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Public law and Regulation

Case reports and guidance on public law and professional regulation issues

20 DEC 2013

Gough v Director of Public Prosecutions [2013] EWHC 3267 (Admin); (2013) PLLR 124

Public order - freedom of expression - pressing social need - proportionality - disorderly conduct - admissibility of expert evidence - article 10 ECHR - Public Order Act 1986

A conviction under the Public Order Act 1986 must stand as the offender's conduct in walking naked in a public place was, and the offender was aware that it could be, disorderly. The conviction was a proportionate restriction of the offender's right to freedom of expression under article 10 ECHR.

31 October 2013

Administrative Court

Sir Brian Leveson and Openshaw J

(1)        The appellant was convicted of a breach of section 5(1) of the Public Order Act 1986, in relation to walking naked through Halifax city centre. He appealed by way of case stated.

(2)        The questions raised in the case stated were whether the judge erred in (1) refusing permission for the appellant to rely on expert evidence about attitudes to public nudity; (2) finding that the elements of the offence were not made out; (3) rejecting the defence at s 5(3) of the 1986 Act; and (4) finding that a conviction was not a proportionate interference with the appellant's right to freedom of expression under article 10 ECHR. 

(3)        The Court held that: (1) The judge was correct to refuse to admit the expert evidence. It was for the court to determine whether the offence was made out, and whether the conduct was objectively reasonable. The appellant had already conceded that his conduct might cause distress or concern to the public. (2) It was not necessary to consider whether the judge was correct to find that the appellant's conduct was threatening, abusive or insulting. It was clearly disorderly, and the appellant was aware that it could be seen as such. (3) The defence (that the conduct was objectively reasonable) and the engagement of article 10 ECHR were linked. It was unrealistic to say that adverse public reaction to the appellant's nudity were not his problem. The judge was correct to find that section 5 of the 1986 Act corresponds to a pressing social need to restrict the appellant's right to freedom of expression under article 10 ECHR. The summary level offence, with a maximum penalty of a level 3 fine is a proportionate response. 

Appeal dismissed

Key paragraphs

[1] - Introduction

[2] - [3] - The facts

[4] - [7] - Admissibility of expert evidence

[8] - [16] - Were the elements of the offence made out?

[17] - [21] - Objective reasonableness and article 10 ECHR

 

[22] - Conclusion

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