Who is more ridiculous: the Naked Rambler or the CPS?

My client Stephen Gough, an ex Royal Marine better known as the Naked Rambler, has now been in prison, largely in a segregation unit, for the best part of 9 years. Once the remission rules are taken into account, that is the equivalent of a sentence of nearly 18 years. It is about what you would expect to get if you committed a rape of an eight year old child. By my very rough calculations the cost of imprisoning him (ignoring altogether legal and police costs) for those 9 years has been about £330,000.

His offence has been that he won’t wear clothes in public.

Who is being the most ridiculous here: Mr Gough or the Crown Prosecution Service?

It is seldom advisable for barristers to make any public comment on the rightness of a client’s cause. If it were done regularly it would become expected, and a barrister’s failure to voice an opinion in support of his client would then be taken as a lack of enthusiasm. Our job is to represent the bad just as strongly as the good, and to do our best to make silk purses out of the sows ears that we are often handed. Our opinions are quite irrelevant to the arguments we make in court. Indeed, it is only because in court we are not expected to reveal our opinions that we are able to make arguments on behalf of those that we dislike just as much as on behalf of those that we like.

So it is with considerable hesitation that I am moved to comment on the Court of Appeal’s rejection yesterday’s of Gough’s appeal against his latest conviction and 2 ½ year sentence for breaching an ASBO requiring him to wear at least a loincloth whenever he is in a public place.

His crime was committed when he emerged from prison naked before being immediately greeted by two police officers charged with the faintly absurd task of either making him wear trousers or arresting him.

Of the judgment itself there is little to be said. There was an irony in the fact that even as Lady Justice Rafferty ruled that the Crown Court judge had been correct to exclude a naked man from participation in a Crown Court trial, a live video of that same naked man sitting behind a desk in Winchester Prison was being prominently displayed in the Court of Appeal. At one point he even leant back in his chair, unwittingly displaying for an illicit moment a flash of the organs that the law has expended so much money, court room time, prison space and legal brainpower in keeping permanently concealed.

The problem is not with the court that upheld his conviction and sentence yesterday: the problem is with an Anti-Social Behaviour Order that turns an eccentric into a criminal, and a prosecution system that could easily turn a blind eye, but which prefers instead to try to break the will of a harmless and astonishingly courageous man.

It is not, in itself, unlawful to go naked in public. It is an offence under S.66 of the Sexual Offences Act 2003 to expose ones genitals with intent that someone should thereby be caused “alarm or distress” but nobody has ever suggested that Mr Gough had such an intent. It can be an offence to cause a public nuisance and “harm the morals of the public or their comfort, or obstruct the public in the enjoyment of their rights” but as an earlier and more successful nudist, Vincent Bethell, showed in 2001 juries are reluctant to find that merely being naked in the street does anything of the sort.

Mr Gough could have been charged with the same offence but, as Hampshire prosecutors no doubt realised, that would have required them to persuade a jury that his nakedness had “harmed the morals of the public.” Since there was no evidence that it had done anything of the sort – although some people objected to the sight of him wandering around the streets of Eastleigh – a jury would have been likely to acquit. They could have achieved, indeed they did achieve a few convictions in the Magistrates Courts for minor public order offences, but the offences were too trivial, in themselves, to put him behind bars.

So the only way that Mr Gough could be reliably jugged was to tailor him a bespoke ASBO, making it a criminal offence for him to display his genitals or buttocks in public. As far as I am aware nobody else in the country is subject to a similar order.

The result is that one of the very few people in the country who actually wants to wander naked around the highways and byways of Hampshire is also the only man in the country who commits a crime by doing so.

It is extremely hard to come up with a defence to breaching an ASBO. In the past Mr Gough has been represented by very able counsel who have struggled, with no success, to persuade judges that it breaches his human rights. In the latest prosecution he was representing himself in the Crown Court and so, once the judge forbade him to come into court undressed, he made literally no arguments at all. It was that ruling that he was challenging, unsuccessfully, on appeal. But even if he had been present to argue his case in court, the jury would not have been allowed to decide whether his nakedness should be treated as criminal; their only job was to say whether or not the ASBO had been breached.

