Case Law, Strasbourg: Gough v United Kingdom, No violation of the Article 10 rights of the Naked Rambler – Hugh Tomlinson QC

1 11 2014

_61634359_45208169Stephen Gough, the so-called “Naked Rambler” has lost his Court of Human Rights application under Articles 10 and 8.  The Court held that his arrest, prosecution, conviction and imprisonment did not breach his rights to freedom of expression or respect for private life (Gough v United Kingdom, Judgment of 28 October 2014).  This is a long judgment in a difficult case.

Background

In 2003 Mr Gough decided to walk naked from Land’s End in England to John O’Groats in Scotland, earning the nickname “the Naked Rambler”. Between 2003 and 2012 he was arrested over thirty times in Scotland for being naked in public. He was convicted on a number of occasions of breach of the peace. He was also convicted of contempt of court for refusing to dress for his court appearances.

Although he was at first admonished or received relatively short custodial sentences, the sentences increased with his repeat offending.  He was often rearrested as he left prison. As a consequence, between May 2006 and October 2012, Mr Gough had a total of about seven days at liberty. He spent a total of over seven years in detention in Scotland between 2003 and 2012 following convictions for appearing naked in public.

Judgment

Mr Gough argued that public nudity was a form of expression within the meaning of Article 10.  This argument was accepted by the Court which noted that

“The term “expression” had been widely construed by the Court to cover various different forms of expression, including expression in words, in pictures, by video and through conduct intended to convey an idea or information. In his case, the decision not to wear clothes was a direct expression of his principled views on the human body.” [147].

The Convention protected the form in which ideas were expressed – and this could by be mode of dress or conduct.  Mr Gough had chosen to expression his opinion as to the inoffensive nature of the human body by being naked in public.  His arrest, prosecution, conviction and imprisonment were taken in reaction to that form of expression and were, therefore, an interference with his Article 10 rights [150].

The Court accepted that the measures taken were prescribed by law.  It had, however, some difficulty in defining the relevant “legitimate aim”.  It noted that, although the measures aimed to prevent crime and disorder but that the precise nature of this was not clearly identified.  The measures were aimed at preventing the applicant committing a breach of the peace and pursued the broader aim of ensuring respect for the law in general [158].

On the question of “necessity in a democratic society”, the Court noted that the exercise of freedom of expression carried with it “duties and responsibilities”.  It noted that, in the context of religious opinions and beliefs it had found that

“such duties and responsibilities may include an obligation to avoid as far as possible expressions that are gratuitously offensive to others and thus an infringement of their rights, and which therefore do not contribute to any form of public debate capable of furthering progress in human affairs” [167].

However, the State had to respect the views of minorities by tolerating conduct which is not per se incompatible with the values of democratic society [168]

In applying the principles to Mr Gough’s case, the Court was “prepared to accept that the extent to which, and the circumstances  in which, public nudity is acceptable in modern society is a matter of public interest” [172]  He was entitled to initiate a debate as to whether public nudity should be acceptable and there was a public interest in his doing so.  However, the issue raised moral and public order considerations and there was a wide margin of appreciation in reacting to public nudity (as opposed to regulating statements or arguments on the subject) [172]

There was not a blanket ban on public nudity in Scotland and each case had been considered on its facts.  Sometimes he had been released without charge and on four occasions he had been found not guilty.  Although the cumulative effect of the sentences was, undoubtedly, severe Mr Gough’s

“own responsibility for the convictions and the sentences imposed cannot be ignored. In exercising his right to freedom of expression, he was in principle under a general duty to respect the country’s laws and to pursue his desire to bring about legislative or societal change in accordance with them … Many other avenues for the expression of his opinion on nudity or for initiating a public debate on the subject were open to the applicant. He was also under a duty, particularly in light of the fact that he was asking for tolerance in respect of his own conduct, to demonstrate tolerance of and sensibility to the views of other members of the public” [175].

The Court concluded that Mr Gough’s case was “troubling” since “his intransigence has led to his spending a substantial period of time in prison for what is – in itself – usually a relatively trivial offence” [176].  However, his imprisonment was a consequence of his repeated violation of the criminal law in full knowledge of the consequences

through conduct which he knew full well not only goes against the standards of accepted public behaviour in any modern democratic society but also is liable to be alarming and morally and otherwise offensive to other, unwarned members of the public going about their ordinary business. [176]

As a result, the Court held that the measures taken were “necessary in a democratic society”.  It said that

“Article 10 does not go so far as to enable individuals, even those sincerely convinced of the virtue of their own beliefs, to repeatedly impose their antisocial conduct on other, unwilling members of society and then to claim a disproportionate interference with the exercise of their freedom of expression when the State, in the performance of its duty to protect the public from public nuisances, enforces the law in respect of such deliberately repetitive antisocial conduct” [176].

