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JGM, Solicitor
Category: Scots Law
Satisfied Customers: 12088
Experience:  30 years as a practising solicitor.
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I have been detained and questioned by police regarding alegedly

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I have been detained and questioned by police regarding alegedly sending an abusive letter to my ex partner (separated 8 months ago). I have said I know nothing about it. Fingerprints and DNA samples have been taken from me. In the letter there is only mild abuse, no threats or serious abusive language. The letter calls her a "slut" & "vile", no other abusive words & no swearing. I was detained under section 38 of the criminal justice and sentencing act 2010, Scotland. Section 38: "Threatening or Abusive behaviour". I have never in my life been in trouble with the police before except a fixed penalty for speeding. If my fingerprints show up on the letter, what will happen next and how serious may the punishment be? It's a very, very mildy abusive letter & I've never been in trouble with police before. Thanks.
Thank you for your question.
It appears to me that you should be pleading not guilty given that the Act says as follows:
"38 Threatening or abusive behaviour
(1) A person (A) commits an offence if
(a) A behaves in a threatening or abusive manner,
(b) the behaviour would be likely to cause a reasonable person to suffer fear or alarm, and
(c) A intends by the behaviour to cause fear or alarm or is reckless as to whether the
behaviour would cause fear or alarm.
(2) It is a defence for a person charged with an offence under subsection (1) to show that the
behaviour was, in the particular circumstances, reasonable.
(3) Subsection (1) 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."
Nothing you have narrated would tend to suggest that a reasonable person would suffer fear and alarm. I'm not saying that it was a smart idea to call her vile and a slut but at the same time I doubt that an offence has been committed.
On a guilty plea for a first offence you would be looking at a fine dependent on your means.
Happy to discuss further.
I hope this helps. Please leave a positive response so that I am credited for my time.
JGM and other Scots Law Specialists are ready to help you
Customer: replied 3 years ago.

Hi, thanks for the advice.


I agree, it shouldn't have caused 'fear and alarm' - But the police have had me detained, questioned, finger prints taken and sent away to be matched against the letter & envelope. You're saying you doubt an offence has even been committed, but isn't it already past that stage as I have been detained? Or is it still possible theres no offence been committed & it could be dropped even now / after prints are found that match mine?


I have 2 questions: 1) I only touched the ENVELOPE once with my bare hands, and never the letter with bare hands - Will my prints be traceable from that 1 time I touched it? 2) I'm sure the forensic people will match my prints, if so, will this almost certainly go further? or is there still a chance the police decide there was no offence committed?

It's not for the police to determine whether an offence has been committed. It's for the prosecutor to examine the police report and decide whether to prosecute and it's for the court to decide whether an offence has been committed if it goes that far.

Whether they will get a fingerprint is not something I can answer. However, if they do it will only indicate that you were responsible for the letter, not whether the offence under s38 has been committed. As I've already said, from the content of the letter as you describe it, I doubt that they will establish fear and alarm as being a reasonable reaction to the letter on the part of your ex.
Customer: replied 3 years ago.
Thanks for the response.
As I understand, in Scottish law there is goverment insistence that any incident that carries the title "domestic", leads to automatic prosecution?

You've said that you don't think they will be able to justify fear or alarm has been caused, but surely calling someone a "slut" & "vile" would be classed as causing someone "alarm"?

IF there ends up being evidence IE, a fingerprint, I guess this will automatically go to court proceedings? What are some possible outcomes of that?? Best/likely/worst case scenarios for example.

Again, first time offender, no previous record,
25 years old, the letter allegedly calls ex partner a slut & vile. (No profanity or threats)

I still think they would have difficulty in causing fear and alarm.

If you were convicted of this as a first offender you would get a fine according to your means or possibly a deferred sentence or probationary disposal.