Law and nakedness

Blogger and tweeter Jack of Kent has deservedly built up a reputation based on a series of forensic blog posts critically examining a number of legal issues – with his assistance and analyses in relation to the Paul ClarkePaul Chambers and Simon Singh cases being particularly noteworthy. To the best of my knowledge he has not turned to consider Scots law but today there is a reference to Steve Gough, a man best known to the readers of the Scottish legal blogs as the naked rambler (for an exhaustive consideration of the cases, news reports, and ancillary matters there is really no better place to start than Professor Hector MacQueen’s Scots law news blog posts on the subject – a resource surprisingly not linked to from the Jack of Kent post). Jack of Kent notes merely

“Mr Gough’s series of legal problems seem to arise not from any law that actually bans nakedness, but by the use of laws regarding “breaching the peace” and “contempt of court”.”

which is not quite accurate (ignoring convictions in relation to public indecency) and does not address the nature of the offences in Scotland, and the detailed judicial consideration given to the contempt of court convictions in particular.

Mr Gough in 2003 decided to walk naked from Lands end to John of Groats and his difficulties with the Scottish legal system began during that trip (although he had been arrested at times during a trip through England (and was bailed in Cornwall – and was arrested in Scotland in response to a failure to answer bail in Cornwall). The charges for public order offences in Bodmin were ultimately dropped due to lack of evidence). He was arrested and charged with breach of the peace in Inverness in August 2003 following a complaint from a female motorist. After this arrest Gough was released on bail after undertaking to commit no more offences, although on release Gough confirmed that he would continue his naked trip through Scotland. Later in AUgust he was arrested again for breach of the peace following a complaint from a woman startled to encounter a naked Mr Gough in the Black Isle. During the pre-trial hearing Mr Gough refused to wear clothes and the hearing did not take place within the court room.

At the trial Gough was admonished, released, and then re-arrested and remanded in custody, and at this later trial Gough was convicted of “walking naked in the presence of the public in circumstances likely to produce a road safety hazard and a breach of the peace on Cromarty Bridge, Ardullie, in Ross-shire, on 3 October” before being sentenced at a later hearing to a 3 month custodial sentence. Upon his release he was re-arrested following a complaint from a resident, and at the subsequent trial was jailed for 3 months for breach of the peace. Following his release Gough then reached John o’Groats in january 2004.

Given his difficulties with the legal system Mr Gough’s decision to do the whole thing again in 2005 may have raised eyebrows. And once again as he traversed England he was arrested at various points but made his way to Scotland. Gough was arrested on 1 September 2005 near Edinburgh (a fellow naked rambler pleading guilty at a subsequent court hearing). At the trial Gough was jailed for 2 weeks for breach of the peace. Sheriff MacIver noted that  “walking naked through a Scottish town and along a busy road is not something which the Scottish public should be expected to deal with”, and found that this was likely to upset, alarm and offend. When released Gough had bail conditions imposed regulating his dress. He was then rearresed and charged with breach of the peace and breach of the bail conditions when in Inverness-shire. Having been jailed for breach of the bail conditions Gough was released in November 2005 and when refusing to wear clothing for the court hearing was jailed for contempt of court. In january 2006 Gough was admonished for breach of bail conditions and released on bail. Gough again reached John O’Groats in Feburary 2006 having been arrested again en route following complaints from locals (including a Church of Scotland minister). A few days later in Edinburgh (in relation to an earlier  breach of bail conditions) he was then jailed for 2 months having refused to wear clothes to attend court.

Some months later – on a flight to Edinburgh to attend a hearing at the court of criminal appeal in the High Court of Justiciary Gough shed his clothes and was arrested on arrival and charged with breach of the peace and public indecency. His behaviourn on the flight has led to a 20 minute sojourn to the toilets to shed his clothers, causing alarm to members of the flight crew and on his appearance on the flight deck disturbed a number of passengers leading. His conviction on breach of the peace and public indecency charges led to a 4 month custodial sentence. On release he refused to wear clothes was rearrested, convicted and sentenced to 7 months. The cycle of release and re-arrest was followed in 2007 with his 11th breach of the peace conviction takinng place in the autumn of that year while Gough’s criminal appeal was progressing through the court system.

