Breach of the peace
Publié le 05/10/2012
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Normand 1992 SCCR 14, for a leisure centre (Farell v Normand 1992 SCCR 859), for a police station (Carmichael
v Monaghan 1986 SCCR 598), for a court of law (Dyce v Aitchison 1985 SCCR 184) or for an omnibus (McLean v
McNaughton)
The extensive definition of breach of the peace is incompatible with the article 7 of the European Convention on
Human Rights.
Indeed the jurisprudence of the European Court of Human Rights requires that an offence must
be clearly defined in law for example in Kokkinakis v Greece (1993) 17 EHRR 397 at 423.
Forced by the European law, the notion of breach of the peace must be clarified.
II.
An instrument of social control more and more limited by its precision
A.
Breach of the peace was remodelled in Scottish internal law.
Indeed breach of the peace has been clarified and narrowed by the decision of the Appeal Court in Smith v
Donnelly in 2001.
The opinion of the court reflects the jurisprudence of the European Court of Human Rights.
In this case, the actus reus of breach of the peace requires “conduct which as genuinely alarming and
disturbing, in its context, to any reasonable person”.
Conduct will be “alarming and
disturbing” that on certain conditions as the continuity of a serious disturbance (Jones v Carnegie 2004
SCCR 361) or its repetition.
But the context in which the alarming conduct is also very important.
The court in
Jones v Carnegie refers to “the place, time and circumstances in which it occurs”.
The Appeal
Court in Smith v Donnelly also specified the actus reus in diverse situations as the use of bad language or as a
refusal to co-operate with officers of the law.
In other words sufficient details must be given to comply with the
article 7 of the European Convention on Human Rights..
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