Scottish Crime Recording Standard: Crime Recording and Counting Rules

Group 6 – Anti-social Offences

Crime Category - SGJD Code

Breach of the Peace - 47/002

Civic Government (Scotland) Act 1982, S47 - 47/003

• Urinating/Defecating

Civic Government (Scotland) Act 1982, S50 (1) - 60/001

• Drunk and Incapable

Civic Government (Scotland) Act 1982, S50 (2)

• Drunk in Charge of a Child - 60/003

Criminal Justice and Licensing (Scotland) Act 2010, S38

• Threatening or Abusive Behaviour - 47/008

Criminal Law (Consolidation) (Scotland) Act 1995, S20 (7)

• Drunk in, or attempting to enter designated sports ground - 60/007

Criminal Law (Consolidation) (Scotland) Act 1995, S50A (1) (a)

• Racially Aggravated Harassment - 47/004

Criminal Law (Consolidation) (Scotland) Act 1995, S50A (1) (b)

• Racially Aggravated Conduct - 47/005

Licensing (Scotland) Act 2005 - See Section

Local Government (Scotland) Act 1973, S201, S202, S203

• Consumption of Alcoholic Liquor in Public Places - 72/008

Protection of Workers (Retail and Age Restricted Goods and Services) (Scotland) 2021, S1

• Threatening and abusive behaviour of a Retail Worker - 47/013

47/002 - Breach of the Peace

General Rule

One crime for each incident

On 6 October 2010, the Scottish Government introduced new legislation to facilitate the prosecution of disorderly conduct which occurs within a private place (e.g. a private dwelling). The new legislation is the Criminal Justice and Licensing (Scotland) Act 2010, Section 38, Threatening or Abusive Behaviour.

Whilst the essential elements of the offence are close to those of the crime of breach of the peace, except that the mens rea of the accused is intention or recklessness regarding the effect of the behaviour; the behaviour itself is restricted to that which is threatening or abusive; and there is no requirement for a public element.

To justify recording Breach of the Peace, the behaviour must threaten serious disturbance to the community and not just threaten irritation or minor alarm

This means that there is a 'public element' to be satisfied. Evidence of actual alarm or that the conduct would be alarming to reasonable person confronted with it is required. This can extend to conduct in private if there is a reasonable likelihood of it being discovered.

Definition

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 significant alarm to ordinary people and threaten serious disturbance to the community.

Victim/Complainer

Person making complaint or, dependent on circumstances the Procurator Fiscal

Locus

Where crime takes place

Examples

Example 1

Police receive a call that two persons are fighting with each other within a busy shopping precinct and on attending, separating both parties and enquiry revealing that both are equally responsible for the disturbance.

- 1 x Breach of the Peace (an assault may be recorded if enquiry reveals one of the individuals was responsible and the other was defending themselves).

Example 2

A report is received that over a period on one month eggs and other foodstuffs have been thrown at complainer’s property. Although no damage has occurred the complainer is now alarmed and fearful of going out after dark due to the ongoing acts of antisocial behaviour.

- 1 x Criminal Justice and Licensing (Scotland) Act 2010, S38, Threatening or Abusive Behaviour

Note

Insulting or abusive language to or concerning another person does not constitute a breach of the peace unless unduly persisted in or accompanied by threats or violent gestures, but, the use of any threatening, abusive or insulting words or behaviour with intent or calculated to provoke a breach of the peace or whereby a breach of the peace may be occasioned is an offence at Common Law.

Guidance from Crown Office advises "where the evidence provides Police with a choice between charging Section 38, Threatening or Abusive conduct and Breach of the Peace then the Threatening or Abusive conduct should be charged in preference to the common law crime".

Breach of the Peace is a crime which can be dealt with by the issue of an Antisocial Behaviour Fixed Penalty Ticket provided that a public element can be demonstrated which increases the gravity of the offence from Section 38, Threatening or Abusive Behaviour, to Breach of the Peace. This does not extend to conduct committed in the presence of Police officers only.

The offences capable of being included in the ASB FPN process are contained in a defined list within Section 128 of the Antisocial Behaviour etc. (Scotland) Act 2004. This list does not include Section 38 and the ticket process cannot be used for this crime type. The FPN process is still appropriate for minor examples of Breach of the Peace.

Attempts to commit suicide will not normally be prosecuted, however, the exception to the general rule is the situation in which the individual concerned has threatened to cause injury to another during the attempt. In such rare cases, the behaviour may constitute a Breach of the Peace and such cases should be reported to the Procurator Fiscal for consideration.

47/003 - Civic Government (Scotland) Act 1982, Section 47 Urinating/Defecating

General Rule

One crime for each accused

Definition

Any person who urinates or defecates in such circumstances as to cause, or to be likely to cause, annoyance to any other person shall be guilty of an offence.

Complainer

Procurator Fiscal

Locus

Where crime takes place

Examples

Example 1

Members of the public inform police that they have just seen a person urinating in a shop doorway. On police attending at locus they find the person urinating.

- 1 x Civic Government (Scotland) Act 1982, S47

Example 2

A shopkeeper phones the police stating that their shop doorway appears to be used as a toilet by late night revellers as yet again there appears to be urine over the step.

