Public decisions should survive public questions.

Scottish case-note library
LJLet Justice Be DoneQuestions before conclusions

Selected Scottish authorities

LJBD / CASE NOTES / PUBLIC READING AIDS

Read the point.
Then read the case.

Each note identifies the court, citation, issue, proposition, relevant paragraphs, result, limits, later treatment and date checked. It is designed to prevent a case name from being used as a slogan.

Open the case register

The reading rule

The judgment controls. The note tells you where to look.

A case note is a reading aid, not a substitute for the court's reasons or a complete citator. Later treatment records selected authorities found during the stated check. It does not promise that every later mention has been found.

Case register

7 decisions, proposition by proposition.

The first collection concentrates on the boundary between civil wrongs and crimes, breach of the peace, threatening or abusive behaviour, harassment and assault.

01

Breach of the peace

3 case notes

Appeal Court, High Court of Justiciary28 September 2001Verified against official judgment

Smith v Donnelly: the modern test for breach of the peace

2002 JC 65 · 2001 SLT 1007 · 2001 SCCR 800 · BAILII database: [2001] ScotHC 121

Issue
Was the Scottish common-law crime of breach of the peace so vague and unpredictable that it failed the certainty requirement in Article 7 of the European Convention on Human Rights?
Precise proposition
Breach of the peace requires conduct severe enough to cause alarm to ordinary people and threatening serious disturbance to the community. The assessment is objective and contextual. The conduct must be genuinely alarming and disturbing to a reasonable person. Irritation, annoyance, bad language or truculent refusal to cooperate is not automatically sufficient.
Open the paragraph-led note
Appeal Court, High Court of Justiciary, five judges4 May 2004Verified against official judgment

Jones v Carnegie: actual alarm, context and private conduct

2004 JC 136 · 2004 SLT 609 · 2004 SCCR 361 · BAILII database: [2004] ScotHC 25

Issue
Must the Crown prove that somebody was actually alarmed, and how do context, protest rights, private conduct and fair notice affect the objective breach-of-the-peace test?
Precise proposition
Actual alarm is neither essential nor conclusive. The court assesses the conduct objectively in its place, time and circumstances. For conduct in private, there must be evidence of a realistic risk of discovery. Conduct that is merely offensive or disgusting is insufficient without the required serious and public character.
Open the paragraph-led note
Appeal Court, High Court of Justiciary, five judgesAllowed 22 July 2009; reasons 8 October 2009Verified against official judgment

Harris v HM Advocate: why breach of the peace needs a public element

[2009] HCJAC 80 · 2010 JC 245 · 2009 SLT 1078 · 2010 SCCR 15

Issue
Could words spoken privately to individual police officers amount to breach of the peace merely because they were objectively alarming and allegedly caused fear, without a threatened disturbance to the public peace?
Precise proposition
The two requirements in Smith are conjunctive. Conduct must be severe enough to cause alarm to ordinary people and cause or threaten serious disturbance to the community. A private communication does not become breach of the peace merely because it is disturbing, alarming or threatening. Private conduct requires a realistic risk of discovery and a sufficient connection to disturbance of the public peace.
Open the paragraph-led note
02

Threatening or abusive behaviour

1 case note

Appeal Court, High Court of Justiciary, five judges14 August 2014Verified against official judgment

Paterson v Harvie: the objective section 38 test

[2014] HCJAC 87 · 2015 JC 118 · 2014 SLT 857 · 2014 SCCR 521

Issue
Does section 38(1)(b) require proof that a real person actually suffered fear or alarm, or is it enough that the behaviour would be likely to cause a hypothetical reasonable person fear or alarm?
Precise proposition
Section 38(1) has three distinct constituents: threatening or abusive behaviour, objective likelihood of causing a reasonable person fear or alarm, and intention or recklessness concerning fear or alarm. Actual fear or alarm is not an element. The effect on an actual observer is legally irrelevant to section 38(1)(b), although evidence of reaction may still help prove what occurred and its context.
Open the paragraph-led note
03

Civil harassment

2 case notes

First Division, Inner House, Court of Session18 May 2011Verified against official judgment

Marinello v City of Edinburgh Council: reading a course of harassment as a whole

[2011] CSIH 33 · 2011 SC 736 · 2011 SLT 615 · [2011] IRLR 669

Issue
At the pleading stage, could an alleged incident in 2007 form part of the same course of workplace-related conduct as incidents in 2004 and 2005, and what questions must a section 8 harassment claim answer?
Precise proposition
A section 8 claim must support three conclusions: a course of conduct, harassment, and either intention or circumstances in which a reasonable person would regard the conduct as harassment. Evidence is considered in the round. It is the course as a whole that must amount to harassment, so each individual incident need not independently do so. Intention or the reasonable-person limb may be inferred from the evidence.
Open the paragraph-led note
Outer House, Court of Session24 January 2012Verified against official judgment

Moulds v Reid: mixed conduct, pleadings and limitation

[2012] CSOH 13

Issue
Could correspondence, silent calls and an alleged act near the pursuer's home potentially form one course of conduct, and could identity, awareness and the three-year limitation questions be decided without hearing evidence?
Precise proposition
At procedure roll, factual averments are assumed true unless demonstrably irrelevant. Different kinds of alleged conduct may potentially form one course of harassment, but that inference is tested on evidence. Suspicion is not necessarily the statutory awareness that starts time running. Where identity, awareness, limitation and the merits are intertwined, neither dismissal nor a separate preliminary proof may be appropriate.
Open the paragraph-led note

What “later treatment” means

A verb should describe what the later court actually did.

Applied or followed

The later court used the earlier proposition in reaching its reasoning or result.

Quoted or explained

The later court reproduced or discussed the proposition. That does not necessarily mean the facts or outcome were the same.

Distinguished or limited

The earlier authority remained relevant, but the later court explained why it did not decide the point before it in the same way.

Overruled

A competent later court rejected a proposition. The note must identify the extent, not merely attach a warning label to the whole case.

Continue the research

Move between cases, legislation and the question that led you here.

Open the Scottish Police Law IndexSearch the whole siteRead the checking method