Baig V. Harvie Case Brief

973 Words2 Pages

Baig v Harvie relates to the crime of threatening or abusive behaviour found in section 38(1) of the Criminal Justice and Licensing (Scotland) Act 2010. This case comment will explain the relevant terms of section 38(1), and show the way in which the facts of the case constitute the offence. It will also discuss the defence created by section 38(2) and its application. Finally, it will highlight the key issue in relation to the offence; whether it was necessary to create the offence of threatening or abusive behaviour; and how the crime operates in relation to the common law crime of breach of the peace.

Mirza Baig parked his vehicle on Northland Drive Glasgow which is a restricted parking area without displaying the required parking permit. …show more content…

Baig’s defence was that the two parking attendants were not in a state of fear or alarm and as such a breach of section 38(1) had not been committed. This argument was rightly rejected by the court. It is not a requirement of section 38(1) that Baig’s behaviour causes fear or alarm, it is sufficient if a reasonable person would be likely to suffer fear or …show more content…

However, since the landmark case of Smith v Donnelly, a ‘public element’ became a requirement for conviction for a breach of the peace. Hence, it became necessary to promulgate a law that considered crimes of this kind occurring in private spaces like homes. Section 38(1) appear particularly well suited to domestic crimes which often take place in private and where it is less likely to ‘threaten serious disturbance to the community’ .

Bringing domestic crimes under a charge of breach of the peace is not likely to lead to a conviction as in Hatcher v Harrower , where the accused subjected the complainer to a tirade of abuse in the presence of their children. The court held that the accused’s conduct was threatening or abusive and would be likely to cause a reasonable person to suffer fear or alarm. However, it did not find his behaviour capable of threatening serious disturbance to the community because their children who were the only witnesses were not considered by the court to be members of the community or

Open Document