He has now been in prison for the best part of 9 years. And for what?

He is emphatically not a sexual predator. He does not open up his grubby raincoat to terrify schoolgirls. He does not even possess a grubby raincoat, or indeed any other clothing apart from footwear (which he wears because walking barefoot becomes painful).

He is not violent, he is not dangerous and he is not dishonest. He is not a murderer or or a terrorist. He is not a drug dealer and he has never turned his house into a cannabis farm. He is not a computer or a phone hacker and does not download indecent images of children. He has never tried to live off immoral earnings or run a brothel. He has never tried to smuggle drugs, guns or antiquities. He does not pervert the course of justice or commit perjury. He does not commit bribery or blackmail. He has never attempted to intimidate witnesses or pervert the course of justice.

Winchester Prison: Crime Scene

 

He does not ask anyone to look at him but nor does he hide menacingly in bushes. Although he draws attention to himself in the most effective way imaginable, he does so only because he wants to be ignored.

So what on earth is the justification for making him live his life behind bars?

It could, just about, be argued that the sight of his nakedness is corrupting to the morals of children, and that he therefore creates a public nuisance, but the Crown Prosecution Service has never had the guts to try and prove that to the satisfaction of a jury.

Instead it is said that he must be prosecuted for ignoring the ASBO. Given its existence one can understand why the justice system stamps on him so hard every time he does so.

Is this really a sensible use of our courts, police and prisons? Would the sky fall in and anarchy take over the streets of Eastleigh if he was allowed to go commando in the High Street or skinny-dip in the limpid waters of the Itchen? Would mothers have to blindfold their children on the school run? Or would the sensible citizens of that quiet town choose either to discreetly look in the other direction, or better still to ignore him altogether?
It is quite true that opinions differ. There are those who quite sincerely take the view that imprisoning Mr Gough indefinitely is a price worth paying to keep his private parts private.

Others think that if ever there was a case in which the law makes itself look like an ass, or perhaps a stubborn and biting mule, this is it.

So here is my solution. It might actually help both the CPS and Mr Gough out of the hole that they have dug for themselves.

Next time Mr Gough is released from prison he may well continue to flout the ASBO.

Of course I would prefer it if he were allowed to go free.

But if he is arrested, instead of trying him for the technical offence of breaching the ASBO which allows of no real argument, charge him with creating a public nuisance.

If there are witnesses who are upset, offended or fearful for their children’s welfare, let them come to court and say so. If such people exist, they have a right to be heard.

But vary the ASBO to let Mr Gough explain, in the witness box, dressed or undressed as he wishes, why he should be left to live his life as he wishes.

 

That would allow a jury of Hampshire men and women to decide once and for all whether he should be treated as a criminal who must stay in prison until he dies or conforms, or as a harmless eccentric who poses no threat to anyone.

 

(A version of this article originally appeared in the Daily Telegraph, 9th June 2015)

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Author: Matthew

I have been a barrister for over 25 years, specialising in crime. You may also have come across some of my articles I have written on legal issues for The Times, Standpoint, Daily Telegraph or Criminal Law & Justice Weekly

16 thoughts on “Who is more ridiculous: the Naked Rambler or the CPS?”

  1. I had the following conversation with my 5 year old today:

    Talking about governments and laws (she keeps asking!) we skirted through child labour (“I wouldn’t want to live there”); communism (“everyone should have the same money” – a lengthy conversation to be typed another day) and finally we got on to the naked rambler (following the news story about the topless girl in Malaysia) being in jail.
    C: “Why is he in jail”. Me: “Because its against the law to walk around naked”
    C: “why?”. Me: “Because the government says it upsets people”
    C:”I wouldn’t be upset, who did he upset” Me: “I’m not sure, but its against the law” C: “Did they ask people if they were upset?” Me: “No, I don’t think so”
    C: “then how do they know it upsets people?”
    Not for the first time do I have no answers.
    Although there was a point in the conversation where I said “He only wears a hat and boots” and C said “thats not right”; “why?” I asked. She replied “He should wear socks otherwise he’d get blisters”. If a 5 year old can see it…….

