Neil Cox v Director of Public Prosecutions

Section 5 of the Public Order Act 1986 uses ordinary English words. Disorderly is neither specially wide nor specially narrow, and whether conduct falls within it is an objective question for the tribunal in the context of the particular occasion. Public nudity is not automatically disorderly, but may be so where unsuspecting people are confronted without warning or a realistic opportunity to avoid the encounter.

Where Convention rights are engaged, proportionality is assessed through the reasonable-conduct defence in section 5(3)(c). The defendant proves the relevant facts to the civil standard, while the prosecution must justify the interference. Once the defence is rejected, there is no further freestanding proportionality question.

The appellant was convicted under section 5 of the Public Order Act 1986 after walking naked on a public footpath at about 6.30 am and encountering three people. The Crown Court at Chester dismissed his appeal against conviction and stated a case.

The Divisional Court considered the meaning of disorderly, the separate statutory elements, the mental element, the section 5(3)(c) reasonableness defence, and the compatibility of the conviction with articles 8 and 10 of the Convention. It also considered the proper appellate approach to findings and proportionality on an appeal by way of case stated.

Appeal dismissed. The Crown Court’s reasoning could have been expressed more fully, but it contained no material error of law and its conclusions were open to it on the facts.

1. The terms in section 5 of the Public Order Act 1986 bear their ordinary meaning. They are neither specially wide nor specially narrow: Brutus v Cozens [1973] AC 854 and Chambers v DPP [1995] Crim LR 896. Whether conduct is disorderly, and whether it is likely to cause harassment, alarm or distress, are objective questions of fact. The ingredients are distinct, although they may be considered together if the tribunal addresses each of them.
2. Where the ingredients, including the mental element under section 6(4), are proved and Convention rights are engaged, proportionality is assessed through the reasonable-conduct defence in section 5(3)(c). The defendant must prove the facts relied on to the civil standard. The evaluative question whether conviction is a justified and proportionate interference is a question of law, and the prosecution must satisfy the court that it is justified. Once the defence has been rejected, there is no further freestanding proportionality inquiry.
3. On an appeal by way of case stated, the appellate court does not re-evaluate the facts. It intervenes for a material error of law, a reasoning flaw undermining the cogency of a proportionality conclusion, or a conclusion which no reasonable court properly directed could reach: DPP v Ziegler [2021] UKSC 23 and Fage UK Ltd v Chobani UK Ltd [2014] EWCA Civ 5.
4. Public nudity is not necessarily disorderly, but no additional violence, threat, interaction or spectacle is required. The Crown Court was entitled to find that walking naked along a route used by people travelling to work, where the appellant expected encounters and the witnesses had no opportunity to avoid him, was disorderly. Their fear, vulnerability and distress were relevant evidence of the natural and probable consequences of the conduct. The appellant’s awareness that some people might react adversely established the mental element; an intention to cause harm or distress was unnecessary.
5. The Crown Court had not treated the reasonableness defence as legally unavailable. It considered the appellant’s circumstances and concluded that the conviction was proportionate. The appellant’s Article 8 interest was modest, his expressive conduct was at the lower end of the Article 10 hierarchy, the public interest in protecting unsuspecting members of the public was substantial, and the fine was limited. The College of Policing guidance was not binding on the court and could not determine the statutory questions.

1. High Court (King’s Bench Division), Divisional Court — On appeal by way of case stated, the court dismissed the appeal: [2026] EWHC 2437 (Admin) .
2. Chester Crown Court — On 8 November 2024, the Crown Court dismissed the appellant’s appeal against conviction and stated a case for the opinion of the High Court.
3. Crewe Magistrates’ Court — On 26 April 2024, the appellant was convicted under section 5 of the Public Order Act 1986 and fined.