"Naked rambler" fails in Human Rights Court challenge
Stephen Gough, the "naked rambler" who was repeatedly prosecuted and imprisoned for refusing to wear clothes in public, has lost a case at the European Court of Human Rights in Strasbourg.
A chamber of seven judges unanimously held that none of the articles of the Convention founded on had been infringed by the actions taken against him by the authorities in Scotland.
Mr Gough, who has a firmly held belief in the inoffensiveness of the human body, and in social nudity, first came to public attention in 2003 when he set out to walk naked from Land's End to John O'Groats. He was arrested in Scotland on a number of occasions, and twice sentenced to imprisonment. On a second trek in 2005-06 he was prosecuted more frequently and served imprisonment for breaches of the peace and for contempt of court by refusing to dress in court. Between 2006 and 2011 he was regularly arrested for public nudity, often soon after leaving prison, and while in prison was kept in segregation for refusing to wear clothes.
Before the Human Rights Court the article chiefly founded on was article 10, the right to freedom of expression. The court said that in considering the issue, it was appropriate to have regard to the whole pattern of events, even though some of them were out of time as the subject of individual complaints.
It was satisfied that Mr Gough's public nudity "can be seen as a form of expression which falls within the ambit of article 10 of the Convention and that his arrest, prosecution, conviction and detention constituted repressive measures taken in reaction to that form of expression of his opinions". There had therefore been an interference with his exercise of his right to freedom of expression.
However the interference was prescribed by law, in terms of the offence of breach of the peace, and the measures taken pursued the legitimate aim of preventing crime and disorder, both in the sense of alarm to other members of the public and the broader aim of seeking to ensure respect for the law in general.
Whether the restrictions were "necessary in a democratic society" within article 10(2) was more complex. The exceptions to freedom of expression had to be construed strictly, and the need established convincingly. However, national authorities enjoyed a wide margin of appreciation in matters of morals, since there was no uniform European conception of morals.
"It must also be borne in mind", the court continued, "that, by virtue of the express terms of paragraph 2 of article 10, whoever exercises his freedom of expression undertakes duties and responsibilities, the scope of which depends on his situation and the technical means he uses."
in the present case each incident had been considered on its facts and in light of Mr Gough's own history of offending. The court was therefore "not concerned with the respondent state’s response to an individual incident of public nudity but with its response to the applicant’s persistent public nudity and his wilful and contumacious refusal to obey the law over a number of years".
The case was "troubling", the court said, "since his intransigence has led to his spending a substantial period of time in prison for what is – in itself – usually a relatively trivial offence". However, that was the consequence of "his repeated violation of the criminal law in full knowledge of the consequences, through conduct which he knew full well not only goes against the standards of accepted public behaviour in any modern democratic society but also is liable to be alarming and morally and otherwise offensive to other, unwarned members of the public going about their ordinary business".
It added: "It cannot be said that the repressive measures taken in reaction to the particular, repeated form of expression chosen by the applicant to communicate his opinion on nudity were, even if considered cumulatively, disproportionate to the legitimate aim being pursued, namely the prevention of disorder and crime. In particular, article 10 does not go so far as to enable individuals, even those sincerely convinced of the virtue of their own beliefs, to repeatedly impose their antisocial conduct on other, unwilling members of society and then to claim a disproportionate interference with the exercise of their freedom of expression when the state, in the performance of its duty to protect the public from public nuisances, enforces the law". Accordingly, no violation of article 10 had been established.
It was doubtful that article 8, the right to private life, applied to the situation, but even if it did, for similar reasons there had been no violation.
The court also rejected an allegation of the lack of effective remedy regarding complaints over Mr Gough's treatment in prison.