Police Probationer Training Crimes of Disorder PDF

OFFICIAL Unit 4 Lesson 1...

OFFICIAL Unit 4 Lesson 1 Crimes of Disorder Lesson Aim: The learner will be able to differentiate between different types of crimes of disorder Learning Outcomes: Introduction On successful completion of the lesson, students will be able to:- A common crime a police officer will face is a breach of the peace. Unlike many crimes, this 1. Define the crime Breach of the Peace and could be ongoing on police arrival. It is illustrate essential elements important to be able to manage these situations in a professional manner. 2. Outline the offence of Threatening and Threatening and abusive behaviour is also Abusive Behaviour as contained within very common, with similarities to a breach of Section 38 of the Criminal Justice and the peace but also distinct differences that Licensing (Scotland) Act 2010 are significant when analysing the evidence and selecting the more appropriate charge. 3. State police powers in respect of crimes of disorder 4. Identify statutory alternatives to a Breach of the Peace 5. Explain the offence of Stalking as contained in Section 39 of the Criminal Justice and Licensing (Scotland) Act 2010 1 th Amended 25 April 2024 v.8 OFFICIAL  OFFICIAL Unit 4 Lesson 1 Crimes of Disorder Definition of Breach of the Peace “Breach of the Peace is a crime at common law and is constituted by one or more persons conducting himself or themselves in a riotous or disorderly manner, where such conduct is severe enough to cause alarm to ordinary people and threaten serious disturbance to the community.” The Essential Elements for Breach of the Peace 1. Breach of the Peace is a common law crime 2. It can be committed by one or a number of people 3. The conduct of the person or persons must be riotous or disorderly 4. The conduct must be severe enough to cause alarm to ordinary people and threaten serious disturbance to the community The words "severe" and "serious" in the last bullet point above are indicative of the fact that a Breach of the Peace is not considered a trivial crime. You will note that there is nothing in the definition that limits where the crime may be committed. It can take place anywhere, e.g. in a public place, within someone’s house or place of employment - literally anywhere provided there is a "public element" to it. If the behaviour takes place in private, there must be a realistic risk of it being "discovered", i.e. coming to the attention of the community (see Ferguson v Carnochan below and the section on Disorderly Conduct). Riotous Conduct This term indicates that there is an element of noise, rowdy-ism, wild or violent behaviour, etc. Some incidents that courts have held to be competent charges of Breach of the Peace are:- a person who interrupted and disturbed a Salvation Army meeting by conducting himself in a riotous and disorderly manner (Hendry v Ferguson, 20 SLR 659) 2 Scots Criminal Law: Introduction and Investigation OFFICIAL  OFFICIAL Unit 4 Lesson 1 Crimes of Disorder a man who swore and made rude gestures at rival supporters at a football match (Wilson v Brown, 1982, SCCR 49) Disorderly Conduct Disorderly conduct is more difficult to define. The essence of the crime is that the actions of the perpetrator are such that an ordinary person could be placed in a state of alarm and be seriously disturbed. If the behaviour of an individual does this and that behaviour is out with what is normal and acceptable (remember some people are more easily alarmed or disturbed than others), the crime is complete. You will note that the above conduct does not necessarily involve any noise. Case Law It has been held to be a Breach of the Peace for a man to create a disturbance by cursing, shouting and yelling in his own house in the early hours of the morning as it could be heard by witnesses out in the street. (Ferguson v Carnochan, 26SLR 624) It was stated that any refusal to co-operate with the police, even if forcefully or truculently (argumentatively) stated, is not likely to be sufficient in itself to justify a charge of Breach of the Peace. (Smith v Donnelly 2001 SCCR 800) Effect on the Public First, we will consider the effect of the crime on members of the public. Before the crime is complete the conduct of the accused must be severe enough to:- cause (or threaten to cause) at least one member of the public to be alarmed, and threaten serious disturbance to the community. 3 Scots Criminal Law: Introduction and Investigation OFFICIAL  OFFICIAL Unit 4 Lesson 1 Crimes of Disorder Offender Member of the Public Local Resident The behaviour MUST threaten serious disturbance to the community and not just threaten irritation or minor alarm Evidence of actual alarm or that the conduct would be alarming to a reasonable person must be present This can be extended to conduct in private if there is a reasonable likelihood of it being discovered Insulting or abusive language to or concerning another person does not constitute a Breach of the Peace unless persistently accompanied by threats or violence A case in which swearing at a police officer and attempting to walk away twice when told to remain was held not to constitute a Breach of the Peace. This was on the basis that there was no evidence that anyone was alarmed or likely to be alarmed by the conduct. (Kinnaird v Higson 2001 SCCR 427) In cases involving swearing at a police officer with no other associated behaviour, you should carefully consider the surrounding circumstances. If there is nobody else in the vicinity who is likely to be alarmed by the conduct, it is unlikely to amount to a Breach of the Peace. If there are other members of the public present then you should ensure that any police report includes sufficient evidence as to the nature of the conduct and the alarm which has been caused or could potentially be caused to members of the public or the community if the conduct was allowed to continue. There must be something substantially greater than mere irritation involved. Example Charge EC “On 22nd February 2020, at Culzean Square, Brookbank, you LISA TAYLOR, did shout, swear conduct yourself in a disorderly manner and commit a breach of the peace.” 