Naturists Campaigning for Naturism

Report on the “ACPO Project” & Uptake of the CPS Guidelines

For over 2 years NAG has been leading a joint project with BN to address the issue of how the police and Courts deal with naturism. As part of this, we have produced the following report of our survey on the adoption of the new CPS guidelines.  This report has now been sent to the Association of Chief Police Officers, The Association of Police & Crime Commissioners, The College of Policing, and the Director of Public Prosecutions (head of the CPS). We have asked for a meeting to discuss our findings. This project will continue by cooperative consultation, and when there are any significant developments they will be reported here.

Apologies for any loss of formatting of the report in posting it here

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Joint report on the study of the uptake of Crown Prosecution Service Guidance ‘Nudity in Public –

Guidance on handling cases of Naturism ’[September 2013],  by Police Authorities in England & Wales. 

Executive Summary:

  • Police & Crime Commissioners do not consider consider ensuring consistent and accurate application of the law in this respect, to be their ‘business’.
  • Police & Crime Commissioners do not consider saving money by avoiding mistakes to be their ‘business’.
  • Inconsistent responses and intentions from Police Forces.
  • Low priority given to inclusion of CPS Guidelines in Police training
  • Slow and patchy uptake of the ‘new approach’ generally.
  • Little acknowledgement for the need for change within Police Forces, despite the CPS Guidelines.

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Background & Reason for the study

There has been increasing concern within the naturist community in recent years, at the attention naturism has occasionally attracted by the police. Though there have been many instances of police reacting proportionately and appropriately to reports of nudity in public places, there have also been incidents, sometimes resulting in prosecutions. As a result we began to gather data on these incidents with a view to approaching the Authorities to seek a fairer and more consistent application of the Law to naturism than we felt had been happening. Personal views of police and judges seemed to be driving events too much, often with little reference to any actual harm done (of which there was none in any incident studied). There seemed to be an informal institutional prudery in police and courts alike, which led to a disproportionate reaction to any incident involving nudity in public, or even some private, places. This caused great distress to those who were subject to heavy handed policing, wasted public resources, and did not serve the public interest. Of those cases taken to Court, the majority resulted in acquittals.

In September 2013, as our study period was approaching its conclusion and a submission to the Authorities, the Crown Prosecution Service published ‘Nudity in Public – Guidance on handling cases of Naturism.’ (Shown in Appendix 1) Effectively this acknowledged that the CPS shared some of our concerns, particularly in the use of Section 5 of the Public Order Act 1986 by police, to try to criminalise non-aggressive, non-sexual nudity. The CPS guidance addressed some (though not all) of our concerns, but it contained no mechanism within it to ensure that its guidance filtered down to police officers who have to make initial operational decisions. We therefore decided to contact every Police Authority in England & Wales to draw their attention to the CPS Guidance, express our views and ask them what plans they had to train their police officers in it. This report summarised the results of that exercise.

Methodology

On 20th November 2013, letters (shown at appendix 2) were sent to all 42 Police forces, plus the Association of Chief Police Officers (‘ACPO’) and the College of Policing. The same letter was also sent to all 42 Police & Crime Commissioners, plus the Association of Police & Crime Commissioners (‘APCCs’). Responses were received by letter, email and telephone over the succeeding 12 weeks. The responses are summarised and tabulated below. A number of acknowledgements were received but never followed up with a response, and a number of Police Forces and PCCs did not respond at all (as marked).

Results

The results are summarised in the table below. Copies of all responses and other correspondence are available to authorised users on http://www.bn.org.uk/campaigning/wiki.php/_/policing/general-policy-and-training-r35  .

Of the 42 PCCs contacted 4 acknowledged receipt, but did not reply. In addition 25 did not respond at all, making a total of 29 who did not reply.

Of the 13 PCCs who replied, all considered the CPS’s Guidance on Nudity in Public, and any police responses, to be an operational police matter, and made no meaningful comment beyond that. The Association of PCC’s made the same remark, commenting also that national guidance on police training is the responsibility of the College of Policing, suggesting we contact them (which we already had). Only the PCC for West Yorkshire commented on the uptake of the CPS Guidelines within that police service, saying that it was to be incorporated within their training programme and published internally. West Yorkshire Police themselves did not respond.

