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Stephen Gough and the European Court

gough legal ECtHR HRA ECHR BoP

British Naturism very much welcomes the ruling by the European Court of Human Rights that nudity is a means of expression and that Article 10 of the European Convention of Human rights applies to nudity.

This is a preliminary analysis of the court's ruling regarding Stephen Gough. The judgement only considers some aspects of the case, and there are no surprises, but it does establish some points of law that are important for Naturism and the fight against prudery and body-shame.

There is also a more general article on the case which includes links to media articles.
British Naturism Preliminary Analysis, 29 October 2014.

GOUGH v. THE UNITED KINGDOM , European Court of Human Rights
(Application no. 49327/11) 28 October 2014

We have not had much time to study the judgement but there are some interesting points arising from it.

The case only concerned the treatment of Mr Gough whilst in Scotland under Scots Law. The law in England and Wales is different.

It is notoriously difficult to prevail against a government at the European Court of Human Rights and there is little in the judgement to cause surprise.

Much of the judgement is concerned with legal issues such as time limits. It is deplorable that the government should seek to rely on technicalities as that is a triumph of law over justice. It is even more deplorable when the government seeks to rely on a technicality when it manifestly does not have a case.

We understand that Mr Gough's original submission to the European Court of Human Rights was made without professional legal advice and that this resulted in only some parts of the case being considered, and then not considered as thoroughly as they should.

The court made the decisions that we expected:
  • ruled that Mr Gough's nudity was a means of expression for the purposes of Article 10;
  • ruled that the Scottish offence of Breach of the Peace does meet minimum standards of certainty;
  • reiterated that the court would not consider the justification of the “mores” of Scotland. Essentially that last point, the primacy of Parliament, was the reason that Mr Gough's appeal failed.
The government:
  • stated that “mores” provided justification for Mr Gough's treatment. How “mores” differs from “prejudice” has not been explained;
  • maintained that Mr Gough's conduct had “adverse impact, or potentially adverse impact”. No evidence to justify that assertion was mentioned.
There have been many assertions but little or no attempt to consider actual evidence of either the severity or the frequency of the alleged impact. What is more, there has been no attempt to distinguish between adverse effects due to nudity (no evidence of any), adverse impact due to misapprehension (at least some), and adverse impact due to an inappropriate reaction to nudity (all too common). For example it was stated that

liable to be alarming and morally and otherwise offensive to other, unwarned members of the public going about their ordinary business.

but every year the World Naked Bike Ride is encountered by tens of thousands of people, most of them "unwarned", and is enthusiastically received. Every year tens of thousands of people encounter nude sunbathers and skinny dippers "unwarned". Only about 1 person in a hundred thinks that beach nudity justifies calling the police. (Ipsos MORI 2012).

The most notable features of the judgement are what was assumed or left out, but there is also a glaring error of logic.

The court argued that the courts had decided that Mr Gough's behaviour was criminal, that the courts had to uphold the law, and that therefore Mr Gough's behaviour was criminal. The whole point of the European Court is to decide, on rational consideration of all the evidence, whether or not a law is valid and whether or not the courts have acted correctly. A law is not valid just because it is a law. A court's decision is not valid just because the law appears to allow them to make that decision. That is a circular argument.

There is no indication that the severity of the alleged adverse reaction to Mr Gough's actions, or the wider issues of harm and benefit were even considered. That is important because there is no credible evidence that nudity causes harm to anyone, of any age, but there is evidence that an inappropriate reaction to nudity can. There is also strong evidence that prudery does result in harm and that that harm is widespread and can be serious. Please see the British Naturism briefing papers for the evidence.

A characteristic of prejudice is that the prejudiced are often unable to recognise that they are prejudiced. It is impossible to distinguish a justified restriction of freedom from prejudice without careful objective consideration of the evidence of harm and benefit. As far as we can establish the courts have refused to hear that evidence.

The correct response to a misapprehension is to provide advice and support, not to imprison the victim of that misapprehension.