4 Scots Criminal Law: Introduction and Investigation OFFICIAL  OFFICIAL Unit 4 Lesson 1 Crimes of Disorder What Constitutes a Public Element? A public element would include:- Any public place where the public are present Any private place, overheard by the public in a public place When deciding whether to charge someone with a Breach of the Peace you will have to consider the place, time and circumstance of the incident. An offensive remark shouted on a deserted beach will obviously have a negligible effect on the public whereas the same remark shouted during a performance in a theatre may cause alarm to several people. Actual alarm is not required in order for the conduct to amount to a Breach of the Peace. What is required is consideration of whether, in the circumstances, the conduct is of such a degree that it would be genuinely alarming and disturbing in its context to any reasonable person. However, legislation creates the offence of Threatening and Abusive Behaviour which covers situations where there is no public element e.g. domestic abuse incidents often fit these criteria. Threatening and Abusive Behaviour Section 38 of The Criminal Justice and Licensing (Scotland) Act 2010 creates an offence for any person to:- behave in a threatening or abusive manner where the behaviour is likely to cause a reasonable person to suffer fear or alarm and the person behaving in such a manner intends the behaviour to cause fear or alarm or, is reckless as to whether the behaviour would cause fear or alarm This legislation was introduced to close the loophole of a person acting in a threatening manner, which may not have amounted to a Breach of the Peace. It can be committed against a single person It can be committed anywhere including a private dwelling 5 Scots Criminal Law: Introduction and Investigation OFFICIAL  OFFICIAL Unit 4 Lesson 1 Crimes of Disorder This applies to any kind of behaviour including things said or otherwise communicated as well as things done and can also be behaviour consisting of a single act or a course of conduct, i.e. a series of repeated "associated" acts. The offence under Section 38 is not limited by any requirement that the behaviour is capable of causing disturbance to the community and, unlike the crime of Breach of the Peace, may be committed where the behaviour is capable of causing fear or alarm to a single person only. Example Charge EC “On 30th May 2020, at Brookbank Gardens, Brookbank, you TOM HUNTER did behave in a threatening or abusive manner which was likely to cause a reasonable person fear or alarm in that you did shout and swear and act in an aggressive manner. Contrary to Section 38 Criminal Justice and Licensing (Scotland) Act 2010.” Defence A defence is available where a person charged with a Section 38 offence can show that the behaviour exhibited was reasonable in the particular circumstances. The court will decide what is "reasonable" on a case by case basis. Police Powers Breach of the Peace and S38 of the Criminal Justice Licensing (Scotland) Act 2010 are punishable by imprisonment. Therefore, consider using your power of arrest under Section 1 of the Criminal Justice (Scotland) Act 2016. Breach of the Peace is a crime at common law. In minor cases it may be appropriate to use your discretion but you must always be able to justify your actions. 6 Scots Criminal Law: Introduction and Investigation OFFICIAL  OFFICIAL Unit 4 Lesson 1 Crimes of Disorder Depending on the circumstances you may:- Warn the culprit or, Issue a Fixed Penalty Notice, or Report for summons, or Arrest Beyond these actions you may take, there are also things you will need to consider:- 1. The Crown Office advises that where evidence provides a choice between a S38 CJL(S)A 2010 and a Breach of the Peace, a S38 CJL(S)A 2010 should be the preferred charge 2. Although an Antisocial Behaviour fixed penalty notice (FPN) can be issued for a Breach of a Peace, a public element must still be present. (See Direct Measures Lesson in Unit 3) 3. Officers are unlikely to charge an individual with a Breach of the Peace if the conduct was committed only in the presence of Police Officers, however, consideration should be given on a case by case basis Note:- Fixed Penalty Notices cannot be issued for contravention of Section 38 of the Criminal Justice and Licensing (Scotland) Act 2010. Communication C The way you communicate with a potentially volatile situation/crowd could result in resolving or escalating a situation. Providing a police presence can be an effective course of action and assist in monitoring the developing situation. 