- Record as an incident only as no one has been found to have been urinating.

Example 3

Two members of the public inform police that they have just seen a person urinating in a shop doorway. On police attending at locus no one can be found although the doorway is wet.

- Record as an incident only as no one has been found to have been urinating.

Example 4

While in Police custody a prisoner deliberately urinates on the floor of their cell.

- 1 x Criminal Law (Consolidation) (Scotland) Act 1995, S52 Vandalism (due to cost of cleaning) See Culpable and Reckless Conduct pages for circumstances where this presents a biological hazard such as excrement being smeared on walls.

Note

This offence can be dealt with by way of an Anti-Social Behaviour Fixed Penalty Notice (FPN).

60/001 - Civic Government (Scotland) Act 1982, Section 50(1) Drunk and Incapable

General Rule

One crime for each accused

Definition

Any person who, while not in the care or protection of a suitable person, is, in a public place, drunk and incapable of taking care of himself.

Complainer

Procurator Fiscal

Locus

Where crime takes place

Examples

No examples

Note

Cases of persons being drunk and incapable should under normal circumstances be dealt with as a welfare issue and policed accordingly. Such persons should not be issued with Antisocial Behaviour Fixed Penalty Notices or dealt with by Recorded Police Warnings unless exceptional circumstances exist or the person is being reported by SPR for other related offences.

60/003 - Civic Government (Scotland) Act 1982, Section 50(2) Drunk in charge of a Child

General Rule

One crime for each child

Definition

Any person who is drunk in a public place while in charge of a child under the age of 10 years.

Complainer

Procurator Fiscal

Locus

Where crime takes place

Examples

No examples

Note

Although this offence is covered by the antisocial behaviour fixed penalty tickets, a ticket should not be the means of disposal when dealing with this offence.

47/008 - Criminal Justice and Licensing (Scotland) Act 2010, Section 38 Threatening or abusive behaviour

General Rule

One crime for each incident

Definition

Section 38

A person commits an offence if,

(a) they behave in a threatening or abusive manner,

(b) the behaviour would be likely to cause a reasonable person to suffer fear or alarm, and

(c) intends by the behaviour to cause fear or alarm or is reckless as to whether the behaviour would cause fear or alarm.

This applies to,

(a) behaviour of any kind including, in particular, things said or otherwise communicated as well as things done, and

(b) behaviour consisting of—

(i) a single act, or

(ii) a course of conduct.

Victim/Complainer

Person making complaint or, dependent on circumstances the Procurator Fiscal

Locus

Where crime takes place

Examples

Example 1

Police receive a call from ‘A’ who reports that they are frightened as to what might happen as their partner ‘B’ has them and has thrown a computer and other items around the room. ‘A’ has managed to escape from the verbal abuse to phone the police under the pretence of going to the toilet. On arrival the police find ‘A’ shaking and visibly upset with items of furniture scattered across the floor.

- 1 x Criminal Justice and Licensing (Scotland) Act 2010, S38, Threatening or abusive behaviour

Example 2

The complainer reports that on a regular basis when leaving for work in the morning his neighbour threatens him and his property with violence. He feels that this has now escalated with the threat of his property being set on fire, and his bin having been left against his door on his return from work. On each occasion there was no witness to the actions of the neighbour.

- 1 x Criminal Justice and Licensing (Scotland) Act 2010, S38, Threatening or abusive behaviour

Example 3

During a domestic incident 'A' is subjected to threatening and abusive behaviour and is assaulted by 'B'. There is a sufficiency of evidence to report 'B' for the threatening and abusive behaviour but insufficient to report for the Assault.

- 1 x Assault (Common) - undetected

- 1 x Criminal Justice and Licensing (Scotland) Act 2010, S38, Threatening or abusive behaviour - detected

Example 4

During a domestic incident 'A' is subjected to threatening and abusive behaviour before being assaulted by 'B'. There is insufficient evidence to report 'B' for either crime.

- 1 x Assault (Common) – undetected (as the threatening or abusive behaviour occurred either immediately before, during or after the assault this may be subsumed into the assault. Had there been a sufficiency of evidence to report 'B' only the assault should be recorded).

Example 5

Person causes disturbance within a flat placing occupants in a state of fear and alarm. During the disturbance the suspect deliberately breaks items of furniture.

- 1 x Criminal Law (Consolidation) (Scotland) Act 1995, S52 Vandalism

- 1 x Criminal Justice and Licensing (Scotland) Act 2010, S38 (had the disturbance itself amounted to the breaking of the items of furniture a Vandalism only would be recorded).

Example 6

On attending a call person 'A' subjects the attending officers to threatening and abusive behaviour resulting in 'A' being arrested for an offence under Section 38. Following the arrest 'A' assaults both Police officers.

- 1 x Criminal Justice and Licensing (Scotland) Act 2010, S38

- 2 x Police and Fire Reform (Scotland) Act 2021, S90(1)(a), Police assault (since 'A' has already been arrested for the Section 38 this crime is complete and should not be subsumed).

