A twitter exchange

Following my post yesterday and its reference to the blogpost from Jack of Kent I dropped him a note on twitter to indicate that a post was up referring to his.

@jackofkent Started as a comment and grew so here’s an inconsequential inconclusive blog post with context http://bit.ly/9gkZGr

The following details the twitter exchange (excluding the tweet deleted  by Jack of Kent and my reply to that) for those readers not on twitter.

JoK: @Charonqc All it shows is that @loveandgarbage yet again will not have any word said against Scots law 🙂

JoK: A good counterpoint to my blogpost. RT @loveandgarbage: A new blog post on Mr Gough and his rambling exploits http://bit.ly/9gkZGr.

JoK: @loveandgarbage Is there any area of Scots law – any at all – which you find fundamental fault with?

L&G: @jackofkent In the areas I know a lot about: our law of moveable securities is over-restrictive; our law of floating charges a mess; our >

L&G: @jackofkent >system of land registration (under the 1979 Act, not the 1617 system) is poorly drafted and thought out; our system of debt >

L&G: @jackofkent >enforcement against land needs overhauled; the law of immoveable securities has problematic system of enforcement; our system>

L&G: @jackofkent >of assignation of claims is too formalistic. On the areas I don’t know too much about I don’t know enough to comment sensibly.

L&G: @jackofkent I occasionally have to dabble with breach of the peace though & as indicated in the post it needs substantial reform in my view

JoK: @loveandgarbage Is it right, on any basis, that Gough should be serving such a sentence as his current one?

L&G: @jackofkent I don’t know enough about it but did note that I think continued prosecution is counter-productive.

JoK: If anyone wants to know what happens when law bloggers/tweeps clash, #follow the great @Charonqc and @loveandgarbage, in debate with me now.

JoK: @loveandgarbage But my question is not about “continued prosecution”. His current sentence is surely unacceptable?

L&G: @jackofkent @Charonqc See Prof MacQueen’s considered position. He knows a lot more about this than me – http://bit.ly/bDs3B2

JoK: @loveandgarbage But what is your view?

L&G: @jackofkent The change of culture in other sheriff courts is also interesting: http://bit.ly/cXSxDe

L&G: @jackofkent I refer you to my final para 😉

JoK: @loveandgarbage So, you take the time to do your blogpost, with *all* those links, and you don’t have any view on the main issue?

JoK: @loveandgarbage You mean you write *all* that and have *no* idea whether Gough’s sentence is acceptable or not? Really?

JoK: The Naked Rambler is serving 21 months. Here @loveandgarbage explains why that is *not* the fault of Scots law. At all. http://bit.ly/9gkZGr

JohnLinford: @jackofkent is it me or does @loveandgarbage miss the point you were making entirely…

JoK:  @johnlinford No @loveandgarbage is a very clever Scots lawyer and so must be right 😉

L&G: @jackofkent Your post is on what the law should be from a liberal position. I explained the background, linked to the best source on it &>

L&G: @jackofkent >gave you the legal context in Scotland. I thought it would be useful.

L&G: @jackofkent Always best to consider an issue from a well-informed position, surely? 😉

johnlinford: @jackofkent @loveandgarbage actually I misread the concluding paragraphs, my apologies 🙂

L&G: @jackofkent I think this tweet http://bit.ly/bNcMFI is a misreading of what I actually write. It’s an explanation of the position.

L&G: RT @DanielDWilliam: @jackofkent @charonqc @loveandgarbage 3 different questions; is the law X, sd the law be X, has the law been heavy handed?

JoK: @loveandgarbage Yes, but you still have *no* view on a 21 month sentence?

johnlinford: RT @loveandgarbage @jackofkent I think this tweet http://bit.ly/bNcMFI is a misreading of what I actually write. <- agreed

L&G: @jackofkent That sentence includes a 6 month period in relation to failure to comply with conditions on release after a previous custodial >

L&G: @jackofkent >sentence. I considered only the factual position. I would need to read more (and look at other sentencing positions) to form a>

L&G: @jackofkent >view as I would need to check what the sentencing related to (breach of bail/contempt/breach of the peace/public indecency) >

L&G: @jackofkent >each of which he has been convicted of at some point. It seems excessive but it may be explicable within the system. >

L&G: @jackofkent >I therefore have no firm view on the sentence – especially given the complexity of the background (which I indicate in my post)

L&G: @jackofkent And just to clarify – you are accepting that this tweet http://bit.ly/bNcMFI misreads what I write?

