Scotland · Breach of the peace
LJBD / CASE / 001 · Checked 1 August 2026
2002 JC 65
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
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.
This wording is this site's synthesis of the identified reasons. It is not presented as a quotation unless the judgment itself is opened and the exact words are checked.
Paragraph guide
Paragraph numbers are navigation aids. Read the surrounding facts, submissions and disposal before extracting a proposition.
The court sets out the Article 7 principles of legal certainty and reasonable foreseeability.
The central two-part formulation and the objective reasonable-person standard.
Where nobody was actually alarmed, the conduct must still be flagrant. Mere bad language is insufficient.
The existence of difficult borderline cases does not make the offence legally uncertain.
Cautions about bad language, refusal to cooperate, private conduct, freedom of expression and fair notice of the conduct relied upon.
Inconsistent police practice does not alter the legal test. The preliminary appeal was refused.
Result
The appeal was refused. The preliminary Convention challenge failed and the prosecution was permitted to continue. The court was not deciding that the alleged conduct had been proved at trial.
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.
Application no 39013/02
Applying legal-certainty principles drawn from Article 7 by analogy under Article 5(1), the court held that the Scottish breach-of-the-peace offence as clarified in Smith was sufficiently accessible and foreseeable, and declared the Article 5 complaint manifestly ill-founded.
Open later authority2004 JC 136 · [2], [10] to [13]
The five-judge court approved the objective test and confirmed that proof of actual alarm is unnecessary.
Open later authority[2009] HCJAC 80 · [13] to [15]
Harris clarified that the reasonable-person wording does not replace the community limb. Both parts of the Smith test must be met.
Open later authorityScope of check: Open-source treatment check completed on 1 August 2026. No later authority located in that check displaced the central test, but the list is not a complete subscription citator.
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.