Our recent entry on the latest travails of the Naked Rambler prompted correspondence set out below.
Dear Mr MacQueen
I am a free-lance journalist reporting on naturist issues. I have been following your reports in Scots Law News on the case of the Naked Rambler. It would seem to me, that rather than advocating ASBO’s, lawburrows, or fines, it might exercise your students’ minds a little more if you set them the task of considering whether Mr Gough has indeed ever broken any laws. I’m sure I don’t need to remind you that in 2001, in the High Court of Justiciary, Lord Coulsfield held that breach of the peace required “conduct severe enough to cause alarm to ordinary people and threaten serious disturbance to the community” and that “mere annoyance or irritation were insufficient”. Over the years, I have attended a number of Mr Gough’s trials, where he has arrived naked, and I’ve only ever seen general amusement, never alarm and disturbance. When Mr Gough first started his more-or-less continuous term of imprisonment, which will extend to nearly three years by the time of his next scheduled release, shadow justice minister Bill Aitken told me that he did not consider that a naked man walking down Prince’s Street would be committing the
offence. To date, two sheriffs have also judged that being released into the prison car park, taking half-a-dozen steps, and immediately being re-arrrested is not sufficient to sustain a charge of breach of the peace. I would ask you to put aside your obvious bias about Mr Gough’s behaviour, with which, incidentally, I do not personally agree, and consider instead whether a beach of the peace, as defined in Scots Law, has ever actually occurred.
Dear Bob (if I may)
Thanks for your email below, and for your interest in Scots Law News. The case on breach of the peace that you mention I covered here. I think I've touched on the breach of the peace point several times in the course of covering Steve Gough's problems, e.g. here, here, here, and here. The point really is that it is for the judge (generally speaking the Rambler's cases have been summary and not solemn prosecutions with a jury) to decide whether the accused's conduct is alarming or not; some in the Rambler cases have decided not but the great majority have held that it is, each no doubt taking account of the overall circumstances.
What concerns me in my latest entry is that the whole thing is now caught in a vicious circle which is doing nobody any good, whether Steve Gough, the police, the courts or the prison system. Something needs to be done to break out of the loop, and I don't think it's going to be by way of saying that public nudity is not breach of the peace. It's also been authoritatively ruled that appearing naked in court is contempt of court, and only the legislature can change that. So it seems to me that we have to examine the alternatives to imprisonment. I don't know whether any of them are possible for cases like this, but I would like to hear some debate about it. Out of jail, Steve Gough and his supporters could then lobby the legislature to change the law, and maybe something might even happen to help their cause along. But at the moment it's going precisely nowhere, and maybe even losing some of the support it has.
I don't think this is bias, just looking for some movement out of an impasse.
Thank you for your comprehensive reply. I had read your previous reports, and the relevant court judgements, and, with respect, I believe that in most of Mr Gough’s cases there has been no breach of the peace, simply institutional bias against public nudity. In the absence of evidence of alarm, a sheriff can surely only judge the issue on his subjective view of nudity and the public’s response to it. I only recall one instance of evidence of alarm being given to a court. That was in October 2006, when two officers sent to Saughton, specifically for the purpose of arresting the Naked Rambler, told the court that they were alarmed and distressed to see him naked. I would have hoped that Scots police were made of sterner stuff.
But the offence also requires a serious disturbance to the community. Mr Gough’s release into the prison car park at 7.00am, straight into the arms of waiting police officers, could hardly have brought the lieges to the point of riot. Although I have not personally witnessed the public’s response in Scotland, I have seen BBC footage of Mr Gough receiving no small acclaim in the towns and villages through which he has passed. I could perhaps point out that on his last walk he caused no disturbance this side of the border, and no charges were made against him. He mostly attracts general merriment. Perhaps the Scots police could allow him to walk a little further, and thereby cause genuine alarm to reasonable people, and a serious disturbance to the peace of the community. They could then make out their case to the better satisfaction of those of us concerned with the rule of law, rather than knee-jerk reactions to what is unusual in society.
Contempt of court is historically concerned with impairing the administration of justice. As Mr Gough has now been convicted on numerous occasions, and served nearly three years in prison, it seems to many of us that the administration of justice, or at least the Scots version, has not been too severely impaired. Those that give his position unqualified support are actually quite few in number: but the number questioning the position and partiality of Scots Law is growing, and surely ought to give cause for
I do agree that there has to be a better way out of this. In October 2007, I collaborated with Mr Gough’s solicitor and the authorities on a plan that would have seen him leave prison naked, get into a police car naked, and be driven naked to a naturist magazine’s office in Yorkshire. Unfortunately, he discovered that he was a free man and could not be forcibly repatriated, and got out of the car, only to be re-arrested. An alternative would be to transfer him to a prison in England to serve his sentence closer to his friends and relatives. On release, the police here would be unlikely to arrest him. We can cope with it. His supporters might then have a chance to convince him that Scotland, like the past, is a foreign country: they do things differently there. And he might just as well campaign in Teheran. I can’t guarantee that he won’t be back, of course.Whilst I personally find much of Mr Gough’s behaviour to be boorish and ill-conceived, I do obviously seek to convince you to take a more robust stance on the substantive issues.
And also, let me put it to you as an academic lawyer. Surely, the only right we have, in a civilised society, to impose our will against that of Mr Gough is to prevent harm to others. Here’s a challenge: can you, or any of your faculty, show to me that Mr Gough is in some way harming others, and in a way proscribed by law? If not, then, over himself, over his own body and mind, Mr Gough must remain sovereign. As, indeed, he seems determined to do. He merely seeks not to wear clothes, if he so chooses. A right enjoyed by every dog in the street.
You may use any part of this correspondence to stimulate debate.
Any answers on an email to the editor!