7 Scots Criminal Law: Introduction and Investigation OFFICIAL  OFFICIAL Unit 4 Lesson 1 Crimes of Disorder Additional Statutory Alternatives to Breach of the Peace There are alternatives to the charge of Breach of the Peace with Section 38 of the Criminal Justice and Licensing (Scotland) Act 2010 being the most common. There are others, as can be seen here:- Section 127 of the Communications Act 2003 Subsection (a):- A person is guilty of an offence if they:- i) send by means of a public electronic communications network a message or other matter that is grossly offensive or of an indecent, obscene or menacing character; or ii) causes any such message or matter to be so sent. Subsection (b):- A person is guilty of an offence if for the purpose of causing annoyance, inconvenience or needless anxiety to another, they:- i) send by means of a public communications network, a message that he knows to be false; ii) causes such a message to be sent; or iii) persistently makes use of a public electronic communications network. Hoax 999 Calls Where a person hinders an emergency service from performing their duties, this could lead to life threatening situations. There are also statutes that cover instances from ‘prank calling’ the emergency services to a person lying with malicious intent to prevent a service from being available, for example:- Section 1-4 Emergency Workers (Scotland) Act 2005 Chapter 7 of the Fire (Scotland) Act 2005 (for incidents involving Scottish Fire and Rescue Service) 8 Scots Criminal Law: Introduction and Investigation OFFICIAL  OFFICIAL Unit 4 Lesson 1 Crimes of Disorder Police Powers These offences are punishable by imprisonment, therefore, consideration should be given to using your powers under Section 1 of the Criminal Justice (Scotland) Act 2016. Activity 1 A1 In your groups, provide examples of conduct you would consider as stalking. Feedback 1 F1 Feedback for this activity will be provided on the following pages. 9 Scots Criminal Law: Introduction and Investigation OFFICIAL  OFFICIAL Unit 4 Lesson 1 Crimes of Disorder Section 39 Criminal Justice and Licencing (Scotland) Act 2010 This section creates the offence of “stalking”. It provides that an offence is committed where a person engages in a course of conduct (i.e. the conduct occurs on at least two occasions) where either:- The conduct is intended to cause fear or alarm, or The person ought to have known the conduct, in all circumstances would cause fear or alarm (recklessness) and It does in fact cause the victim to suffer fear or alarm. The term ‘fear or alarm’ covers physical or psychological harm, or apprehension or fear for the safety of the perceived victim or any other person. It is imperative when officers are reporting a case to the Procurator Fiscal, that the element of fear and alarm suffered by the victim and such impact of the perpetrators conduct is clearly outlined in the SPR. Without this information, the offence would not be complete, and it is unlikely the prosecution could prove the offence. Examples of evidencing fear or alarm, to be included in the SPR, are:- How, or in what way the incident caused the victim to feel fear or alarm Observations of the physical demeanour of victim by any civilian or police witness (distressed, crying, panicked, physically shaking, terrified etc.) where appropriate It should be recognised that not all victims show outward sign of distress and as such, the absence of distress does not mean an incident has not occurred. 10 Scots Criminal Law: Introduction and Investigation OFFICIAL  OFFICIAL Unit 4 Lesson 1 Crimes of Disorder Conduct That May Constitute Stalking For the purpose of the offence "conduct" means:- following the victim or any other person contacting or attempting to contact the victim or any other person by any means publishing any statement or other material relating or purporting to relate to the victim or to any other person or purporting to originate from the victim or from any other person monitoring the use by the victim or by any other person of the internet, email or any other form of electronic communication entering any premises (anywhere occupied by the victim) loitering in any place (whether public or private) interfering with any property in the possession of the victim or of any other person giving anything to the victim or to any other person or leaving anything where it may be found by, given to or brought to the attention of the victim of any other person watching or spying on the victim or any other person acting in any other way that a reasonable person would expect would cause the victim to suffer fear or alarm Note:- It should be recognised that stalking is a common mechanism of abuse in domestic incidents (see Domestic Abuse Lesson in Unit 6). 