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CPS guidance on prosecuting naturists
Sep 18 2013 09:06 PM |
Malcolm Boura
in News
Crown Prosecution Service naturism law
We have written to the CPS several times regarding the muddled approach to Naturism and the frequent mistakes that have resulted, as have the Naturist Action Group and individuals. The guidance reflects many of the points that we made which is very gratifying. However, our requests for a meeting and/or discussion were ignored.
The guidance is important for several reasons.
Key points
We consider these points in more detail below:
What is 'Naturism'?
This section is fair enough as far as it goes but:
The words in the law are “are likely to” so in one respect the CPS statement is positive. However it is inadequate protection if there is a complainant, or even a neutral bystander, because the police will prompt them to say that they were caused “fear, alarm or distress” and that prompting can profoundly alter the complainants recollection of events and also their recollection of their reaction.
Evidential considerations
In our opinion "disorderly" is not applicable. In R v Bates (see above) the judge ruled that painting a garden shed and eating sandwiches naked was not “disorderly”. She also made clear in her written judgement that it cannot be the complainants who drives criminality by 'taking offence'. Offence must be given.
It also disputable as to whether it is "behaviour". (R v Bates. above).
Public Interest considerations
Other offences that might involve nudity
Anti-social Behaviour Order
Conclusions
This statement provides welcome clarification and protection for most naturists but not for extreme Naturism such as that practised by Stephen Gough.
The guidance is important for several reasons.
-
It should greatly reduce the number of flawed and abusive prosecutions. -
It makes it harder to harass naturists by threatening with vague and poorly defined laws. -
It should free up our resources to concentrate on the things that we should be doing instead of fighting off misguided threats and flawed prosecutions. They have wasted an enormous amount of our time on that over the past few years.
Key points
We consider these points in more detail below:
- “it will normally be appropriate to take no action unless members of the public were actually caused harassment, alarm or distress (as opposed to considering the likelihood of this)”. Our opinion is that alarm and distress cannot be taken, they must be caused. Was the cause the nudity or was the cause the complainants misapprehensions?
- “at most amounting to an offence under section 5 of the Public Order Act 1986; and regard needs to be had to the question of whether a prosecution is in the public interest.” Parliament made its opinion very clear during the debates on s.66 Sexual Offences Act 2003. Naturism is a legitimate activity that must be able to continue.
- “[Consider] disorderly (rather than threatening, abusive or insulting).” We do not accept that nudity is in itself disorderly.
- “normal standards of society that require people to be clothed in public, 'disorderly' would appear to most aptly describe this behaviour.” NB they do not say that "disorderly" does apply. In our opinion nudity may be an aggravating factor for behaviour that is in itself disorderly but we do not accept that nudity is in itself "disorderly".
- S.66 Sexual Offences Act 2003, Outraging Public Decency, and Public Nuisance are not applicable.
What is 'Naturism'?
This section is fair enough as far as it goes but:
- No mention of the other articles of the Human Rights Act that often apply,
- There is no mention of 'belief' which is important for many naturists, s.10 Equalities Act 2010, Religious and Philosophical Beliefs. Naturism meets the criteria contained in "Equality Act 2010 Statutory Code of Practice, Services, public functions and associations" at para 2.52.
- No mention of the public sector equality duty, s.149 Equalities Act 2010.
- Does not distinguish between harassment, alarm and distress caused by nudity and harassment, alarm and distress caused by misapprehensions and prejudice. A very recent Supreme Court case, R v Hughes, (press summary, full judgement) indicates that the meaning of "causes" will have to be considered a lot more carefully than has previously been the case.
In R v Bates, district judge, magistrates, March 2013 (magistrates cases do not set precedent so this case is not definitive), it was ruled that:“it will normally be appropriate to take no action unless members of the public were actually caused harassment, alarm or distress (as opposed to considering the likelihood of this)”.
- Nudity did not make painting a shed and eating sandwiches disorderly.
- It was accepted that nakedness is a state of dress, not a behaviour. (Oxford English Dictionary).
The words in the law are “are likely to” so in one respect the CPS statement is positive. However it is inadequate protection if there is a complainant, or even a neutral bystander, because the police will prompt them to say that they were caused “fear, alarm or distress” and that prompting can profoundly alter the complainants recollection of events and also their recollection of their reaction.
