Criminal Law and Practice in Scotland: Breach of Peace
| Published date | 01 January 1959 |
| Date | 01 January 1959 |
| DOI | http://doi.org/10.1177/0032258X5903200108 |
| Subject Matter | Article |
~riminal
Law
and
Practice
in
Scotland:
Breach
of
Peace
THE LAST
ISSUE
of the Justiciary Cases for the year 1957 is now to
hand and it is interesting to look back and see what were the prob-
lems put to the High Court over the past year. One finds that
practically every case of interest to Police Officers referred to in
that volume has already been taken notice of in this
JOURNAL.
A
perusal of these reported cases shows that most of them dealt with
statutory offences and one finds again that there is no reported case
on breach of the peace. This is rather surprising when one pauses
to consider the number of times in a year that offence must be
charged in courts up and down the country. In fact one must go
back.to the case of Raffaelli v. Heatly decided in 1949 and reported
in 1949 J.e. 101 before one finds a reported case on the merits of
this charge.
There is, of course, no difficulty in the ordinary charge. The
standard text-book on Scottish Criminal Law, Macdonald, 5th
Edition, at page 137 deals with this offence under the heading of
"Riot
and Breach of Peace." There we are told that "All riotous
conduct similar to the proceedings which constitute robbing, but in
which concourse, and a common purpose, or either of them are
wanting, are punishable as riots and breaches of the peace." The
next page and a half suggest examples of this offence. The com-
monest form of the offence, that of a disturbance in the public
street, should not occasion any difficulty either in the preparation
or presentation of the case, but what of the many different sets of
circumstances which may give rise to this charge? To dwell for a
moment on the type of case where the element of disturbance pre-
dominates, there seems to be quite a widespread impression that a
man may not be charged with breach of the peace if the only
evidence is that he creates a disturbance in his own house, even if
neighbours complain. Why that should be so is difficult to under-
stand; the question was decided so long ago as 1889. Stated shortly,
the facts in Ferguson v. Carnochan, 1889, 2 White, 278, were that
about 3 o'clock in the morning of a Sunday, two constables heard
the appellant making a noise and disturbance and using loud lan-
guage in his own premises. About an hour afterwards when again
passing the same premises the constables still heard the appellant
January-March 1959 41
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