, promptly, in detail and in language which he understands of the precise nature of the charge against him.” Yet, because of the broadness of the offence it is questionable whether art 6 can be ascertained. Nevertheless, it was argued in the leading case of Smith v Donnelly that the offence was also a breach of article 7 which provides 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.” However it was held in this case that the offence of breach of the peace did not in fact contravene with this article. Here it was stated by Lord Coulsfield that; “there are many ways of committing breach of the peace and it is neither possible nor desirable to derive a comprehensive definition, yet the accused must be shown to have engaged in conduct serious enough to alarm ordinary people and threatened to cause serious disturbance in the community.”

Still, it is apparent that regardless of the attempts which are made to define the offence, because of the wide ranging scope, it is clear that there will be some uncertainty and confusion in this area. What’s more, it is questionable how a person can be guilty of such an offence where they are not aware of doing so. However, the extensive case law over the years have gave some inclination of what kind of activity would amount to breach of the peace which gives some sort of idea what it shall consist of. In Saltman v Allan it became understandable that swearing and shouting would amount to such an offence as also in the case of McMillan v Normand. Yet, in Rafaelli v Heatly peering in at lighted windows was found to be an offence and in Wyness v Lockhart stopping people in the street and asking for money was. Arguably, it does however seem that the extensive array of cases do not exactly give a definition per se as it seems that any type of behaviour can amount to breach of the peace. What’s more, begging in the street is not an offence, yet asking for money is which is rather absurd and creates further uncertainty.

Still, it is felt by many that the offence of breach of the peace is essential in ensuring that there is adequate protection available for the public. This was exemplified by Black who argued that; “private rights are balanced against the general interest of the public since there would be chaos if individuals were allowed to do what they pleased.” Yet it was also said that; “these breach of the peace decisions illustrate that various public rights affect the privately owned solum of...

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