Of the 42 Police Forces contacted, 6 acknowledged receipt, but did not reply. In addition 16 did not respond at all, making a total of 22 who did not reply (though this number includes West Yorkshire for whom their PCC made a reply).

Of the 20 Police Forces which replied 19 had no stated policy on dealing with incidents of public nudity, other than trusting the local officer to exercise jusgment of the actual situation. One (Cheshire) has a policy which is consistent with the new CPS Guidelines.

The replies from some police forces were phrased in very general terms, and therefore it was not always clear what was meant. In categorising the replies below, an element of judgment had to be used, as there was overlap of intent as well as uncertainty in some cases.

Of the 20 forces which responded (21 including W. Yorkshire whose PCC responded for them), 5 forces had no plans to include any specific training for front line officers to do with the CPS Guidelines. 8 were planning to publish the guidelines on websites or internal bulletin boards, but with no further training. 4 forces were intending to approach the issue by briefing specialist officers such as Diversity Officers or Custody Sergeants as internal ‘consultants’ to provide advice to operational officers involved in issues to do with public nudity. 4 Forces had undertaken, or were considering including specific training to all officers. 5 of the responses included comments suggesting a presumption that public nudity was likely to be a public order issue.  3 forces commented that public nudity incidents were not considered a current or past issue in their area, as there were few, if any, such incidents.

The College of Policing and ACPO did not respond at all.

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Police & Crime Commissioners Survey, summary of responses

Police Authority

Acknowledged

Response

Policy on Nudity

Training re. CPS guidance

Avon &   SomersetIndependent  No   response No   response
BedfordshireLabour 6/12/13 Police Operational   Matter Police Operational   Matter
CambridgeshireConservative 5/12/13 Police operational matter Police operational matter
CheshireConservative 25/11/13 Police operational   matter Police operational   matter
City of LondonConservative No   response No   response
ClevelandLabour No   response No   response
DerbyshireLabour No   response No   response
Devon   and CornwallConservative 5/12/13 Police Operational   Matter Police Operational   Matter
DorsetIndependent  4/12/13 Police Operational   Matter Police Operational   Matter
DurhamLabour 5/12/13 Police Operational   Matter Police Operational   Matter
Dyfed PowysConservative No   response No   response
EssexConservative 27/11/13 No   response No   response
GloucestershireIndependent No   response No   response
Greater ManchesterLabour No   response No   response
GwentIndependent No   response No   response
Hampshire &IOWIndependent No   response No   response
HertfordshireConservative No   response No   response
HumbersideConservative No   response No   response
KentIndependent 16/12/13 No comment No comment
LancashireLabour 2/12/13 No   response No   response
LeicestershireConservative No   response No   response
LincolnshireIndependent 19/12/13 Police Operational   Matter Police Operational   Matter
MerseysideLabour No   response No   response
MetropolitanConservative 10/12/13 Police Operational   Matter Police Operational   Matter
NorfolkIndependent No   response No   response
NorthamptonConservative No   response No   response
NorthumbriaLabour 12/12/13 Police Operational   Matter Police Operational   Matter
North   YorkshireConservative No   response No   response
North WalesIndependent No   response No   response
NottinghamshireLabour No   response No   response
South WalesLabour No   response No   response
South   YorkshireLabour No   response No   response
StaffordshireConservative 25/11/13 No   response No   response
SuffolkConservative No   response No   response
SurreyIndependent No   response No   response
SussexConservative 12/12/13 Police operational matter Police operational matter
Thames ValleyConservative No   response No   response
WarwickshireIndependent 9/12/13 No   response No   response
West MerciaIndependent No   response No   response
West MidlandsLabour 27/11/13 31/1/13 Police operational   matter Police operational   matter.
West YorkshireLabour 27/11/13 17/1/14 Police operational matter W.Yorks police are   developing a training programme which will incorporate CPS guidelines. Also   published internally.
WiltshireConservative No   response No   response
Association of   P.C.C.s 26/11/13 Police operational   matter College of Policing   sets national training standards. Decision should lie with them.