On 7th November 2007 a court of 5 judges in the court of criminal appeal in the High Court of Justiciary pronounced in Gough’s appeal against his contempt of court convictions. The leading judgment is a 105 paragraph judgment from Lord Justice-Clerk Gill, the second most senior judge in Scotland.

Lord Gill (at para [10]) notes

[10] The complainer is persistently naked in public. He has twice walked naked from Land’s End to John O’Groats, his orderly progress on these excursions having been interrupted by a series of arrests along the way. Through his incorrigible exhibitionism, he has acquired a record of convictions for breach of the peace and bail offences. The complainer dresses on certain formal occasions, but these occasions do not include appearances in court.”

and then proceeds to detail the four contempt of court convictions.

Gough’s argument is that

[28] In all four Bills, the complainer avers that to appear in court undressed does not amount to a contempt of court. He also avers that justice was neither done nor seen to be done since the sheriff had formed a view, prematurely and in the absence of submissions on the point, that to appear in court naked would be contempt; that the complainer was denied the substance and the appearance of a fair hearing; that in view of the sheriff’s earlier remarks, the well-informed observer would have concluded that there was a real risk that the sheriff could not deal fairly with the question of contempt or the question of punishment; that, those remarks having been made, the sheriff should have declined jurisdiction; that the sheriff denied the complainer a fair hearing by adjudicating on the question of contempt instead of remitting the matter to another sheriff; and that accordingly the sheriff breached the complainer’s rights under article 6 of the Convention and, in any event, acted oppressively and contrary to the complainer’s right to a fair trial at common law.”

Lord Gill considers the Convention arguments, notes the historical development of contempt of court, and stresses the common law development of the crime in Scotland. He then notes – in relation to Gough’s argument,

[74] In each of the cases involving the complainer it is submitted that his conduct was not contemptuous. I do not agree. In my opinion, the appearance of anyone in court naked, whatever crimes that may constitute, is unquestionably a contempt. The court is entitled to enforce standards of decency and decorum in the dress and demeanour of those who appear before it, whether as witnesses, lawyers, jurors or accused. Conduct such as the complainer’s is not only indecorous. It can offend, upset or alarm those present. It can distract those engaged in the trial from the essential issues. It adds to the difficulties of the presiding judge or sheriff. In all of these ways it impairs the administration of justice.

[75] It is fallacious, in my opinion, to suggest, as counsel for the complainer did, that the complainer had no mens rea because he sincerely believed that his conduct was not contemptuous. It is sufficient to establish mens rea that he intended to do that which, in the eyes of the law, constitutes contempt.

[76] Counsel for the complainer submitted that to appear in court naked is a right guaranteed by article 10 of the Convention as an aspect of freedom of expression. He did not define for us with any precision what the complainer was expressing; but in any event, the law of contempt does not interfere with the complainer’s freedom to express whatever that is. Article 10 gives a person the freedom to express his views; but counsel has not established in this case that the complainer has been prevented from expressing whatever view he seeks to express (Stevens v United Kingdom, (1986) 46 DR 245; Kara v United Kingdom, (1999) 27 EHRR CD 272). The law of contempt merely restricts his right to express that view in his chosen manner (Jones v Carnegie, 2004 JC 136, at para [27]). If he seeks to express the view that an individual has the right to be naked at all times and in all places, there is nothing to prevent his doing so orally or in writing while remaining properly dressed.

Lord Gill then goes on to detail the procedural requirements for hearings in these cases.

The ongoing travails of the naked rambler can be seen from Professor MacQueen’s other posts on the Scots law News blog.

In his blog post Jack of Kent argues that

“The decision as to how one wishes to present oneself to the world can be regarded as a private matter and (sometimes) a public matter.

