A way out of the naked rambler dilemma: let a jury decide

I have blogged recently about The Naked Rambler, and apologies to readers who feel that it is becoming something of an obsession. There are, I suppose, many more important legal issues than the largely self-inflicted fate of one obsessive individual. On the other hand law is nothing if it is not about the protection of individual rights and Stephen Gough’s lengthy campaign does raise a number of important questions. Should we really go to great lengths to prosecute a man for doing no more than expose his un-air-brushed, and un-hair-brushed, body in a society in which highly sexualised near nudity is widely accepted? Is the ASBO regime appropriate to criminalise activity which might well not otherwise be criminal? Does the existence of Mr Gough’s ASBO mean that he is in effect denied the chance of a jury’s verdict on his behaviour? And do we not have many better ways to spend public money than to prosecute and incarcerate Mr Gough until the day he dies?

Public nudity is legal. If we do not intend to cause alarm and distress, and as long as our behaviour is not “lewd, obscene and disgusting,” and providing we do not outrage public decency, we can skinny dip in our local river or walk naked down the High Street. Any of us, that is, except for The Naked Rambler. Because of his ASBO (which is currently technically just an interim order but will soon be converted into something more permanent) Mr Gough’s public nudity is automatically criminal. His latest defeat occurred on Wednesday when he lost his appeal against an 11 month prison sentence.

But as he accumulates a collection of legal debacles that make the Australian cricket team’s recent form look impressive, it is the law and not Mr Gough that is starting to look absurd. He has spent over 6 years in prison, and unless he dresses he will be re-arrested upon his release from his current stretch. To have served as long for any ordinary offence he would had to have robbed a bank, raped a teenager or attempted a murder.

Mr Gough’s ASBO, or anti-social behaviour order, directs him not to expose his buttocks or genitalia in any public place other than a nudist beach, changing room or, rather mysteriously, for a medical examination. In my experience medical examinations, especially the sort of intimate ones in which one’s buttocks and genitals are exposed, do not happen in public places anyway, but there it is.

There may be very good arguments why he should be punished. On the other hand there are good reasons, economic as well as libertarian, for saying that his eccentricity should be tolerated. Which prevails could be decided, as English law always used to decide obscenity issues, by a jury after a fair trial.

But the devilish cleverness of the ASBO regime is that in Mr Gough’s case there is almost nothing for a jury to decide. Once his prison-pallored buttocks or genitals are bared in a “public place” he has breached the order and become liable to another prison sentence. His intent or his effect on public morals is legally irrelevant which makes the result of any trial a foregone conclusion.

His latest trial was rendered even more ridiculous by the judge’s refusal to allow him to appear naked in the dock. As he refused to dress, the result was that he stayed in the cells throughout and the jury never even got to see him, let alone to hear his, no doubt rather peculiar, evidence.

Yet the issue is quintessentially something suited to trial by jury. Who better to decide whether the mere sight of him poses a menace to impressionable children, or whether he should be celebrated as a monument to British tolerance?

Only once has a jury been asked a similar question, and it decided in favour of freedom. In 2001 Vincent Bethell was charged with causing a public nuisance by walking naked in a London street. The prosecution claimed he was harming the morals of the public. Bethell argued, full frontally, that he was doing no such thing and the jury agreed.

Yet a jury has never been given the chance to decide this issue in Mr Gough’s case. That must be rectified. His next charge should not be for breaching his ASBO but for outraging public decency. A jury could then decide whether he was a criminal or a fruit-cake.

I can guess what the verdict would be. If I am right it would not only strike a blow for freedom; it might also make a modest dent in the national debt.

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

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