???Have the courts clarified the definition of breach of the peace or does it still remain uncertain in scope???
Breach of the peace is the state that occurs when harm is done or likely to be done to a person or (in his presence) to his property, or when a person is in fear of being harmed through assault, affray, or other disturbance. At common law, anyone may lawfully arrest a person for a breach of the peace committed in his presence, or when he believes that a person is about to commit or renew such a breach.1
Breach of the peace can be committed in a wide variety of circumstances and situations and in many cases is considered to be a minor crime. It has been said a single, comprehensive definition
that would cover every option and circumstance is not likely to be possible. One of the reasons why breach of the peace is such a broadly defined crime is that there is no exact conduct needed for the actus reus. Each case – situation is judged on its own individual facts and circumstances
In the case of Raffaelli v Heatley the accused was charged conducting himself in a disorderly manner by peering in at a lighted window of a house at night and putting residents in the
street in a state of fear and alarm and committing a breach of the peace. Raffaelli v Heatley is considered the starting point of the modern law of the breach of peace although Smith v Donelly2 is the main case that established the basis of breach of the peace. ???conduct which presented as genuinely alarming and disturbing, in its context, to any reasonable person (per Lord Coulsfield at paragraph 17).??? Prior to this case breach of the peace was vaguely defined as one applying to virtually any conduct which caused (or was reasonably likely to cause) alarm, annoyance, upset or embarrassment to another person or persons. The case of Smith v Donelly redefined the crime as ??? that conduct had to be severe enough to cause alarm to ordinary people and threaten serious disturbance to others. ??? It is obvious from this definition that no evidence of actual alarm or disturbance is required as long as the conduct meets the test. The words
???reasonable person??? are important since it shows the test is an objective test. This redefinition and this conduct test overruled some previous cases3; which the conduct would not be enough to charged by breach of the peace; since they may have caused embarrassment or annoyance but not a reasonable amount of alarm or disturbance. Smith v Donelly was a big step the courts took towards clarifying the definition of breach of the peace.
The matter of ???Discoverability??? is another point which caused controversy between the decisions of the judges. There has been different decisions by courts regarding the question that can breach of the peace be committed in private Some cases such as Young v Heatley4 Matthews and Rodden v Linton5 accept that breach of the peace can be committed in private. Young v Heatley was a case where headmaster was charged with the crime of making inappropriate comments of a sexual nature to students in the school. He was charged with breach of the peace. The accused stated the following objection:???The complaint is irrelevant in respect that the charges libeled as set forth in the complaint do not amount to a common law breach of the peace.??? but the headmaster was found guilty. In this case the headmaster was in a private room with his pupil; there wasnt a public disturbance at stake. The public element necessary for the crime of breach of the piece is emphasized in many cases. ???where something is done in breach of public order or decorum which might reasonably be expected to lead to the lieges being alarmed or upset or tempted to make reprisals at their own hand??? . Authorities before the young v heatley case such as Ferguson v Carnochan and Raffaelli v Heatly and authorities since such as Smith v Donnelly and Paterson v HM Advocate have pointed out that public element necessary in order for it to be a breach of the peace crime. Or even if the conduct took place in private there should be a reasonable risk of the conduct being discovered. Which didnt apply to the case of young v heatley. In the case Ferguson v Carnochan Lord Maclaren said ???The clearest case of breach of the peace consists in engaging in hostilities either in the street or in a private ground, for I agree that it makes no difference whether the offense be committed in a public or private place, provided the lieges be alarmed. But breach of the peace is not confined to acts of this description. Breach of the peace means breach of public order and decorum. All accompanied by the qualification that it is to the alarm of the public. Articulate noises and cries not calculated to be offensive to anyone have been held not to amount to breach of the peace . On the other hand brawling is of such a kind as to be offensive and alarming , it is not necessary those who hear it should be uttered in a noising manner so as to cause reasonable apprehension in the minds of those who hear it that some mischief may result to the public peace. ??? Lord Maclaren underlines the public disturbance needed in a breach of the peace crime. Even if the conduct occurs in private, as long as there is a public annoyance, disturbance and alarm involved it is breach of the peace. A very recent case Harris v HMA overruled young v heatley, by the reasoning that the case of young v heatley ignored the public element needed to make it a breach of the peace crime. In the case of Harris v HMA the appellant has been charged on indictment before the Sheriff Court in Dundee. He has raised preliminary pleas to the relevancy of the indictment, in particular to two charges of breach of the peace contained within it. These charges accused Mark Harris of causing fear and alarm to police inspectors (Gary Brown and Paul Romanowski) by telling them he knew where they lived and other personal details about them and their families. The court decided Mark Harris hadnt committed a breach of the peace since it didnt cause any public disturbance, although may be a crime of another kind, such as threat. The case Harris v HMA is a case that made the crime breach of the peace clearer by overruling young v heatley and making it more specific by making the public element certainly needed in order for it to be a breach of the peace crime.
Breach of the peace is a very broad crime, which the definition of it will never be completely clear or certain. The vague definition of the crime makes it open for interpretation causing conflicts between the decisions of courts and judges. Throughout the progress of breach of the peace in Scottish criminal law some cases (Raffelli v Heatley, Smith v Donelly) brought up new aspects, problems and questions that needed to be solved and answered. Each answer that the courts decided upon was a step closer to clarifying the definition of the crime, by narrowing the definition, making it more precise. The case Smith v Donelly by adding the words ???genuinely alarming??? and removing words such as ???annoyance???, ???embarrassment??? and upset made it a more serious crime, also the ???conduct test??? has a significant role on the redefined crime. Harris v HMA made sure the ???public element??? is present when calling a crime breach of peace by overruling Young v Heatley.
-C.H.W Gane, C.N. Stoddartrt, J. Chalmers, ??? A Casebook On Scottihsh Criminal Law??? 4th edition pages 585-590
-T.H. Jones, M.G.A. Christie ???Criminal Law??? 4th edition pages 364-368
– Jonathan Law BA ???Oxford Dictionary of Law???