The Judge Rules: the justice system has failed the Naked Rambler

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By Judge John Hack on

Being offended by the naked human form should not trump fundamental rights


Stephen Gough had a spot of rotten luck earlier this week — he drew the short straw and got a dose of Anne Rafferty sitting on the Court of Appeal bench.

64-year-old Rafferty, who was promoted to that level four years ago, is renown among court-watchers as being one of the most po-faced judges on the bench.

So when Gough — more commonly known as the Naked Rambler — appeared before her via video link in the bollocky buff, it surprised no-one in court that Lady Justice Rafferty did not seem amused.

The judge dealt quickly with Gough’s appeal of his latest conviction for breaching an anti-social behaviour order. His counsel’s submission was that the lower court had trampled over Gough’s human rights by not letting him appear before it for trial because he insisted on doing so naked.

Lady Justice Rafferty — who became the first woman chair of the Criminal Bar Association in 1995 — dismissed that argument with a thinly disguised look of disdain. Her rationale was that the “ASBO had been put in place to prohibit the behaviour that the appellant sough to dignify. Appearing in court was always open to the appellant had he clothed himself. That he opted to stay out of court was his decision. He can’t now hope his complaint about the consequences that he set in motion will be successful.”

That might be technically right. But has the Court of Appeal been fair and ensured that justice has been done? No, absolutely not.

One doesn’t have to be a straight-laced prude to argue that appearing naked in court arguably shows a degree of contempt for the proceedings and might offend some, namely those on the jury.

But denying a defendant an appearance in court at his own criminal trial is arguably the most serious impingement on his rights. Beyond a defendant presenting a real physical danger to others in court, can there be any reason to go that far?

Do judges, jurors and the public gallery need to be preserved in cotton wool? Considering that judges and jurors routinely hear gruesome cases of murder and child sexual abuse, what is worse: being required to view photographic evidence of a hacked to death murder victim or the glimpse of a naked man in the dock?

The physical form of 56-year-old Stephen Gough may not be everyone’s aesthetic cup of tea — although, to be fair, the former Royal Marine looks to be in pretty good nick for a middle-aged chap. But since when is nudity so outrageous that it trumps a basic tenet of our justice system?

Indeed, this week’s Court of Appeal hearing is just part of a wider story of wasted time, effort and public funds. Gough has spent about seven years banged up — mostly in solitary confinement — at considerable public expense.

Ministry of Justice figures for 2014 show that it costs the public purse more than £30,000 annually to lock away a category C male prisoner. Therefore, including trial costs, prosecuting and imprisoning Gough for his keenness to feel the wind whistling around his goolies has easily cost the British public more than a quarter of a million nicker.

And it’s even debatable as to whether Gough has committed a crime in the first place.

Crown Prosecution Service guidelines on nudity in public and naturism stipulate:

In the absence of any sexual context and in relation to nudity where the person has no intention to cause alarm or distress 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).

The Naked Rambler — and there’s a clue in the name, here — generally likes to ramble about the relatively deserted countryside with the sun on his bum (although one imagines the British weather often disappoints him). He does not seem ever to have intentionally caused alarm or distress, or harassed anyone.

Some people might innately find the naked human form alarming and distressing, but when their discomfort is weighed against wider more fundamental rights, perhaps they should just get over it.


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