At the turn of the century, lobbying from Naturist groups - including BN - persuaded the lawmakers to exclude Naturism from the Sexual Offences Act 2003 (SOA) for England and Wales. It seemed like a victory, but in practice, it was a considerable disappointment that not much changed in how Naturists were treated by the police.
It’s a pleasure to now bring you the news that long, hard work and negotiation over many years between BN’s legal team and the authorities has generated a wonderful result - for all Naturists.
Firstly, here are some extracts from the House of Lords amendment 343A of the Bill which the Government accepted and placed into law as Section 66 of the SOA. It was made plain that it was to deal with flashing.
My concern in this part of the Bill has always been to protect naturists going about their perfectly harmless business and to prevent their falling foul of over-zealous police officers and magistrates. My amendment should also protect naturists from mischievous members of the public who might seek to use Clause 70 as a defence against accusations of voyeurism.
We are here trying to deal with flashers - disgusting characters they are. We are not trying to deal with someone who for some other reason exposes his genitals. I would especially cite in this context the streaker. I do not want someone who streaks at a Lord’s cricket match stuffed on the sex offenders’ register. That is not a sexual offence; it may be due to a bit of alcohol and exuberance, but has nothing whatever to do with intentionally offending the public and ... we should require that someone knows and intends that someone should be caused alarm and distress. Just because your maiden aunt, whom you know shrieks at the sight of a naked ankle, happens to see you and you know that she happens to be around should not stop you sunbathing in the nude in your own garden if that is what you want to do.
In summing up the position for the Government, Lord Falconer made the situation abundantly plain:
Do we intend to catch the streaker? No, we do not.
Do we intend to catch the Naturist? No, we do not.
Sexual Offences Act 2003 - The failures in policing
So, it had been made clear by Parliament that Section 66 of the Act was to deal with ‘flashing’. Streaking and Naturism were specifically excluded. Unexpectedly, however, the Police interpreted any call to them from the public prompted simply by the sight of someone naked, as the caller being caused by ‘alarm or distress’. If that didn’t work, they sometimes fell back on section 5 of The Public Order Act 1986, where no intent, nor motive, nor guilty mind is required.
Public Order Act 1986 – Wrongly targeted
Section 5 of The Public Order Act was created to deal with people who joined in riots without forethought, possibly people who who wouldn’t ordinarily become involved in violence or theft, and for hooligans running amok creating a climate of fear. They have no motive for their actions and here lay a difficulty in prosecuting these plainly criminal actions because the law requires mens rea, in other words a motive to complete the conditions for a crime to be committed, and the Act addressed this loophole - and rightly so. But should it include Naturists? Naturism was never mentioned, never included nor ever intended by Parliament to be addressed by this Act.
In 2010 we (Peter and Christine) were ourselves tackled by our local police over garden naturism following complaints to us by an intrusive and bigoted neighbour, but we persuaded the police to accept that Naturism, along with simply being seen by someone when naked was, in fact, lawful. EC members were aware of our success and later requested that we assist a rambler who had been walking naked across the fells in the Leeds area in 2012. In this case the judge in the initial hearing decided that the walker was guilty under section 5, but we worked with him and his barrister on his appeal which was successful. He was fortunate in having extremely skilled representation. The outcome of this case gave us our first insights into how we could address errant policing. We recognised the procedural errors being made by the force and considered how we could reach every police officer in the land, which at that time wasn’t possible.
We considered other ways and came up with two. One lay in campaigning to change public attitudes so that people didn’t immediately call the police when seeing a naked person and we worked on all branches of the media with the Campaigns team. The other strategy was to stop arrests if we could, but if not, then perhaps we could ensure cases didn’t go to court by preventing charges being raised by the Crown Prosecution Service (CPS). BN sent a letter to The Director of Public Prosecutions with a request for him to review the situation and, once he had appreciated the erroneous arrests being made, he issued guidance to Prosecutors. Much of that letter was taken verbatim and is used today as the formal CPS guidance in England and Wales. It made a significant change in charging and policing. We attended several cases in 2012-15, often accompanied and supported by BN member Andrew Calow. Since September 2013 when the guidance was issued arrests for Naturism have virtually disappeared.
A hiccough along the way
In 2014 the government set about reforming the Anti-social Behaviour laws. This was nothing surprising as the existing law hadn’t been working properly and ‘ASBOs’ were being mocked. Anyone could buy an ‘ASBO’ from a card shop or market stall for almost anything: failing to wash dishes, staying out late, whatever. In truth this was the measure of the Act itself. There wasn’t anything in it that wasn’t already dealt with under The Public Order Act 1986 or other existing law.
