Gough, R. v

A defendant may not insist on appearing before a jury in a manner which would itself breach a subsisting criminal court order. Where attendance remains available on lawful and appropriate conditions, a defendant who knowingly refuses those conditions elects not to participate and cannot thereby establish an unfair trial.

A belief that an anti-social behaviour order is wrong does not provide a reasonable excuse for deliberately breaching it. In assessing sentence for breach, persistent defiance of court orders and an immediate further breach on release from custody may justify a substantial custodial term.

The applicant was convicted at Winchester Crown Court of breaching an anti-social behaviour order, contrary to section 1(10) of the Crime and Disorder Act 1998, and sentenced to 30 months’ imprisonment.

The order prohibited his public appearance without clothing covering his genitalia and buttocks. On release from prison he refused clothing and was arrested. At trial he declined to dress and was tried in his absence, although he had no challenge to the Crown’s evidence and his case of reasonable excuse was put to the jury.

He appealed against conviction on the basis that his exclusion rendered the trial unfair and infringed Convention rights. He also sought an extension of time to challenge sentence. The central issues were whether the trial was unfair and whether the sentence was manifestly excessive.

1. The appeal against conviction was dismissed. The proposed naked appearance before the jury would itself have breached the anti-social behaviour order. The trial judge could not properly permit the commission of that offence during the proceedings. The applicant could have attended and participated if clothed. His informed refusal to do so was his own decision and did not make the judge’s ruling irrational or unfair.

2. The applicant’s view that the order was wrong did not amount to a reasonable excuse for disobeying it. The judge’s direction to that effect was unimpeachable. The jury was not directed to convict and retained its ordinary function. This distinguished Wang [2005] UKHL 9, where the judge had impermissibly directed a conviction. The jury had the applicant’s argument in the judge’s summary, and he had chosen not to advance it in person on lawful conditions.

3. The court treated the Convention arguments as providing no basis to disturb the conviction. The cited Strasbourg reasoning supported the conclusion that freedom of expression does not entitle a person repeatedly to impose anti-social public conduct on unwilling members of the public, or make proportionate measures to prevent disorder and crime unlawful.

4. The extension of time was granted, but leave to appeal against sentence was refused. Although 30 months’ imprisonment for a breach might appear excessive without context, the applicant’s repeated offending, failure to comply with court orders, and immediate breach upon release justified the sentence. The case was exceptional and sentencing guidelines offered no material assistance.

• Court of Appeal (Criminal Division) — in [2015] EWCA Crim 1079, dismissed the conviction appeal; granted an extension of time but refused leave to appeal against sentence.
• Crown Court at Winchester — on 6 October 2014, convicted the applicant of breaching an anti-social behaviour order and imposed 30 months’ imprisonment.