It is a private matter in that how (or, indeed, if) one dresses is a matter fundamental to one’s sense of personal autonomy.”

It is also perhaps a public matter in that one’s appearance can be an exercise of one’s right to free expression; it is also, arguably, a public matter as other people may not wish to see how one is dressed (a burqa) or not dressed (nakedness).

In both its private and public aspects, the liberal starting point is that an individual should be able to do what they want, unless there is a wider public interest in them not doing so.

And, in my view, mere offence is not sufficient to rebut the presumption in favour of individual autonomy in the case of either a burqa or a naked rambler.

It would be interesting to know what conduct Jack of Kent would regard as contempt of court? Is any form of personal behaviour a matter merely for personal autonomy – or can the court expect certain standards of dress and behaviour from those therein?

As for the assertion that Gough was not convicted of any offence relating to his nakedness this fails to note the nature of the offences for which Gough was convicted (which includes public indecency) and does not appreciate the nature of the common law crime of breach of the peace in Scots law. For a liberal lawyer the latter is particularly problematic – a catch-all offence which involves criminalising behaviour causing alarm to the lieges (which can be objectively ascertained by the court).

Public indecency is a common law offence the leading statement of which is in Dominick v Webster a 5 judge decision (noteworthy for a broad range of comparative sources used in the development of the argument) which confirms that “public indecency” applies in the following situation:

[50] On the other hand, where indecent conduct involves no individual victim, it is criminal only where it affronts public sensibility. Although this crime has no specific victim, it may be appropriate in some cases that the libel should specify the persons who witnessed the conduct complained of (eg Lord Advocate, Petr, 1998 JC 209); but that is a matter of fair notice only. In other cases such specification may be unnecessary and inappropriate (eg Lockhart v Stephen, 1987 SCCR 642).

[53] In the law of Scotland, in my opinion, the actus reus of the crime has two elements, namely the act itself and the effect of it on the minds of the public. As to the indecent act, the paradigm case is that of indecent exposure (1995 Act, Sched. 5; Lord Advocate, Petr., supra, Lord Justice General Rodger at p. 405A-C; Usai v Russell, 2000 SCCR 57, Lord McCluskey at p. 62B-C); but the crime may extend to any other form of indecency, for example sexual intercourse in public view (Paterson v Lees, supra, Lord Sutherland at p. 235F-G; R v B and C, supra), or the making of indecent actions or gestures in a stage show (eg S v F, supra). Whether or not such indecency is committed for sexual gratification is, in my view, irrelevant to liability, being a matter of motive, but may, on conviction, be a relevant factor in the court’s disposal.

[55] As to the public element of the crime, the test, in my view, is not whether the conduct occurs in a public place in any technical sense. Conduct falling within the definition could take place on a private occasion if it occurred in the presence of unwilling witnesses or if it occurred on private premises but was nonetheless visible to the public (eg Usai v Russell, supra; R v Thallman, (1863) 9 Cox CC 388; R v B, 1955 (3) SA 494 (D); Manderson v R, 1909 TS 1140, at p. 1142).

[56] I do not accept the submission of the advocate depute that indecent conduct committed in private can be criminal merely because the conduct would cause offence to certain people if they were to hear about it. In my view, the crime does not extend to consensual sexual conduct committed in private; nor to the private showing of indecent films and videos; nor to the selling of indecent publications. Nor does it extend to conduct witnessed only by persons who wish to see it – for example, performances by strippers (eg Lockhart v Stephen, supra) or plays with scenes of nudity (eg Cullen v Mecklenberg, [1977] WAR 1) and the like – except perhaps where the conduct is such as to offend even members of a consenting audience. On this view, indecent exposure such as that considered in Geddes v Dickson (2000 SCCR 1007), which was found to have offended some of those present, would continue to be criminal. [57] On the view that I have taken in this case, shamelessness is not a definitional element in the crime. It is part of the rhetoric used in the early forms of the charge of indecent exposure and later given statutory expression in the 1908, 1954 and 1995 Acts (supra). In my view, it is superfluous and should not be used in the modern style of the charge.

