Freedom of expression – nakedness in a public place
31 October 2013
Gough v. Director of Public Prosecution [2013] EWHC 3267 – read judgment
Mr 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, 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.
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I don’t think there is a law against being “alarmed”, distressed” and “disgusted”. I’m disgusted when pet owners let their pets foul public places because of the actual danger of toxoplasmosis that can cause blindness in children. I am alarmed at cars driving too fast and close to the pavement because of the actual danger of death. And I am distressed that the police abuse the civil rights of a person who was harming no-one.
Maybe he should have worn a burkha?
What I find unbelievable in this time and age is the conviction being based on people getting “distressed”. That seems rather subjective to me. Everything people say, do or think has the potential to distress someone.
As someone who does a lot of walking in the Scottish mountains (often naked), I can assure you that on warm sunny days or when it is windy the midges stay at home. It is in still damp conditions, especially morning and evening when the midges can be a problem, but those aren’t conditions when many people would want to walking naked anyway.
Thank you, Brian; forgive me if I treat it as information rather than advice!
I bet he wouldn’t be so keen in August in Scotland when the midges are out and about . . .
When Mr Gough began his epic unclothed journey, it was reported while he was in England as an example of innocuous and amusing eccentricity. His problems began when he reached Scotland, where he was frequently thrown in the slammer. What I don’t readily understand is why the situation has now changed now that he has got back to (previously more sensible) England. Thed involvement of Leveson might at least get the press on his side!
I wonder whether the Admin Court erred in holding that Article 10 was engaged in this context. It is difficult to see that it is. As Lord Steyn noted in ex parte Simms [1999] UKHL 33 ‘not all types of speech have an equal value.’ I have to wonder which of Steyn’s three instrumental justifications for free speech strutting about nude fulfils!? If it does not fulfil one of the purposes behind the Art 10 guarantee then it may not be protected speech. Not all expressive conduct falls within the scope of Article 10. See Lady Hale in Miss Behavin’ [2007] UKHL 19 para 39 on sex shops for example. Just a thought.
Article 10 is always engaged where a speech act is concerned. The type of speech only goes to determine whether an interference is justified. Interference has to be proportionate to a legitimate aim, as opposed to the speech having to be of a particular purpose.
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.
Thank you for your interesting and thoughtful commentary on this judgment. What strikes me (as a non-lawyer) is the extent to which both the District Judge and the Administrative Court have both relied on Mr Gough’s own concession that he foresaw the possibility of reactions of alarm being caused by walking naked in Halifax town centre as proof of his intent to cause it. This surely cannot be right, as it appears to equate common sense with criminal intent. Had Mr Gough not made that concession, presumably the prosecution would have had a harder job in proving his behaviour had “crossed the line” of acceptability for the purposes of S.5 of the POA. Whilst (like many other naturists) I am very doubtful whether Mr Gough is furthering or hindering public acceptance of nudity by his actions, there is no denying the sincerity of his beliefs, but he does have an unfortunate (and exasperating) tendency to shoot himself in the foot. I do not however think that justifies the lengthy custodial sentences that have been imposed on him, or the attendant public cost, when most people regard him as an essentially harmless eccentric. What worries me, though, is that the draft ASB bill currently before the House of Lords will blur these lines even more, and render lawful naturism even more susceptible to being criminalized by its lowering of the bar to “nuisance or annoyance” from “harassment, alarm or distress” and the standard of proof to “balance of probabilities” from “beyond reasonable doubt”. This will give those who rule or inhabit Bigot Village a field day.
The possible defences to section 5 of the Public Order Act are enumerated here in paragraph 3:
(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
(b) that he was inside a dwelling and had no reason to believe that the words or behaviour used, or the writing, sign or other visible representation displayed, would be heard or seen by a person outside that or any other dwelling, or
(c) that his conduct was reasonable.
Unlike section 4A, no actual alarm, harassment, or distress need be caused; The likelihood is enough. Also unlike 4A there is no intent required per se, but we can see that 3(a) is struck out by the defendant’s admission and 3(b) is clearly irrelevant. It is 3(c) where this case hinges. Was his conduct reasonable by an objective standard? The only way for a judge to make a determination like that is to put himself in place of the “Man on the Clapham Omnibus”. So, yes. The prejudice of the judges is pertinent insofar as they must judge how a reasonable person would likely react. The interference with Article 10 rights to free expression is subject to conditions, one of which is that it must be deemed necessary in a democratic society. To address another comment, this is something like the tyranny of the majority. Interference must also be prescribed by law, which this is. If it were not, then nothing could be done. At present, most people are not comfortable with public nudity that is not in a designated area. One day that attitude may change and this type of behaviour will not be subject to criminal sanction.
