Breach of the Peace (s.38/s.39)

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Section 38/39 Lawyers


The offence known as threatening and abusive behaviour (s.38 of the Criminal Justice and Licensing (Scotland) Act 2010) is the most frequently prosecuted offence in Scotland. As such, Graham Walker Solicitors, an extremely busy Glasgow-based practice, have practically unrivalled experience defending those charged with the offence.

We also have extensive experience defending clients accused of offences closely related to s.38, namely that of Stalking (s.39 of the Criminal Justice and Licensing (Scotland) Act 2010) and the common law crime of Breach of the Peace.

Owing to this experience and proven track record, you will be in good hands and have the best chance of being acquitted in court should you instruct us. 

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What’s the Difference? 

“Threatening & Abusive Behaviour”—Section 38, Criminal Justice and Licensing (Scotland) Act 2010 

The offence under section 38 is defined as acting in a threatening or abuisive manner, which is likely to cause a reasonable person to suffer fear or alarm, whether or not it is intentional or reckless. However, it is a defence for an accused person to show that the behaviour was reasonable. 

On summary complaint, it is possible to be sentenced to 12 months imprisonment, whereas on indictment it is possible to be sentenced to five years imprisonment. 

“Stalking” – Section 39, Criminal Justice and Licensing (Scotland) Act 2010 

The offence under this section is known as “Stalking”. It is defined as engaging in a course of conduct that caused a person to suffer fear or alarm, whether the person knows that the conduct will cause fear or alarm or ought to know given the circumstances. It is also a defence to a charge under section 39 to show that the conduct was reasonable.

The sentencing limits are the same as those defined in section 38: on summary complaint, 12 months; and on indictment, five years.  

What’s the Difference?

Upon first reading, these offences come across as similar; but there are important distinctions between them. Firstly, section 38 does not need to be a course of conduct, though it may be. Conversely, Stalking requires there to be a course of conduct. This means that something requires to be done on at least two occasions. If the cummulative effect of the conduct is to cause the complainer to suffer fear or alarm, and the other requirements of the offence are met, then a conviction can follow. 

Breach of the Peace

Breach of the Peace is a common law crime, which means that its definition is contained with previously-decided cases as opposed to in legislation. It is very similar to the offence under section 38 above.

Broadly speaking, a breach of the peace is defined as conduct, usually in public, that causes, or is likely to cause, a disturbance or for the lieges to suffer fear or alarm. Although this crime used to be the most frequently prosecuted in Scotland, it has now been replaced by section 38. 

Because this offence does not originate from statute, there is no maximum sentence specifically for this offence. However, this does not mean that the sentence is invariably unlimited. Instead, the maximum sentence will be determined by the Court in which in the case is prosecuted. In the Justice of the Peace Court, the maximum sentence of imprisonment is a period of 60 days. In the Sheriff Court, the maximum sentence is 12 months. The sentencing powers of the High Court of Justiciary are indeed unlimited. 


It is important to note that the sentencing rules described above are only those that appear in the sections that define the offences themselves. There are more possibilities; so many, in fact, that they could not be fully described. Please see our guide to sentencing practices here for more information.

Why Choose Us?

Together, we have over 100 years of experience successfully defending clients accused of criminal offences throughout Scotland. We enjoy a stellar reputation as highly-regarded solicitors and will do everything in our power to ensure that you get the best result possible.
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