Breach of the peace
Breach of the peace is a Scots common law crime: conduct severe enough to cause alarm to ordinary people and threaten serious disturbance to the community. It needs a public element, so since 2010 private conduct is usually charged as threatening or abusive behaviour instead.
Law checked as at 25 September 2026. Legal information only, not legal advice, and not a prediction of any sentence.
At a glance
| Also known as | BOTP, Breach of peace |
|---|---|
| The law | Common law of Scotland |
| Where it is tried | usually prosecuted under summary procedure in the JP court or the sheriff court. It can competently be prosecuted under solemn procedure, but this is rare. Minor cases may be dealt with by a police direct measure instead of prosecution. |
| Maximum penalty | Breach of the peace is a common law crime, so there is no single statutory maximum: the limit depends on the court that deals with it. JP court: up to 60 days' imprisonment and/or a fine of up to £2,500. Sheriff court under summary procedure: up to 12 months' imprisonment and/or a fine of up to £10,000. Sheriff and jury (solemn procedure): up to 5 years' imprisonment and/or an unlimited fine, and the sheriff can remit (send) the case to the High Court for sentence if more is merited. High Court of Justiciary: up to life imprisonment and/or an unlimited fine. |
Maximum penalties are the most a court can impose for the worst cases. Most sentences are far lower, and the actual sentence depends on the facts, any guilty plea and the court's assessment.
What the prosecution must prove
- That the accused engaged in conduct such as shouting, swearing, fighting or aggressive behaviour
- That the conduct was severe enough to cause alarm to ordinary people and threaten serious disturbance to the community, not merely irritation or annoyance
- That there was a public element: the conduct happened in public, or in private where there was a realistic likelihood of it being discovered
- That there is evidence of actual alarm, or that the conduct would be alarming to a reasonable person who saw or heard it
- That the accused is identified by corroborated evidence
Defences and common issues
- No public element: the conduct took place in private with no realistic prospect of it becoming public.
- Conduct not serious enough: behaviour that was merely rude, annoying or irritating does not meet the test.
- Freedom of expression and assembly: peaceful protest and speech are protected by Articles 10 and 11 of the European Convention on Human Rights, which the court must respect.
- Identification or self-defence, for example where the accused was defending themselves in a fight.
Frequently asked questions
What counts as breach of the peace in Scotland?
Breach of the peace is conduct severe enough to cause alarm to ordinary people and threaten serious disturbance to the community. Typical examples include shouting and swearing aggressively in the street, fighting in public, or behaving in a way that frightens passers-by. Merely annoying or offensive behaviour is not enough. There must be a public element, and the court needs evidence of actual alarm or that the conduct would alarm a reasonable person.
Can I be charged with breach of the peace for something in my own home?
Only if there is a public element, for example if the disturbance could be heard in the street or by neighbours in a way that could realistically cause public alarm. Courts have held that breach of the peace needs this public element. Behaviour inside a home that does not meet that test is now usually charged as threatening or abusive behaviour under section 38 of the Criminal Justice and Licensing (Scotland) Act 2010, which does not require a public element.
Is swearing at the police a breach of the peace?
Not automatically. Swearing alone may not be serious enough to cause alarm to ordinary people or threaten serious disturbance, and courts consider whether police officers, who are used to such behaviour, were actually alarmed. It depends on the circumstances, such as whether members of the public were present and alarmed, how aggressive the behaviour was, and whether it was likely to cause disorder. Aggressive threats may instead be charged under section 38 of the 2010 Act.
Can breach of the peace be dealt with by a fixed penalty?
It can. Under the Lord Advocate's guidelines, police may deal with an adult suspected of breach of the peace by issuing an antisocial behaviour fixed penalty notice or a Recorded Police Warning instead of reporting the case to the Procurator Fiscal. Neither is a criminal conviction. Cases involving domestic abuse, hate crime, or persistent conduct that causes people to fear for their safety are excluded and must be reported to the Fiscal.
What is the maximum sentence for breach of the peace?
Breach of the peace is a common law crime, so the maximum depends on the court. Most cases are dealt with summarily: the JP court can impose up to 60 days' imprisonment or a £2,500 fine, and a sheriff up to 12 months or a £10,000 fine. In the rare cases prosecuted on indictment, a sheriff and jury can impose up to five years and the High Court up to life imprisonment.
Official sources
Primary sources and official guidance on this topic, for anyone who wants to read the underlying rules directly.
- Scottish Government: Scottish Crime Recording Standard, Group 6 (anti-social offences)
- COPFS: Lord Advocate's guidelines on the use of police direct measures for adult offenders
- Criminal Justice and Licensing (Scotland) Act 2010, section 38
- Scottish Sentencing Council: Maximum and minimum sentences
- Criminal Procedure (Scotland) Act 1995, Part I (jurisdiction and sentencing powers of the courts)
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