  2. Meanwhile Boris Johnson gives naked men £100,000 every year to parade in the streets for so-called “Gay” Pride. Other local councils up and down the country do the same.
    I cannot see any consistency there.
    If the law enforcers had just left your client alone, he would soon have found it too cold to go out naked any more. Or he would have died of pneumonia.

  3. Of course we are all grateful about all the different ways that you have listed in which Stephen Gough does not present a danger to society. That doesn’t change the existence of those laws that he has broken. Stephen Gough may not present an overwhelming threat to society, but he certainly presents an overwhelming threat to himself and he only has himself to blame for the consequences of his refusals to cooperate with the justice system.

    Stephen Gough (in his own minor way) continually challenges and flouts the etiquette of the justice system and continually disrespects and shows contempt towards judges and prosecutors, then acts surprised when the system bites back. If you are told not to expose your genitals in public and told that doing so is against the law, it is no use arguing (as you have) that he does not feel that the laws should apply to you merely because you feel more comfortable that way.

    He may not like the laws against antisocial behaviour and contempt, but they do exist; he has spent the last nine years arguing that such laws do not apply to him when judge after judge and court after court has asserted that those laws, whether he likes them or not, do in fact apply to him.

    It is also a bad idea to be presenting as a standard bearer for social change someone who not only has clear mental health issues but is also refuses to either admit or seek proper help for those issues. And to first require that a video linkup be set up designed to prevent you from exposing your genitals in court to the judges and then (as your article implies) attempt to do exactly that anyway is proof that you are foolish, reckless and a danger to yourself and not an argument against the ASBO or contempt laws. The flaws in the ASBO laws are certainly serious and certainly need challenging; I merely object to critics of those laws asking the mentally ill to go over the top for them.

    Judges demand certain behaviours from the people who sit or stand in front of them. If you choose to defy those rules then you do so at your own risk. Arguing that those rules are trivial and not important and that flouting them either should not carry any risk nor will cause any damage to either himself or others is not what I would be doing if I were representing him.

    And yes, I do find his behaviour alarming. I appreciate that you are arguing that that fact should not have legal consequences. I just don’t agree with that position and neither does the law. Both you and Stephen Gough would be better off coming to terms with that fact.

    1. The flash in court was clearly unintended and momentary. The video was not set up to prevent him exposing himself in court, it is available as of right to every imprisoned appellant who has leave to appeal against conviction. Had he wished to, he could have stood up while the judges were in court. He did not do so because appellants on a video link in the Court of Appeal are never asked to, and he wanted to behave in exactly the same way as any other appellant.
      He also had a right to attend court in person, and could have insisted upon that if he wished to make a scene.
      He wants his nakedness to be ignored.

    2. “And yes, I do find his behaviour alarming.”

      John. You are exactly the kind of person Stephen Gough’s quest was set to flush out. Being found naked in public is a trivial matter, in a non threatening, non sexual manner and courts normally brush it off with a fine. There’s no law against being naked in public and Gough never set out to change any law. There’s no law to change. It’s legal, officially. But in the early days, he kept being arrested and asked, “Why?”. His answer came to him in a flash. There are certain people in this world who object to seeing a grown man naked in public spaces and want to have THEIR say about it. “It’s out of context” they protest! It’s OK on the internet where it can’t policed. Not adequately enough anyway and it used to be OK on Page 3 of The Sun before the burn your bra brigade eventually put a stop to that.

