‘Community Remedy Consultation’ – NAG’s response
Crime and Anti-Social Behaviour Reduction Unit Home Office
4th Floor, Fry Building, 2 Marsham Street
15th January 2013
Community Remedy Consultation
Submission by Naturist Action Group (‘NAG’), on the public consultation regarding the draft Antisocial Behaviour Bill
NAG’s remit and approach
Naturist Action Group (‘NAG’) is a UK based Study group, dedicated to researching all aspects of naturism, educating the public and Authorities about naturism, and encouraging the provision of facilities for naturism. We are not a membership organisation, but we have many supporters and we consult and research widely on the matters we consider. We are independently funded, and have no connection with any other organisation.
NAG views this Draft Bill as well-meaning legislation, but containing real dangers to legitimate Civil Liberties and Human Rights from unintended consequences when, as we fear, it becomes applied to situations for which it was not intended, but which may suit some in positions of power to pursue a personal agenda. In this respect the greatest shortcoming of the Draft Bill is in the failure to define ‘Antisocial Behaviour’ in a way which is not at the whim of personal likes and dislikes of complainants, the police and the judiciary. This can easily lead to inconsistent application, judgments and sentencing.
NAG also believes that taking the views of ‘victims’ into account in judgments and sentencing is wrong in principle, as it opens the process up to revenge, rather than justice, as a motive. It also removes the principle that the Court stands in the shoes of ‘the reasonable person’ in exercising its judgment impartially. It will also lead towards inconsistency of approach between cases. Taking these factors together, NAG believes that the principle of the victim setting the Court’s agenda, to some degree at least, undermines the authority of the Courts, and opens them to pressure from people who are not impartial.
Some specific comments
S1 (2) criminalises behaviour which is merely capable of causing annoyance & nuisance. NAG strongly believes that this definition of Antisocial behaviour is woefully inadequate to avoid abuse of human rights and civil liberties. For behaviour to be Antisocial, it needs to be more than just capable of causing…. NAG believes that to be Antisocial, behaviour needs to be at least ‘likely’ to cause the problems referred to. In addition, the absence of any requirement to prove intention on the part of the person exhibiting the behaviour, is wrong in principle as it criminalises people who are acting with no ill motives, but just in a way someone else may not like. NAG believes that for any behaviour to be antisocial there needs to be at least ‘wilful disregard’ to others’ safety, enjoyment of life or human rights.
Additionally, for behaviour to be genuinely ‘Antisocial’, it needs to adversely affect ‘a reasonably robust, normal person’, and not just an individual who may be subject to any sort of phobia, over-sensitivity or extreme views. Everything will cause annoyance or nuisance to someone. To give unreasonable people the right to censure others’ behaviour by classing it as ‘Antisocial’, is not what is intended by this Draft Bill, but as currently presented, this could easily happen. A higher threshold for action is essential to avoid this measure having widespread unintended consequences, and that threshold must relate to what a person should consider Antisocial, not what an individual does consider antisocial. This is a matter of definition, which ought to be addressed in a redrafting of the Bill.
The criminalising of mere ‘annoyance and nuisance’, even to a reasonable person, is the greatest weakness of this Draft Bill. This Bill would give an unreasonable power to those with influence to impose their values on others in contravention of their human rights, and to restrict the rights to freedom of speech and freedom of expression to others. NAG feels strongly that having merely ‘annoying’ or ‘nuisance’ behaviour as a criminal offence would allow people to restrict others from expressing themselves freely, in a harmless way, but which may cause some annoyance. A reasonable person should be reasonably robust.
NAG’s view accords very closely with that expressed by Lord Steyn In R v Home Secretary, Ex Parte Simms  2 AC 115 at 126, HL, in which he explained that freedom of expression is the lifeblood of democracy and a public safety valve:
“Freedom of expression is, of course, intrinsically important: it is valued for its own sake. But it is well recognised that it is also instrumentally important. It serves a number of broad objectives. First, it promotes the self-fulfilment of individuals in society. Secondly, in the famous words of Holmes J. (echoing John Stuart Mill), “the best test of truth is the power of thought to get itself accepted in the competition of the market:” Abrams v United States (1919) 250 US 616, 630 per Holmes J. (dissenting). Thirdly, freedom of speech is the lifeblood of democracy. The free flow of information and ideas informs political debate. It is a safety valve: people are more ready to accept decisions that go against them if they can in principle seek to influence them.”
