Section 38 offences (aka “Breach of The Peace”)
Scottish law says you can be charged with breach of the peace for disorderly conduct, or any behaviour which is likely to cause disturbance, fear or alarm to others. This charge comes from Section 38(1) of the Criminal Justice and Licensing (Scotland) Act 2010.
Some of the reasons you might find yourself facing a charge under Section 38 include shouting, swearing, sending abusive messages, producing weapons or serious violent behaviour. These cases can be brought directly and will often need legal advice to be dealt with correctly.
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The reason that these cases need to be carefully dealt with is that a Sheriff or Justice of the Peace simply needs to be satisfied that conduct was likely to cause fear and alarm to a reasonable person, there doesn’t need to be actual proof that witnesses were concerned by what they saw. A good defence lawyer is a great investment in these cases and legal aid may be available to cover your costs.
Section 38 charges
The way this law is written means there is a defence against a charge under Section 38 if you can prove that your behaviour was, in fact, reasonable. You may also be able to claim your actions were in self-defence. However, this is not easily done and requires a careful approach. If you have been charged with breach of the peace and believe you may be able to use this proviso, then call Matthew Berlow now for advice and support.
If you are found guilty of one of these charges under criminal law, perhaps because you have been poorly advised or taken no advice at all, then the maximum penalty is 12 months imprisonment, a fine of up to £5000, or both. Prosecutions under the common law are dealt with by the Justice of the Peace court and have sentences of 60 days imprisonment or a fine of up to £2500 available.
In very rare cases an offence may be prosecuted in an indictment – This brings a sentencing level of up to five years imprisonment.
Long sentences are unusual in breach of the peace cases, unless the accused is breaking the terms of an existing licence from a previous case. However, a breach of the peace case in Scotland can leave you with a criminal record that disqualifies you from certain jobs or opportunities. Getting great legal advice now increases the chances of negotiating down a charge.
Call the team at Matthew Berlow – we’re ready and waiting to help.