The modern actus reus of breach of the peace

What constitutes a breach?

In the leading case of Smith v Donnelly, the Court held that the actus reus of breach of the peace requires “conduct severe enough to cause alarm to ordinary people and threaten serious disturbance to the community”. In addition to causing alarm, the conduct must be “something substantially greater than mere irritation”, adding that “what is required… is conduct which does present as genuinely alarming and disturbing, in its context, to any reasonable person”. Breach of the peace is designed to protect the community at large, not guard against an affront to individuals based on their own character.

Smith v Donnelly also made general observations on the actus reus of the crime. In particular, the court brought attention to the need for a robust approach to cases involving the use of bad language’, and to the unlikelihood of a refusal to co-operate with officers of the law, ‘even if forcefully or even truculently stated’, being sufficient for the offence.

If there is no evidence of actual alarm, the court drew in Harris v HMA, from the opinion of Lord Justice-General Clyde in Young v Heatly that the conduct itself requires to be ‘flagrant’: the conduct should be sufficiently serious to lead to the inference that it would be likely to result in serious disturbance of the community.

Harris expanded that the test for breach of the peace, focussing on the limits to the crime and establishing that “a clear link between conduct committed in private and it´s possible discovery was required before it could be considered criminal”.

Prepared by Peter Watson