11 Scots Criminal Law: Introduction and Investigation OFFICIAL  OFFICIAL Unit 4 Lesson 1 Crimes of Disorder Investigation of Stalking Stalking investigations can be complex, often requiring an in depth investigation looking into the history of incidents to identify patterns of behaviour. A failure to recognise a course of conduct or pattern of seemingly innocuous behaviours, will leave the victim at risk of harm. There are four distinct stalking behaviours which can be remembered using the mnemonic FOUR. These behaviours are; Fixated Obsessive Unwanted Repeated Trauma Victims of stalking will experience a range of effects depending on the; Nature of the stalking Relationship with the stalker Their own characteristics and social circumstances And the response of services Violence is not necessarily the primary concern for the victim, the persistence and recurrence may cause more distress and concern The psychological and social damage to victims caused by the persistent contact and intrusiveness on the victim’s life, can have a greater impact than an incident of violence. Safety Planning Ensuring the safety of the victim and any other person is a priority for officers responding to reports of Stalking and Harassment. Officers should ensure that they listen to the concerns raised by the victim, take them seriously and offer appropriate safety advice to help keep them safe. Providing victims with relevant safety advice on how to keep themselves safe both the online and physical world is essential in reducing risk. Officers are encouraged to discuss safety options with victims and signposting the appropriate support agencies is key. There are a number of mobile phone applications available to keep victims or potential victims safe when they are out in public. (Appendix A) Officers are actively encouraged to signpost victims and those at risk of stalking to use these applications 12 Scots Criminal Law: Introduction and Investigation OFFICIAL  OFFICIAL Unit 4 Lesson 1 Crimes of Disorder Statement Taking The Victims & Witnesses (Scotland) Act 2014 requires all victims of stalking are to be afforded the opportunity to specify the gender of the interviewing/statement taking officer and any interpreter used. A risk assessment must be completed to assist with the development of an appropriate safety plan for the victim. Where stalking occurs within a domestic relationship, i.e. one which is between partners (married, cohabiting, civil partnership or otherwise) or ex- partners, officers should refer to the Domestic Abuse Questions (DAQ) to assess the risks posed. The DAQ will be fully explained in the Domestic Abuse lesson, Unit 6. In all other circumstances the investigating officer should ask the following questions when speaking to the victim; Stalking Screening Questions Stalking and Harassment Screening Questions 1. Is the victim very frightened? 2. Has the suspect engaged in harassment/stalking on previous occasions? 3. Has the suspect ever destroyed or vandalised the victim’s property? 4. Does the suspect repeatedly visit the victim at work, home etc. more than three times a week? 5. Has the suspect loitered around the victim’s home workplace etc. 6. Has the suspect made any threats of physical or sexual violence in the current harassment/stalking incident 7. Has the suspect ever involved or targeted any third party since the harassment/stalking began 8. Has the suspect acted violently towards people within the current harassment/stalking incident 9. Has the suspect persuaded other people to help him/her 10. Is the suspect known to be abusing drugs and/or alcohol 11. Is the suspect known to have been abusive in the past? (this could be physical or psychological, known to intelligence or reported) 13 Scots Criminal Law: Introduction and Investigation OFFICIAL  OFFICIAL Unit 4 Lesson 1 Crimes of Disorder Dealing with Suspects Where it is established or suspected that a crime has been committed then the suspect should be arrested under the powers of Section 1 of the Criminal Justice (Scotland) Act 2016. For the vast majority of cases, the expectation is that an interview should be conducted in order to complete a thorough enquiry and secure all available evidence. However, where it is clear that a sufficiency of evidence to charge has already been obtained, officers should consider the necessity and proportionality of interviewing the suspect. Such considerations need to be taken in the context of the statutory duty under Section 50 of the Act not to detain a person in custody unreasonably or unnecessarily. Where it is appropriate to release a suspect on investigative liberation or undertaking, officers must consider any conditions to be attached to their release (e.g. that the accused does not contact or approach a victim, attend at their home address or be within their street, or be anywhere near their place of employment (if they have no reasonable excuse to be there). Officers must fully assess any risk posed to the victim, witnesses or investigation. Victims must be notified as soon as possible, after a decision has been made to release a suspect, in any circumstances. Wherever possible, this will be done before the suspect is released. Any conditions of release must be explained to the victim. Note:- Remember to request bail conditions in the appropriate field on the SPR if necessary. Defence It is a defence for a person charged with this offence if they can show that the course of conduct was reasonable in the circumstances. Again, the court will decide what is "reasonable" on a case by case basis. Police Powers Section 39 Criminal Justice and Licensing (Scotland) Act 2010 is punishable by imprisonment. Therefore, consider using your powers under Section 1 of the Criminal Justice (Scotland) Act 2016. 