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Category: Criminal Defence


Published: 03 February 2021

Section 38 of the Criminal Justice and Licensing (Scotland) Act 2010

 A section 38 offence, essentially a breach of the peace, is one of the most common offences that people are charged with by Police Scotland.

For someone to be found guilty of this offence they must have:

a) Behaved in a threatening or abusive manner,

b) That behaviour must have been likely to cause a reasonable person to suffer fear or alarm, and

c) that person intended the behaviour to cause fear or alarm or was reckless as to whether it would.

These three elements must be present for someone to be convicted of a section 38 offence.

This offence covers a whole manner of actions such as shouting, swearing, uttering threats, or even brandishing a knife.

There is, however a defence to this criminal act. A person can be acquitted of a section 38 offence is they can show that the behaviour was, in the particular circumstances, reasonable.

For example, it may be the case that indeed someone was shouting and swearing and it caused someone to suffer fear or alarm, however they may have been provoked, or it was in the context of an argument and may perhaps be found to be reasonable.

Therefore, if you have been charged with a section 38 offence, you may have more options than you think and a defence could be available to you.

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