CPS guidance is now not to prosecute as not in the public interest unless there is actual distress.
In an open, tolerant society, the majority should not legislate against the minority unless there is a justified need to do so. Otherwise all minorities will always be oppressed, and homosexuallity inter alia would still be illegal.
Before the defence even need to consider a defence under section 5(3) it is necessary for the prosecution to prove that the behaviour I threatening, abusive insulting or disorderly and that alarm or distress is likely to be caused. All to the criminal standard of “beyond reasonable doubt” (ie certain)
You seem to be equating “not comfortable” (the term I’d use is embarrassed) with causing “alarm and distress”
you also say “most people” when the NOP evidence is that it is less than 10% .
It’s what we call the “noisy 1% masquerading as the silent majority”
As to your point about Article 10 ECHR. Parliament performed the balancing of rights as required by Article 10 when the had a long, thoughtful debate on Section 5 Sexual Offences Act (2003) and chose in both the clear wording of the Act and in the debate and in that it was “not intended to criminalise Naturism and Streaking”
The Courts are circumventing “democratic process” in subverting the will of Parliament.
Well, the prosecution did have evidence of people being alarmed and distressed. The judges considered the evidence reliable. I’ve seen other commenters question that evidence, and I agree that the evidence is not entirely solid. As to the Sexual Offences Act, yes we certainly would not want legislation that treated nudity in public as a sexual offence absent any other type of provocation. The offences that Act creates are quite serious and require entry into the sex offenders register. Among these is the offence of Exposure: http://www.legislation.gov.uk/ukpga/2003/42/section/66. It only fails to criminalise naturism by setting a high threshold for intent, being specific as opposed to basic.
I have to say, I don’t like that he has a criminal record because of this and I don’t particularly like that the Public Order Act has been used in this way. I do however feel that some type of interference is justified. My mind is not completely made up. I’m beginning to be swayed by some of the good arguments I’m hearing.
I’ll only argue with one point this time. In this and similar cases the police solicit complaints from the public. Witnesses are almost always “alarmed and distressed” they aren’t surprised, astonished, gob-smacked, disgusted, embarrassed, offended, amused etc. They are “alarmed and distressed”. This is not coincidence?
The other factor is they won’t call the 99 people who aren’t “alarmed and distressed” as witnesses, only the one person who is “alarmed and distressed.
This is very selective use of evidence, much of it provided with police prompting. The police have decided on guilt and they are looking to prove guilt.
If you still believe in fairness of police methods perhaps you should study the Andrew Mitchell case.
Since anyone can be distressed by anything, there is effectively a criminal offence of “unreasonable behaviour in public”, which can mean whatever a judge or jury wants it to.
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 then 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.
The interesting thing here is that this is brute democracy in action: the tyranny of the majority.
The majority do not walk around naked, and do not want other people to do so, therefore walking around naked is forbidden, regardless of the views of the minority. Gay relationships are accepted by the majority, so they’re OK: the minority who would be offended by gay couples holding hands or kissing are ignored, regardless of any distress they might suffer.
Yet, a few decades ago, the gay couple might have been arrested. What has changed? Nothing – except how that particular action is viewed by the majority.
Mr Gough is in the same position; he did not attack or interfere with anyone in any way, nor did he threaten to do so. He was just… hanging around… and other people found his very presence (sans clothing) offensive. This, in spite of the fact that approximately half the population of the world has similar equipment to Mr Gough (except maybe the compass). There might well be more aesthetically pleasing sights to be had in Halifax than Mr Gough in a state of nature, but visual offensiveness per se isn’t a reason to ban a person or a thing from public view (or I would campaign for the works of the Impressionists to be consigned to some cold, dank cellar).
So if he wasn’t doing anything threatening, what he’s got isn’t unusual (except the compass), and mere ugliness is no reason to order him to cover up… we’re back to ‘because we say so’.