14 Scots Criminal Law: Introduction and Investigation OFFICIAL  OFFICIAL Unit 4 Lesson 1 Crimes of Disorder Case Study CS Amanda and Brian have worked together in a local restaurant for 6 years. They have never been in a relationship although Brian has attempted to instigate a relationship with Amanda on numerous occasions, she has always rejected his advances. Amanda contacts the police to report a vandalism to her car and believes Brian to be responsible. PC Duncan attends and Amanda advises that Brian’s behaviour makes her scared to leave the house for fear of seeing him, Amanda is also considering having CCTV cameras installed around her home. When investigating the current incident from Amanda, PC Duncan carries out a search of all police databases and establishes that Amanda has contacted police on 8 separate occasions between 01/08/2021 and 18/12/2021 reporting the following; Repeated telephone calls and social media messages from Brian – these have been reviewed and were found to be declarations of love. Seeing Brian regularly loitering within the park where she walks her dog, a park not near Brian’s home. 2 x vandalism to her vehicle Unwanted gifts left at her home address – All left by Brian Each of these incidents were reported separately. PC Duncan also finds 2x missing person reports where Brian has reported Amanda missing in the middle of the night. On each of these occasions police traced Amanda safe and well within her home address with no concerns for her safety. 15 Scots Criminal Law: Introduction and Investigation OFFICIAL  OFFICIAL Unit 4 Lesson 1 Crimes of Disorder Case Study continued CS This information provides PC Duncan with a detailed picture of Brian’s conduct towards Amanda. The nature of Brian’s behaviours constitutes an offence of Stalking under Section 39 Criminal Justice and Licencing (Scotland) Act 2010, the essential elements of this offences are; There are at least 2 incidents of Brian engaging in a course of conduct towards Amanda Brian’s behaviour causes Amanda fear and alarm Example Charge EC On 1st October, 2020 at High Street Stirling, you BARRY WAYNE did engage in a course of conduct which caused Cara Bennie, care of Police Service of Scotland, fear or alarm in that you communicated with her persistently and attended her home address. Contrary to Section 39(1) of the Criminal Justice and Licensing (Scotland) Act 2010 Intelligence I SID (Scottish Intelligence Database) is an extremely important platform for Police Scotland to manage and assess intelligence related to various aspects linked to Crimes of Disorder and Stalking. This is also used to inform future Police action. It is imperative that any relevant intelligence opportunities are explored and submitted to SID 16 Scots Criminal Law: Introduction and Investigation OFFICIAL  OFFICIAL Unit 4 Lesson 1 Crimes of Disorder Appendix A Key Contacts National Stalking Helpline 0808 802 0300 Scottish Women’s Rights Centre 0808 801 0789 Victim Support Scotland 0800 160 1985 Other Specialist support agencies available online for safety advice are Action against Stalking (AAS) – Scotland’s only charity dedicated exclusively to victims of stalking. AAS was founded in 2014 following a campaign to have stalking legally recognised. Suzy Lamplugh Trust - The Suzy Lamplugh Trust is the UK's pioneering personal safety charity and leading stalking authority, established in 1986, following the disappearance of 25-year-old Suzy Lamplugh, an estate agent and lone worker who went to meet a client and never returned. Suzy was never found and eventually declared deceased after seven years in 1993. Mobile applications There are a number of mobile phone applications available to keep victims or potential victims safe when they are out in public. FollowItApp is a simple and safe way to record incidents of stalking quickly and easily using via a smartphone. The application helps victims keep accurate records to show what has happened to them. BrightSky is more commonly used by victims of domestic abuse, this application provides a unique directory of specialist support services and information to anyone who may be in an abusive relationship or those concerned about someone they know. Hollieguard is a personal alarm, deterrent and evidence catcher. It can be used to track a persons location when returning home or going about their day today tasks. It can be used to send an alert to friends and family members with the users location if they feel in danger. 17 Scots Criminal Law: Introduction and Investigation OFFICIAL  OFFICIAL Unit 4 Lesson 1 Crimes of Disorder For further information, use the resources shown below:- Legal Database:- Criminal Law - Public Order - Breach of the Peace Criminal Law - Crimes Against the Person - Threatening or Abusive Behaviour Crime Investigation SOP Review: You can define the crime of Breach of the Peace and illustrate essential elements You can outline the offence of Threatening and Abusive Behaviour as contained within Section 38 of the Criminal Justice and Licensing (Scotland) Act 2010 You can state police powers in respect of crimes of disorder You can identify statutory alternatives to a Breach of the Peace You can explain the offence of Stalking as contained in Section 39 of the Criminal Justice and Licensing (Scotland) Act 2010 18 Scots Criminal Law: Introduction and Investigation OFFICIAL  OFFICIAL Unit 4 Lesson 1 Crimes of Disorder Learning Log: How will what you have learned in this module impact your day-to- day role? Are there any skills or knowledge you would like to develop further following this module? End of Module 19 Scots Criminal Law: Introduction and Investigation OFFICIAL  OFFICIAL Unit 4 Lesson 1 Crimes of Disorder 20 Scots Criminal Law: Introduction and Investigation OFFICIAL