Scotland · Breach of the peace
LJBD / CASE / 002 · Checked 1 August 2026
2004 JC 136
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
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.
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Paragraph guide
Paragraph numbers are navigation aids. Read the surrounding facts, submissions and disposal before extracting a proposition.
Why five judges were convened and the court's review of Smith and Lucas.
Development of the offence, rejection of a subjective test and confirmation that actual alarm is unnecessary.
Private conduct requires evidence of a realistic risk that it would be discovered.
Actual alarm is not conclusive, and the absence of actual alarm is not fatal.
Place, time, circumstances, protest at the Scottish Parliament and Convention rights of expression and assembly.
Future obstruction and threatened serious disturbance in the Barret protest appeal.
A separate procedural holding concerning a contention that the conduct disclosed no crime at all.
Contrasting applications: Carberry's conduct did not cross the threshold; Park's did.
Result
Jones, Tallents, Barret and Park failed in their appeals and their convictions stood. Carberry's appeal was allowed and his conviction was quashed. The consolidated decision demonstrates that the same legal test can produce different results when context and seriousness differ.
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.
[2009] HCJAC 80 · [15], [20] to [22]
Harris explained that Jones did not reject the two-part Smith test. Jones concerned public-place conduct and had not needed to decide the continuing status of Young v Heatly.
Open later authority[2010] HCJAC 92 · [9] to [10]
The court described the private-discovery statement as obiter in its original context and rejected the idea that every family member automatically formed the relevant public or community.
Open later authority[2023] SAC (Crim) 5 · [61] to [65]
The court required evidence of a realistic risk of discovery. A notional possibility, speculation or conjecture was insufficient.
Open later authorityScope of check: Open-source treatment check completed on 1 August 2026. The note records later clarification of the public element and private conduct, not an assurance that every later mention has been found.
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.