Just over a year ago, on 25th October 2012, Mr Gough was released from Halifax Police Station. As is his usual custom, “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“. After a short while, he was arrested and subsequently charged with an offence contrary to s5 Public Order Act 1986.
He was convicted in the Magistrates’ Court and appealed to the High Court.
The Court gave his various arguments short shrift. s5 is a very wide offence. It is committed if someone 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.
The Divisional Court concluded (para 15) that “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”
It is a requirement of the offence that “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.”
Again, this did not trouble the Court – “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“.
What of the defence in s5(3) of reasonableness – “it is a defence for the accused to prove … that his conduct was reasonable“? As was noted (para 17) this is closely related to the question of Mr Gough’s Art 10 rights. Ultimately, the Divisional Court felt that the Judge reached the right result in concluding that there was a “pressing social need for the restriction of his right to be naked in the context of this case“.
And so the appeal was dismissed…
Was the Court right?
As for the result in this case? It’s not particularly surprising. It is slightly frustrating to see so much money wasted on this, particularly against a backdrop of inconsistency from the various police dealings with him – sometimes he is arrested, sometimes prosecuted, sometimes just escorted away.
The UK Human Rights Blog has had a look at it, which is well worth reading. The point is made there that some people would find the sight of two men holding hands distressing, but should that mean that the conduct is unlawful?
The question will come down to reasonableness. Presumably if people are offended, then that offence is only relevant if it is reasonable. So the Court would assess that being offended by two men holding hands or kissing is an unreasonable offence.
This does raise the wider (and very interesting) question of whether I, as a citizen, have a right not to offended. I’m not sure that I do.
s5 is controversial. One way of resolving this would be to make it an either way offence, so we can let juries decided what is and isn’t reasonable. The argument against that is that it is very costly, but it may make prosecutors think more carefully before bringing charges.
What of the CPS policy?
The CPS published a policy on prosecuting naturism last month. This is obviously post Ms Gough’s conviction, but it would have been useful had the Court referred to them. It seems to me that the Court would have been entitled (in deciding the policy issues that were involved) to refer to them.
What next for Mr Gough?
Presumably more nudity, more prosecution, more prison time… But, it is interesting that one of Mr Gough’s cases is going to the ECHR. No details are given, but this is one to watch out for.
In this war between Mr Gough and the state it is clear that Mr Gough is not going to bend. And the state is not likely to back down either. We’ve reached a stand off, and it is hard to see how that will be broken. For myself, I would rather that we backed down, banked the millions that we have spent on prosecuting him, and just let him get on with his life.
But in this war, one side has the full armoury of the state at their disposal. Mr Gough is armed with a hat. I know who my money is on.