 

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Police Authority Chief Constables’ Survey, summary of responses

 

Police Authority Acknowledged Response Policy on Nudity Training re. CPS guidance Comment
Avon   & Somerset 20/12/13 No specific policy. Officers use their own   discretion. No   training plans. Officers are expected to use their own discretion. Impact on witnesses is considered important.
Bedfordshire 22/11/13 No response No response
Cambridgeshire No response No response
Cheshire 27/12/13 Yes, consistent with CPS guidelines. Training consistent with CPS guidelines which have   been published to all officers.
City   of London No response No response
Cleveland No response No response
Derbyshire 15/1/14 No specific policy. Officers use their own   discretion CPS guidelines on bulletin boards, but not   specifically covered in training in order to not overload officers with   information. Very few incidents. Not an issue.
Devon and Cornwall 27/11/13 No response No response
Dorset 30/11/13 5/2/14 No policy stated Response guidance will be by reference to Evidence   Review Officers. Operational  officers   will be made aware of CPS guidance during spring & summer 2014.
Durham 29/11/13 None No specific training No ‘reports’ of naturism
Dyfed   Powys No response No response
Essex No response No response
Gloucestershire 26/11/13 No policy stated Our letter will be passed to the training   department. No answer given on whether CPS guidelines are included in   training.
Greater   Manchester No response No response
Gwent No response No response
Hampshire   & IOW No response No response
Hertfordshire 22/11/13 No response No response
Humberside No response No response
Kent 12/12/13 No policy stated May be subject to a future review. No present   training plan.
Lancashire 12/12/13 No policy stated CPS Guidance included in Initial training &   Custody Officer training. Included in updates.
Leicestershire 4/12/13 No policy stated No specific lessons on dealing with nudity in   training syllabus. College of policing sets syllabus
Lincolnshire 27/11/13 23/12/13 No policy stated CPS guidelines will be considered for training   plans after 2014/15
Merseyside No response No response
Metropolitan 27/11/13 No response No response
Norfolk No response No response
Northampton No response No response
Northumbria 29/11/13 No response No response
North   Yorkshire No formal policy. Summary of CPS guidance & website link   circulated to all officers. Quotes York WNBR
North   Wales 27/11/13 No policy. Incidents are judged according to   circumstance. NW Police have put the CPS guidance on their   website for all officers to see, and have put it in the newsletter circulated   to their Quality & Diversity Officers, who work with community groups in   their region.  They also have a Culture   & Diversity Welsh Language group headed by the Chief Constable, who will   receive this.Individual officers are not briefed on policing   aspects of nudity as part of their training, but have access to specialists   when necessary.

 

Mentioned naturist beach at Anglesey, trying to   ‘balance interests’.
Nottinghamshire No response No response
South   Wales 5/12/13 No formal policy. Curriculum too crowded to put CPS guidance in to   initial training, but our letter passed to trainers to consider as material   for future training updates. Quoted Cardiff WNBR
South   Yorkshire December 13 Complaints mean nudity is ‘disorderly’ No specific training planned ‘Few issues’ in the area.
Staffordshire 25/11/13 No response No response
Suffolk 17/1/14 No policy. Incidents are judged according to   circumstance No training specific to nudity. Officers ‘allowed   discretion’. ‘The public expects police to deal positively with   incidents they report.
Surrey 28/11/13 No policy. Incidents are judged according to   circumstance CPS Guidance circulated to all officers &   probation training manager
Sussex No response No response
Thames   Valley No response No response
Warwickshire 27/11/13 11/12/13 No policy stated. Our letter passed to operational Superintendents.   No statement regarding training of front line officers.
West   Mercia 11/12/13 As Warwickshire As Warwickshire
West   Midlands 10/01/14 No specific policy. CPS guidelines put on force website for reference. No   further training mentioned. Few incidents.
West   Yorkshire No response No response but   see PCC’s comments
Wiltshire No policy stated. No mention of CPS guidelines  in training, only Public Order Act
College of Policing No response No response
A.C.P.O No response No response

 

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Conclusions comment & recommendations

The reason for the generally low response (less than 50%) from both PCCs and Police Forces can only be speculated about, and may differ from area to area, and so will not be considered further here, other than to express disappointment. However, the response rate was still sufficient to draw some valid conclusions.