Plenty of minorities are in the same position. Women who want to wear a niqab. Anybody of any gender who wants to practise BDSM. Naked ramblers. They do what they do for themselves, not to make a political or social point, and they do not harm anyone. Yet society deems their actions unacceptable simply because most of society doesn’t want to join in.
It would be interesting to see someone in authority admit the truth: the law is not entirely based on logic or any kind of rational process or structure. Some of it is based purely on emotional responses masquerading as moral principles.
I wonder what would have happened if the judge had said, “Mr Gough, there is nothing intrinsically wrong with being naked, and nakedness and sexual activity (consensual or otherwise) are two entirely separate concepts, both being capable of existing in the absence of the other. However, since society – in defiance of all logic – links them together, and since people generally find sexual activity in a public place to be offensive… you’re guilty.”
[And I have to wonder… since the picture above shows an equally skyclad young lady, why wasn’t she charged at the same time? Could it possibly be that it’s only male nudity with which society has a problem?]
The young lady in question only did part of the walk up England and Scotland with him, he was alone when he was arrested. But tits make people read the article.
The young lady in question only did part of his main walk, and wasn’t with him at the time of this arrest.
But tits sell stories.
31 October 2013
Dear Mr Hart,
Thank you very much for your thought-provoking article.
In certain cultures it is the done thing to be naked.
So people wearing clothes are regarded as the odd ones.
Is nakedness per se wrong, or is it a social construct?
I would like there to be a national debate as to what is and what is not acceptable, as there are often photographs of semi-naked people adorning the “top shelf magazines” and there was an art “installation” of hundreds of naked people which was televised and broadcast on national news.
So when does nakedness become immoral? And when does nakedness become moral?
It certainly does pose several questions that I believe remain to be sufficiently debated.
Thank you so much.
Yours sincerely,
Rosemary Cantwell
Any evidence for this? My hunch is that these “flashers” are inadequate men who would not progress to other activities.
And when I see a couple of breasts should I be aware of the risk of the owner jumping on me and other males? Chance would be a fine thing. I do not wish to appear facetious but the whole debate about nakedness strikes me as ridiculous and if I were a police officer I would be inclined to ignore the fellow and suggest that the complainants do the same, instead of wasting time and money on such cases. There are many more important problems to deal with like domestic violence. Anyway, winter is drawing on so this will be less of a problem for the next few months.
Please remember that there are perfectly rational grounds for female “distress”. That’s because “flashers” often progress to sexual assaults.
It is extremely rare for a “flasher” to be naked. I’m not an expert on the subject but I understand that most “flashers” are fully clothed apart from exposing their genitals.
Anyway that is completely irrelevant to a prosecution under the Public Order Act. There is very clearly drafted and well understood legislation Section 66 Sexual Offences Act (2003) to deal with “flashers”
The CPS haven’t used that legislation against Mr Gough because they are fully aware he doesn’t come anywhere near meeting the requirements for a prosecution under that legislation. The CPS do however, when prosecuting under the Public Order Act, like to infer sexual activity and sexual motives, to prejudice the Courts.
Lets be honest here, what the shock and horror about and more shock and horror about him than of her, is his genitalia on show.
I have always wondered why he doesn’t invest in an “apache flap” for when in town, it simply blocks the eye from seeing too much yet doesn’t divest from his nakedness in any way.
I am surprised at the shock and horror, a 12 year old who surely has had sex education at school knows what it is, what’s more is you can see almost if not equal on the TV and in publications, all those male and female dancers backing up the pop stars, gyrating and thrusting in skin tight body suits leaving nothing to the imagination, do these same people emit shock and horror at that? Historically, Kylie Minogue on Smash:TV, a Saturday morning show for teenagers was on stage above a crowd of teenagers and she wore no underwear whatsoever with her being “at eye level” for the kids on the floor, where was the shock and horror, the outrage at that? ITV had to be told she had done this because there hadn’t been any complaints and the internet was awash with full view of her genitalia.
I wonder here if its the good old British attitude of complaining just for the sake of it rather than anything legal or true shock, are we to believe that women and children á la Victorian times are running screaming from town centres at the sight of a male naked? Is the gentleman lurking in bushes jumping out at unsuspecting citizens giving them all a pre-halloween fright? Is he hanging about playgrounds or toilets even? Is it in a state of arousal at any time? I think personally far too much time and money has been spent on this man by the state, he is not going to comply and sending him to prison at £1200 a week is ludicrous plus the court costs and other expenses.
