By Felicity Gerry
I can’t help but smile at the thought of the furore that would ensue if (or when) the European Court of Human Rights were to decide that we English are far too uptight and ought not to be offended by nudity.
Most readers will, no doubt, be (overly) familiar with the story of Stephen Gough, aka the “naked rambler”. He was most recently described by Sir Brian Leveson as a man who, “has walked naked through the highways and byways of the United Kingdom, from John o’ Groats to Land’s End”.
Mr Gough likes to walk as nature intended and has been arrested for his pleasure more times than you could shake a walking stick at him. Is this so unreasonable? It is according to the High Court of England and Wales; his most recent appeal failed when his counsel’s argument (that his Art 10 ECHR rights were engaged on the basis that being naked in public was a form of expression) was rejected. It makes one start to wonder if the man on the Clapham omnibus is watching.
I imagine that most Britons do not have any desire to go walking without their clothes on (not least because of the weather), but, in the event that Mr Gough succeeds in having his case heard by the European Court of Human Rights, I have visions of thousands of naked walkers and cyclists joining together in protest in a sort of “Occupy Willy Street”. On the other side of the debate, no doubt, would be a deluge of campaigns and petitions to keep Britain dressed for “the sake of our children”. Meanwhile, poor Mr Gough still can’t go for a walk without risk of arrest.
I suspect most people will agree that Mr Gough is not exposing himself in the traditionally unlawful sense; it is widely accepted that there is nothing sexual in what he does. I also suspect that most people do not believe he outrages public decency. His act of walking is not within the definition of “such a lewd, obscene or disgusting character as to outrage public decency” (see R v Stanley  2 QB 327, Re Walker (Steven)  1 Cr App R 111 and Re Hamilton  QB 224). These laws are necessary to deal with those who commit blatantly sexual or other outrageous acts in public; not naked walkers. His conduct may be out of the ordinary, but it is hardly outrageous.
Recently, however, Mr Gough was found to be behaving in an insulting and disorderly manner. To understand why, it is worth examining the judgment in his High Court case of Gough v DPP. On 11 March 2013, Mr Gough was convicted at the Calderdale Magistrates Court in Halifax, before a District Judge of a breach of s 5(1) of the Public Order Act 1986 (the 1986 Act). The relevant parts of the 1986 Act are as follows:
“(1) A person is guilty of an offence if he –
Uses threatening, abusive or insulting words or behaviour, or disorderly behaviour… within the hearing or sight of a person likely to be caused harassment, alarm or distress thereby…
(3) It is a defence for the accused to prove –
(a) That he had no reason to believe that there was any person within hearing or sight who was likely to be caused harassment, alarm or distress, or…
(c) That his conduct was reasonable…
(4) The defendant must intend his words or behaviour… to be threatening, abusive or insulting or be aware that they may be threatening abusive or insulting or he must intend his behaviour to be, or be aware that it could be disorderly.”
It seems that Mr Gough “conceded that people who saw him naked in public might be distressed or concerned and that there would be a reaction from those who did not share his views: that, he said, was due to their own prejudice”. It followed that expert evidence as to changes in social attitudes was held not to be relevant as the test related to the defendant’s reasons and not the views of the general populace.
The facts of his arrest were that: “he had been released from Halifax Police Station at approximately 11.30 am on 25 October 2012 through the main public entrance; he was wearing only walking boots, socks, a hat, a rucksack and a compass on a lanyard around his neck. He was otherwise naked and his genitalia were on plain view. He then walked through Halifax town centre for approximately 15 minutes, filmed by a camera crew working for a company which had obtained his permission to do so (without making any payment for that privilege)”.
The judgment states that the facts were agreed and included the following: “The appellant received a mixed reaction from others in the town centre, some of whom were heard to comment. At least one female member of the public veered out of his way. Evidence from two women was to the effect that they were ‘alarmed and distressed’ and ‘disgusted’ at seeing him naked. One of the women was with a number of children at least one of whom, 12 years old, she reported as ‘shocked and disgusted’. The district judge found that it caused one of the women to feel at risk and, further, based on the evidence, that it caused alarm or distress”.
The judgment continues: “The appellant then entered a convenience store whereupon police officers attended and arrested him. On interview, the appellant said that he did not think that what he was doing was indecent and that the human body was not indecent; he did not know what the problem was. He had heard some of the comments directed to him; those who made such comments were entitled to their opinion. He said, ‘It’s their belief that the human body is dirty’. At trial the judge found that the appellant foresaw the fact of alarm or distress as the consequence of his voluntary decision to walk naked through Halifax town centre and was at least aware that his behaviour may have been threatening, abusive, insulting or disorderly”.
It is Mr Gough’s belief that he has a fundamental right to walk about naked and that this is not indecent. His counsel argued on appeal that Mr Gough’s conduct was objectively reasonable and that to pursue Mr Gough for this offence in these circumstances contravenes his rights under Art 10 of the ECHR, which provides everyone with the right to freedom of expression (albeit subject to such conditions or penalties as prescribed by law and necessary in a democratic society, among other reasons, for the prevention of disorder and the protection of health or morals).