Example 7

‘A’ attends at the home address of ‘B’, kicks the door, shouting and swearing demanding they answer the door. ‘B’ advises they are phoning the police at which point ‘A’ kicks the door open to find ‘B’ standing with a mobile phone in their hand. ‘A’ grabs hold of ‘B’ pulling the phone from their hand and leaves the locus with the phone.

- 1 x Criminal Justice and Licensing (Scotland) Act 2010, S38 (conduct was complete before ‘robbery’ and nothing to indicate intent was to commit the ‘robbery’)

- 1 x Robbery

Example 8

‘A’ causes a disturbance within a flat placing the occupants in a state of fear and alarm. A neighbour calls at the flat due to the noise and is verbally abused and assaulted.

- 1 x Criminal Justice and Licensing (Scotland) Act 2010, S38 (conduct towards occupants of flat)

- 1 x Assault (in respect of neighbour, with the verbal abuse against neighbour subsumed within the assault as it has occurred immediately before)

Example 9

‘A’ attends at the home address of ‘B’ and kicks the door in, enters and asks where ‘C’ is, ‘B’ advises that ‘C’ is elsewhere and ‘A’ leaves.

- 1 x Criminal Law (Consolidation) (Scotland) Act 1995, S52, Vandalism (as the conduct of damaging the door amounts to the threatening or abusive behaviour, only the vandalism requires to be recorded. Had the conduct towards ‘B’ been threatening (e.g. demanding where ‘C’ was or they would assault them, then a S38 would also be required).

Example 10

‘A’ is shouting abuse and strikes out at ‘B’ in the street ‘C’ and ‘D’ standing nearby see and hear the conduct and phone the police.

- 1 x Assault (S38 conduct forms part of the assault with ‘C’ and ‘D’ seeing and hearing the conduct being witnesses)

Example 11

‘C’ and ‘D’ standing nearby see and hear the conduct and approach ‘A’ and advise them to desist to which ‘A’ turns and shouts abuse at both ‘C’ and ‘D’ threatening them.

- 1 x Assault (for assault on ‘B’)

- 1 x Criminal Justice and Licensing (Scotland) Act 2010, S38 (for the abuse directed towards ‘C’ and ‘D’)

Example 12

‘A’ is shouting abuse at ‘B’ in the street when ‘C’ and ‘D’ hear the conduct and advises ‘A’ to desist. ‘A’ then shouts abuse which is threatening to ‘C’ and ‘D’ before walking off.

- 1 x Criminal Justice and Licensing (Scotland) Act 2010, S38 (same incident)

Example 13

‘A’ is threatened by ‘B’ in a public place while ‘B’ is in possession of a knife.

- 1 x Criminal Justice and Licensing (Scotland) Act 2010, S38

- 1 x Criminal Law (Consolidation) (Scotland) Act 1995, S49, Possession of a Knife (used in crime)

Example 14

’A’ witnesses friends ‘B’ and ‘C’ being assaulted by a group of persons. No criminal conduct is directed towards ‘A’ by the suspects but ‘A’ is placed in a state of fear and alarm by what they have witnessed.

- 2 x Assault (on B and C) – although ‘A’ is alarmed at what they have witnessed no crime is required to be recorded for the affect this has had on ‘A’ due to no criminal conduct being directed towards ‘A’.

Note

This offence was introduced on 6th October, 2010 due to the difficulty for the Crown in prosecuting disorderly conduct which occurs in a private place.

Whilst the essential element of the offence are close to those of the crime of breach of the peace, except that the mens rea of the accused is intention or recklessness regarding the effect of the behaviour; the behaviour itself is restricted to that which is threatening or abusive; and there is no requirement for a public element.

In Paterson v Harvie, 2014 S.L.T. 857 a five judge bench of the High Court decided that the essence of the offence under section 38 is that the accused's conduct is to be judged by an objective test in which the actual effect of the accused's conduct is irrelevant. If elements (a) and (c) under section 38(1) are met then the crime is complete if the behaviour would be likely to cause fear or alarm to the hypothetical reasonable person, i.e. subsection (b). There does not need to be actual fear or alarm caused.

Guidance from Crown Office advises "where the evidence provides Police with a choice between charging Section 38, Threatening or Abusive conduct and Breach of the Peace then the Threatening or Abusive conduct should be charged in preference to the common law crime".

In circumstances where the threatening or abusive conduct is assessed as having occurred immediately before, during or immediately after a crime of Assault the threatening abusive conduct may be subsumed into the recorded Assault.

Under no circumstances should Section 38 be recorded when a victim is subjected to sexual comments or sexual touching which must be recorded under the appropriate section(s) of Sexual Offences (Scotland) Act 2009. The term "sexual" is defined under Section 60 which states that conduct is sexual if a reasonable person would, in all the circumstances of the case, consider it to be sexual.

Where a person is present/observes/witnesses an incident where the conduct of a suspect towards a victim is deemed to be violent/threatening and/or abusive they will be considered as a witness to the conduct and in these circumstances a Section 38 is not required to be recorded for the impact that the conduct may have on them, however, an appropriate crime will require to be recorded for the conduct witnessed against the victim. Where any person finds themselves to be the subject of abuse then the appropriate crime should be recorded e.g. Assault, Section 38. See Domestic Abuse (Scotland) Act 2018 pages for guidance in respect of circumstances where a child has been present during a Domestic Abuse incident.

