The following article is by Duncan Heenan, and only posted by me.
As part of NAG’s long-term project to get some sense in to the policing of public nudity, last September I attended the retrial of Nigel Keer. His acquittal will now be widely known and great news for Nigel, but what does this mean for naturism?
Nigel Keer was out walking on the moors at Otley Chevin a year ago, and it was a lovely day so once he was well away from the car park, he stripped off, as he has done many times before. He encountered several people, none of whom seemed at all bothered by his nudity, until he was unlucky enough to meet Mark Buxton, an off duty police constable, who was out jogging. PC Buxton took exception to Nigel’s nakedness, and decided to arrest him. Initially, he told Nigel that he was being arrested for ‘Outraging Public Decency’, but this was later changed to a charge under the infamous Section 5 of the 1986 Public Order Act. This is a ‘catch all’ section, which makes it an offence in some circumstances to use language or behaviour that is likely to cause ‘harassment, alarm or distress’. Nigel was tried at Leeds Magistrates Court and found guilty, even though the only person who claimed to be distressed was PC Buxton himself. Buxton stated that he had seen a woman looking distressed, but he had not taken her details, or traced her, so she did not appear as a witness. Nigel did not see any such woman and did not believe she existed.
If anyone was distressed by this incident it was Nigel himself, who felt not only that the arrest was unjustified, but also that the trial was a travesty – so he appealed. The case was retried at Leeds Crown Court before Judge Guy Kearl and two Justices of the Peace. Neither side presented new evidence, but Barrister Dr. Michael Arnheim now represented Nigel in court, doing so more robustly than his predecessor. Dr. Arnheim introduced several points of law not previously considered, arguing that the evidence that anyone was genuinely ‘distressed’ was very shaky, and that the right to freedom of expression under the Human Rights Act supported the naturist way of life. The court agreed, and acquitted Nigel, who walked away with relief.
In giving his verdict, the Judge said:
“This behaviour was not carried out in front of a school or in the street in a town centre. It took place on moorland in broad daylight. In view of the location of this incident, the time of day and the reaction of others as we have found it to be, we do not consider that anyone was likely to be harassed by this behaviour or intimidated or distressed.” … “He was not deliberately flaunting himself or seeking attention or jumping out and doing what is colloquially called ‘flashing’.”
On the face of it this seems to give a green light to naturist rambling, but within these words there is a warning. Clearly the Court considered the ‘context’ important in their decision. It is heavily implied that if Nigel had been naked in a town centre, or near a school they may have taken a different view. Similarly, if he had been trying to attract attention to himself he may have been in more serious trouble. The good news is that the Court did not find that simple nudity itself could be considered an offence, and that is a useful, if small, step forward for naturism. However, the actual law is still somewhat unclear, and the Court has wide discretion to decide on the circumstances of the actual case. Interestingly though, the judgment included the words “… [We] have taken into account the right to freedom of expression….”. Clearly the Human Rights arguments were listened to, though the judgment does not say how important they were to the final decision. However, it is encouraging, as this is the first time in such a case that I have heard even a hint that naturism may be covered as a protected ‘right of expression’.
Being heard in the Crown Court, this does not set a legal precedent, and the wording of the judgment makes it clear that it applies to this case alone. However, if they are professional and responsible, the police and Crown Prosecution Service will take note. The question is whether it will make them more sensible and less bigoted in cases involving public nudity, or just more careful in how they prepare their cases. In other comments, the Judge implied that the court felt the whole thing was a disproportionate response, a poorly presented case, and a waste of public resources – echoing the views of many commentators, including those within NAG.
Nigel left the court with no legal stain on his character, but it has cost him a year of severe stress, and significant costs which he will not recover. His enthusiasm for naturism is undiminished however, and he says he will resume when the spring comes – but he will be a bit more careful in future. To paraphrase the judge, it ain’t what you do, it’s the way that you do it that free-range naturists need to think about.
Background information about the legal issues attached to naturism can be found in the article “Incident Involving Nudity and the Police” (http://naturistactiongroup.org/articles/incident-involving-nudity-and-the-police/) available on the Naturist Action Group website.
An edited version of this is blog will appear in the December 2012 issue of H&E Naturist.