Naked rambler gets no help from European Court of Human Rights – Diarmuid Laffan

27 November 2014 by Guest Contributor

Gough v UK (Application no. 49327/11), 28 October 2014 – Read judgment

The applicant in this case has been repeatedly arrested, convicted and imprisoned for breaching the peace by walking around naked in public. In a judgment handed down recently, the European Court of Human Rights found the UK authorities’ restriction of his rights under Articles 10 and 8 of the Convention, proportionate to the legitimate aim of preventing disorder and crime.

Stephen Gough has a strong conviction that there is nothing inherently offensive about the human body, and that he harms no-one by walking around naked. A really, really strong conviction. Since he set off on a naked walk from Land’s End to John O’Groats in 2003, he has been nicknamed the ‘naked rambler’ and has spent most of the last eight years in prison, and most of that time solitary confinement.

Background

Over some 81 paragraphs of its judgment, the Court lays out the details of the 42 occasions on which the applicant was arrested in Scotland between July 2003 and July 2012. The incidents show a pattern of arrest, conviction, sentence and release, repeated often after the applicant’s immediate re-arrest while exiting prison car-parks naked. The paragraphs would read as slapstick if the applicant hadn’t spent so long in jail, or been rather tragically alienated by his actions from his young family.

The Scot’s law crime of breach of the peace for which the applicant has been frequently convicted, is defined by the leading authority Smith v Donnelly 2001 SLT 1007 in notably broad terms:

“[I]t is… clear that what is required to constitute the crime is conduct severe enough to cause alarm to ordinary people and threaten serious disturbance to the community”

The applicant challenged his convictions and subsequent detention conditions under Articles 3, 5§1, 7§1, 8, 9 and 10 of the Convention. This post will focus on the Court’s judgment in respect of the two grounds held admissible, the alleged violations of Articles 10 and 8.

Article 10

The only conviction in respect of which the applicant’s challenge was not time-barred under Article 35 of the Convention was that of 24 August 2011. The Court set itself the task of assessing the compatibility of this conviction “in the light of the pattern of prior and subsequent such incidents” (para 146).

The Court accepted that Article 10 protects a person’s right to express his ideas through his dress or conduct (para 149). It went on to find the applicant’s appearance and behaviour to be an expression of his beliefs regarding the inoffensiveness of the human body, and that the UK authorities’ sanctions were an interference with his right to express those beliefs (para 150).

In laying out the principles applicable to its proportionality analysis the court indicated that:

“[Article 10] is applicable not only to “information and ideas that are favourably received or regarded as inoffensive… but also to those that offend, shock or disturb” (para 164);

national authorities enjoy a wide margin of appreciation in matters of morality “since there is no uniform European conception of morals”, and a narrow margin in controlling the press in its performance of its role as a ‘public watching’ (para 166);

under the terms of Article 10(2), the person exercising Article 10 has reciprocal duties and responsibilities, including – in the context of religious opinions and beliefs – the duty to avoid “gratuitously offensive” expressions (para 167); and

“(r)espect by the State of views of a minority by tolerating conduct which is not per se incompatible with the values of a democratic society or wholly outside the norms of conduct of such a society, far from creating unjust inequalities or discrimination, ensures cohesive and stable pluralism and promotes harmony and tolerance in society”(para 168).

Merits of the complaint

The Scots law of breach of the peace as laid down in Smith v Donnelly was held – following previous ECtHR authority – to be “sufficiently precise to provide reasonable foreseeability of the actions which might fall within the remit of the offence” (para 155).

The Court found it more difficult to define the legitimate aim pursued by the restriction of the applicant’s conduct, settling on ‘the prevention of disorder and crime’. Expanding on this, the Court opined that the UK’s restrictions could be said to be ‘crime-preventing’ in two senses; the applicant was prevented from, firstly, causing alarm or offence to members of the public and, secondly, flouting the law on nudity (para 158).

Necessary in a democratic society

The Court agreed that the acceptability of public nudity in society is a topic of public interest on which the applicant was entitled to initiate a debate, before also commenting that “the issue of public nudity raises moral and public-order considerations” (para 172).