In circumstances where a person damages property and also causes a disturbance where it can be shown that persons other than the owner of the damaged property have been placed in a state of fear or alarm both Section 38 and Vandalism should be recorded. If the alarm caused is only suffered by the owner of the damaged property only Vandalism should be recorded.

Reference to examples in this Section which amount to domestic incidents relate to "one-off" incidents which do not form part of a course of conduct of domestic abuse and as such cannot be considered under Domestic Abuse (Scotland) Act 2018 introduced from 1 April 2019. In circumstances where there is a course of conduct of domestic abuse all of which occurs after 1 April 2019 reference should be made to recording guidance listed under the Domestic Abuse (Scotland) Act 2018 pages. Any conduct occurring prior to 1 April 2019 will be recorded under the legislation in place at the material time.

In circumstances where offensive singing occurs at football matches there is an expectation that unless there is a specific complaint from a member of the public which requires to be investigated, or a decision is taken to take action against the offender(s) at the time of the incident, either at the time of the incident or at a later time, there is no requirement for any crime to be recorded.

The offences capable of being included in the ASB FPN process are contained in a defined list within Section 128 of the Antisocial Behaviour etc. (Scotland) Act 2004. This list does not include Section 38 and the ticket process cannot be used for this crime type. The FPN process is still appropriate for minor examples of Breach of the Peace provided that a public element can be demonstrated which increases the gravity of the offence from Section 38, Threatening or Abusive Behaviour, to Breach of the Peace.

60/007 - Criminal Law (Consolidation) (Scotland) Act 1995, Section 20(7) Drunk In, or While Drunk Attempts to Enter Designated Sports Ground

General Rule

One crime for each accused

Definition

Any person who is drunk in; or while drunk, attempts to enter, the relevant area of a designated sports ground at any time during the period of a designated sporting event.

Complainer

Procurator Fiscal

Locus

Where crime takes place

Examples

Example 1

The complainer notifies police that there is a person urinating against a wall in a football ground. Officers identify and apprehend the offender and identify that they are also drunk.

- 1 x Criminal Law (Consolidation) (Scotland) Act 1995, S20 (7) for being drunk

- 1 x Civic Government (Scotland) Act 1982, S47, Urinating (Note – the urinating offence can be dealt with by way of an Anti-Social Behaviour Fixed Penalty Notice (FPN).

47/004 - Criminal Law (Consolidation) (Scotland) Act 1995, Section 50A (1) (a) Racially Aggravated Harassment

General Rule

One crime for each course of conduct

Definition

Section 50A (1) (a)

(a) Pursues a racially aggravated course of conduct which amounts to harassment of a person and,

(i)intended to amount to harassment of that person; or

(ii)occurs in circumstances where it would appear to a reasonable person that it would amount to harassment of that person.

Victim

Person who the conduct is directed towards

Locus

Where crime takes place

Examples

Example 1

'A' reports that for several months items have been thrown into their garden and recently person(s) have been knocking at the door and on answering no-one is present. No damage has occurred. 'A' perceives this is due to their ethnicity and feels threatened that this is escalating, however, there is no corroboration that this is due to 'A's' ethnicity.

- 1 x Criminal Justice and Licensing (Scotland) Act 2010, S38 (it is unknown whether this is due to 'A's ethnicity and whether it is the same person(s) who are responsible and if so whether they were acting together. A hate aggravator would be applied due to 'A's perception).

Example 2

'A' reports having been followed by 'B' on a number of occasions (not previously reported) and when 'A' has confronted 'B', 'B' has shouted at them if they don't like being followed to go back to their own country. There is no corroboration.

- 1 x Criminal Justice and Licensing (Scotland) Act 2010, S38 (with racial aggravator).

Note

A course of conduct must involve conduct on at least two occasions.

There requires to be corroboration of racial motivation to record this offence.

This crime will be recorded in cases whereby ‘regular’ or ‘continuous’ harassment takes place.

This section creates an offence for a person to pursue a racially motivated course of conduct. This offence is intended to address cases of racially motivated harassment i.e. two or more related incidents and should be libelled as an offence in its own right.

If there is only one source of evidence of the racial element then the case to the Procurator Fiscal may include notification that a Section 96 aggravation of the Crime and Disorder Act, 1998 may be appropriate and places an onus on the court to take account of any racist element to a crime or offence when determining an appropriate sentence.

47/005 - Criminal Law (Consolidation) (Scotland) Act 1995, Section 50A (1) (b) Racially Aggravated Conduct

General Rule

One crime for each incident (on occasions counter allegations may be received and these should be recorded per victim)

Definition

Section 50A (1) (b)

(b) Acts in a manner which is racially aggravated, and which causes, or is intended to cause, a person alarm or distress.

Victim

Person who the conduct is directed towards

Locus

Where crime takes place

Examples

Example 1

A person reports that children have been knocking at their door and running off which is causing annoyance and is perceived by them to be due to their ethnicity.

- This is a hate incident due to the circumstances not amounting to a crime but being perceived by the complainer as being racially motivated.

