How the end of the ASBO could make naked ramblers of us all

Turning the other cheek: Stephen Gough. David Cheskin/PA Archive

Stephen Gough – widely known as the Naked Rambler – has lost his case at the European Court of Human Rights in Strasbourg, which disagreed that his repeated convictions and jail terms violated his rights to private life and freedom of expression.

It’s just the latest in a series of setbacks for Gough, who had just seven days of liberty between May 2006 and October 2012. Earlier in 2014, he was arrested as he left the prison where he had just completed a 16‑month sentence for public nudity. A police officer approached him, wearing his signature outfit of socks, boots and rucksack, and offered him a tracksuit to put on. When he refused, he was arrested and remanded pending trial.

On October 6 he was sentenced to two and a half years in prison. If, at the end of his current sentence, Gough once again walks out of prison au naturel, the same thing will presumably happen again.

Given the Court’s decision, Gough’s nudism seems likely to confine him to prison and police cells indefinitely – odd, given that public nudity is not a crime. There is a criminal offence of “disorderly behaviour”, and Gough has previously been found guilty of it. But that wouldn’t get him locked up, since the maximum penalty is a fine.

There is also an offence of “exposure” (maximum sentence two years) – but to be found guilty of this you have to have displayed your privates with the intention of causing alarm or distress, and Gough has shown no such motivation.

Why, then, is he serving a sentence longer than any he would have got for being a flasher? Because of an ASBO.

Clampdown

Gough is under an anti-social behaviour order banning him from appearing in public with his buttocks and/or genitals exposed (considerately, the order makes an exception for nude beaches). The sentence for breaching an ASBO can be as high as five years in custody; if there are repeated breaches, it’s expected that each new sentence will be higher than the last. So: 16 months last time, this time 30.

An ASBO can be given to anyone acting in a way that causes, or is likely to cause, harassment, alarm or distress. We do not know that Gough’s nudity had offended anyone, but his ASBO could be justified on the basis that somebody was likely to take offence sooner or later.

Once the ASBO was imposed, on the other hand, Gough was in trouble the moment he breached it; the question of how much offence he was causing (if any) became irrelevant. In effect, appearing naked in public is now illegal, for one person – the one person most committed to doing it.

And given Gough’s sincere personal commitment to going naked, it’s hard to see a way out.

His ASBO has no time limit, as do many of those currently in force. ASBOs are sometimes lifted, but usually on the basis that the problematic behaviour has ended. Gough has had no success appealing against earlier convictions, including one case in which a district judge declared that public nakedness was not only disorderly but met the standard of “insulting, abusive and threatening” behaviour.

Unless Gough can persuade his next jury that his beliefs are a reasonable excuse for breaching his ASBO, another conviction is inevitable.

The good news, on the face of it, is that ASBOs are on the way out. An act replacing the ASBO was put before Parliament in 2013 and became law in March 2014, meaning the new injunction powers should finally be available early in 2015.

The bad news, though, is depressing indeed: the new regime offers little hope for people in Gough’s situation. Not only will existing ASBOs remain in force, but the new injunctions for anti-social behaviour will be even easier to impose – and their power will arguably be even more controlling.

Contempt and contrition

An injunction can be served on someone who “threatens to engage” in anti-social behaviour. In the residential context, the bar is set still lower, with anti-social behaviour defined as “conduct capable of causing housing-related nuisance or annoyance”. The new injunctions can also included positive requirements as well as prohibitions.

Unlike an ASBO breach, breaching the new injunctions is not a criminal offence; rather, it is contempt of court. That means that instead of standing trial, an individual who breached an injunction would face a committal hearing. If contrition was expressed, the contempt would be “purged”; if not, the judge would pass sentence, which could be anything up to two years in prison. Contempt does not create a criminal record, but this is cold comfort.

For a nonconformist like Gough, or anyone else whose behaviour might be deemed anti‑social, the new powers are alarmingly draconian. Jury trial for an ASBO breach at least offers the remote possibility of acquittal; a judge, sitting alone, will have no reason to look beyond the facts of the conduct amounting to contempt.

The ASBO is widely agreed to have outlived its usefulness. Unfortunately, its replacement looks set not just to retain most of the ASBO’s negative features, but to add some more of its own.

From 2015, individuals whose harmless and legal behaviour causes offence will start to be subjected to lifelong packages of personally-tailored coercion, including positive requirements as well as prohibitions, all under the ever-present threat of a prison sentence.

Stephen Gough’s situation might seem extreme today – but in a few years, it might be all too familiar.

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