An introduction of section 38(1) of the Criminal Justice and Licensing (Scotland) Act 2010
Section 38(1) of the Criminal Justice and Licensing (Scotland) Act 2010 is commonly referred to as a “statutory breach of the peace.”
There are three elements that the Crown must prove before an accused can be convicted of a contravention of section 38(1)
- The accused behaves in a threatening or abusive manner,
- The behaviour would likely cause a reasonable person to suffer fear or alarm, and
- The accused either intended the behaviour to cause fear or alarm or was reckless as to whether it would.
This is a very broad offence which can cover anything from shouting and swearing to uttering threats whilst brandishing a knife.
It is a defence if it can be shown that the behaviour was, in the circumstances, reasonable. For example, if an accused and a complainer are involved in an argument and the accused shouts and swears in that content, then it could be argued that the accused’s behaviour was, in the circumstances, reasonable.
McGovern Reid have vast experience representing individuals accused of a contravention of section 38(1), including when the offence is aggravated by alleging domestic abuse against a partner or ex-partner, and you should contact our 24/7 helpline on 01698 359 550 to discuss your options further.