Whilst your comments about the 12 year old girl might apply to the majority of people that age, please don’t forget that some parents try to keep their children innocent as long as possible.
Not every parent allows their child to watch the cavorting of ‘pop stars’, not every parent tells their child about sex, some parents don’t allow their children to attend sex education classes (or remove them from school during them).
So that 12 year old girl, never having seen a naked man might well be ‘shocked and disgusted’, and whilst I think this is the fault of the parents rather than Mr. Gough, even as a naturist I don’t think Mr Gough should be able to force his nudity on anyone.
There’s innocence, then there’s ignorance. Even those children I attended school with who were excluded from sex education lessons knew perfectly well what male genitalia looked like, and how it functioned. Genuine innocence about its function should surely make the sight of a penis completely unthreatening anyway (though maybe surprising if you’ve never seen one before).
I find it difficult to understand why anybody would support a parent keeping their children, whether male or female, so ignorant of the human reproductive system that they should be “shocked and disgusted” by the mere sight of genitalia. Especially now, when children have quite easy access to pornography, it’s essential that parents engage with them on the subject, rather than trying (usually fruitlessly) to shield them.
I agree. It is tantamount to child abuse. Any such person if kept so ‘innocent’ (ignorant) is likely to have be shocked when confronted with male nudity – even if it is in the marriage bed. Such ignorance is likely to be highly damaging to the relationship and the person.
Those parents who “overprotect” their children are the one’s who are guilty of “child abuse”. Children need to learn about the human body. If they don’t learn about it when they are children, they will learn about it when they are teenagers. Unfortunately their sources of information will be the ‘airbrushed perfection’ in the magazines and the porn sites on the internet. There is real strong evidence (not just the assertion of the prudes) that children brought up in open countries such as Denmark and Nehterlands are much less likely to have early sex, teenage pregnancies, eating disorders etc than in prudish countries such as the US and UK. The countries with the biggest problems of child abuse and abuse of women are those where the moral standards are decided by bigoted religious leaders (such as in the Catholic Church and much of the Muslim world.)
Overprotection is not just a problem when it comes to body-image. Children need to learn to cope with a dangerous and complex world and if they don’t learn as youngsters they will learn the hard way as young adults. An obvious example is the obesity epidemic among children, due almost solely to lack of exercise. A major reason for this is the ‘overprotection’ of the children as they go to school by car and aren’t allowed to go out to play.
Children won’t grow up to be healthy well-adjusted adults if they are molly-coddled all the time.
With regard to the photograph on this item – please can someone explain why breasts are acceptable but a penis is not? Perhaps the Professor could be asked to explain this and provide expert evidence in the inevitable next case.
Not that I am planning anything…
Because breasts (male or female) art not genitals? Not the genitals of either sex should be treated as obscenities from which we need protecting.
I think a reasonable analogy is the poppy burning cases – also s.5 POA http://ukhumanrightsblog.com/2011/03/09/poppy-burning-free-speech-and-the-50-question/
There, a man burned a poppy on Remembrance Day, and got a £50 fine. I thought that was harsh and unnecessary, although under the very wide s.5 it was probably legally sound. Arguably, because that man was making an obviously political point, his protection would have been stronger under A10 than the naked rambler.
Interestingly, as I posted at the time, Lord Justice Leveson was President of the Sentencing Council at the time and was immediately on the radio defending the fine (“He said ”[The judge] had to balance the insult caused to those who were respecting the two minutes silence against the right which we all have to express ourselves freely, both under the European Convention and otherwise.”)
“He knows full well that the sight of him in that context will be distressing and alarming to many people; he merely believes it should not be so and wishes it weren’t”
But couldn’t you say the same for the gay couple walking down the street in Bigot Village?
I’ll admit that it’s a thorny issue, but for me it comes down to whether the behaviour is objectively reasonable in all the relevant context. A gay couple walking down the street in Bigot Village, as you say, holding hands or otherwise being politely affectionate is engaging in reasonable behaviour as society deems (though elements may still object). Even if this is done in the knowledge that it might stir trouble, it’s probably still a protected form of expression akin to nonviolent protest. Mr Gough’s behaviour is also a form of protest, but its protection is less secure.