The draft of the new Act was vague and introduced strange new ideas such as action being taken if matters were thought to be ‘just and convenient’ which is absolutely meaningless in daily life. According to The Human Rights Conventions anyone must be aware that they are committing a crime before they do so and must also be aware of the scale of penalty they will face if they go ahead. Testing whether something was ‘just and convenient’ meant that people would be judged after they had done something to find out if the law had had been broken or not! Another attempt was made by seeking to use the wording ‘nuisance or annoyance’. Well, let’s face it, we can all think of things we find a nuisance or annoyance - it doesn’t and shouldn’t make them criminal. We worked with members of both Houses of Parliament and were instrumental in changing the law on tackling anti-social behaviour and it must be demonstrable that it addresses a harm categorised as ‘harassment, alarm or distress’. This legal phrase is longstanding, has a particular meaning within the law and is well tried and tested in the courts so prosecutors, defending solicitors and barristers and police officers all know what it means. Under Anti-social Behaviour Act it is possible to issue a Community Protection Notice (CPN), but it would seem to be structurally impossible against Naturism as Section 66 of The Sexual Offences Act was predicated upon the proposition that the human body does not create ‘Alarm or Distress’ of itself.
Over the next four years there were only occasional cases. Often they were in more unusual circumstances like doing home maintenance at the front of the house, or driving across a town. When anything reached court we liaised with barristers and attended court proceedings making clear that British Naturism was following the proceedings very closely. We realised that The Equalities Act of 2010 afforded Naturists with a protected status, as much as say Buddhists and Pagans who have communities, land and follow a “Philosophical Belief” though they have no deity, and included this as an element in cases. The prosecutions all failed so we reasoned that we were in a position to take our findings to the Justice System itself and hold discussions on the general procedures for policing.
In the Dark
We felt that often it was a training issue; a police officer who rarely if ever encountered Naturism was using his or her own judgement and common sense when dealing with a complaint, because he or she was not aware of what the law says in this tiny and unfamiliar area. The Government had created a College of Policing during the passage of earlier legislation and this seemed to be the natural place for updating any training issues. Getting an updated briefing into the Policing Manual now seemed a good way forward, so we arranged a meeting with the highest ranking officer in the College of Policing.
That meeting was very positive and constructive. There was a clear understanding at the highest level of what had gone wrong and why, and a recognition of the need for training improvements for frontline officers and control room staff in order that complaints could be responded to appropriately. Months of delicate negotiation followed, where we presented possible approaches to training and they were run past various committees and their legal department. This kind of thing always takes much patience and time. However, in April this year we reached a mutually satisfactory solution, and the resultant preamble and “decision tree” for dealing with complaints about public nudity has been uploaded to the Police Training manuals. A successful and amicable conclusion!
Harnessing the Internet
The BN membership card carries the link to a ‘Policing’ page on the BN website which takes a Police Officer/duty solicitor straight to the Police website where there is “chapter and verse” on public nudity and which makes it abundantly clear that no further action need be taken in cases where someone is being a Naturist or where there is no inappropriate behaviour. It differentiates the passive nudity of Naturism from that of sexual offenders, people trying to cause trouble for others, or those who may have mental health issues, and details appropriate police responses to fit each case.
The police have agreed that intentional and active use of genitals to aid abusive behaviours falls under Section 4A of the Public Order Act. They are intentional acts which require no interpretation. They also agree that Naturists must be treated equally with others. This is of considerable benefit to police officers as they are called to complaints by the public and rightfully expect that there is some mischief to which they will have to attend; normally unpleasant. Until now they have had no guidance, training or resource to rely upon and have ended up in confrontations which sometimes have gone to court only to find that the case is lost and the state has been obliged to repay all legal costs.
Much of our work has been in addressing Section 5 (the section without intent) of the Public Order Act, and obtaining recognition that this cannot be applicable to Naturism as there is no activity that is directed towards anyone. In consequence, consideration of Naturism by police officers under Section 5 has been removed from the training system. At last, it's recognised that Section 5 of the Public Order Act simply doesn't apply to Naturists!
It has taken many years, and there MAY still be occasional mistakes; to err is be human after all. But we are reassured that we can deal with any error quickly and probably on the spot via web links and smartphones. We hope that this initiative will give rise to much greater security provided that members are sensible, sensitive to others and their personal space, and never accept that Naturism is wrong nor accept a Caution for it!
Peter and Christine Wright, BN legal team
Thanks to Donna and John for the picture illustrating the simple - and lawful - pleasure of being naked in the open air