Example 2

A person is reported to have racially abused four persons on a bus at the same time.

- 1 x Criminal Law (Consolidation) (Scotland) Act 1995 S50A (1) (b), Racially Aggravated Conduct (crime per incident).

Example 3

Person reports being subjected to racial verbal abuse by youths, no other witnesses present.

- 1 x Criminal Justice Licensing (Scotland) Act 2010, S38 – threatening or abusive behaviour (with a Racial aggravator). Note no crime under Criminal Law (Consolidation) (Scotland) Act) 1995, S50A (1) (b) should be recorded as there is no corroboration.

Example 4

Complainer of ethnic origin reports a brick having been thrown through their living room window and perceives this is due to their ethnicity.

- 1 x Criminal Law (Consolidation (Scotland) Act 1995, S52 – Vandalism (with Racial aggravator). Note no requirement to also record a crime under Criminal Law (Consolidation) (Scotland) Act) 1995, S50A (1) (b).

Example 5

A person from an ethnic background is assaulted. Nothing is said by the assailant but the assault is perceived to be racist by the victim.

- 1 x Assault (with a Racial aggravator). Note no requirement to also record a crime under Criminal Law (Consolidation) (Scotland) Act) 1995, Section 50A (1) (b).

Example 6

A person from an ethnic background is assaulted during which racial comments are made by the assailant which are corroborated by a witness.

- 1 x Assault (with a Racial aggravator). Note no requirement to also record a crime under Criminal Law (Consolidation) (Scotland) Act) 1995, Section 50A (1) (b).

Example 7

A shop security officer stops a youth leaving the shop after he was seen to put property into his pocket and leave the shop without paying. The security officer is subjected to racial abuse by the youth, which is also heard by other members of staff.

- 1 x Theft by Shoplifting

- 1 x Criminal Law (Consolidation) (Scotland) Act 1995, S50A (1) (b) Racially Aggravated Conduct. There is corroboration of the racial abuse. If no corroboration of the racial abuse a crime of Criminal Justice and Licensing (Scotland) Act 2010, S38 should be recorded (with a Racial aggravator).

Example 8

Complainer reports having been shouted and swore at, with racist comments made.

(a) No witnesses were present

- 1 x Criminal Justice and Licensing (Scotland) Act 2010, S38, threatening or abusive behaviour (with a Racist aggravator). There is no corroboration of the remarks made at the time of reporting.

(b) Enquiry is carried out and a witness is traced who advises they heard racist comments being made.

- The crime above should be changed to 1 x Criminal Law (Consolidation) (Scotland) Act 1995, S50A (1) (b) Racially Aggravated Conduct (corroboration of the crime and racist element has been obtained).

Example 9

Person from ethnic background has racist comments etched into the bodywork of their car.

- 1 x Criminal Law (Consolidation (Scotland) Act 1995, S52 – Vandalism (with Racial aggravator). There is no requirement to also record a Racially Aggravated Conduct.

Example 10

Person reports that racial words have been spray painted across a wall in the local park.

- 1 x Criminal Law (Consolidation (Scotland) Act 1995, S52 – Vandalism (with Racial aggravator)

Example 11

Suspect is travelling on a bus when he racially abuses ‘A’, a passenger on the bus. ‘B’ boards the bus and suspect subjects this witness to racial abuse.

- 1 x Criminal Law (Consolidation) (Scotland) Act 1995, S50A (1) (b) Racially Aggravated Conduct. The suspect's behaviour has been a continuous act throughout the bus journey which is viewed as an encompassing event. Although there are two victims both should be noted as being victims of the same crime. This can be likened to Section 38 Threatening or Abusive Behaviour where there can be multiple victims of the same incident.

Example 12

A football supporter shouts racial abuse at a player on the field of play, the player is unaware of this, however, spectators nearby are alarmed by the remarks.

- 1 x Breach of the Peace (with Racial aggravator). The alarm or distress has to be that of the intended victim and as the intended victim did not hear the comments Criminal Law (Consolidation) (Scotland) Act 1995, S50A (1) (b) is not appropriate.

Example 13

As part of the same incident 'A' subjects 'C' to non-racist verbal abuse and 'B' subjects 'C' to racist abuse which is corroborated.

- 1 x Criminal Justice and Licensing (Scotland) Act 2010, S38 (for accused 'A')

- 1 x Criminal Law (Consolidation) (Scotland) Act 1995, S50A (1) (b), Racially Aggravated Conduct (for accused 'B').

Example 14

As part of the same incident 'C' subjects 'A' to non-racist verbal abuse and subjects 'B' subjects to racial abuse which is corroborated.

- 1 x Criminal Justice and Licensing (Scotland) Act 2010, S38 (for victim 'A')

- 1 x Criminal Law (Consolidation) (Scotland) Act 1995, S50A (1) (b), Racially Aggravated Conduct (for victim 'B').

Note

This offence should be used for ‘one-off’ incidents where there is corroborative evidence in respect of racial harassment but where there is no evidence of ongoing harassment.

The actions must be shown to have caused alarm or distress to the complainer(s) (i.e. the person(s) who suffer the racially aggravated action or course of conduct).

