There has been a number of reported incidents in the media in the U.K. and around the world of people deliberately spitting and coughing at retail staff and security operatives at retail stores during the Corona Virus pandemic. 
This legal blog will pertain to acts  threatened as opposed to having been  ‘carried out’ as to differentiate between an act threatened and a physical assault carried out in Scots Law. 
A separate legal blog has been written on the subject of physical assault in regards to actions carried out.
A further legal blog will be published shortly on the law in relation to the Emergency Workers (Scotland) Act 2005 and further legal guidance.

What is the law in relation to ‘threatening’ &/or Abusive behaviour?

Previously the law in Scotland was held under the Common Law of breach of the peace when threats were made. The offence was that it was against the public order and decency that we expect a civil society to act out in such a abhorrent manner and as such it was clear that such behaviour was contrary to the common law.

The law in Scotland has somewhat developed rapidly in this area and can now be held under the Scottish statutory instrument (Act of the Scottish Parliament) under Section 38 of the Criminal Justice and Licensing (Scotland) Act 2010

This is commonly referred to as a Section 38 CJLSA

In recent years a charge under Section 38 Criminal Justice and Licensing (Scotland) Act 2010 has become one of the most prosecuted criminal offences in Scotland.

Where someone is accused of threatening or abusive behaviour, instead of being charged with a breach of the peace, individuals are now more likely to be charged under this statutory offence instead. The 2010 Act lays down the type of behaviour likely to form a Section 38 offence.

What is threatening behaviour?

Section 38 states that a person (“A”) commits an offence if-

(a) A behaves in a threatening or abusive manner, 

(b) the behaviour would be likely to cause a reasonable person to suffer fear or alarm, and

(c) A intends by the behaviour to cause fear or alarm or is reckless as to whether the behaviour would cause fear or alarm.”

The types of behaviour likely to be charged under section 38 are similar to what would have been previously charged as a Breach of the Peace (above), clear examples from case law show the following:

  • Shouting and swearing
  • Fighting
  • Abusive or threatening behaviour 
  • Abusive or threatening telephone calls, text messages and social media posts.
  • Disorderly conduct
  • Domestic abuse

Section 38(1) introduced an objective test, which essentially means that if an individual’s conduct was likely to cause a “reasonable person” fear or alarm, then they can be found guilty irrespective of whether or not any of the witnesses were in a state of fear or alarm. This was confirmed through the case of Paterson v Procurator Fiscal Airdrie [2014] HCJAC 87.

Penalties for Conviction under S38

For less serious offences under summary procedure, imprisonment for a term not exceeding 12 months, or a fine not exceeding the statutory maximum, or both can be applied by the courts. Although it was previously rare for this type of criminal charge to be prosecuted on indictment, where the sentencing is more severe, imprisonment for a term not exceeding 5 years, or a fine, or both. 

It should be stated that this aspect of Scots Law shall see judicial developments through numerous cases being reported in the media daily of people being threatened by individual’s claiming to have the deadly corona virus. Again, in most cases previously this type of charge very rarely ended up with a custodial sentence, this will undoubtably be dependant on the nature of the conduct and the individual circumstances of a person convicted. The corona virus is recognised as a potentially deadly infection and as such this will greatly impact upon the future criminal cases.

Defence to Threatening or Abusive behaviour

There is a statutory defence for a person charged with a section 38 offence, and, that is to show that the behaviour was, in the particular circumstances, reasonable

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