The applicant’s treatment was not the result of a blanket ban, rather each conviction followed a consideration of the evidence pertaining to the individual case. With regards to the conviction 24 August 2011, “the sheriff was satisfied that the applicant’s appearance naked on a public road outside HMP Perth was sufficiently severe to cause alarm to ordinary people” (para 173).

Turning to the proportionality of the sanctions imposed upon the applicant, the Court noted the severity of the sentences increased in line with the applicant’s “wilful and contumacious refusal to obey the law” (para 174). While the applicant’s total of over 7 years in prison since 2003 was “undeniably severe”, the applicant had only himself to blame:

“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” (para 175).

Finally, the Court concluded:

“[T]he applicant’s imprisonment is the 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… 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.” (para 176)

Article 8

In dealing with Article 8, the Court noted that the right to private life functions to protect a zone of interaction with others, even in a public context (para 182), but that the Article cannot be taken to protect every conceivable choice as to a person’s appearance in public: “there must… be a de minimis level of seriousness as to the choice of desired appearance in question” (para 184).

The Court doubted Stephen Gough’s choice to appear naked in public at all times had reached a ‘sufficient level of seriousness’ “having regard to the absence of support for such a choice in any known democratic society in the world.” Even if the applicant’s views had reached the requisite level of seriousness, there was no violation for essentially the same reasons as outlined in the Court’s treatment of Article 10.

Comment

In a recent development, Stephen Gough was sentenced to two and a half years imprisonment for breaching an indefinite ASBO which prohibits him from going naked in Winchester. Against this backdrop the barrister blogger Mathew Scott, points to the economic folly of locking up a relatively harmless eccentric at public expense.

This is a difficult case. On one level it can be seen as a straightforward application of the principle that individuals cannot be allowed to derogate from generally applicable laws on the sole basis of their personal convictions. While, on the evidence provided by a BBC documentary, many people respond to the naked rambler with amusement or even support, there is unquestionably a section of the public which is scandalised by his behaviour and – as noted by the Court – he refuses to take account of their feelings or convictions. Furthermore, in the absence of a Europe-wide consensus on public nudity, it was hardly Strasbourg’s place to step in and censure a national criminal law on the issue. Such a consensus is clearly absent.

However aspects to the Court’s judgment are concerning. As Hugh Tomlinson QC notes, there is a circularity to holding that the actions taken against the applicant pursue the legitimate aim of preventing crime; on this logic the enforcement of any law might be justified as Convention-compliant. The prior question as to whether it is legitimate to criminalise the relevant conduct is avoided.

Secondly, while reciting the Convention’s counter-majoritarian credentials, the judgment is strongly majoritarian. The Court goes as far as questioning the seriousness of the applicant’s personal choice on the basis of a cursory comparative survey which shows an absence of support for public nudity in other Council of Europe members. This seems particularly harsh given the lengths to which the applicant has gone. Despite the Court’s protests to the contrary, this judgment can be read as an illustration of the uncomfortable truth that, in practice if not in rhetoric, minority views are often protected in direct proportion to the size and assertiveness of the minority.

As David Hart QC has pointed out on this blog, surely, instead of using a popularity test which truly marginal views are bound to fail, the more appropriate investigation would be directed towards the reasonableness of social taboos such as that against public nudity.

Do we really have the right to be free from relatively harmless expressions we find offensive? To take an example from the other end of the sartorial spectrum, it is not impossible to imagine a feminist taking offence at some Muslim women’s decision to wear the niqab. However that offence – in the UK at least – is not allowed to prevail over the individual’s right to express her beliefs through her mode of dress. What’s so special about the taboo against public nudity?

Among the people who lack an answer is one of the police officers who had occasion to arrest Stephen Gough. The Court describes the course of proceedings taken against him in 2009 as follows:

“During cross-examination by the applicant, Police Officer A agreed that the human body was in itself decent and was not harmful or alarming. He accepted that nothing in the applicant’s behaviour at the time of his arrest, other than his nakedness, gave the police any cause for concern.”

Diarmuid Laffan is a pupil at 1 Crown Office Row

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