Actions can be racially aggravated if directed immediately before, during or immediately after the conduct.

Also see Public Order Act, 1986 Sections 18 and 19 with regards to use of words or behaviour or display of written material or publication or distribution of written material which is threatening, abusive or insulting with intent to stir up racial hatred.

This section creates an offence for a person to act in a manner which is racially aggravated and which causes or is intended to cause a person alarm or distress. This offence may be likened to the offence of Section 38 of the Criminal Justice Licensing (Scotland) Act but with racial motivation.

If there is only one source of evidence of the racial element then the case to the Procurator Fiscal may include notification that a Section 96 aggravation of the Crime and Disorder Act, 1998 may be appropriate and places an onus on the court to take account of any racist element to a crime or offence when determining an appropriate sentence.

Anonymous reports of crime must be supported by corroborative evidence prior to the creation of a crime report. Where a victim's details are withheld from the police, the circumstances will be recorded as an incident only.

Perception

The use of apparently 'hate' language is not sufficient to prove a hate crime. There must also be evidence that an offender's behaviour has been motivated by prejudice and is not simply an inappropriate use of language.

In terms of the perception element consideration must be given to:

Who perceived the circumstances to amount to being a hate incident/crime.

Why it was perceived to be a hate incident/crime.

Licensing (Scotland) Act 2005

General Rule

One crime for each accused and per offence

Complainer

Procurator Fiscal

Locus

Where crime takes place

Offences and SGJD Codes

Relating to Children and Young People

61/001 - Section 102 Sale of alcohol to a child or young person

61/001 - Section 103 Allowing the sale of alcohol to a child or young person

61/001 - Section 104 Sale of liqueur confectionery to a child

62/009 - Section 104A Buy/attempt to buy/give alcohol for/to a child

62/009 - Section 104B Buy/attempt to buy/give alcohol for/to a young person

62/006 - Section 105 Purchase of alcohol by a child or young person

62/006 - Section 106 Consumption of alcohol by a child or young person

61/010 - Section 107 Unsupervised sale of alcohol by a child or young person

61/099 - Section 108 Delivery of alcohol by or to a child or young person

62/009 - Section 109 Sending a child or young person to obtain alcohol

61/099 - Section 110 Duty to display notice

Drunkenness and Disorderly Conduct

60/004 - Section 111 Drunk persons entering or in premises on which alcohol is sold

62/099 - Section 112 Obtaining of alcohol by or for a drunk person

61/099 - Section 113 Sale of alcohol to a drunk person

61/003 - Section 114 Premises manager, staff etc. not to be drunk

60/006 - Section 115(1) Disorderly conduct

61/004 - Section 115(2) Responsible person allowing drunkenness or disorderly conduct

60/008 - Section 116 Refusal to leave premises

Miscellaneous Offences

61/099 - Section 117 Offences relating to sale of alcohol to trade

61/099 - Section 118 Prohibition of unauthorised sale of alcohol on moving vehicles

61/099 - Section 119 Delivery of alcohol from vehicles etc.

61/099 - Section 120 Prohibition of late-night deliveries of alcohol

61/099 - Section 121 Keeping of smuggled goods

62/002 - Section 63(4) Consume/Take away alcohol outwith licensed hours

Examples

Example 1

Person enters shop and buys alcohol for a number of children who are underage. Evidence is obtained that the alcohol was purchased at the shop.

- 1 x Licensing (Scotland) Act 2005, S104A/B (immaterial how many children were provided the alcohol).

Example 2

'A' enters shop, picks up bottle of alcohol and on being advised this cannot be sold due to being outwith licensing hours 'A' leaves sufficient money on the counter and leaves the premises with the alcohol.

- 1 x Licensing (Scotland) Act 2005, S63 (4).

Example 3

'A' causes a disturbance in a supermarket and refuses to leave. The incident does not relate to the sale of alcohol.

- 1 x Criminal Justice and Licensing (Scotland) Act 2010, S38 (Threatening or Abusive Behaviour).

• Note that if the supermarket sells alcohol and the incident does not relate to the sale of alcohol Licensing (Scotland) Act 2005, S115/116 should not be used.

Note

Sections 115 and 116 can be dealt with by way of an Anti-social Behaviour Fixed Penalty Notice (FPN).

Sections 104A and 104B were introduced from 15 May 2017.

72/008 - Local Government (Scotland) Act 1973, Sections 201, 202, 203 Consumption of Alcoholic Liquor in Designated Public Places

General Rule

One crime for each accused

Definition

Local Authorities can apply for enabling powers under this Act to introduce a Local Byelaw prohibiting the consumption of alcoholic liquor in designated public places.

The following are examples of Byelaws granted in some Local Authority areas,

• Any person who consumes alcoholic liquor in a designated place
• Any person is found to be in possession of an open container containing alcoholic liquor in a designated place in circumstances whereby it is reasonable to infer that the person intended to drink from it whilst in a designated place
• Any person who consumes alcoholic liquor in a designated place and fails to desist on being required to do so by a Police Constable

shall be guilty of an offence.

Officers should make themselves familiar with the specific Local Byelaw covered by this legislation in their local area.

