Stephen Peter Gough v DPP
| Jurisdiction | England & Wales |
| Judge | Sir Brian Leveson P,Mr Justice Openshaw |
| Judgment Date | 31 October 2013 |
| Neutral Citation | [2013] EWHC 3267 (Admin) |
| Docket Number | Case No: CO/5907/2013 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 31 October 2013 |
[2013] EWHC 3267 (Admin)
Sir Brian Leveson
(President of the Queen'S Bench Division)
Mr Justice Openshaw
Case No: CO/5907/2013
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Steven Powles and Andrew Pilkington (instructed by Bindmans) for the Appellant
Duncan Penny (instructed by C.P.S.) for the Respondent
Hearing date: 15 October 2013
Approved Judgment
For some ten years, Stephen Gough (the Appellant) has walked naked through the highways and byways of the United Kingdom, from John o' Groats to Land's End. He has made it clear that arrests, prosecutions and convictions will not deter him from nude walking in the future. On 11 March 2013, he was convicted at the Calderdale Magistrates Court in Halifax, before District Judge (Magistrates Court) Lower, of a breach of s. 5(1) of the Public Order Act 1986 ('the 1986 Act') which is a summary only offence, the maximum penalty for which is a fine up to level 3 on the standard scale. He now appeals against that conviction by way of case stated.
Although the papers contain both the carefully crafted and detailed judgment of the District Judge and all the evidence placed before the court, the facts and arguments which can be deployed on this appeal can only be taken from the Case Stated: see Part 64.3(5) of the Criminal Procedure Rules 2012. If it had been thought that there was insufficient detail in the Case as drafted, it was open to the parties to ask the judge to amend that document.
In any event, the facts found by the judge, (which were not in dispute and evidenced by CCTV and film footage), can be summarised shortly in these terms:
i) The appellant was released from Halifax Police Station at approximately 11.30 am on 25 October 2012 through the main public entrance; 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. He then walked through Halifax town centre for approximately 15 minutes, filmed by a camera crew working for a company which had obtained his permission to do so (without making any payment for that privilege).
ii) The appellant received a mixed reaction from others in the town centre, some of whom were heard to comment. 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 (see para. 18(iv) of the Case) and, further, based on the evidence, that it caused alarm or distress.
iii) The appellant then entered a convenience store whereupon police officers attended and arrested him. On interview, the appellant 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".
iv) The judge found that the appellant foresaw the fact of alarm or distress as the consequence of his voluntary decision to walk naked through Halifax town centre and was at least aware that his behaviour may have been threatening, abusive, insulting or disorderly. He said that he would continue to walk naked until adverse reaction to this stops and that his aim was to be accepted as are others who campaign for human rights. Being nude allowed him to express what he fundamentally was: this was not indecent.
Although not the first question posed in the case, it is appropriate to deal with the rejected submission that the appellant should be allowed to call, first, Professor Ulrich Lehmann, Professor of Fashion at the University for the Creative Arts, Rochester, to give evidence of how public attitudes to nudity have changed within various cultures and, second, Joanna Beazley Richards M.Sc., the managing director of the Wealden Psychology Institute 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 judge read the reports, accepted that both witnesses were experts in their respective fields and that the appellant's Article 10 rights were engaged (which he said that he did not require expert evidence so to conclude) but determined that both whether the imposition of a criminal sanction was necessary and proportionate and any issues of public harm were for the tribunal and not expert evidence.
Mr Powles, for the appellant, argues that the judge would have been assisted by examples where nudity is commonplace and accepted and he erred in not applying its commentary and conclusions to both the issues of reasonableness and whether the elements of s. 5 of the 1986 Act could be established. Similarly, the report of the psychologist highlighted the reality of the perception of such behaviour and was relevant to the reasonableness of the appellant's conduct. Mr Penny, for the Respondent, submits that the evidence of neither of these witnesses was admissible: 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: see DPP v. Clarke (1992) 94 Cr App R 359 following Brutus v Cozens (1972) 56 Cr App R 799, [1973] AC 854.
For my part, I have no doubt that Mr Penny is correct. 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.
The remaining questions posed by the Case relate to the decisions of the judge to the effect that the elements of the offence were made out, the defence pursuant to s. 5(3) of the 1986 Act should be rejected and that the prosecution and conviction did not constitute an unlawful interference with the appellant's rights under Article 10 of the ECHR.
The relevant parts of s. 6 of the 1986 Act are as follows:
"(1) A person is guilty of an offence if he –
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. …
(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 …
(c) That his conduct was...
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