[58] If it is analysed as I propose, public indecency is an offence that fulfils an appropriate role in the maintenance of public order. Whether a particular act is indecent will depend on the circumstances of the case judged by social standards that will change from age to age (cf. McGowan v Langmuir, 1931 JC 10, Lord Sands at pp. 13-14). These will be the standards that would be applied by the average citizen in contemporary society. That is the idea that underlies the test of the “community standard of tolerance” that has been applied in some of the Canadian cases on the subject (eg R v Jacob, (1996) 142 DLR (4th) 411; R v Tremblay, [1993] 2 SCR 932) and the test of the “recognised contemporary standards of common propriety” that has been applied in some of the Australian cases (eg Phillips v Police, (1994) 75 A Crim R 480). How such standards are applied in an individual case will depend on the time, place and circumstances of the conduct complained of (R v Dunn, [1973] 2 NZLR 481; cp S v F, supra, at p. 8A; S v K, 1989 (1) SA 65 (C), at p. 70D-G). On this interpretation of indecency, there should be no need to libel considerations such as the excitation of depraved, inordinate or lustful desires in the lieges.

Contrary then to the views of some who have commented on Jack of Kent’s blog there are complainers here, and some of the comments simply indicate a failure to understand the long-established Scottish law of breach of the peace (which differs from English law and accordingly should be noted in a technical way when used in the context of the prosecutions in Scotland). As detailed above a large number of the breach of the peace cases involved ordinary members of the public complaining about Mr Gough’s behaviour and appearance. In public indecency there has to be a public element.

 I find the continued prosecution of Gough counter-productive. I think the Scottish law of breach of the peace is flawed in various respects and calling out for reform. As to whether Gough’s behaviour should be criminalised I have no concluded view. I don’t know enough about the topic. However, I trust that the information and links here are useful to those wanting to pursue the topic.

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About loveandgarbage

I watch the telly and read when not doing law stuff and plugging my decade and a half old unwatched Edinburgh fringe show.
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3 Responses to Law and nakedness

  1. Barton71 says:

    My laymans criticism of “Breach of the Peace” is, it is a law which allows the police to make up laws, when there is no law on the statue books under which a person could be arrested, but they feel the person should be detained.

  2. Where nudity is concerned one person complaining, or indeed nobody complaining but a police officer thinking that somebody might, is sufficient to lock somebody up for life. That is what Steve Gough has now been threatened with.

    Every person in a community can complain about the excessive speed of traffic and the harm that that does to community, life and limb, especially children, and it is a fight to get anything done.

    I find the sight of people smoking in the vicinity of children, especially if the children are confined in the same small space such as a car, extremely offensive. Will the smokers get prosecuted?

    It is not coincidence that Scotland has some of the worst rates in the UK for body knowledge related problems such as teenage pregnancy (and the UK in Europe). Attitudes have consequences and this is all part of the same picture. The research evidence is really very clear. Prudery is child abuse with good intentions and ignorance is not an excuse.

    It is a really perverse set of priorities that puts arbitrary prejudice ahead of the welfare of children and young people. “Somebody might not like” is a very poor basis for any law.

    • Thank you for that.

      One of the issue sometimes confused in reporting is that in a number of the early prosecutions there were complaints from members of the public.

      In breach of the peace cases in recent years the High Court has indicated that the police should have a more robust approach to behaviour than ordinary members of the public – indeed in some cases swearing at a police officer is deemed not to be a breach of the peace, although equivalent behaviour with a member of the public might be viewed as such. It is not clear to me from the cases if a similar approach has been adopted in Mr Gough’s cases.

      As my initial post notes I do not know enough about the case and was merely trying to give some context to the blog post from Jack of Kent, which contained some factual inaccuracies given the complex history of the various cases in the Scottish courts.

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