It is clear that PCCs do not feel they should intervene in how the police deal with incidents of public nudity. This is surprising, given that PCCs are the link between the democratic process and the police, which implies they are intended to be a check on abuses of power within the police. Democracy is a reflection of public opinion, and in 2 independent surveys 10 years apart, less than 1% of people felt nudity in public should be illegal. Parliament has reflected this view by taking care when passing legislation to avoid criminalising non-aggressive, non-sexual nudity. By treating such incidents of public nudity as if they were illegal, the police have in the past wasted a lot of public resources, brought themselves in to disrepute for disproportionate policing, and caused serious distress to innocent people. This ought to concern PCCs and falls well within their remit, yet they seem to want to ignore it. Admittedly, such incidents are rare, but when they do happen, and are handled badly, the cost and effect on those involved is serious. The CPS Guidelines will only have an effect if they are understood and accepted by front line police officers. This can only be achieved by including it in their training, and yet PCCs seem to feel that police training falls outside their remit.

On the whole, the apparent uptake of the CPS Guidelines by the police seems patchy and slow with only 4 forces actually committed to any specific officer training, most of which is planned rather than happening yet.

A quarter of respondents (5) had no plans for specific training at all.

The 4 forces which planned to train ‘consultant’ officers are missing an important point behind the CPS guidelines – that incidents of innocent nudity should attract only ‘light touch’ policing, if any at all. This requires judgments by front line officers who make the first response. Such officers often adopt the precautionary principle if they are unsure of what to do. This will lead them to one of the ‘consultant’ officers and it will escalate the event in to formal procedures. This tends to entrench people’s positions and make peaceful resolution even more difficult. Even if this leads eventually to no further action, resources will have been unnecessarily wasted, and innocent people upset.

The 8 forces which were relying on websites or bulletin boards to disseminate the CPS guidelines are doing so largely based on the view that they do not wish to ‘overload’ officers’ training, rather than because it is not necessary.

Overall there is a low priority being given to this matter by police forces. In one sense this is in line with the CPS Guidelines, which advise little or no action in cases of non-sexual, non-aggressive nudity where no harm has been caused. However, to achieve this ‘light touch’ policing of an issue of low priority it is essential to get both the guidelines and the thinking behind them understood and accepted at all levels within the police. Otherwise, officers will continue to use their unguided judgment which, however ’professional’, will inevitably contain a considerable element of personal opinion, This can lead to inconsistent responses, and interpretations of Law which the CPS and Courts may not agree with.

It is worrying that a quarter of the replying Forces made comments indicating an underlying presumption that any nudity in a public place will be a Public Order Offence – an approach very much at odds with the CPS Guidelines.

The wide range of response is to some degree an inevitable result of the high degree of autonomy enjoyed in Police Areas in England & Wales. Though all Police Forces are guided by national guidelines and trained by reference to a national syllabus, there is clearly a degree of local discretion and interpretation, which introduces inconsistencies. The CPS Guidelines is an example of this and together with the generally low priority of the subject with Police Forces, much more needs to be done to get a really effective uptake of these Guidelines at front line level.

Most disappointing was the failure of both ACPO and The College of Policing to respond at all. These are the two main bodies which are in a position to bring consistency to police policy, priorities and procedures. The CPS Guidelines are achieved to achieve consistency and proportionality throughout England & Wales. Though it is recommended by the CPS that this should not be a priority area of policing, it will continue to be treated as such, consuming inappropriate resources and eliciting disproportionate responses, unless the CPS Guidelines are adopted nationally – in practice as well as theory.

We recommend that naturist organisations make representations on ACPO and the College of Policing (and associated organisations) to get specific training in the CPS Guidelines included in the police national training syllabus for new and serving officers. A strategy to do this and to continue our dialogue with Police Authorities and PCCs needs to be devised in the near future.

Appendix 1

Copy of the Crown Prosecution Service

“Nudity in Public – Guidance on handling cases of Naturism”

[ Taken from http://www.cps.gov.uk/legal/l_to_o/nudity_in_public/ ] 

 What is ‘Naturism’?

Naturism is used to describe the activities of persons who espouse nudity as part of their lifestyle. Whilst many naturists will restrict their activities to specially designated areas and/or places where there is a tradition of naked activity, such as nudist beaches, others may wish to enjoy nudity more widely.

In the case of naturism a balance needs to be struck between the naturist’s right to freedom of expression and the right of the wider public to be protected from harassment, alarm and distress.