NAG also believes that a behaviour should not be criminalized simply because someone else finds it annoying. This view was famously summed up by Lord Justice Sedley in DPP REDMOND-BATE v. DIRECTOR OF PUBLIC PROSECUTIONS  EWHC Admin 732 (23rd July, 1999):
“Free speech includes not only the inoffensive but the irritating, the contentious, the eccentric, the heretical, the unwelcome and the provocative provided it does not tend to provoke violence. Freedom only to speak inoffensively is not worth having.”
Freedom of expression does not relate only to freedom of speech, but of all aspects of life. The choice of what to wear, or not to wear is a genuine part of human expression (Otherwise why does the fashion industry exist?), and naturists believe that choosing to be naked sometimes is an important piece of freedom of expression for them.
Accepting that freedom of expression has to be subject to the protection of others, NAG feels that no-one needs to be ‘protected’ from nudity. NAG is supported in this view by two independent surveys carried out by NOP & Mori ten years apart (the most recent being this year), which showed an overwhelming majority of the population considering naturists as ‘harmless’. The trend between these polls shows public opinion becoming even more tolerant towards innocent nudity, and the later (contemporary) one actually concludes that there are about 4 million people in the UK who consider themselves as Naturists.
Only the subject of ‘annoying’ behaviour can decide whether what is done is annoying to them, as one person’s annoyance is another’s enjoyment. To criminalize someone for something that is undefined objectively and is judged mainly by the subject, is disproportionate (under the European Convention on Human Rights Article 10), unfair in terms of natural justice, and very wasteful of public resources in its application and policing it.
NAG has considerable evidence of a similar piece of legislation, The Public Order Act 1986, which was founded on good intentions, being abused because of its over-wide drafting and loose definitions. Specifically, Section 5 of that Act has been used to prosecute people for non-sexual, non-aggressive nudity, based on nothing but the personal prudery of those in authority. Such cases are routinely dismissed by magistrates or on appeal, but the trauma to those involved, and the waste of public resources is huge. NAG believes that, as drafted, this Draft Bill would lead to the same persecution of innocent nudity, based on nothing but a few people’s prudery.
It is significant that the Government has recently approved the removal of ‘insulting’ words or behaviour as a cause for action under the Public Order Act 1986. This is an acknowledgement that society expects its members to be reasonably robust in its perception of others and their behaviour, so long as there is no actual harm caused. NAG believes this principle should guide any legislation on Antisocial behaviour, in order to avoid abuse of the law in situations it was not intended for, and unintended consequences.
The mention of nudity in neighbour disputes seems a near guaranteed means of involving the police. This is a known tactic of vindictive individuals, and those who enjoy being outraged, and NAG believes this Draft Bill would play into their hands. If an individual feels aggrieved by someone else’s nudity, this should be dealt with as a civil matter between the parties. We would liken this to the playing of loud music, where intervention by the police is rarely involved. For example, at present naturists live in fear of being criminalized if someone with an axe to grind catches a glimpse of them in their own garden. This is unreasonable and would be made worse by this Draft Bill.
S 1 5 (a) gives protection for behaviour which results from religious beliefs. This principle should be extended to other deeply held beliefs as, to many people, such beliefs are as much a part of their life as a religion can be. To naturists, enjoyment of life without clothing in the right circumstances, is fundamental to their lifestyle. This is a harmless ‘behaviour’ and should enjoy the same protection as those who wear particular garments or behave in particular ways because of their religious views.
S21 Creates Criminal Behaviour Orders, which further punish people convicted of behaviour described with identical wording as S5 Public Order Act 1986. NAG believes this merely reinforces and magnifies abuse of the Public Order Act 1986, as mentioned above, especially when used by vindictive or prejudiced people. Moreover, this punishment is imposed in advance of any crime being committed.
S21 6 b has the practical effect of undoing the ‘warning’ effect of conditional discharges & overrides earlier courts, thereby undermining their authority when they made the initial decision, based on evidence which only they heard. It amounts to double punishment which the original Court did not intend.
S22 (2) allows evidence which was inadmissible in the original Court case. This undermines the rules of evidence, and will lead to inconsistency of judgments.