England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2A 2LL
		31st July 2013

1. MR JUSTICE SPENCER: The applicant, now aged 54, seeks leave to appeal against a sentence of 48 weeks' imprisonment imposed upon him in the Crown Court at Portsmouth on 19th June 2013 by Her Honour Judge Munro QC following his conviction, after a trial, for an offence of breaching an anti-social behaviour order ("ASBO").
2. The applicant has, over the last few years, courted publicity and achieved a certain notoriety through his refusal to wear any clothes in public. He first achieved fame in 2003-4 when he walked naked from Lands End to John O'Groats. Since then he has been known in the media as "the naked rambler". His application for leave to appeal against sentence has been referred to the Full Court by the Registrar. There has been no appeal against his conviction for the offence of breaching the ASBO.
3. It is important to stress at the outset that we are not concerned in this appeal with the rights and wrongs of the applicant's campaign to vindicate what he sees as his right to go about naked in public. Rather, this appeal is concerned solely with the question of the appropriate punishment for a man who quite deliberately breaches an order of the court which has been made only a few minutes earlier, and thereby demonstrates that he has no intention of obeying that order. That is the seriousness of the offence. The question is whether a custodial sentence as long as 48 weeks was manifestly excessive.
4. The facts can be very shortly stated. In February 2013 the applicant was living in Hampshire. He committed a series of nine offences contrary to section 5(1)(a) of the Public Order Act 1986 of using disorderly behaviour within the hearing or sight of a person likely to be caused harassment, alarm or distress thereby. The maximum sentence is a fine, not exceeding level 3. He was also at that time on bail to Calderdale Magistrates' Court for a similar offence committed in Yorkshire on 25th October 2012.He was subsequently convicted of that offence, but we are told that the conviction is the subject of an appeal by way of Case Stated to the High Court. The offences committed in and around the Southampton area included at least one occasion when he was seen naked outside a school. All the offences were the subject of complaints by members of the public. The last of those offences was committed on 27th February.
5. The following day, 28th February, on the application of the police and the local authority jointly by way of civil complaint, the District Judge sitting at the West Hampshire Magistrates' Court in Southampton made an interim ASBO which was to last until 10th May, when the full hearing of the application was to take place. The terms of the interim order were that the appellant must not appear in any place or venue to which the public have access without wearing sufficient clothing to cover his genitalia and buttocks. The prohibition was expressed not to apply in respect of any venue to which the public have access where there is an expectation of a degree of nakedness, such as a changing room at any sports facility or a beach where naked bathing is permitted.
6. The interim order was served upon the applicant at the hearing. It warned him in terms that if he did not obey the order he would commit an offence and might be fined or sent to prison for up to five years.
7. Immediately on leaving the court building in Southampton he walked naked onto the steps outside, spurning a police officer's offer of clothing to cover his modesty. The applicant was promptly arrested for breach of the order. When interviewed by the police he acknowledged that he knew full well the terms of the interim order and confirmed that all he had been wearing on the court steps was his socks, boots and a small rucksack. He said he had declined the offer of clothing from the police officer because it was against his principles. He was charged with breaching the order and remanded in custody. He has been in custody ever since. When he appeared in the Crown Court on 22nd April he pleaded not guilty and his case was adjourned for trial.
8. To complete the chronology, on 10th May 2013 the applicant was sentenced by the magistrates' court, having been convicted of the nine Public Order Act offences to which we have referred. For each of those nine offences he was fined £200. The full hearing of the application for an ASBO was adjourned to 13th August 2013. He remained in custody, however, awaiting trial for the breach offence.
9. That trial took place at Portsmouth Crown Court on 19th June and the applicant was convicted by the jury. For all practical purposes, the trial proceeded in the applicant's absence. He took no part in the trial only because he refused to come into court unless he was naked. Very properly he was not permitted to take part in the proceedings on those terms.
10. We should add that a video link had been arranged for today so that the applicant could hear and see his case argued before this court. We were informed in advance of the hearing that there was a difficulty in that to reach the video room at the prison the applicant would have to walk past members of the public and he was refusing to put on any clothes. Having established that this was the position at the start of the appeal, the court directed that the appeal should proceed in the applicant's absence, he having forfeited or waived his right to be present on the video link.
11. Before the judge proceeded to sentence following the trial there were exchanges with counsel in which Miss Timan submitted, as she has submitted to us today, that this was the first breach of the order, that no harm had been done to the public and that there was no sexual element to the offences on any occasion. She submitted that in ordinary circumstances a short custodial sentence would be appropriate which would not require the applicant to serve more time than he had already served, which was by then the equivalent of an eight month sentence. The judge said this:

