Answer
As Sarah Christie said in ‘An Introduction to Scots Criminal Law’: “So far as offences against society are concerned, breach of the peace is perhaps the most broadly defined and frequently used” . The courts still refer to Hume’s definition in which he: “considered a breach of the peace to be less than mobbing and rioting but tending to disturb and alarm the neighbourhood.” However, as it is a common-law crime the definition has developed through case law. The main issue in the present case and the one that will be raised to determine whether Gordon Setter has committed a charge of breach of the peace, is the issue that he stood in front of a bulldozer preventing the workmen and other traffic from entering the site. As this is a common-law …show more content…
An important case of Smith v Donnelly 2001, brings into Scots law the ‘ conjunctive test’, which is now more commonly used for the definition of breach of the peace. The ‘conjunctive test’ is a test to determine if the “conduct was severe enough to cause alarm to ordinary people and threaten serious disturbance to community” . However, as Sarah Christie further goes on to state: “It is important to remember here that the law does not require proof of actual alarm. All that is required is that the conduct was likely to cause such a reaction should a member of the public happen upon the accused committing a breach of the peace.” The case of Smith v Donnelly is where the accused Smith, was charged with breach of the peace for lying down in front of a road at a military base in a protest against nuclear weapons, in the process she was disrupting the flow of traffic. It was held that she did ‘ cause alarm and threaten serious disturbance to the community’. This was because it was a military base holding nuclear weapons which was argued as a threat to national security and was a risk for public safety for both the drivers and the people lying in the road for the …show more content…
The mischief rule asks four questions; What was the common law before the making of the Act? What was the mischief and defect for which the common law did not provide? What was the remedy proposed by Parliament to rectify the situation? What was the true reason for that remedy?”
A case which illustrates the mischief rule is Leadbetter v Hutcheson 1934. In this case the accused was charged with fishing during the annual close times specified in section 6 of the Tweed Fisheries Amendment Act, 1859. To establish the mischief rule, the court considered the four questions stated above and then after having answered these questions, ‘a judge had a duty to construe the Act’. Therefore, the courts role for the mischief rule is to supress all aspects of the mischief and to advance the remedy.
Another rule and principle of statutory interpretation is the literal rule. The literal rule: “provides that words must be given their plan, ordinary, and literal meaning.” A case that illustrates this is R v. Harris 1836. In this case the accused tried to bite off Harris’s nose. The courts used the literal rule to define that biting did not come within the words “stabbing, cutting, or wounding”. Verdict was found to be not guilty. The literal rule was also utilised effectively in the case of Kerr v H.M. Advocate 1986. In this case the literal rule was used to ‘describe “to be concerned in” but it was preferred
As Sarah Christie said in ‘An Introduction to Scots Criminal Law’: “So far as offences against society are concerned, breach of the peace is perhaps the most broadly defined and frequently used” . The courts still refer to Hume’s definition in which he: “considered a breach of the peace to be less than mobbing and rioting but tending to disturb and alarm the neighbourhood.” However, as it is a common-law crime the definition has developed through case law. The main issue in the present case and the one that will be raised to determine whether Gordon Setter has committed a charge of breach of the peace, is the issue that he stood in front of a bulldozer preventing the workmen and other traffic from entering the site. As this is a common-law …show more content…
An important case of Smith v Donnelly 2001, brings into Scots law the ‘ conjunctive test’, which is now more commonly used for the definition of breach of the peace. The ‘conjunctive test’ is a test to determine if the “conduct was severe enough to cause alarm to ordinary people and threaten serious disturbance to community” . However, as Sarah Christie further goes on to state: “It is important to remember here that the law does not require proof of actual alarm. All that is required is that the conduct was likely to cause such a reaction should a member of the public happen upon the accused committing a breach of the peace.” The case of Smith v Donnelly is where the accused Smith, was charged with breach of the peace for lying down in front of a road at a military base in a protest against nuclear weapons, in the process she was disrupting the flow of traffic. It was held that she did ‘ cause alarm and threaten serious disturbance to the community’. This was because it was a military base holding nuclear weapons which was argued as a threat to national security and was a risk for public safety for both the drivers and the people lying in the road for the …show more content…
The mischief rule asks four questions; What was the common law before the making of the Act? What was the mischief and defect for which the common law did not provide? What was the remedy proposed by Parliament to rectify the situation? What was the true reason for that remedy?”
A case which illustrates the mischief rule is Leadbetter v Hutcheson 1934. In this case the accused was charged with fishing during the annual close times specified in section 6 of the Tweed Fisheries Amendment Act, 1859. To establish the mischief rule, the court considered the four questions stated above and then after having answered these questions, ‘a judge had a duty to construe the Act’. Therefore, the courts role for the mischief rule is to supress all aspects of the mischief and to advance the remedy.
Another rule and principle of statutory interpretation is the literal rule. The literal rule: “provides that words must be given their plan, ordinary, and literal meaning.” A case that illustrates this is R v. Harris 1836. In this case the accused tried to bite off Harris’s nose. The courts used the literal rule to define that biting did not come within the words “stabbing, cutting, or wounding”. Verdict was found to be not guilty. The literal rule was also utilised effectively in the case of Kerr v H.M. Advocate 1986. In this case the literal rule was used to ‘describe “to be concerned in” but it was preferred