Recommended approach to naturism

Although every case should be considered according to its own facts and merits in accordance with the Code for Crown Prosecutors a consistent approach to naturism should be adopted to maintain public confidence in the CPS.  Where none of the features exist that would bring behaviour within the ambit of one of the offences set out in the section on Other offences that might involve nudity below, the recommended approach to naturism should be as follows.

In the absence of any sexual context and in relation to nudity where the person has no intention to cause alarm or distress it will normally be appropriate to take no action unless members of the public were actually caused harassment, alarm or distress (as opposed to considering the likelihood of this).

In this case such conduct should be regarded as at most amounting to an offence under section 5 of the Public Order Act 1986; and regard needs to be had to the question of whether a prosecution is in the public interest.

Evidential considerations

In order to breach section 5 of the Public Order Act 1986 a person needs to have used threatening, abusive or insulting behaviour or disorderly behaviour within the hearing or sight of a person likely to be caused harassment, alarm or distress. Section 5 is summary only and a non-imprisonable offence.

When deciding whether a case passes the evidential stage of the Full Code Test, prosecutors should consider whether the behaviour can be described as ‘disorderly’ (rather than threatening, abusive or insulting). This is because the behaviour in question will often not appear to cross the threshold for being ‘threatening’ or ‘abusive’. Furthermore section 5 will be amended by section 57 of the Crime and Courts Act 2013 which will remove the word “insulting”.  Whilst for now “insulting” behaviour remains in breach of section 5, particular care needs to be taken before prosecuting on this basis alone.

Given that someone conducting their business naked in public is acting in a way that does not conform to the normal standards of society that require people to be clothed in public, ‘disorderly’ would appear to most aptly describe this behaviour.

Public Interest considerations

A prosecution will not automatically follow where a case passes the evidential stage of the Full Code Test. Careful consideration of the public interest will be required in such a case. The Code for Crown Prosecutors (7th edition) requires prosecutors to consider the following questions:

  1. How serious is the offence committed?
  2. What is the level of culpability of the suspect?
  3. What are the circumstances of and the harm caused to the victim?
  4. Was the suspect under the age of 18 at the time of the offence?
  5. What is the impact on the community?
  6. Is prosecution a proportionate response?
  7. Do sources of information require protecting?

In reviewing a section 5 case involving nudity the following factors (reflecting the paragraph letters above) may be relevant:

  1. On a scale of seriousness this offence is at the lower end, a factor making prosecution less likely to be required.
  2. Whether the offending is premeditated and likely to be repeated, and whether the suspect has previous convictions for similar conduct.
  3. Victims or witnesses with vulnerabilities might include children (and their carers) who are faced with the suspect’s genitals and bottom in close proximity. Any views expressed by victims or witnesses on the impact the offence has had are important, in particular whether they have felt harassment, alarm or distress. However prosecutors need to form an overall view of the public interest and to consider whether any harm caused to victims is likely to be short-lived and minimal in the absence of specific evidence to the contrary.

and

  1. Any impact on the local community, the extent and whether or not it is likely to be transitory.
  2. Whether prosecution may be disproportionate to any eventual penalty, given that the offence is summary only and non-imprisonable.

Other offences that might involve nudity

Exposure contrary to section 66 of the Sexual Offences Act 2003

This requires a person to intentionally expose their genitals and intend that someone will see them and be caused alarm or distress. It is triable either way. Depending on the age of the defendant and the sentence that is imposed, an offender may be subject to the notification provisions (the sex offender register).

The need to prove that the person exposed their genitals intending that someone will see them and be caused alarm or distress means that a naturist whose intention is limited to going about his or her lawful business naked will not be guilty of this offence.

Outraging public decency (OPD)

At common law it is an offence to do in public any act of a lewd, obscene or disgusting nature which outrages public decency. Although this may be widely interpreted, most cases will involve indecent exposure of the human body. If conduct falls within the scope of a statutory offence, such as exposure contrary to section 66 of the Sexual Offences Act 2003 (see above) it is better practice to charge that offence unless, exceptionally, the offence merits a higher penalty than that available in relation to the statutory offence. OPD is triable either way and there is no maximum penalty.

