Section 38 – “likely to cause a reasonable person to suffer fear or alarm.” sending several threatening letters over the course of various days or weeks). shouting and swearing aggressively at one’s partner during a single argument) or a course of conduct (e.g. S38(3)(b) says that the behaviour in question can either be a singular act (e.g.
So, words alone (spoken or written) could be enough. S38(3)(a) makes it clear that the actus reus of this offences is “behaviour of any kind including, in particular, things said or otherwise communicated as well as things are done”. What constitutes a “threat” or “abuse” depends on the particular circumstances of the case. The behaviour only needs to be threatening or abusive, not both. Elements of a Section 38 chargeĪs with the old breach of the peace type cases, there is a wide range of situations that could be threatening or abusive in any given context. As such behaviour was perceived to be an important element of domestic abuse, and given the zero-tolerance approach to such domestic crimes the Scottish Parliament intended s38 to make sure that the perpetrators of domestic crimes could be convicted. In other words, disorderly (but not necessarily physically violent) behaviour taking place in private would not be covered by the common law of breach of the peace.
Section 38 was designed to close what was regarded as a technicality or loophole in the law whereby if a disturbance or breach of the peace took place in a private setting for example at home and not in public then the law could not cover that scenario. A: Section 39 is more stalking and harassment, hanging about peoples houses or work.
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