European Court of Human Rights

Information Note on the Court’s case-law No. 178

November 2014

Gough v. the United Kingdom - 49327/11

Judgment 28.10.2014 [Section IV] See: [2014] ECHR 1156

Article 10

Article 10-1

Freedom of expression

Multiple arrests and convictions of a “naked rambler” resulting in a cumulative period of imprisonment of over seven years: no violation

Article 8

Article 8-1

Respect for private life

Facts - The applicant adhered to a firmly held belief in the inoffensiveness of the human body. This had in turn given rise to a belief in social nudity, which he expressed by being naked in public. In 2003 he decided to take his first trek through the United Kingdom, earning the nickname “the naked rambler”. Over the years, he was arrested and sentenced numerous times.

Law - Article 10

(a)  Scope of the complaint - The applicant clearly complained about his repeated arrest, prosecution, conviction and imprisonment for the offence of breach of the peace owing to his refusal to wear clothes in public. Although this had not amounted to a continuing situation for the purposes of the six-month rule in Article 35 § 1 of the Convention, the incidents had formed part of a pattern. Therefore, although only the complaint concerning the applicant’s 2011 arrest, prosecution, conviction and imprisonment was admissible, the Court examined the compatibility with Article 10 in the light of the pattern of prior and subsequent such incidents.

(b)  Applicability - The applicant had chosen to be naked in public in order to give expression to his opinion as to the inoffensive nature of the human body. Therefore, his public nudity could be seen as a form of expression which fell within the ambit of Article 10 and his arrest, prosecution, conviction and detention had constituted repressive measures taken in reaction to that form of expression of his opinions. There had therefore been interference with the exercise of his right to freedom of expression.

(c)  Merits - The interference was prescribed by law and had pursued the broader aim of seeking to ensure respect for the law in general, and thereby preventing the crime and disorder which would potentially ensue had the applicant been permitted to continually and persistently flout the law with impunity.

The extent to which, and the circumstances in which, public nudity is acceptable in a modern society was a matter of public interest. The fact that the applicant’s views on public nudity were shared by very few people was not, of itself, conclusive of the issue before the Court. As an individual intent on achieving greater acceptance of public nudity, the applicant had been entitled to seek to initiate such a debate and there was a public interest in allowing him to do so. However, the issue of public nudity also raised moral and public-order considerations. Thus, the applicable margin of appreciation in reacting to instances of public nudity, as opposed to regulating mere statements or arguments on the subject, was a wide one.

The measures taken against the applicant had not been the result of any blanket prohibition: each incident had been considered on its facts and in light of the applicant’s own history of offending. As to the severity of the sanctions, it was noteworthy that after his early convictions the applicant had been either admonished or had received short sentences of imprisonment. It had only been after a number of convictions that the courts had begun to impose more substantial custodial sentences and, even then, efforts had been made to reach a less severe penalty. In assessing the proportionality of the penalty imposed, the Court was therefore not concerned with the respondent State’s response to an individual incident but with its response to the applicant’s persistent public nudity and his wilful and contumacious refusal to obey the law over a number of years.

It was true that by the time the 2011 sentence was imposed, the applicant had already served a cumulative total of five years and three months in detention on remand with only four days’ spent at liberty since May 2006. The cumulative period of imprisonment in Scotland since 2003 for the repeated instances of his refusal to dress in public stood at over seven years. While the penalty imposed for each individual offence, taken on its own, was not such as to raise an issue under Article 10 in terms of lack of proportionality, the cumulative impact on the applicant of the measures taken by the respondent State was otherwise. However, the applicant’s own responsibility for the convictions and the sentences imposed could not be ignored. In exercising his right to freedom of expression, he had in principle been under a general duty to respect the country’s laws and to pursue his desire to bring about legislative or societal change in accordance with them. Many other avenues for the expression of his opinion on nudity or for initiating a public debate on the subject were open to him. He had also been under a duty, particularly in the light of the fact that he was asking for tolerance in respect of his own conduct, to demonstrate tolerance of and sensibility to the views of other members of the public. However, he appeared to reject any suggestion that acceptance of public nudity could vary depending on the nature of the location and the presence of other members of the public. Without any demonstration of sensibility to the views of others and behaviour they might have considered offensive, he had insisted upon his right to appear naked at all times and in all places.

The applicant’s case was troubling, since his intransigence had led to his spending a substantial period in prison for what was - in itself - usually a relatively trivial offence. However, his imprisonment was the result of his repeated violation of the criminal law in full knowledge of the consequences, through conduct which he had full well known not only went against the standards of accepted public behaviour in any modern democratic society but also was liable to be alarming and morally and otherwise offensive to other, unwarned members of the public going about their ordinary business. Therefore, the repressive measures taken in reaction to the particular, repeated form of expression chosen by the applicant had met a pressing social need and had been, even if considered cumulatively, proportionate.

Article 10 did not go so far as to enable individuals, even those sincerely convinced of the virtue of their own beliefs, to repeatedly impose their antisocial conduct on other, unwilling members of society and then to claim a disproportionate interference with the exercise of their freedom of expression when the State, in the performance of its duty to protect the public from public nuisances, enforced the law in respect of such deliberately repetitive antisocial conduct.

Conclusion: no violation (unanimously).

Article 8: As concerns in particular an individual’s personal choices as to his desired appearance in public, Article 8 could not be taken to protect every conceivable personal choice in that domain: there must presumably be a de minimis level of seriousness as to the choice of desired appearance in question. Whether the requisite level of seriousness had been reached in relation to the applicant’s choice to appear fully naked on all occasions in all public places without distinction may be doubted, having regard to the absence of support for such a choice in any known democratic society in the world. In any event, however, even if Article 8 were to be taken to be applicable to the circumstances of the present case, those circumstances were not such as to disclose a violation of that provision. In sum, any interference with the applicant’s right to respect for his private life had been justified under Article 8 § 2 for essentially the same reasons given in the context of the analysis under Article 10 of the Convention.

Conclusion: no violation (unanimously).

 

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This summary by the Registry does not bind the Court.

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