Complainer

Procurator Fiscal

Locus

Where crime takes place

Examples

Example 1

A member of the public contacts the police informing them that there are youths in the park drinking alcohol. On police attending, no youths are found. The locus is covered by Local Byelaws.

- Record as an incident only

Example 2

Police officers find two persons sitting on a park bench, drinking alcohol. The locus is covered by Local Byelaws.

- Where a decision is made to deal with the individuals by using the Local Byelaws – 2 Crimes should be recorded.

Note

These offences can be dealt with by way of an Anti-Social Behaviour Fixed Penalty Notice (FPN), only within the designated areas where the Byelaw is applicable.

The policy intention is to deal with the nuisance caused by people drinking in public places, not to criminalise innocent behaviour, that of being in possession of an open container of alcohol from which there may be no intention of drinking e.g. a person carrying an open bottle of alcohol from his or her house to a party at a neighbour’s house.

Presumptions

This byelaw applies for the purposes of any trial for an offence against these byelaws. Any liquid found in a container shall, subject to the provisions of this byelaw, be presumed to conform to the description of the liquid on the container. A container which is found to contain no liquid or insufficient liquid to permit analysis shall, subject to the provisions of this byelaw, be presumed to have contained at the time of the alleged offence liquid which conformed to the description of the liquid on the container.

Dependent on circumstances, officers may apply discretion in dealing with such incidents, resulting in no crime report being recorded.

47/013 - Protection of Workers (Retail and Age Restricted Goods and Services) (Scotland) Act 2021, Section 1 Threatening and Abusive Behaviour of Retail Worker

General Rule

One crime per incident (Threatening or Abusive Behaviour)

Definition

The act aims to increase protection for workers in the retail sector and those applying or enforcing a statutory age-restriction in relation to the sale or supply of goods or services.

Section 1 - Offence of assaulting etc. retail worker

(1) It is an offence for a person to assault, threaten or abuse another person—

(a) who is a retail worker, and

(b) who is engaged, at the time, in retail work.

(2) No offence is committed under subsection (1) unless the person who assaults, threatens or abuses knows or ought to know that the other person—

(a) is a retail worker, and

(b) is engaged, at the time, in retail work.

Evidence from a single source is sufficient to establish, for the purposes of this section—

(a) whether a person is a retail worker, and

(b) whether the person is engaged, at the time, in retail work.

Section 2 - Behaviour which constitutes an offence under Section 1

(1) The offence under section 1 of threatening or abusing a retail worker is committed by a person only if the person -

(a) behaves in a threatening or abusive manner towards the worker, and

(b) intends by the behaviour to cause the worker or any other person fear or alarm or is reckless as to whether the behaviour would cause such fear or alarm.

(2) Subsection (1) applies to -

(a) behaviour of any kind including, in particular, things said or otherwise communicated as well as things done,

(b) behaviour consisting of -

(i)a single act, or

(ii)a course of conduct.

Where the provisions will apply –

(i) Any person whose usual place of work is retail premises, while working in those premises (whether as employee, owner or agency staff), such as:

• in a shop, the owner and all other staff, while working in the shop (but not, for example, while travelling to or from work), regardless of whether selling goods is part of their job;
• in a pub, the landlord and all other staff, while working in the pub, regardless of whether selling drinks, food etc. is part of their job;
• in a charity shop, the paid manager and the volunteer staff, while working in the shop;

(ii) Any person whose usual place of work is not in retail premises, while selling or supplying goods to the public (whether as employee, owner or agency staff), such as:

• where a shop forms a part of larger non-retail premises (such as gift shop within a visitor attraction), the worker selling goods in the shop, but not other workers on those premises (such as visitor guide);
• where a bar forms part of larger, mostly non-retail premises (such as a hotel), the worker selling drinks in the bar, but not other hotel workers (such as reception staff or porters);
• in high-street premises that primarily deliver a service, rather than sell or supply goods (such as a hairdressing salon), a worker while selling goods (e.g. hair gel) but not while performing the service (e.g. cutting hair);
• door-to-door salespersons and street traders (whose retail work is not done in premises);

(iii) Any person whose usual place of work is not in retail premises, while selling or supplying age-restricted services to the public (whether as employee, owner or agency staff), such as:

• tanning salon workers;
• tattoo or piercing establishment workers;
• a person working in an amusement arcade with gambling machines;
• betting shop (bookmaker) or bingo hall workers;
• any person who delivers goods from retail premises, while at the delivery location (but not while travelling between the retail premises and that location), such as delivery driver for a supermarket, fulfilling online orders.

(iv) Where the provisions will not apply –

• tanning salon workers;
• workers in high-street premises that sell or supply only services rather than goods (e.g. an estate agent, bank or advice centre);
• wholesale workers (selling goods or services to tradespeople, for onward retail sale);
• most tradespeople (electricians, plumbers etc.), since their usual place of work is not retail premises and they do not do retail work;
• bus drivers selling tickets (which are tokens for a service, rather than goods);
• nightclub door staff (who may be enforcing an age-restriction on entry, but do not themselves sell goods or services subject to a statutory age-restriction).

