The gaoling yesterday of the Naked Rambler, Stephen Gough, for 11 months for breaching an ASBO forbidding him from appearing naked in public raises many questions. One of those questions is whether the trial judge was right to refuse him permission to conduct his defence in the nude.
One sympathises with judges who have to try whoever is prosecuted in their courts. They do not have much official guidance or training on how to try naked men. We know, because it was recently revealed by the prisoners’ newspaper Inside Time, that in 2012 the Ministry of Justice paid £720,000 to actors for “pre employment role play scenarios” but for that sort of money any professional actor willing to strip naked would barely be prepared to get out of bed, let alone participate for long in a pre-employment role play scenario.
Mr Gough is a harmless eccentric who seems to have no particular desire to do anything much except wander around the country with no clothes on. There are plenty of others who like doing the same thing but lack either the courage of his convictions or his obstinacy.
When the Naked Rambler appeared in the dock in April to enter his plea at Winchester Crown Court he appeared, full frontally, before the highly experienced Judge Guy Boney QC. Judge Boney is a veteran of many murder and sex cases in which horrific photographs are very often the most crucial exhibits, and the sight of Mr Gough’s naked body does not seem to have fazed him at all. He is also a man for whom, if it did not exist, one would have to invent the word “urbane” and he appears to have conducted the short plea hearing in exactly the same way that he would have had the Defendant been clothed. But once Mr Gough had entered his plea he said:
“Just one thing. I have had the courtesy of keeping my clothes on while hearing your case. I’m sure the judge trying your case would appreciate you appearing before him suitably clothed. Do you understand?”
As it happens Judge Boney is quite a snappy dresser but it was not just out of courtesy that he kept his clothes on. He is required by law to wrap himself in a purple gown and to wear a horsehair wig. If the case requires it, usually to stop him frightening children, he can occasionally dispense with the wig and on even rarer occasions the gown. Were he to take his jacket off HM Court Service eyebrows would be raised, and if he were to appear in court without trousers his boss at Winchester Combined Court Centre would immediately be on the phone to the shadowy Ministry of Justice enforcer whose job it is to strong-arm mad judges off the bench.
However, for very good reasons we do not insist on nearly such high standards from defendants. Unlike judges they do not have to wear any particular uniform. Many favour a dark suit and sober tie. Others opt for a more casual look with loose fitting track-suit bottoms and a T-shirt. Apart from Mr Gough I have never heard of anyone else appearing naked in court, or expressing a wish to do so. Naked defendants are almost as unusual as naked judges, although the occasional flash of bum cleavage is not entirely unknown. If it happens the sensible course is to turn a blind eye.
When Mr Gough appeared for his trial at Portsmouth Crown Court he ignored Judge Boney’s words of advice and elected to appear, as usual, without his clothes. At this point an already unusual trial took an even odder turn. Judge Sarah Munro QC took a less relaxed view of his nudity than Judge Boney. As reported in the Hampshire Chronicle (and I am well aware that even the Hampshire Chronicle can sometimes make mistakes) she refused to allow him to appear in the dock unless he wore clothes. There is no suggestion in the report that he had otherwise misbehaved or been in any way disruptive. Mr Gough was not represented by counsel or solicitors (no doubt because he had chosen to represent himself) so this meant that the trial took place without any input from him at all.
There are, of course, precedents for a judge allowing a trial to proceed in the absence of a defendant. In the memorably named leading case of R v. Smellie (1919) 12 Cr.App.R. 128, the Court of Appeal approved the practice of removing an intimidating defendant from the sight of a witness. However, that was hardly the case here. The witnesses were the police officers who had arrested him. They were obviously not intimidated by his nudity.
In her long career Judge Munro will have become almost as familiar with lurid photographs as Judge Boney. She too must be used to far more disturbing sights than Mr Gough. Moreover all judges are used to ignoring irrelevant matters, so she would not have let his appearance influence her against him, or for that matter in his favour. It is just possible it would have prejudiced a jury, but it would not have been beyond the ingenuity of Judge Munro to craft a suitable direction to stop that happening.
Perhaps she felt that the dignity of the court would be offended by nudity. So it would if counsel or the court usher had taken their clothes off. But Mr Gough was not a court official – and probably never will be – so how he chose to dress had no ramifications for the dignity of the court.
So it seems that the reason for insisting on Mr Gough not appearing naked was to protect the delicate sensibilities of the jurors. But would the jurors really have been so shocked that they could not do their job properly? If juries cannot be trusted with the sight of a naked man then we really have no business using them at all, except perhaps to try mortgage frauds.
Perhaps Mr Gough would have had no chance of being acquitted even if he had been in court. Very obviously he was in breach of his ASBO, so why did it matter that he was kept out?
One reason is that juries do not always return verdicts based upon the letter of the law. One of the most important constitutional justifications for the jury system is that occasionally they refuse to convict if they consider a prosecution oppressive, unnecessary or absurd. Had Mr Gough been permitted to take his place in court, to give evidence and address the jury without his clothes on there is at least some chance that he could have persuaded the jury that the whole thing was a complete nonsense.
It would have been an argument devoid of legal merit, but if it had succeeded it would have sent out a powerful message to the police and prosecution authorities that, especially in these hard times, we want our money to be used to prosecute the dishonest, the dangerous and the wicked rather than harmless eccentrics like Mr Gough.
Nest time Mr Gough walks naked down the street it is much to be hoped that the legal system will leave him well alone. But if, as I fear is inevitable, he is once again arrested fairness demands that he should be allowed to conduct his defence dressed or undressed exactly as he pleases.