The requirement for the behaviour to ‘outrage’ public decency was said by Lord Simon in Knuller (Publishing, Printing and promotions) Ltd v DPP to: “go considerably beyond the susceptibilities of, or even shocking, reasonable people”. The circumstances surrounding the conduct will need to be carefully considered.

A naturist whose intention is limited to going about his or her lawful business naked will not be guilty of this offence.

Public nuisance

At common law it is an offence to (a) do an act not warranted by law; (b) omit to discharge a legal duty if the effect of the omission is to endanger life, health, property, morals, of comfort of the public, or to obstruct the public in the exercise of enjoyment of rights common to all Her Majesty’s subjects.

The House of Lords in Rimmington [2006] 1 AC 459 made it clear that this offence should not ordinarily be used where there is a statutory offence covering the relevant conduct.

A naturist whose intention is limited to going about his or her lawful business naked will not be guilty of this offence.

Anti-Social Behaviour Order

An Anti-Social Behaviour Order (ASBO) may be imposed either as an ancillary order following conviction or on a ‘standalone’ basis by the police or a local authority. Although naked behaviour may fit the anti-social rather than the criminal category, an ASBO carries with it the risk of an early and repeated breach followed by prosecution and ultimately imprisonment. It is questionable whether such an outcome is proportionate either in terms of the cost to the CJS or the penalty incurred. Very careful consideration needs to be given before an ASBO is sought. It should be regarded as a last resort.

Where the decision is taken that an ASBO is required it is essential that prohibitions are drafted clearly and with care to enable effective prosecution of any ensuing breach.

Appendix 2

Letter to all Chief Constables, PCCs etc

Dear { Name},

Crown Prosecution  Service Guidance on Dealing with Cases of Public Nudity.

Attached is a longer letter which we are sending to you and to all Chief Constables and Police and Crime Commissioners in England and Wales. In doing so, we hope to achieve a better understanding between police and Naturists, and to reduce the likelihood of conflict in the future. The detail of the letter is self-explanatory, but includes the offer of continued dialogue and liaison, if you think this would be helpful.

Our two organisations (NAG and BN) are acting together in this, but for logistical reasons we would ask you to send any response in the first instance only to:

Duncan Heenan, Naturist Action Group, Dolphins House, Boxers Lane, Niton, Isle of Wight. PO38 2BH [Telephone 01983 730352], email duncan.heenan@naturistactiongroup.org .

We look forward to hearing from you in due course.

Yours sincerely,

 

Duncan Heenan                                                          Malcolm Boura     Campaigns Director

for Naturist Action Group                                        for British Naturism

________________________________________________

To all Chief Constables and

Police & Crime Commissioners.

20th November 2013

Dear Sir or Madam,

Crown Prosecution  Service Guidance on Dealing with

Cases of Public Nudity.