      Matthew’s recent article in The Telegraph has generated almost 500 comments, most of which can be discounted as trivial, I guess, but the odd few diatribes on there tell the true story of what is really going on behind the scenes, behind closed doors and behind twitching curtains. It’s all an illusion. This short clip from Meridian TV shows Gough outside the Houses of Parliament stating his case.

  4. I suggest the next time he does it in Scotland in summer he should be released, naked as nature intended, somewhere in the Western Highlands and left to the tender mercies of the midges.

  5. Your correspondent John says Gough:
    (1) “flouts the etiquette of the justice system”: that is not illegal.
    (2) “shows contempt towards judges and prosecutors”: that is only illegal if a judge decides the legal system itself is undermined, and no one has suggested that in Gough’s cases.
    (3) “is told that [exposing his genitals in public] is against the law”: it is not generally illegal otherwise naked rambling, naked cycling protests, naked art installations, etc. would become impossible, but they are increasingly common.
    (4) “has clear mental health issues”: more than once Gough has had psychiatric tests that have confirmed his sanity. The letters he writes from jail to his many supporters contain much sane argument. They and his legal representatives can attest to his good mental health.

    It is true that “judges demand certain behaviours from the people who sit or stand in front of them”, but that should never be to the detriment of the quality of justice meted out. In the case of R v. Bethell 2001 to which Matthew refers, Judge Bathurst-Norman allowed Bethell to remain nude in the defendant’s box for the full five days of the Crown Court trial (although after the unanimous acquittal by the jury, he may have regretted it!).

    Matthew’s earlier blog about the unique application of an ASBO by local authorities to turn Gough’s particular (civil) eccentricity into a criminal act is worth considering further and should, I believe, be commented upon by judges at the level of the Court of Appeal.

  6. Most of us would like to flout the law at some time or other, but because we value our freedom, we tend to curtail our more outrageous behaviour, at least into a form that is more sociably acceptable. If Mr Gough is not mentally ill, then why is he doing this? It’s obvious he is getting a kick out of it, pitting himself against society and the establishment. Rather teenage of him, I think. Well, he’s certainly paid the price. He’s lost nine years of his life, when he could have got married, had kids, job, travelled the world…..oh dear, what a mess. Will he regret it when he’s collecting his pension?

  7. This isn’t, sorry [Mr Gove] , is not justice. It is a travesty of justice, a mis-justice [woops], and ridiculous that it is not a miscarriage, technically. Makes me ashamed.

  8. For the past few days I have been comparing this treatment with the way Homosexuals were treated until the law was changed in the UK. Consider the example of Alan Turing a man who devoted his life to protecting the UK, but who was forced to undergo chemical castration.
    At the time the legal system considered that Homosexuals were mentally ill, and forced into Psychological treatment, chemical treatment, electric shock therapy etc, or even imprisonment. The similarities are shocking, Stephen Gough originally being recommended for Phsycological treatment and now being imprisoned.
    Anyone who is not ashamed that we have progressed so far in the last 100 years but haven’t really moved on from our blatant injustice and discrimination of those who are different but don’t cause harm.
    It’s also shocking that we haven’t really moved on from Prude Victorian attitudes to the human body, criticism of breast feeding for example, nudity being rude and sexual actually feeds the sexualisation of the human body and creates far more harm than if society just accepted that we all have a body be it male or female and it is only sexual when used in a sexual way which Steven Gough most certainly is not.

  9. Two legal possibilities occur to me, although I expect you have already thought of both. The first is religious. If your client were prepared to assert allegiance to the Church of the Flying Spaghetti Monster (www.venganza.org) whose only dogma is “oppose dogma”, could the insistence of the authorities on the dogma that he wear clothes be a breach of his freedom of religious belief? I think it was an Austrian who successfully used this argument to wear a colander on his head in his passport photo as headwear (except religious) was banned.

    The second is that adult clothing attracts VAT. Could it be claimed that the Government is unlawfully trying to increase its revenues by compelling taxable purchases?

  10. Sharon, nice story but please inform your child accurately. It is not against the law to walk naked anyware.

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