Victim/Complainer

Person to whom behaviour has been directed at, or, dependent on the circumstances the Procurator Fiscal

Locus

Where crime takes place

Examples

Example 1

A retail worker is assaulted and threatened and abused by reason of their employment and the assault was at least partly motivated by malice towards the worker by reason of their employment.

- 1 x Protection or Workers (Retail and Age Restricted Goods and Services) (Scotland) Act 2021, S1, Assault of Retail Worker (threatening or abusive behaviour is subsumed).

Example 2

A retail worker is threatened and abused in the course of their employment and the offender either knew or ought to have known that the worker was acting in the course of their employment.

- 1 x Protection of Workers (Retail and Age Restricted Goods and Services) (Scotland) Act 2021, S1 Threatening or Abusive Behaviour of Retail Worker

Example 3

Five retail workers and two customers are threatened and abused within retail premises.

- 1 x Protection of Workers (Retail and Age Restricted Goods and Services) (Scotland) Act 2021, S1 Threatening or Abusive Behaviour of Retail Worker

- 1 x Criminal Justice and Licensing (Scotland) Act 2010, S38, Threatening or Abusive Behaviour (note – requirement to record under both pieces of legislation)

Example 4

Customer directs abusive and threatening comments at one retail worker and assaults another, whilst acting in the course of their employment.

- 1 x Protection of Workers (Retail and Age Restricted Goods and Services) (Scotland) Act 2021, S1 Threatening or Abusive Behaviour of Retail Worker

1 x Protection of Workers (Retail and Age Restricted Goods and Services) (Scotland) Act 2021, S1 Assault of Retail Worker

Example 5

Customer in shop directs racial abuse at member of staff for refusing to sell them alcohol due to age restriction.

- 1 x Protection of Workers (Retail and Age Restricted Goods and Services) (Scotland) Act 2021, S1 Threatening or Abusive Behaviour of Retail Worker (with Racial and Age Restriction aggravators, due to racial element and enforcement of statutory age restriction).

Example 6

Spouse attends partner’s retail premises workplace and directs abuse at them, whilst they are conducting their duties as a retail worker. The abuse is not retail related.

- 1 x Criminal Justice and Licensing (Scotland) Act 2010, S38 (better legislative fit as abuse is not retail related)

Note

This offence was introduced on 24 August 2021.

Meaning of Retail Premises

Retail premises includes all high-street shops, supermarkets, department stores, shopping centres etc., and also includes pubs and bars (drinks counting as “goods”) and petrol stations (fuel also counting as “goods”). A vehicle used wholly or mainly as a shop (such as an ice-cream van) is likely to count as retail premises; but even where a vehicle does not count as retail premises (because it is used primarily to provide a transport service), a person selling goods on the vehicle (e.g. a member of train crew selling drinks from a trolley) would be doing retail work, and so would be protected under the Act.

Meaning of Retail Worker

Anyone whose usual place of work is retail premises counts as a retail worker while working in those premises. This includes when a person is working on land that forms part of those premises (for example, a supermarket worker collecting trolleys in the store car-park).

Enforcing an Age Restriction

A statutory age restriction for the purposes of the Act includes only age restrictions where the age itself is specific in an enactment. This includes, for example, the age-limit of 18 which applies, under the Licensing (Scotland) Act 2005, to the offence of selling alcohol to under-age persons.

The following provides a list of age-restricted goods and services, and the statute or statutory instrument that covers this.

In terms of the perception element consideration must be given to:

• Aerosol spray paint
  • Antisocial Behaviour etc. (Scotland) Act 2004
• Air weapons and imitation firearms
  • Firearms Act 1968, Violent Crime Reduction Act 2006
• Alcohol
  • Licensing (Scotland) Act 2005
• Butane lighter refills
  • Cigarette Lighter Refill (Safety) Regulations 1999
• Crossbows
  • Crossbows Act 1987
• Caps, cracker snaps, party poppers etc.
  • Explosives Act 1875
• Firearms
  • Firearms Act 1968
• Fireworks
  • Fireworks (Safety) Regulations 1997
  • Explosives Act 1875
  • Pyrotechnic Articles (Safety) Regulations 2010
• Gambling
  • Gambling Act 2005
• Knives and articles with a blade or point
  • Criminal Justice Act 1988
• Liqueur confectionery
  • Licensing (Scotland) Act 2005
• National Lottery tickets
  • National Lottery etc. Act 1993
  • National Lottery Regulations 1994
• Petrol
  • Petroleum (Consolidation) Regulations 2014
• Pets
  • Animal Health and Welfare (Scotland) Act 2006
• Solvents
  • Cigarette Lighter Refill (Safety) Regulations 1999
• Sunbeds
  • Public Health etc. (Scotland) Act 2008
• Tattooing and piercing
  • Tattooing of Minors Act 1969
  • Licensing of Skin Piercing and Tattooing Order 2006
• Teeth whitening
  • Cosmetic Products (Safety) (Amendment) Regulations 2012
• Tobacco products, nicotine vapour products
  • Tobacco and Primary Medical Services (Scotland) Act 2010
  • Health (Tobacco, Nicotine etc. and Care) (Scotland) Act 2016