Breach of the Peace

Primary Definition

The primary definition of breach of the peace was laid down in the late nineteenth century in Ferguson v Carnochan. Although this decision is less commonly referred to by modern courts than was formerly the case, the more recent definitions, which now enjoy considerable popularity, are predicated upon it.

‘Breach of the peace consists in such acts as will reasonably produce alarm in the minds of the lieges; not necessarily alarm in the sense of personal fear ...’.

The words 'to the alarm of the lieges' in a charge of breach of the peace mean that what is alleged was likely to alarm ordinary people, and if continued might cause serious disturbance to the community’.  

The Present Position

Today there must be some form of human conduct; but there is no limit to the precise form which it must take. Conduct which can be described as disorderly, or as a breach of public order or decorum, will certainly be sufficient; but such conduct is not necessary. Of equal importance is the effect which the conduct has or is likely to have. It is again not necessary (but sufficient) that what the accused does should actually cause a significant disturbance of the peace of a ‘neighbourhood’, or ‘mischief’ to the accused himself or to other people (by way of reprisal or otherwise). Further, it is not necessary (but sufficient) that the accused’s conduct should actually cause alarm to other people that their own safety will be compromised, or that such disturbance or mischief as stated above will probably follow if the accused is permitted to continue so conducting himself; but where such alarm is proved, it will be tested by considering whether it was reasonable for alarm to be registered in the circumstances. If there is no proof of such disturbance, mischief or alarm in fact, it is still possible to convict, provided that the accused’s conduct is thought reasonably likely to have caused one of those three things if it had been allowed to continue.

It will be appreciated that the offence is very wide. Neither the nature of the required conduct nor its effect (in fact or on the minds of others) is defined with any great precision.

Prepared by Peter Watson