Scotland · Breach of the peace
LJBD / CASE / 003 · Checked 1 August 2026
[2009] HCJAC 80
The proposition below is deliberately narrower than a general summary. Open the linked decision, read the paragraphs in context and check whether later or higher authority changes the point.
Issue before the court
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.
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Paragraph guide
Paragraph numbers are navigation aids. Read the surrounding facts, submissions and disposal before extracting a proposition.
The dates on which the appeal was heard, allowed and followed by written reasons.
The charges, preliminary pleas and constitution of the five-judge bench.
History of the offence and confirmation that Smith states a conjunctive two-part test.
Private conduct, reconsideration of Young v Heatly and its overruling because it omitted the public element.
Application to the alleged private statements to individual police officers. Private alarm alone was insufficient.
A potential disturbance of a small group may suffice, while private conduct requires a realistic risk of discovery.
Possible alternative charges are identified and the court directs dismissal of the two irrelevant breach-of-the-peace charges.
Result
The appeal was allowed and the sheriff was directed to dismiss charges 13 and 14 as legally irrelevant. This was a pre-trial ruling on the legal relevance of those charges, not an acquittal after evidence had been tested.
Selected later treatment
This is a recorded check, not a complete commercial citator. Each entry identifies the treatment actually found and the date of the overall note check.
[2010] HCJAC 102 · [19] to [22], [32]
The court applied the public-element analysis to private messages, workplace communications, a tracking device and public following, with different conclusions depending on the alleged conduct and audience.
Open later authority[2010] HCJAC 55 · [19] to [22]
A public element existed because the conduct occurred in a publicly licensed taxi and presented a realistic and immediate risk of discovery.
Open later authority[2010] HCJAC 92 · [5] to [11]
A conviction was quashed because severe abuse between spouses in the family home did not threaten the public peace on the evidence led.
Open later authority[2023] SAC (Crim) 5 · [60] to [65]
The court required evidence of a realistic rather than hypothetical risk of discovery, even where the alleged private conduct was highly disturbing.
Open later authorityScope of check: Open-source treatment check completed on 1 August 2026. The selected authorities show continued application of the public-element analysis in different settings.
Source register
Checked 1 August 2026. A broken link does not change the decision, but it does weaken this page as a public reading aid and should be reported for correction.