You will be aware that the Crown Prosecution Service has recently issued ‘Nudity in Public – Guidance on handling cases of Naturism’ to all Police Constabularies and Police and Crime Commissioners. We are writing to you and other Chief Constables and PCCs to comment on this document and on the problems it seeks to address, as our remit is to represent naturists in the UK, of whom there are approaching 3.8 million, according to an independent survey carried out by IPSOS MORI in 2011. To keep this letter of manageable length we will not quote full details of all the sources, cases and incidents referred to, but we will be happy to supply them if requested.     
On the whole we welcome this CPS guidance as it recognises a problem which has been apparent to us for some years – that simple nudity in public is not illegal, but it is often policed as if it is, and that, on many occasions, policing has been inconsistent and disproportionate. To appreciate its significance, this CPS guidance needs to be read in the context of recent events both in and out of the Courts, and the changing culture surrounding the issue of nudity. This letter seeks to assist in this. We were in the process of preparing our own representations to the Authorities on this matter when the CPS issued their document. As part of our research we carried out a survey of all Police & Crime Commissioners and Chief Constables in England & Wales to see what policies and procedures existed for dealing with matters involving public nudity. We found that PCCs mostly considered this an operational matter and therefore did not get involved, and in no Police Authorities at all was there policy on it. As a result, front line police officers were left to handle matters according to unguided personal judgments. Our concern had been raised because we have been made aware of a series of cases in recent years where the police have acted against people who have been naked in public, with little consistency between cases and an over reliance on officers’ personal beliefs. Furthermore, there have been some disturbing common themes to the police approach.
The most concerning common theme appears to be a misunderstanding of the law at grass roots level by many police officers, coupled with a belief that even if nudity in public is not illegal it should be. This has resulted in incidents involving nudity being given disproportionate attention and priority in the police response. There is a misconception in the minds of a few members of the public that it is illegal to be seen naked, except in private, and so any sighting of a naked person has to be reported to the police, even if the ‘activity’ involved is wholly unremarkable, e.g. sunbathing, gardening, walking, cycling. This is virtually guaranteed to get a police attendance, which in itself can (and has) provoked an escalation of events out of all proportion to their real importance. Police officers investigating such reports often still refer to ‘Indecent Exposure’ (an offence which was repealed by the 2003 Sexual Offences Act). This not only displays a lack of understanding of the law, but also places in the minds of onlookers the notion that something illegal has happened, so something should be done; and this seems to be part of an informal process whereby reports become escalated into complaints by people wishing to support the police. It seems that mere mention of nudity leads to a bypass of the normal case handling triage to see if any actual offence is being committed. Guilt is prejudged by an attitude which seems to assume that anyone who is naked must be engaged in sexual activity or be up to no good in some way. This both prompts unnecessary investigations and sets the scene for biased outcomes. Unnecessary police investigations can be very upsetting and intimidating to innocent naturists, even when they do not lead to any further action, and we believe that the requirement for investigation needs to be set considerably higher than a mere sighting of a naked person. There is no known correlation between simple nudity and the commission of crime. Indeed, it would be a foolish criminal who identified themselves in this way. In fact, the unacceptable behaviour often known as “flashing” is usually performed by clothed men exposing their genitals in a state of sexual arousal.

We accept that cases of “Exposure” under S66, Sexual Offences Act 2003 happen, but this is a very different thing to naturism, and any such incident should be easily distinguishable by the initial questioning.

The law most commonly used to prosecute cases of public nudity has been S5, Public Order Act 1986. But this has been a ‘last resort’ in the absence of any specific statute making public nudity illegal. This section has been used because its ‘catch all’ wording is so vague as to make it very open to interpretation. This whole Act was passed in the aftermath of the 1986 Brixton riots and seeks to address genuine Public Order incidents. Nowhere does the Act mention, or even hint at nudity as being relevant to Public Order. Our view (that use of this Act to prosecute public nudity) is an abuse of the law has been supported by numerous judgements in the Courts. Virtually all cases in recent years have been either dropped by the CPS or resulted in acquittal either at Magistrates Court or on appeal to a higher Court. The CPS have accepted this now by recommending use of this Act only where there seems to be some underlying or aggravating factor which actually causes genuine alarm and distress, and indicating that simple nudity should not be prosecuted. If Parliament had intended nudity in a public place to be illegal, it would have passed an unambiguous statute to that effect. In fact when Parliament passed Section 66 Sexual Offences Act (2003), they made it clear, both in the wording of the Act and in the lengthy consideration given to this section in debate that “It was not intended to criminalise Naturism or streaking”. Clearly, to Parliament, which represents the will of the people, simple nudity is not an issue. Policing should reflect the view of Parliament. Policing is as much about protecting the legal freedom of people as it is about curbing illegal activity.

Independent surveys of public opinion (IPSOS MORI 2001/2011) have shown that the number of people who would be genuinely distressed at seeing a naked person in a non-aggressive, non-threatening situation is tiny. 88% classed Naturists as ‘sensible’, or ‘harmless’, and only 1 % thought nudity should be illegal. It is accepted that naturists are a minority in society, but they are a sizeable minority. Being a minority and espousing an unusual lifestyle is not illegal. The right to freedom of expression and diversity is nowadays enshrined in many laws as well as specific Human Rights legislation. We strongly disagree with the CPS’s comment in the Evidential Test – that nudity may be ‘disorderly’ merely by being different from the ‘normal standards of society’. Something is disorderly only if it brings about or is likely to bring about disorder. It is not accepted that a disorderly response by others to peaceful, legal nudity can be blamed on the naked person. We believe that case law supports our view, and that Courts would agree with us. If some people dislike simple nudity, they have better, and more legal, remedies than engaging in disorder. Simply ignoring it would seem to be the normal, and proportionate, response, as with other aspects of diversity which may not find favour, but which cause no harm.

