Naked Rambler – Halifax Conviction upheld

Naked-Rambler-Stephen-Gough-1967430

Introduction

We have covered the case of Stephen Gough – the Naked Rambler here. On 31st October 2013 the Divisional Court gave judgment in his latest Court battle.

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.

Decision

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…

Comment

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.

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About Dan Bunting

I'm a lawyer who works for myself. Legal geek, maths freak, general dullard and jack of all trades. Here’s a few views on law and occasional musings on life. Usual caveats about not relying on anything I say etc applies.

18 thoughts on “Naked Rambler – Halifax Conviction upheld

  1. sisterhooduk

    Why isn’t Stephen Gough made to pick up the entire costs of these cases. He’s just another exhibitionist who doesn’t get it that no-one else is either impressed or interested in seeing his bits.

    Reply
    1. duncanheenand

      If he was an exhibitionist he should have been prosecuted under s66 of the 2003 Sexual Offences Act. He wasn’t because there is no sexual content to his behaviour. It is merely unusual, and sadly we live in a bigoted society which can’t strand people who are a bit different to the ‘norm’, even if they do not harm anyone.

      Reply
  2. Andrew

    Sisterhood, I agree with your second sentence, and we should both be worried about that.

    As for the first: why aren’t all convicted defendants liable for all the costs of their cases?

    Because they have not got the money!

    Reply
  3. Brian Johnson

    It is a case about prejudice. Most of the “facts” in the judgement aren’t facts at all but prosecution assertions and statements based on police prompting. People are not “alarmed and distressed” they are surprised or gob-smacked. They aren’t distressed. A few (less than 10% according to MORI poll 2011) may be offended or disgusted. But distressed?? The police tell them they are distressed.
    Children are only upset by nudity if they have been taught to be upset by nudity. Younger children are oblivious to nudity. Teenagers are curious and excited by nudity in others, but embarrassed by their own nudity.
    In the Courts the Judges are required to make decisions based on evidence given in Court, but in this case it is clear that it wasn’t the evidence that was being judged but the prejudices of the Judges.

    Reply
  4. Rob M

    Prejudice, prudery and pandering to the small minority of complainants again rules the day when a judgement has to be made about Steve simply walking naked in a busy public place. The law, the facts, the reactions of the majority witnessing it and the opinion polls do not appear to count.
    The judges (IMO) are afraid that by finding Steve not guilty, more people will exercise their right to walk the streets naked and they haven’t got the balls to risk it happening – so twist the facts to support their rulings.
    I’m not so brave as Steve to take the authorities head on, but do support his stance fully and wish the right outcome for him (and us all) one day.

    Reply
  5. sisterhooduk

    I’m glad sense prevailed and decent people do not have to put up with the minority who presume to push they nudity on others without either consent or approval. Sometimes the courts get it exactly right, as in this case, I only regret that a custodial sentence wasn’t given or maybe they should just section him.

    Reply
    1. Brian Johnson

      The Tyranny of the majority?
      You are in the small minority (about 8%) (MORI polls 2001 and 2011) who are offended by nudity. The number who would be distressed will be much smaller than this.
      Try getting some facts behind your prejudices.

      I bet more than 8% of the population are offended by smokers or obese people or people who drop litter (I’m offended all of these). I might be offended but I’m not expecting the police to arrest all smokers and obese people or litter droppers.

      Reply
      1. sisterhooduk

        Spit all the venom, unpleasant and emotive language that you wish want and lace it with a generous dollop of male aggression (talk up living up to a stereotype) because you can’t get your own way. I’ve made my point and so have the courts. You’re wrong about this and and so is Stephen Gough well done to the UK courts for standing up for the majority against the aggressiveness of people like you and him.

    2. duncanheenan

      But you’d lock up all men wouldn’t you, on the grounds that ‘all men are rapists’.
      I despair when the Courts pander to the neurotic few women who seem to overrule the sense of the majority who just don’t care.

      Reply
      1. sisterhooduk

        Listen to these beasts bellow – We DEMAND to be naked and sexually aggressive in public in the polls say it’s okay, we say it okay, so it’s okay. Seriously go willy wave over a bramble patch. TakeTitus – that other well known prick with you.

      2. sisterhooduk

        93% of all violent crime is committed by men and 98% plus of sexual offences. The prison population is made up of 80,000 men and just 4,500 women what the courts are not doing is pandering to the demonstrably sexually and violently psychotic.

  6. Andrew

    Sisterhood, section 5 Public Order Act is fines only. Somebody must have considered sectioning him but we need to be careful to avoid using sectioning as a means of social control as in the USSR.

    Reply
    1. sisterhooduk

      So if I walk out of my house naked now and into my local Asda I end up with a fine and slap on the wrist. Plus eternal humiliation and avoiding my neighbours’ eyes forever. I think the USSR might have been on to something.

      Reply
    2. sisterhooduk

      Andrew – temember your “grow up post” of a week or so ago I want you to note who started the insults on this post. Before he goes “just defending myself” and my particular favourite QED. So everyone for the record the abusive Duncan Heenan or whatever his name is starts it like he always does. QED

      Reply
  7. Andrew

    I don’t disagree and I have no brief, as we say in the trade, for anybody on this forum except myself. But I do repeat that sectioning people because what they are doing is objectionable but not imprisonable is not a good way to go: not for women, not for men, not for any of us.

    Reply
  8. Andrew

    In any case Gough obviously welcomes being made a martyr – locking him up is playing his game. Frankly I don’t see a remedy which is not worse than the disease.

    I’m tempted to suggest the stocks – in his preferred natural state – and I will challenge you, sisterhood, to a round of competitive rotten-egg darts. But I fear there may be Article 6 difficulties. And MoJ would have to run a public procurement exercise complete with advert in the OJ for the concession to sell rotten fruit to the spectators.

    Andrew: behave, and get to bed. Goodnight, all.

    Reply
  9. Pingback: Review of 2013 | UK Criminal Law Blog

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