What you are basically saying is that on an entirely arbitrary basis, I and and others can choose to find ‘A’ acceptable and ‘B’ unacceptable based on an untested hypothesis that the ‘majority’ find B offensive but the majority would find A acceptable, if not agreeable. That is one of those arguments that can just go around and around in circles and get absolutely nowhere.
I find it offensive having to look at sweating, heaving, gasping, morbidly obese people walking around in public, even when fully dressed. Let’s ban them from public, because I have complained and I am sure the majority of people would agree with me.
The decision to prosecute Mr Gough is entirely arbitrary and inconsistent, and justified purely on the basis of historical precedence and unproven assumptions that those very few individuals who complain do actually, assumptively, constitute the majority position. To say that it is anything else is a straight-forward fallacy and it is insulting to attempt to dress it up as anything more substantial than that, including all the usual nonsense about about the harm public nakedness does to kids and about how it is indicative of paedophile predilections. It is really only just about an alleged majority imposing their preferences on a minority; and complaining that if they cannot have their way that it is a minority imposing their will on them instead, nothing more. In short, the imposition of the will of the majority (allegedly) on the minority.
It’s not on an arbitrary basis at all. It is on the basis of proportionality. We must look at the harm that is inflicted on Mr Gough by his having to wear clothing in certain situations compared with the harm (real or imagined and certainly debatable) to others in those situations with him. The harm to Mr Gough by requiring him to wear clothing in busy public spaces is minimal. He may feel he shouldn’t have to wear clothing unless he chooses to, but really it’s a matter of convenience. The harm brought about by criminal liability is certainly quite a bit more substantial; however, the admission that he was aware that his conduct was likely to disturb people shows that he had the opportunity to modify his conduct but chose not to. To part quote, he did not have the right to “trample roughshod” over the rights of the majority “to enjoy a shared public space without being caused distress and upset”. People may see a naked person in public (especially a man) and have the immediate reaction to fear a sexual offender. That may be entirely unfair, but that’s how it goes. We’re not ready for unrestricted public nudity. For the moment, it is necessary in this democratic society to impose restrictions. One day hopefully that will change.
I’m anticipating some flak for what I said about “especially a man”, so I’ll address that now. It would be a very interesting line of defence to ask the bench to imagine whether a woman marching around in the nude would attract a similar reaction from members of the public and then to tackle this as a gender equality issue. Basically, I think the only way this would have a chance is on some issue of equality. The wearing or not of clothing is not a protected characteristic unless it is tied up with some other protected characteristic. Is this a sincerely held political belief? Perhaps, but even then it is sometimes necessary to interfere. I think you’d have to show that being nude is fundamental to Mr Gough’s identity and that the suppression of this is forcing him to be untrue to himself.
I would say that a gay couple holding hands would fall short as this is objectively reasonable behaviour. Taking that further, a gay couple engaging in behaviour the likes of which would be acceptable in public for a straight couple should also be viewed as reasonable behaviour, i.e. there would be no reason to believe that distress was likely to be caused. This should be true even if there are people in the vicinity known to carry bigoted views. The person holding those views is at odds with the Convention, and so the rights infringed should be accorded less weight in the balancing act, unless there were a specific intent. The case of Mr Gough is clearly different. He knows full well that the sight of him in that context will be distressing and alarming to many people; he merely believes it should not be so and wishes it weren’t.
That was not recently the convention. Not so long ago, any display of homosexual inclination would have been widely condemned, and it has taken widespread campaigning and protests to change the law and attitudes. On the face of it, the right to go about ones business naked is no different to the right to openly display one’s homosexual inclination, short of overt sexual behaviour in either.
The point is, whether the reactions of disgust of complainants are reasonable , or they merely due to the perpetuation of prejudices which have no place in an enlightened and open society. Given the religious origins of most negative attitudes to nudity, and the harm caused to many through warped attitudes to the normal human body (body dysmorphia etc), it would seem that we have some way to go.
It is only a minority who are disgusted, far less who are truly distressed. It is only a combination of the false assumption that naked = sex and the unusual nature of public nudity. Public education and increased tolerance in society are a more appropriate reaction than prosecution of harmless but unusual behaviour.