Threatening or abusive behaviour
Under section 38 of the Criminal Justice and Licensing (Scotland) Act 2010, it is an offence to behave in a threatening or abusive way that would be likely to cause a reasonable person fear or alarm, intending or being reckless about causing it. It applies in public and in private.
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 | Section 38 offence, s.38, Threatening behaviour |
|---|---|
| The law | Criminal Justice and Licensing (Scotland) Act 2010, section 38 |
| Where it is tried | can be prosecuted under summary procedure (JP court or sheriff court) or under solemn procedure (sheriff and jury or High Court). Most cases are dealt with summarily; serious or prolonged conduct may be prosecuted on indictment. |
| Maximum penalty | On summary conviction: up to 12 months' imprisonment and/or a fine of up to £10,000 (the statutory maximum); in the JP court the limit is 60 days and/or £2,500. On conviction on indictment: up to 5 years' imprisonment and/or an unlimited fine. The court can also make a non-harassment order to protect a victim from further harassment. |
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 behaved in a threatening or abusive manner, including things said or otherwise communicated as well as things done
- That the behaviour would be likely to cause a reasonable person to suffer fear or alarm (actual fear or alarm does not need to be proved)
- That the accused intended to cause fear or alarm, or was reckless as to whether it would
- That the behaviour may be a single act or a course of conduct, in public or private
- That the accused is identified by corroborated evidence
Defences and common issues
- Statutory defence: the accused can show the behaviour was, in the particular circumstances, reasonable (section 38(2)).
- The behaviour was not threatening or abusive, or would not be likely to cause a reasonable person fear or alarm.
- The accused did not intend fear or alarm and was not reckless about it.
- Identification: disputing who sent a message or carried out the behaviour.
Frequently asked questions
What is a section 38 charge in Scotland?
A section 38 charge is the offence of threatening or abusive behaviour under the Criminal Justice and Licensing (Scotland) Act 2010. It is committed when someone behaves in a threatening or abusive way that would be likely to cause a reasonable person fear or alarm, and they intend that or are reckless about it. It can be a single incident or a course of conduct, in public or in private, and can include words, messages and actions.
Can I be charged under section 38 for messages or social media posts?
Yes. Section 38 covers behaviour of any kind, including things said or otherwise communicated, so threatening or abusive texts, emails, voice messages or online posts can be charged if they would be likely to cause a reasonable person fear or alarm. Other offences may also apply to communications, such as improper use of a public electronic communications network under section 127 of the Communications Act 2003. Repeated unwanted contact causing fear or alarm could also amount to stalking.
Does the person actually have to be frightened for section 38?
No. The test is whether the behaviour would be likely to cause a reasonable person to suffer fear or alarm, not whether the complainer actually felt it. The prosecution must also prove that the accused intended to cause fear or alarm or was reckless about it. This differs from stalking under section 39, where the course of conduct must actually cause the complainer fear or alarm.
What is the difference between section 38 and breach of the peace?
Both deal with alarming behaviour, but breach of the peace is a common law crime needing a public element, while section 38 is a statutory offence that applies in private too, including inside a home. Section 38 is limited to threatening or abusive behaviour and requires intention or recklessness about causing fear or alarm. It was introduced in 2010 to cover conduct that the courts had held could not be breach of the peace because there was no public element.
Is section 38 used in domestic cases?
Yes, often. Where the behaviour is directed at a partner or ex-partner, the charge can carry a statutory aggravation under section 1 of the Abusive Behaviour and Sexual Harm (Scotland) Act 2016, which the court must take into account in sentencing. Where there is a pattern of abusive behaviour, the separate offence of domestic abuse under the Domestic Abuse (Scotland) Act 2018 may be charged, which carries up to 14 years' imprisonment on indictment. Domestic cases are excluded from police warnings.
Official sources
Primary sources and official guidance on this topic, for anyone who wants to read the underlying rules directly.
- Criminal Justice and Licensing (Scotland) Act 2010, section 38
- Scottish Government: Scottish Crime Recording Standard, Group 6 (anti-social offences)
- Abusive Behaviour and Sexual Harm (Scotland) Act 2016, section 1
- Domestic Abuse (Scotland) Act 2018, section 1
- COPFS: Lord Advocate's guidelines on the use of police direct measures for adult offenders
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