"Yes, I understand that submission but there is a reality here to consider, which is that he has appeared here today, the jury did not see him, but he is stark naked apart from his boots and his socks, and once released he will walk onto these court steps and there are four people in uniform in this court where I am sitting now, and I do not think I can ignore that reality."

Miss Timan submitted that despite that reality, which she acknowledged, the court was only sentencing for a single breach. She submitted:

"What is to happen should Mr Gough walk out of this court and breach it again is not, in my submission, for your Honour's consideration. I do not see, short of imposing an indefinite custodial sentence, and I do not think your Honour is suggesting anything of the sort, that there is any other option."

12. The judge then proceeded to sentence. She said:

"This is a much more serious offence than any of the Public Order Act offences are in themselves,because this involves a disregard, and a disobedience, of a court order. In those circumstances I take the view that a significant custodial sentence is appropriate in this case".

She then passed a sentence of 48 weeks' imprisonment. The judge said she anticipated that this would mean the applicant would become eligible for release from custody on 14th August, one day after the date fixed for the full hearing of the application for the ASBO. The judge made it clear in her sentencing remarks that this was, as she put it, the "rationale" behind the length of the sentence she passed.

13. Miss Timan renews her submission before us that the judge was wrong in principle to pass a sentence which anticipated, and was based upon the proposition, that the applicant, if at liberty, would continue to breach the interim order.
14. Miss Timan drew our attention to paragraph 15 of the Sentencing Council Guideline, Breach of an Anti-Social Behaviour Order, where it is stated under the heading "Relevance of the originating conduct":

"The original conduct that led to the making of an order is a relevant consideration in so far as it indicates the level of harm caused and whether this was intended."

She submits that by reference to the relevant guideline, a sentence as long as 48 weeks' imprisonment could not be justified, and at the very highest it should have been no more than 26 weeks. Any sentence had to be commensurate with the offence actually committed. Here there was in fact no harassment, alarm or distress caused.

15. We have also had the advantage of written submissions and brief oral submissions from Mr Penny on behalf of the Crown.
16. In our view, this is a case which does not easily fall within the Sentencing Council guideline for breach of an ASBO. That is because the case we are dealing with is far more akin to a contempt of court. We do accept, for example, that at paragraph 6 of the guideline, page 2, it is said:

"The main aim of sentencing for breach of a court order is to achieve the purpose of the order. Therefore, the sentence for breach of an ASBO should primarily reflect the harassment, alarm or distress involved; the fact that it constituted breach of a court order is a secondary consideration."