JoK: As @loveandgarbage explains, Scotland is not yet ready for naked ramblers.

JoK: In view of @loveandgarbage and Scots law, I would advise future naked ramblers to go from Lands End to (say) Cumbria, and then stop.

As I was due to retire for the evening I ended my evening with a couple of tweets

L&G: It’s an odd world where an explanation of what law is, is read as a justification of it. There was I thinking they were different questions.

L&G: Reserving opinion until one is in full possession of facts & context seems to have fallen out of fashion too. I blame these fact sceptics;-)

I’d be interested to know what Scottish lawyers (and others) think of the position regarding Mr Gough.

Should his refusal to dress for court hearings (when clearly he does dress for some occasions – such as boarding the flight) be contempt of court?

Should breach of the peace (in the scottish sense) cover his conduct?

Do you think his conduct constitutes public indecency?

Any thoughts – particularly from the Lallands Peat Worrier or almax – would be gratefully received.

S

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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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7 Responses to A twitter exchange

  1. Ms H Cushion says:

    I know nothing about the law and did not read any further than the tweets above last night… that said, I was dismayed to see a prominent tweeter show what I perceived to be total arrogance by tweeting about you and RTing your blog in the way he did. So I put him on the naughty step ; )

  2. Pingback: Tweets that mention A twitter exchange | Love and Garbage – some commonplace musings -- Topsy.com

  3. Ceebs says:

    I don’t see how the fact that he does dress at some times have any relevance at all for the situation, entirely seperately to how nakedness could be contempt of court. Is the judge or magistrate in charge really admitting that he or she is excessively distracted or aroused by naked men? which to my way of thinking can be the only reason that they can logically see a need for him to be clothed.

    Personally I am of the opinion that anyone offended by human nakedness needs to grow up.

  4. almax says:

    Congratulations on the move to WordPress – it looks really good.

    Let me have a wee while to digest your naked twittering and I’ll offer some thoughts as soon as possible

    • The site a lot more user friendly than LJ was – and stats and the like can be obtained without hassle. Transferring the material over was also much easier than I thought it would be. After seeing how yourself and Big Rab were using it – the move became a no-brainer.

      the comments on the original post from JoK are quite interesting. Also last night we had another brief exchange on this:

      self: @jackofkent – Re: last night’s blog post I remain curious on the questions I asked about contempt of court.
      self: @jackofkent – Should the court expect certain standards of dress and behaviour from those therein?

      JoK: @loveandgarbage Of course, but a breach of Ct expectation shd have a proportionate sanction. Will leave comment on your post at some point.
      self: @jackofkent So is your problem purely with sentencing?

      JoK : @loveandgarbage Mainly. Cannot see nakedness in court as custodial offence at all.
      self: @jackofkent And public indecency – where X’s nakedness in a public road or outside someone’s house causes offence to individuals?
      JoK: @loveandgarbage Same liberal position. Presumption against using coecive power of law. Also custodial sentence prob unjust.

      (Ps you should think about joining twitter: some good stuff via it and none of the “what I had for breakfast” stuff that you sometimes see in the stereotypical reports.

      Hope your wife is keeping well, and your new household duties are not taking their toll 😉 )

  5. almax says:

    Can I say at the outset that my knowledge of English law is nearly non-existent. But I do not understand the apparent suggestion in Jack of Kent’s posting and comments that Mr Gough’s troubles are primarily due to a peculiar Scottish intolerance. I doubt if Mr Gough is permitted to wander the English highways and byways naked without hindrance, and I really doubt that any English court would allow him to appear naked before it – perhaps I’m wrong.

    The mores and customs of Scotland in the 21st century are that people generally wear clothes in public. No doubt our cultural attitude is partially dictated by our climate. The South of France, for example, has a more relaxed attitude to exposed flesh than we do. But whatever the reasons for the existence of those mores and customs, they ARE our mores and customs, and most people, living in community with each other, accept them.

    Indeed, until Mr Gough arrived here, I do not recall anyone making a determined and sustained effort to adopt public nakedness as a way of life. And as far as I am aware, there aren’t any great number of other naked ramblers storming the barricades. I make this point simply to emphasise that there doesn’t seem to be any observable widespread public clamour to be naked in public places. There is no ‘public debate’ on the issue.

