Case Law: Gough v DPP, Freedom of expression: nakedness in a public place – David Hart QC

3 11 2013

stephen_gough_at_lands_end-e1383223118358Mr Gough wishes to walk up and down the UK naked. Others do not approve of this, so his progress has been somewhat stop-start. This appeal concerns a brief and inglorious autumnal outing in Halifax. He was released from the local nick at 11.30 am on 25 October 2012, 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 about 15 minutes.

In the words of the judgment ([2013] EWHC 3267 (Admin)), he received a “mixed reaction” from its inhabitants.  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.

Mr Gough was promptly arrested in a local shop. He 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.”

He was convicted, and this was his unsuccessful appeal.

Section 5(1) of the Public Order Act 1986 makes it an offence to use 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. It is a defence for the accused to prove 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 that his conduct was reasonable.

The District Judge took the view that  Article 10 ECHR was engaged on the basis that being naked in public was a form of expression. After looking at the relationship between s. 5 and Article 10 as described in Abdul v DPP (the anti-war protest case – see Isabel McArdle’s post here) he concluded that there was a pressing social need for the restriction of his right to be naked in the context of this case.

Although public nudity was not, of itself, a criminal offence, s. 5 was sufficiently clear and accessible and that Parliament had left it to the courts to consider the context of particular facts: “whether behaviour does or does not ‘cross the line’ is heavily fact dependent and not best criminalised on a ‘catch-all’ basis”. Although the appellant’s minority view had to be respected, it did not entitle him to “trample roughshod” over the rights of the majority “to enjoy a shared public space without being caused distress and upset”.

The Administrative Court agreed with the judge below.

In doing so, it emerges that Mr Gough is taking a previous conviction to Strasbourg, and hence, for the moment, the prosecution was prepared to proceed on the basis that Article 10 was engaged. But there was a “pressing need”  for the restriction of his right to be naked in the context of this case. Mr Gough, so the argument went, was not prevented from being naked in certain public contexts where nudity is expected or tolerated. However, those adults and children in Halifax town centre on 25 October 2012 had no expectation of seeing Mr Gough naked and had no opportunity to avoid him until they had already seen him and decided to take avoiding action.

The district judge relied upon the fact that s.5 is a summary-only offence with a maximum fine of £1,000 subject to consideration of the means of the defendant, and hence the prosecution was a proportionate response.

Comment

What is it about nudity in a rambler that gets some people in town centres uptight? And how pluralist should we be about this sort of thing? Mr Gough sought to put a wider perspective, by seeking to call Professor Ulrich Lehmann, Professor of Fashion (sic!) at the University for the Creative Arts, Rochester, to give evidence of how public attitudes to nudity have changed within various cultures and,  Joanna Beazley Richards M.Sc., a psychologist to speak of her research, her clinical experience and her observations of children witnessing adult nudity as to the way in which children would be likely to react to seeing a naked male.

The District Judge was not interested, nor was the Administrative Court.  They agreed that the evidence of these witnesses was inadmissible: the questions whether the offence was made out as a matter of law, or whether the conduct of the appellant was objectively reasonable were for the court.

The court was not concerned with policy decisions or whether children should or should not have been affected by his nudity. The appellant 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. The expert evidence did not advance the case at all.

Come, come. The whole question of whether the distress of witnesses should found a successful prosecution is an issue of policy. I dare say that there are homophobic pockets of Britain where the presence of two gay people holding hands, let alone kissing each other, might cause disgust and distress to an unenlightened few. But we should not begin to give that disgust or distress the time of day in court. Why so, when it is triggered by a naked man on a walking tour?  Or put it another way, let us at least think about why that shock or disgust arises, and how representative it is of current responses.

I hope the more tender-minded of my readers will have noted that, out of the many photographs of Mr G on offer, I chose one with an artfully placed and generously dimensioned map.

This is post originally appeared on the UK Human Rights Blog and is reproduced with permission and thanks


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