In relation to the Article 8 claim, the Court noted that although the “zone of interaction of a person with others” even in a public context may fall within the scope of private life but when on to say

“not every activity that a person might seek to engage in with other human beings in order to establish and develop relationships will be protected by Article 8: it will not, for example, protect interpersonal relations of such broad and indeterminate scope that there can be no conceivable direct link between the action or inaction of a State and a person’s private life” [183]

The Court doubted that Article 8 applied at all but, if it did, then there was no violation for the reasons dealt with under Article 10.

Comment

This decision comes three weeks after Mr Gough was imprisoned for two and half years for breaking the terms of an Anti-Social Behaviour Order (“ASBO”) which states that he cannot appear in public with his buttocks and genitals exposed.  He had been arrested outside the gate of Winchester prison just minutes after being released from a 16 month sentence for breaking the ASBO.  The Barrister Blogger, Matthew Scott, has recently argued that these prosecutions are a waste of public money.

The issue of “public nudity” is not a new one in freedom of expression case law. In the well-known case of Erie v. Pap’s A. M., 529 U.S. 277 (2000) held that a Pennsylvania ordinance making it a summary offence to “knowingly or intentionally appear in public in a “state of nudity” did not breach the First Amendment.  More recently, a Federal Judge ruled that a San Francisco ordinance banning most displays of public nudity did not violate the free speech rights of residents and visitors.  So it seems likely that the result in Mr Gough’s case would have been the same even if he had had the protection of the First Amendment.

The case is, as the Court’s judgment says, a troubling one.  It is not suggested that Mr Gough’s conduct was threatening or in any way violent.  It is simply his appearance which offends passers-by. Bearing in mind Mr Gough’s obviously strongly held and sincere views and the absence any accompanying disorderly conduct by him it might argued that the “alarmed public” were reacting unreasonably and that therefore no breach of the peace was being caused by Mr Gough.  This argument does not, however, appear to have found favour with the courts in Scotland.

The legitimate aim served by the restriction on his freedom of expression gives rise to difficult issues and the Court’s reasoning is problematic. The aim is to prevent Mr Gough committing the crime of “public nudity” but the essence of his complaint is that criminalising public nudity is a disproportionate interference with his freedom of expression. On the Court’s reasoning, if, for example, publishing disrespectful criticism of the Queen were to be made a crime then prosecution for this crime would be for a legitimate aim – namely to prevent people committing that crime.  This cannot be right. Surely, the Court has to assess whether criminalising the conduct is – with an appropriate margin of appreciation – compatible with Convention values.

In relation to the “necessity” of the interference, the Court appears in substance to accept that because Mr Gough’s views on nudity are contrary to those of the large majority of society, he is not entitled to express those views by his conduct.  This might, as Dr Marko Milanovic suggests in an interesting comment on the decision appear to be an endorsement by the Court of a

“majoritarian hecklers’ veto. If, say, the majority in a country decided that everybody must wear a bland, gray uniform (forget for a moment religiously mandated dress in some states, which can have an additional gender component), wouldn’t the Court, on the reasoning it gave with respect to nudity, have to accept that this was a proportionate restriction on the freedom of expression since there were alternative means to express one’s disapproval of such a decision?”

Mr Gough may be an eccentric and a particularly stubborn one at that but it seems difficult to justify the punishment of his eccentricity by very substantial periods of imprisonment in circumstances where the societal harm he commits is very small.  As he commented to the Independent after the decision:

 “I was brought up to believe I lived in a country that celebrated eccentricity and difference, not only because it added variety and colour to the otherwise slavish conformity that can feel depressive, constricting and sometimes just downright boring; but that it also indicated a deeper appreciation of how the unorthodox, at its very essence, is how originality and creative energy manifests itself. That without the freedom to express our individuality and uniqueness in our own way, something inside us dies, and the world around us become less vital.”

 

 


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11 11 2014
Case Law, Strasbourg: Gough v United Kingdom, N...

[…] Stephen Gough, the so-called “Naked Rambler” has lost his Court of Human Rights application under Articles 10 and 8. The Court held that his arrest, prosecution, conviction and imprisonment did not breach his rights to freedom of expression or…  […]

20 11 2014
The Dangerous Implications of the “Naked Rambler” Case: On FEMEN Activists and Throwing Paint on Atatürk Statues | Strasbourg Observers

[…] Particularly worth highlighting are the insightful contributions by Hugh Tomlinson over at Inforrm’s Blog and Marko Milanovic on EJIL: Talk!. Here, I will not regurgitate their poignant critiques. Instead, […]

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