Gough v Director Of Public Prosecutions

For an offence under section 5 of the Public Order Act 1986, entirely naked walking through a busy town centre may constitute disorderly behaviour where the defendant knows that members of the public are likely to be alarmed or distressed. The conduct need not involve physical aggression or active interference with others. Whether conduct is disorderly is fact-sensitive and depends on its context, including the defendant’s awareness of its likely effect and any deliberately provocative purpose. Public nudity in designated or avoidable settings does not determine the position in an ordinary public space. The objective reasonableness defence and Article 10 rights must be assessed in that factual context.

The appellant was convicted by the Calderdale Magistrates’ Court of an offence under section 5(1) of the Public Order Act 1986 after walking naked through Halifax town centre. The district judge found that members of the public were alarmed and distressed, that the appellant foresaw that reaction, and that he was at least aware that his behaviour could be disorderly.

The appellant challenged the exclusion of expert evidence, the finding that the statutory elements and intention were proved, rejection of the defence under section 5(3), and the compatibility of the conviction with Article 10 of the ECHR. The central issues were whether the conduct was disorderly, objectively reasonable, and proportionately restricted in the circumstances.

The appeal was dismissed. The court answered each of the five questions posed by the district judge in the negative.

1. Expert evidence. Evidence about changing cultural attitudes to nudity and children’s likely reactions was not necessary to decide whether the statutory offence was made out or whether the conduct was objectively reasonable. Those questions were for the court.
2. Disorderly behaviour. It was unnecessary to decide whether the conduct was also threatening, abusive or insulting. The district judge was entitled to find that walking entirely naked through a town centre violated public order and contributed to a breakdown of peaceful and law-abiding behaviour. The conduct was therefore disorderly within section 5(1). The appellant knew, from his past experience, that many people would be alarmed and distressed. His conduct was not passive in the relevant sense, particularly because he acted deliberately and provocatively.
3. Context. The legality of nudist colonies, naturist beaches and naked cycle rides did not determine the issue. Those settings were marked out or avoidable, whereas people in the town centre had no expectation of encountering public nudity. Each case falls to be considered on its own facts.
4. Reasonableness and Article 10. The objective reasonableness defence under section 5(3)(c) overlapped with the Article 10 issue. Assuming Article 10 was engaged, restriction of public nudity in these circumstances answered a pressing social need, corresponded to that need, and was proportionate. The summary-only nature of the offence and its maximum level 3 fine supported proportionality.
5. Final order. The conviction stood and the appeal was dismissed.

• High Court (Administrative Court): dismissed the appeal by way of case stated from the conviction at Calderdale Magistrates’ Court.