It also stated that the court must not be driven by mob rule, but then goes on to use exactly that to justify the decision, despite the court's perception of the wishes of the mob being at best dubious.
The judgement asserts that “the applicant’s views on public nudity are shared by very few people” but there is no mention of any evidence to support that assumption and the polling data indicates that it is at best unsafe. There are nearly four million people in the UK who describe themselves as naturist or nudist (Ipsos MORI 2011). The Guardian carried out a poll immediately after the judgement was published. “Is naked rambling a human right”, 49% yes, 51% no, is hardly the overwhelming attitude that the court blithely assumed. The articles from the major UK media are largely neutral rehashes of the court's press release or supportive of Stephen Gough and there is much criticism of the waste of public funds, at least half a million pounds and counting.

Quotes from the judgement:

150. In the present case, the applicant has chosen to be naked in public in order to give expression to his opinion as to the inoffensive nature of the human body (see paragraphs 55 and 147 above). The Court is therefore satisfied that the applicant’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 by the applicant. There has therefore been an interference with his exercise of his right to freedom of expression.

151. In view of the submissions of the parties, the Court considers that the complaint raises complex and serious issues under Article 10 of the Convention which cannot be dismissed as manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established and it must therefore be declared admissible.

161. The Government argued that defining the scope of the crime of breach of the peace was peculiarly sensitive to the mores of individual States.

162. The Government maintained that any interference was justified and proportionate. It was confined to preventing certain conduct by reason of its adverse impact, or potentially adverse impact, on others and on the public order, in a public context.161. The Government argued that defining the scope of the crime of breach of the peace was peculiarly sensitive to the mores of individual States.151. In view of the submissions of the parties, the Court considers that the complaint raises complex and serious issues under Article 10 of the Convention which cannot be dismissed as manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established and it must therefore be declared admissible.150. In the present case, the applicant has chosen to be naked in public in order to give expression to his opinion as to the inoffensive nature of the human body (see paragraphs 55 and 147 above). The Court is therefore satisfied that the applicant’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 by the applicant. There has therefore been an interference with his exercise of his right to freedom of expression.

170. The Court will, in light of all of the above considerations, assess whether the reasons relied on by the competent national authorities, notably the courts, to justify the measures were both “relevant” and “sufficient” and whether the resultant interference was proportionate to the legitimate aim pursued. In this respect, the Court reiterates that it is not its task to take the place of the national authorities but it must review, in the light of the case as a whole, those authorities’ decisions taken pursuant to their margin of appreciation (Animal Defenders International, cited above, § 105). In conducting its review, the Court has to satisfy itself that the national authorities applied standards which were in conformity with the principles embodied in Article 10 and that they based their decisions on an acceptable assessment of the relevant facts (see Donaldson, cited above, 26).

172. The Court is prepared to accept that the extent to which, and the circumstances in which, public nudity is acceptable in a modern society is a matter of public interest. The fact that the applicant’s views on public nudity are shared by very few people is not, of itself, conclusive of the issue now before the Court (see, mutatis mutandis, Young, James and Webster v. the United Kingdom, 13 August 1981, § 63, Series A no. 44)170. The Court will, in light of all of the above considerations, assess whether the reasons relied on by the competent national authorities, notably the courts, to justify the measures were both “relevant” and “sufficient” and whether the resultant interference was proportionate to the legitimate aim pursued. In this respect, the Court reiterates that it is not its task to take the place of the national authorities but it must review, in the light of the case as a whole, those authorities’ decisions taken pursuant to their margin of appreciation (Animal Defenders International, cited above, § 105). In conducting its review, the Court has to satisfy itself that the national authorities applied standards which were in conformity with the principles embodied in Article 10 and that they based their decisions on an acceptable assessment of the relevant facts (see Donaldson, cited above, 26).

176. The applicant’s case is troubling ...

At various places:

Accordingly, no violation of Article ... of the Convention has been established.

Note the careful choice of words. It does not say that Mr Gough's case was without merit or that further appeals will not succeed, just that on this occasion the case was not made. There is much ground left uncovered.
References
British Naturism Briefing Papers http://www.bn.org.uk...g/briefings.php
"World Naked Bike Ride" by Richard Foley. ISBN 9-780-957243-20-0
Ipsos MORI poll http://www.bn.org.uk...s-in-the-uk-r97
Further references are available from the general article.
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