I hope that this indicates some embarrassment within the CPS concerning recent cases"a consistent approach to naturism should be adopted to maintain public confidence in the CPS".
Evidential considerations
Note that the CPS stop short of stating that 'disorderly' does describe that behaviour. In our opinion that is stretching the meaning of 'disorderly' considerably but it is an aspect of the law that is unclear. The word carries a strong implication of rowdiness and physical interference in the activities of others. (Oxford English Dictionary and case law.)“Given that someone conducting their business naked in public is acting in a way that does not conform to the normal standards of society that require people to be clothed in public, 'disorderly' would appear to most aptly describe this behaviour”
In our opinion "disorderly" is not applicable. In R v Bates (see above) the judge ruled that painting a garden shed and eating sandwiches naked was not “disorderly”. She also made clear in her written judgement that it cannot be the complainants who drives criminality by 'taking offence'. Offence must be given.
It also disputable as to whether it is "behaviour". (R v Bates. above).
Public Interest considerations
That is an encouraging step forwards.“A prosecution will not automatically follow where a case passes the evidential stage ...”
They are perpetuating the myth that children have more of a problem with nudity than adults do when we all know that the reverse is true. Naturism does not harm children at the many naturist beaches, clubs and households where it is practised. Children play on beaches, parks and in other leisure areas oblivious of their own or other people's nakedness. Seen in this light the concept underlying the statement is nonsensical.“Victims or witnesses with vulnerabilities might include children (and their carers) who are faced with the suspect's genitals and bottom in close proximity.”
That should reduce the likelihood of police and CPS officers just assuming that harm will be caused but we doubt if it will eliminate it.“consider whether any harm caused to victims is likely to short-lived and minimal in the absence of specific evidence to the contrary.”
A phrase that is open to interpretation, especially in the context of naturist beaches or anywhere else that nudity recurs. The local community on many beaches may well be those going topless or nude rendering those complaining about nudity a minority, which we do tolerate with good grace. The Equality Act 2010 applies.“e. Any impact on the local community ...”
Other offences that might involve nudity
- s.66 Sexual Offences Act 2003. Not applicable to Naturism.
- Outraging public decency (OPD). Not applicable to Naturism.
- Public Nuisance. Not applicable to Naturism.
Anti-social Behaviour Order
That is a helpful statement of policy which should prevent the more serious excesses but it still represents discrimination against those people who share the philosophical belief of Naturism. The Human Rights and Equality Act considerations are many and complex.“it is questionable whether such an outcome is proportionate either in terms of the cost to the CPS or the penalty incurred. Very careful consideration needs to be given before an ASBO is sought. It should be regarded as a last resort.”
Conclusions
This statement provides welcome clarification and protection for most naturists but not for extreme Naturism such as that practised by Stephen Gough.
- Skilly, David.Hayward, Denis_Cahill and 1 other like this
2 Comments
This is a very helpful document.
While still leaving some room for misunderstanding, it should clarify the modern situation for naked hikers in the great outdoors. It may not be the final hurdle, but it is certainly a HUGE step forward.
http://www.supremeco...40_Judgment.pdf
27 Lord Hoffmann described that principle in this way in R v Secretary of State for the Home Department Ex p Simms and O’Brien [2000] 2 AC 115, 131E:
“Parliamentary sovereignty means that Parliament can, if it chooses, legislate contrary to fundamental principles of human rights…. But the principle of legality means that Parliament must squarely confront what it is doing and accept the political cost. Fundamental rights cannot be overridden by general or ambiguous words. This is because there is too great a risk that the full implications of their unqualified meaning may have passed unnoticed in the democratic process. In the absence of express language or necessary implication to the contrary, the courts therefore presume that even the most general words were intended to be subject to the basic rights of the individual.”
This is not a case of fundamental human rights However, the gravity of a conviction for homicide, for which the sentence may be a term of imprisonment, is such that if Parliament wishes to displace the normal approach to causation recognised by the common law, and substitute a different rule, it must do so unambiguously. Where, as here, Parliament has plainly chosen not to adopt unequivocal language which was readily available, it follows that an intention to create the meaning contended for by the Crown cannot be attributed to it.
Fundamental rights cannot be overridden by general or ambiguous words. This would also apply to the other general or ambiguous words used in Section 5 POA????