    On the contrary, it is quite obvious that persons appearing naked in certain public places will upset or alarm others, and Gough found himself in court on more than one occasion because of complaints by members of the public. Now, you or I might say that we personally would not be offended by a naked person, but then neither of us would presume to speak for the whole community. If there is a cultural taboo against public nudity (and there is) then the appearance of a naked person breaks that taboo and is bound to cause offence to some (the tritest example is a woman with children unexpectedly confronted by the naked rambler).

    OK, so if appearing naked in public is capable of causing offence, then is it capable of being sufficiently offensive as to be criminal? Well the answer to that is apparently yes (either as breach of the peace or as ‘public indecency’) (on the test set out in Smith v Donnelly 2001 S.C.C.R 800 for Breach of the Peace).

    Is it a serious crime? No, if it’s at the ‘streaking’ prank end of the spectrum. Yes, if it’s done within some sort of overtly sexual context (‘flashing’).

    ‘Streaking’ and the like wouldn’t normally require the involvement of the criminal courts. Usually the pranksters will accept a friendly warning from the police. Sexual exhibitionism, on the other hand, may well require immediate intervention by the authorities before ‘flashing’ progresses to something more sinister.

    Mr Gough is in an unusual category (of one). His behaviour is neither a prank nor is it sexually motivated. However, his insistence on a ‘right’ to be naked in public is quite simply at complete variance with the mores and customs that I’ve referred to. He has a very clear choice – when in Rome, do as the Romans (ie remain dressed while he’s in public places in Scotland) or face continual arrest, because clearly he will not accept any sort of warning, nor will he desist in his behaviour.

    In effect, what Mr Gough does each time he goes naked in public is to say that his ‘right’ to be naked is more important than the collective ‘rights’ of every other person in the community to have the mores and customs observed and not to see him naked.

    It may that in time those mores and customs will change and no-one will complain about public nakedness, but that time has not yet arrived.

    Mr Gough finds himself subjected to ever-increasing punishments, not because of his nakedness per se, but because of the repeated nature of his offending. He is doing this to himself. The Courts have told him repeatedly, that no matter how sincerely held his views are, his behaviour is criminal and it is aggravated by repetition.

    He could get dressed and stand as a single-issue MSP.

    I wish he wasn’t in prison. But he has the solution to that in his own hands.

    He is paying a high price for his monomania.

    If I was in Riyadh being flogged for drinking alcohol, then I wouldn’t celebrate my release by drinking a large glass of Springbank in the public square, while arguing for a relaxation in the prohibition laws. And if I did do that then I wouldn’t expect many to sympathise with my plight when the next flogging came round.

    Many people in Scotland (including me) regret that Mr Gough is in his present predicament, and wish it were otherwise. But I don’t think that you would find many who think that he’s right. Or who think that he should continue his campaign.

    • Very many thanks for this.

      Gough has been arrested a number of times in england and indeed one of his early arrests in Scotland was in relation to a breach of an English bail order (as he failed to answer bail because he was rambling in Scotland). He has been arrested but prosecutions have been dropped for lack of evidence (prompting witty comments in the letters pages of the quality press suggesting that this was not necessarily flattering to Mr Gough).

      The original post from jack of Kent seemed to downplay breach of the peace in Scotland, and in his later exchange with me he seemed to accept that it could be contempt of court to be naked given the power of the court to determine what should happen within the four walls. However, there seemed an inconsistency in suggesting that the behaviour could be unacceptable in court but not in public which I did not pursue. Also, as you note a number of complaints have been made by members of the public – many female, some male (including one Church minister).

      It is also noteworthy that having reached John O’Groats twice (with arrests and sentences) he has returned to Scotland again and again.

      Your sentencing point is a good one. It also occurs to me that Jack of Kent’s observation that in relation to contempt of court this should not be a custodial matter – ignores the nature of the convicted person. Whatever the disposal of the case, it will become a custodial matter. I do not believe a fine would be paid, and do not think that a non-custodial disposal would be accepted because he argues that the law should not criminalise his conduct at all.

      Thanks again for your careful consideration of this. It’s much appreciated.

      Scott

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