17. That guidance, must, however, be read in the light of the observations of this court in Lamb [2006] 2 Cr App R (S) 11, a case involving breach of an ASBO prohibiting the appellant from entering a town centre, from consuming alcohol, and from being drunk in a public place. For three separate breaches of that order the 18-year-old defendant was sentenced to a total of 22 months' detention. This court reduced his sentence to eight months. The court, however, approved and followed the line of authority exemplified in the judgment of Leveson J (as he then was) in Braxton [2005] 1 Cr App (S) 36, which emphasises the importance of stern sentences where appropriate to punish the deliberate breach of an order even where the offending conduct itself, had it been charged as a substantive offence, would have attracted a far lower maximum sentence. That principle was affirmed by this court in R v H, Stevens and Lovegrove [2006] 2 Cr App (S) 68. In that case it was recognised and emphasised that an ASBO should not be imposed as a kind of device to circumvent maximum penalties which are believed to be too modest.
18. We also note that paragraph 10 of the introduction to the sentencing guideline states that in order properly to assess the seriousness of the breach of an ASBO the court needs to be aware of the purpose of the order and the context in which it was made. The context in which this order was made was a very long history of flagrant breaches of the criminal law resulting in many previous terms of imprisonment, all (as we understand it) relating to the applicant's obsession with going about naked in public, heedless of any harassment, alarm of distress such conduct is likely to cause. The majority of those convictions have been in Scotland. There have been sentences for contempt of court as well as substantive criminal offences. More recently, he has been dealt with in Scotland for incidents charged as breach of the peace. In 2008 he was sentenced at Edinburgh Sheriff Court to 12 months' imprisonment for an offence charged as such. In December 2008 at Glasgow Sheriff Court he was sentenced to eight months. In July 2009 he was sentenced at Perth Sheriff Court to 12 months, and a further 12 months at the same court in January 2010. Most recently, in Scotland in August 2012 he received a sentence of five months at the Kircaldy Sheriff Court, again for breach of the peace.
19. The context of the present offence is therefore a history of refusing to heed orders of the court and sentences for precisely the same conduct. We remind ourselves that section 143 of the Criminal Justice Act 2003 provides that in considering the seriousness of any offence the court must consider the offender's culpability in committing the offence and any harm which the offence caused, was intended to cause or might forseeably have caused. The applicant's culpability here was very high because it was a deliberate breach committed very soon after the order was made. As for harm, the guideline acknowledges at paragraph 12 that breach of an order of the court can itself undermine public confidence in the effective administration of justice, and that is part at least of the harm caused by an offence of breaching an ASBO such as this.
20. Miss Timan conceded in her written submissions that the applicant's offence could certainly fall within the second category in the guideline, that is "a lesser degree of harassment, alarm or distress, where such harm was intended, or where it would have been likely if the offender had not been apprehended". For such an offence the sentencing range is up to 26 weeks' custody. However, as it seems to us this offence was grossly aggravated by the history to which we have referred, and by the fact that the breach was committed immediately after the order was made. As the guideline indicates, the presence of several aggravating factors may justify a sentence beyond the range. On this basis a sentence well in excess of 26 weeks was, in our view, perfectly justified and quite inevitable.
21. It is plain from the extract of the transcript to which we have referred that the judge had very much in mind the practical reality of this case, which was that, based on his conduct to date, there was more than every likelihood that the applicant would continue to breach the interim ASBO until the final hearing. Section 142 of the Criminal Justice Act 2003 requires the court to have regard to a number of purposes of sentencing, one of which is the reduction of crime including its reduction by deterrence. In a very real and practical sense the judge in this case was passing a sentence which sought to achieve that objective until the full hearing of the application for the ASBO.
22. A term of 48 weeks was in itself appropriate and justified, and it also made good sense to limit the period of imprisonment to the day after the next hearing.
23. In these circumstances we are quite unable to say that this sentence was manifestly excessive, or even arguably so. We therefore refuse the application for leave to appeal.
24. We would add only this. The magistrates' court dealing with the full hearing of the application for the ASBO on 13th August will need to be mindful of the potential danger, identified in the authorities to which we have referred, that the making of an ASBO in wide terms must not be used as a device to circumvent maximum penalties which are thought to be too modest or to criminalise conduct that may not truly constitute a matter of real social concern of a type that the legislation was designed to address. It would be a disturbing consequence of an order, if it is made in terms that are too wide, that a man such as this applicant might spend his life in and out of prison for what may be seen as increasingly serious failures to comply with orders of the court.