The opposing arguments on appeal were summarised by the court as follows:
“Mr Powles submits that public nudity is a clear form of public expression which is not prescribed by law; its restriction is not in pursuit of any of the aims set out in Article 10(2) and there is no pressing social need to restrict it. He goes on to argue that any restrictions are not proportionate to the stated aims, underlining that the reasons must be ‘relevant and sufficient’ (Buckley v UK (1997) 23 EHRR 101 at para 77 and Jersild v Denmark (1995) 19 EHRR 1 at para 31: although his nakedness may be viewed by some as distasteful or unpleasant, it is a viewpoint to which he is entitled to give public expression such that a criminal sanction is a disproportionate means of addressing any social need.”
“Mr Penny, on the other hand, was not prepared to concede that Article 10 was engaged based on the fact that a conviction under s 5 of the 1986 Act did not regulate or interfere with the appellant’s right to express his views, to hold opinions or to receive or impart information and ideas but he noted that the point was presently before the European Court (in relation to an earlier incident involving Mr Gough) and, for the purposes of this case only, was prepared to proceed on the premise that it was engaged. He pointed to the reasoning of the judge, which he adopted, and submitted that there was no burden on the Crown to prove that the prosecution was proportionate (see DPP v Bauer  EWHC 634 (Admin) per Moses LJ at para 40); further, this was not a case of an individual who has been restricted in the exercise of ‘offensive speech’ or whose ideas have been restricted (see Redmond-Bate v DPP  HRLR 249 per Sedley LJ at para 20): the facts proved deliberate conduct which, at the least, constituted disorderly behaviour in a busy town centre in the middle of the day which, as the appellant was fully aware was likely to cause (and, in fact did) cause harassment, alarm and distress.”
Despite the fact that the only people being objectively disorderly seemed to be those reacting to Mr Gough’s lack of apparel, the trial judge found that, “Mr Gough’s behaviour in walking naked was insulting and was also threatening in that it caused [one of the witnesses] to feel at risk”. It is not clear what threat or risk Mr Gough was presumed to pose. Essentially, the court equated orderliness with notional standards of decency without hearing expert evidence on the issue. The District Judge continued: “This behaviour could also be described as abusive and disorderly as it contributed to a breakdown of peaceful and law-abiding behaviour as evidenced by the reactions of the public to Mr Gough’s public display of nudity.” The district judge also held that intent was proven as he found that Mr Gough was aware that his, “voluntary decision to walk naked through Halifax town centre would be threatening abusive or insulting or disorderly”.
Sir Brian Leveson agreed: “In my judgment, it is not necessary to decide whether the judge was right to conclude that the appellant was threatening, abusive or insulting: the district judge was clearly entitled to conclude that, by walking through a town centre entirely naked, he was violating public order or, in the language of the case contributing ‘to a breakdown of peaceful and law-abiding behaviour as evidenced by the reactions of the public’: he was thus disorderly. There was nothing passive about his conduct in that he knew full well (not least from his past experience) that many members of the public would both be alarmed and distressed by sight of his naked body whether or not others would take a more benign view and whatever the origins or psychological reasons for that alarm and distress. Furthermore, he was being deliberately provocative in order to support his own stance. The existence of nudist colonies and naturist beaches are not to the point: they are in areas marked out, clearly identifiable and are thus avoidable. Neither does the unchallenged existence of naked cycle rides determine the matter: each case will be fact sensitive and will fall for consideration on its own merits.”
In essence, the trial judge concluded that being naked was a form of expression such that Art 10 was engaged, but that there was a pressing social need for the restriction of Mr Gough’s right to be naked in the context of this case. It seems, therefore, that the law believes there is a pressing social need to keep nudists off the public streets. The Divisional Court agreed, citing the occasions when Mr Gough had been removed from public places by the police ostensibly for his own safety: “To say that the adverse reaction to the appellant’s nudity is not his problem or the result of his behaviour (which is how the Appellant articulated it) is to ignore reality.” The English judges blame Mr Gough for the reactions of others, even though he is not charged with incitement. If the English law is based on concepts of reasonableness, it is quite a stretch to found criminal responsibility on the basis of the reactions of others. As I say, the act of walking naked may be unusual, but is it really insulting or disorderly, whatever the intention? Lord Judge, the former Lord Chief Justice, was able to find that a Twitter joke was not malicious on the basis of old fashioned principles of English Criminal law in the “Twitter Joke Trial” of Paul Chambers.
So, in the absence of an English judge prepared to look at basic principles of English law, what would the European Court of Human Rights do on any of Mr Gough’s cases? Let’s say for a moment that his firmly held and well demonstrated beliefs were recognised, it was accepted that he has a right to express those beliefs and the Court took the view that the real need for legal restriction is on those who seek to behave in a disorderly manner towards Mr Gough – what would the UK Government suggest in response? Would the naturists have to demonstrate commitment to the cause by membership of an organisation? How would the law be reformed and how long would it take? I venture to suggest that s 5 of the 1986 Act could be amended to read: “In this context, being naked in a public place is not unreasonable”. Of course, that would bring its own complications, but it would be an interesting contribution to the current debate (see recent comments by Lord Sumption, Lord Justice Laws, Lady Hale and Lord Judge) on the primacy of old fashioned common law concepts of reasonableness and any move away from the ECHR.