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.
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)