Thursday, 11 June 2015

The Naked Rambler

Stephen Gough - also known as "The Naked Rambler" - has appeared (in the nude) via Video Link before the Court of Appeal (Criminal Division) - BBC News .

The appeal was against his conviction (in October 2014) for Breach of an Anti-Social Behaviour Order (ASBO).  Mr Gough had requested to appear naked during the trial (held in Winchester) but the judge refused and the case was heard in his absence.   He was convicted of breaching the ASBO and a sentence of 30 months imprisonment was imposed.   Breach of an ASBO was an offence, punishable by up to 5 years imprisonment, under section 1 of the Crime and Disorder Act 1998.  The Court of Appeal dismissed Mr Gough's appeal.

There is a tendency
to refer to this as 30 months jail for being naked in public.  In law, that is not the position. The ASBO had been imposed to try to stop Mr Gough being naked in public BUT the trial was about BREACH of the ASBO and the courts do not - (indeed, cannot) - take breaches of court orders lightly.  The 30 months imprisonment was for the breach.

ASBOs dealt with "anti-social behaviour" and that could include behaviour which was not necessarily criminal. The 1998 Act permitted an ASBO to be issued if:

" ... the person has acted, ...., in an anti-social manner, that is to say, in a manner that caused or was likely to cause harassment, alarm or distress to one or more persons not of the same household as himself; and that such an order is necessary to protect relevant persons from further anti-social acts by him."

Mr Gough has a long history of "entanglement" with the law in both Scotland and England.  On this, see the judgment relating to Mr Gough from the European Court of Human Rights - Gough v United Kingdom (28th October 2014 - Application 49327/11).  Even a cursory reading of this is sufficient to show that the law has proved unable to stop Mr Gough's behaviour and it probably unlikely to ever do so.

Having said all of the above, the whole issue is making the law look rather ridiculous.  The penalties for breach of an ASBO can be severe (as in this case) and out of proportion to the underlying anti-social behaviour for which the ASBO was imposed in the first place.  This has always been the underlying objection to the idea of the ASBO.  It effectively "criminalises" behaviour that would not, in itself, be a criminal offence.

Writing in The Telegraph (10th June), barrister Matthew Scott looked at the Court of Appeal hearing.  Enormous public resources have been expended on dealing with this including around £300,000 costs of imprisoning this "harmless eccentric."  See also the earlier post by Matthew Scott on The Justice Gap - Naked Rambler prosecution: the law is making itself look ridiculous - where Scott concludes that - "The solution is a very simple one.  Stop prosecuting him for breaching his ASBO. If he does things that would constitute a crime if done by others by all means throw the book at him.  Otherwise please stop wasting our money on what has long since become the persecution of a harmless eccentric. He has chosen to look ridiculous. The law is making itself look ridiculous."

Perhaps, for the future, Mr Gough might be left to wander outdoors at the mercy of the British weather which is, after all, at least one of the reasons why most of us never go out in our birthday suits!


ASBOs have been replaced the Anti Social Behaviour Crime and Policing Act 2014 . See also Invictus Chambers - Legislation Review

Usually an ASBO was issued on application (e.g. by the local authority).  This type of ASBO - (a civil proceeding but requiring a criminal standard of proof) - has been replaced (from 23rd March 2015) by injunctions under Part 1 the 2014 Act.   An ASBO could also be made upon conviction for a criminal offence - (a "CrASBO").  That form of ASBO was replaced, from 20th October 2014, by Criminal Behaviour Orders under Part 2 of the 2014 Act.

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