Witnesses often express surprise at seeing something unusual, such as public nudity, and surprise is often mistaken for ‘alarm and distress’. It is common practice for police officers to use the words ‘alarm and distress’ when interviewing witnesses, and then incorporate these words into witness statements which they get the witnesses to sign. We have seen many examples of such ‘prompting’ of witnesses, either intentionally or unintentionally, by over-zealous or prudish police officers who seem intent on bringing charges regardless of the real evidence or the requirement for proportionate policing and regard for the wider Public Interest. We are pleased to see that the CPS have made it clear in their guidance, that the level of ‘distress’ is not an absolute, and needs to be tested for ‘Specific Evidence’ – that the distress is not ‘short lived or minimal’. It is clear that to base a measure of ‘distress’ on the reaction of an over-sensitive or phobic person would be unjust, and the likelihood of conviction would be low. It is clear from Case law that causing offence to someone by appearing in a way they do not like, or doing something they do not like, is not a criminal offence unless they are harmed or threatened. The law expects people to have a normal level of robustness in their reaction to events around them. To do otherwise would make society impossible to live in.

Allied to the aspect of ‘distress’ is the reference to ‘vulnerabilities’ referred to by the CPS in considering the Evidential Stage. Though under 18’s may automatically be considered ‘vulnerable’ in a legal sense, it should not be assumed that the sight of nudity has any detrimental impact on a child. There is no evidence that experience of non-sexual, non-aggressive nudity affects children adversely. On the contrary, there is clear statistical evidence that rates of teenage pregnancy and sexually transmitted diseases are considerably higher in ‘prudish’ societies than in countries where nudity is accepted as a natural part of life. It is a view held by many psychologists that children, to whom the sight of naked bodies is common, grow up with a better adjusted attitude to their own and others’ bodies. This is also the view of naturists, many of whom have families of their own, and would do nothing which they thought might harm them. It is worth noting also that Naturists include many police officers and lawyers among their number.

We are pleased also to see that the CPS are concluding that prosecution will rarely be in the public interest, or even to represent a proportionate response to such incidents. Indeed the whole thrust of the guidance is to discourage prosecution of nudity, unless there is some associated behaviour which is criminal. This needs to be understood, not only regarding prosecution, but in the whole handling of such matters by the police. Inappropriate action by junior officers investigating a report of public nudity can easily turn a minor incident, where no laws have been broken and which should be dealt with in an informal way, into serious criminal proceedings which can have a devastating effect on the life and career of an innocent naturist.  There has been tremendous distress caused to innocent people and a large waste of public resources in recent years because police authorities have had no coordinated policy or guidance on how to approach this subject. We have seen too many trivial incidents gain an apparently unstoppable momentum of their own once formal police procedures start to operate. It could be described as the police employing ‘sledgehammers to crack a nut’.

We welcome the CPS’s guidance as a first step in addressing this ‘over policing’. However, matters which come to Court are only the tip of an iceberg, and resources will continue to be wasted, innocent naturists traumatised and freedoms breached unless both the CPS guidelines, and the cultural shift they arise from, is accepted and implemented at all levels within the police.  It is essential that the approach the CPS is recommending is communicated throughout police forces, via training and education of officers at all levels. In doing this the CPS guidance should not be interpreted as an incentive to find better ways of prosecuting nudity, but as a discouragement from prosecuting it at all. The CPS is recommending that policing of nudity issues should be done with a light touch from the very start.  Police forces have more important things on which to spend their time, and that is what the CPS is suggesting they do.

We see the training of police officers of all ranks as the priority and would be very interested to know what plans you have to integrate this CPS guidance into your training and procedures.  We would be happy to engage in a dialogue as to any help we may be able to give you in implementing a training and education programme.  Liaison with naturist groups in your area, could be arranged if this would be of any assistance to you

We look forward to hearing your training plans and your reaction generally to our comments.

Yours Faithfully

Jointly on Behalf of

Duncan Heenan                                  and                  Malcolm Boura

Director                                                                       Campaigns Director

Naturist Action Group                                                British Naturism

 

 

 

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