A recent Court victory, and the lessons learned (Sept. 2017)
A recent case involving nudity in a public place (2017).
Here is a brief synopsis of the case. It is hoped that we can all learn something from it. It is published with the consent of the accused, though anonymised to avoid further unnecessary suffering.
X has been a naturist for over 20 years, and has often driven his car naked during the last 17. He was travelling alone in his car on his way to collect his wife from work, and was driving naked, when he was stopped by traffic lights near a city centre. Y and his wife pulled up in a higher vehicle alongside and glanced across, and saw that X was naked. The Ys were ‘outraged’. X saw Y looking at him, and quickly pulled a pair of shorts across his lap. The lights then changed and X drove off. However, Y followed him and dialled 999 and asked the police to apprehend X, which they did by Y following for some miles and guiding the police to where he was driving using their mobile phone. X was arrested, taken to the police station and told he would be charged with Public Nuisance. Subsequently this charge was changed to a breach of Section 66 of the Sexual Offences Act 2003, which outlaws ‘exposure’ (‘the flashers law’).
In his witness statement Y alleged that X had been masturbating and grinning at him. X denied this and said that if his hands were moving at all it would have been his normal driving habit of checking that his gearstick was in neutral prior to releasing the clutch, having applied the hand brake. Y’s view was partially obscured as X’s car had sun screens stuck on the inside of the windows. The case hinged on the wording of S66, which states:
“A person commits an offence if—
(a)he intentionally exposes his genitals, and
(b)he intends that someone will see them and be caused alarm or distress….”
The onus was on the prosecution to demonstrate that X intended to be seen and to cause alarm or distress.
X argued that he was a naturist, and enjoyed the feeling of being naked for its own sake, and he had no wish to be seen by others. This was demonstrated by the fact that in normal driving conditions he would only be seen from the waist up, and with the sun screens on the windows the likelihood of being seen at all was much reduced. In addition, having something handy to cover-up with if seen, helped convince the Court that there was no intention of causing alarm or distress to anyone. All-in-all X had demonstrated a pattern of behaviour which was not that of a ‘flasher’. The Magistrates therefore found him Not Guilty, and did not even comment on his being naked or the allegation of masturbation. This is an encouraging and legally correct interpretation which is all too uncommon in the Courts. X was represented by good lawyers (https://www.birdandco.co.uk ), experience in this sort of case, and supported by NAG and BN who worked closely together on this case.
So, what can we learn from this? As a Magistrate’s Court case it does not have the power to set a legal precedent, but the Police and Crown Prosecution Service will probably learn from it. Any learning is likely to be fairly local though, as at the level of Magistrates Courts, and Local Police Authorities there is not much national cross-over. We can still hope it might help police and CPS be a little less ‘gung-ho’ in bringing cases mostly because someone is naked.
Or… it might just make them a bit more thoughtful and crafty in bringing cases! It is worth emphasising that a critical element of the victory lay in the police & CPS’s ineptitude. They chose to prosecute under S66, Sexual Offences Act 2003, with pretty poor evidence. As we saw, S66 required the prosecution to demonstrate that X had ‘intent’ to be seen and cause alarm or distress. This they failed to do because X was able to show the Court evidence that he did not intend either to be seen or to cause alarm or distress. I suspect the CPS took the approach they did because of the allegation of masturbation, allied to nudity. In fact, even if the allegation had been true, it would have been legally irrelevant under S66 if there had been no intent to be seen and cause alarm & distress. However, if the CPS had chosen to prosecute under S5 of the Public Order Act 1986, the case could have easily gone the other way, even with the same evidence. This is because S5 POA does not require ‘intent’. It merely requires that the behaviour is ‘likely’ to be seen and cause alarm etc. In such cases a major consideration is trying to decide how likely is ‘likely’. There is very little legal guidance on this and in practice it is up to the magistrates to decide it for themselves on whatever criteria pops into their heads at the time, and this can lead to unpredictable decisions, which reflect magistrates’ personal opinions as much as Law or evidence. So no one should consider themselves immune from prosecution, or conviction; and though NAG supports the belief that simple nudity in public places is not illegal, in practice it is always as well to remember that it is unusual and often misunderstood, misinterpreted, and can sometimes lead to trouble. So common sense and consideration should be the watchwords.
It is clear that there remains a lot to be done in educating the police and CPS in order to forestall such incidents. Though X was found Not Guilty, he and his wife have had a very stressful time for many months during this process. Their legal cost are over £2,000, and there is no guarantee they will get it all back, even with the Not Guilty verdict. Exactly what it cost the taxpayer to bring this incorrect and pointless prosecution is anyone’s guess, but it will be many thousands of pounds which could have gone on fighting real crime. The answer lies in education of the police at all levels, but especially the front-line first responders. This is not easy, and the tighter public budgets become the less easy training and education becomes, even though the potential savings in wasted prosecutions could be greater. However, we must keep on chipping away at the problem – and NAG is determined to do so, both alone and in concert with other organisations such as BN, which have similar aims – Naturist Freedom.