Nudity is a form of expression, but the right to nudity is subject to limitations
Gough v Director of Public Prosecutions [2013] EWHC 3267(Admin) (31 October 2013)
Summary
The High Court of England and Wales has recognised public nudity as form of expression but held that limiting such expression is valid in the public interest. While the Court agreed that public nudity engages Article 10 of the European Convention on Human Rights (ECHR) being the right to freedom of expression, the court upheld the primary judge's conclusion that there was a pressing social need for the restriction of his right to be naked in the context of this case.
Facts
On 25 October 2012, Mr Gough was released (through the main public entrance) from Halifax police station. Apart from wearing walking boots, socks, a hat, a rucksack and a compass on a lanyard, he was naked, with his genitalia clearly visible.
The appellant then walked through Halifax town centre for approximately 15 minutes, filmed by a camera crew (with the appellant's permission), until police attended and arrested him inside a convenience store for offences under the Public Order Act 1986 (Act).
Section 5(1) of the Act makes it an offence to use threatening, abusive or insulting words or behaviour within the hearing or sight of a person likely to be caused harassment, alarm or distress thereby.
In the words of the District Judge, "the appellant received a mixed reaction" from people in the town centre.
The CCTV and film footage evidenced that at least one female member of the public veered out of Mr Gough's way, and evidence from two other women showed that they were "alarmed and distressed" and "disgusted" at seeing the appellant naked in the middle of the town centre.
One of the women, who was with the number of children including a 12 year old, reported that the child was "shocked and disgusted". The District Judge also found that Mr Gough's conduct caused another woman to "feel at risk".
Decision at first instance
At trial, Mr Gough 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, but added that this was "due to their own prejudice". Mr Gough sought to introduce evidence from a Professor of Fashion as to how attitudes to public nudity have changed within various cultures, and evidence from a Psychologist on children witnessing adult nudity and the way in which children would be likely to react to seeing a naked male. However the judge rejected the evidence, stating it was not relevant to whether the nudity would lead to public harm.
In the context of section 5 of the Public Order Act 1986, the District Judge concluded that the words "insulting", "threatening", "abusive" and "disorderly" should not be construed narrowly, and that "abusive" meant extremely offensive and insulting and "disorderly behaviour" was behaviour that involved or contributed to a breakdown of peaceful and law-abiding behaviour.
Gough sought to invoke Article 10 of the ECHR, which provides every person with the right to freedom of expression. Importantly, the exercise of this right is subject to such conditions or restrictions as are prescribed by law or necessary in a democratic society for, inter alia, the prevention of disorder and the protection of health or morals: Article 10(2).
Accordingly, the District Judge concluded that being naked was a form of expression such that Article 10 of the ECHR was engaged, however, found that there was a pressing social need for the restriction of the applicant's rights to be naked, and that the restriction imposed by section 5 of the Public Order Act 1986 corresponded to this social need.
Decision on Appeal
In dismissing the appeal, the Administrative Court found that the District Judge's analysis of the evidence and the law could not properly be challenged, and that it was open to the District Judge to reach the decision he did. Further, the Administrative court found that having regard to the evidence, it was "difficult to see how he could have decided otherwise".
Finally, the Administrative Court concluded that:
[N]either the facts that, on occasion, the police have helped the appellant, while naked, to leave urban areas (doubtless in order to avoid confrontation and potential disorder) and that they have on occasion declined to arrest or prosecute nor the reality that some people have not adversely reacted to his nudity or are not affected by it are not to the point. To say that the adverse reaction to the appellant's nudity is not his problem or the result of his behaviour (which is how the appellant articulated it) is to ignore reality.
Commentary
As explained by the District Judge, Gough has the right to hold his own views, and have those respected, however the engagement of Article 10 of the ECHR did not entitle him to "trample roughshod" over the rights of the majority "to enjoy a shared public space without being caused distress and upset".
Similarly, Gough was not prevented from being naked in certain public contexts where nudity is expected or tolerated, such as nudist beaches or nudist colonies.
Whilst Gough is an English case, and concerns the European Convention on Human Rights, section 15 of the Victorian Charter of Human Rights outlines a right to freedom of expression in very similar terms to that of its European counterpart. Specifically, the Charter states that the right to freedom of expression is subject to lawful restrictions reasonably necessary to respect the rights and reputation of other persons; or for the protection of national security, public order, public health or public morality.
The full decision can be found at: http://www.bailii.org/ew/cases/EWHC/Admin/2013/3267.html
Mathew Brown is a lawyer at DLA Piper
Editors Note: In Victoria, as in a number of other jurisdictions in Australia, it is a criminal offence for a person to expose their genitals in public (Section 19, Summary Offences Act). This offence is a separate offence to using threatening abusive or insulting words, or behaving in a riotous, indecent or insulting manner.