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Home EJIL Analysis The Naked Rambler

The Naked Rambler

Published on March 26, 2012        Author: 

A few days ago the Guardian published a remarkable story on Stephen Gough, a former royal marine, who has since 2006 been incarcerated in various UK prisons, mainly in Scotland. He is generally kept segregated from the prison population, for the past two years in effect being in something closely approximating solitary confinement. Gough’s crime? Not terrorism or anything else of the sort. He just doesn’t want to wear clothes in public – at least not in Scotland:

On 18 May 2006, a fully-clothed Gough boarded a 6.45am flight from Southampton. After the pilot announced the descent into Edinburgh, Gough visited the toilet and emerged naked. “I knew I wanted to go to court naked and I suddenly thought, why not now? The flight attendant asked if I’d put my clothes back on. I said politely that I wouldn’t and she went away. Nothing happened until we landed and the police came on.”

Gough was arrested. His solicitor at the time, John Good, describes a court hearing not far short of slapstick. It emerged that after Gough returned naked from the toilet, the male passenger sitting next to him reacted by falling asleep. The arresting officer’s only issue in removing Gough from the plane was the delighted reaction of a hen party. For Gough, however, his midair strip meant a four-month sentence. He has been in prison ever since.

Gough isn’t mad. “They do evaluations all the time.” He smiles. “I’m on top of my game mentally. I’ve got clarity. If I feel down, then I’m straight on the case, trying to work out why.”

He emerged from more than two years of segregation with faultless psychological examinations. “If you or I spent two years in segregation,” Good says, “we’d probably show signs of trauma. It just shows how focused he’s become. He’s immune to his surroundings.”

Gough agrees: “I live at a deep level.” Yet he admits to experiencing doubts about his stance. “Yeah, of course. I wake up in the morning and think, what the fuck am I doing here? But what I’m doing isn’t about me. I’m challenging society and it must be challenged because it’s wrong.”

In Scotland, breach of the peace is partly defined as “conduct which does, or could, cause the lieges [public] to be placed in a state of fear, alarm or annoyance”. The prosecution has very rarely managed to rustle up witnesses to claim Gough’s nakedness has had any of these effects on them. What is keeping him in prison is simply the theoretical idea that it could.

“I do not believe that an ordinary, reasonable person would feel any of those things if they saw me [naked] in the street,” Gough says. He believes that to achieve his stated aim – to leave HMP Perth and return to Eastleigh naked – “the law doesn’t have to change, just the interpretation”.

Twice Scottish sheriffs found in Gough’s favour that no crime had been committed, both in him being naked in public and being naked in court. “Both times the sheriffs were elderly females,” notes Good, who represented Gough for more than three years (they parted company in 2010 so Gough could represent himself, making it harder for him to be excluded from the courtroom for being naked). “Stephen then chose to leave court naked and was arrested for being naked in public.”

Initially, Gough was a legal novelty in Scotland and support came from surprising quarters. In 2008, Edinburgh-based solicitor Joe MacPherson prosecuted Gough, a position with which he says he was uncomfortable. “I looked at the case and thought a man walking down a public street would not cause the requisite fear and alarm to an ordinary person. It would be odd, or amusing perhaps, but nothing more. The judge said his hands were tied. Seeing a man’s penis was felt to be enough to cause fear and alarm.”

Eventually Gough’s case was heard at Scotland’s appeal court, where it was found that breach of the peace should indeed be interpreted to criminalise his behaviour. Since then Scottish sheriffs have fallen in line; his sentences have steadily increased to the maximum and, should he keep refusing to dress, he will be caught in an endless cycle of two-year sentences. He insists if he were allowed to return home naked to Eastleigh, he’d cease being naked in public “when I don’t have to do it any more”.

Gough is possibly the faster reoffender imaginable. Not only does he refuse to wear clothes in prison, which has as a consequence his segregation from the rest of the prison population, but he repeats his ‘crime’ as soon as he is released and leaves the prison naked, whereupon the wheels of the Scottish justice system again start turning. A breach of the peace is compounded by contempt of court when he appears naked before it. And he does all of this out of his own free will – mad he is not.

To some extent Gough’s story is genuinely amusing, but it is at the same time also quite terribly sad. However odd it might seem to most of us, Gough’s convictions are so strongly and sincerely held that he has paid an enormous price, having effectively chosen to live his life in prison rather than forego them and becoming enstranged from his family in the process. And the story raises fundamental questions. On the basis of what theory of political morality can a democratic society use coercion to enforce a nudity taboo? What exactly justifies (or not) the continued incarceration of a man for longer than many violent criminals and for no other offense but choosing to go naked in public, without any accompanying sexual acts or any kinds of threats or harm to members of the public? Where do the boundaries of permissible morals legislation lie? And how does any possible justification of this example of state repression of individual expression, on say the basis of the moral standards of the community, avoid sliding down a culturally relativistic slippery slope that could equally justify the covering laws of say Iran or Saudi Arabia?

On one hand, if some morals legislation is deemed to be permissible even in the absence of harm to others, it is hard to see any way out for Gough. Even if the maximum punishment for his act would be say 5 or 15 days, his continued defiance and the lack of any other possible sanction logically translates into his continued incarceration. On the other hand, it is even on a purely utilitarian analysis hardly worth inflicting such suffering on a man and spending hundreds of thousands of pounds in prison expenses to spare the feelings of hypothetical members of the public. If there is any one case which cries out for the exercise of prosecutorial discretion, this would be it. Yet the Scottish justice system has in essence staked its authority in continuing to suppress the defiance of this single individual, who refused to be suppressed and is willing to pay the price for his civil disobedience. And the more this go on, the harder will this vicious cycle be to break.

Note that Gough has on various occasions invoked the ECHR before Scottish courts. This has so far taken him nowhere. If he ever takes his case to Strasbourg, I can only genuinely wonder at what the European Court would do. No matter how sad the case, it would be difficult to effectively couch it in human rights terms. That said, however, would it really hurt the Scottish judiciary to allow this man his small victory and permit him to go home to England, naked and in peace? One can never cease to wonder at the boundless nature of human stupidity, and there has certainly been plenty of that here on all sides concerned.

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4 Responses

  1. He’s just like Antônio Augusto Cançado Trindade. He shows how stupid some legal systems are, without any reason whatsoever.

  2. Alessandra Asteriti

    One is tempted to suggest the application of the de minimis rule, but it might seem rude.

  3. Deborah RV

    Thank you for this insightful piece which forces to think on the conditions for a peaceful society, and the ways in which law impedes us to make such reflection.

    From an artistic and sociological perspective, artist John Sullivan has stated that although it can be a generalization it seems that “cultures where nudity is not taboo generally seem closer to nature and more peaceful”.
    http://www.dazeddigital.com/photography/article/13085/1/the-wild-the-innocent

  4. Francesco Messineo

    Marko,

    thanks – this is a fascinating and very sad story indeed.

    As to what one could say before the ECtHR – isn’t there an issue here about how generic and inherently unpredictable is the concept of ‘breach of the peace’? If it essentially turns out that any judge can have full discretion in describing what the exact contours of an offence are AFTER it has been committed, does this not potentially breach the principle of legality under Article 5 ECHR? Constitutional and criminal lawyers should answer this one. But of course the problem is that Article 5 ECHR also allows for the detention of someone who disobeys the lawful order of a court…