FOURTH SECTION

CASE OF GOUGH v. THE UNITED KINGDOM

(Application no. 49327/11)

JUDGMENT

STRASBOURG

28 October 2014

FINAL

23/03/2015

This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision.

In the case of Gough v. the United Kingdom,

The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of:

Ineta Ziemele, President,
Päivi Hirvelä,
Ledi Bianku,
Nona Tsotsoria,
Paul Mahoney,
Krzysztof Wojtyczek,
Faris Vehabović, judges,
and Fatoş Aracı, Deputy Section Registrar,

Having deliberated in private on 7 October 2014,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1. The case originated in an application (no. 49327/11) against the United Kingdom of Great Britain and Northern Ireland lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a British national, Mr Stephen Peter Gough (“the applicant”), on 29 July 2011.

2. The applicant, who had been granted legal aid, was represented by Bindmans LLP, a firm of solicitors based in London. The United Kingdom Government (“the Government”) were represented by their Agent, Mr D. Walton, of the Foreign and Commonwealth Office.

3. The applicant alleged, in particular, that his repeated arrest, prosecution, conviction and imprisonment for being naked in public and his treatment in detention violated his rights under Articles 3, 5 § 1, 7 § 1, 8, 9 and 10 of the Convention.

4. On 25 September 2012 the application was communicated to the Government. It was also decided to rule on the admissibility and merits of the application at the same time (Article 29 § 1).

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

5. The applicant was born in 1959 and lives in Eastleigh.

A. Arrest, prosecution, conviction and imprisonment

1. Background

6. The applicant adheres to a firmly held belief in the inoffensiveness of the human body. This has in turn given rise to a belief in social nudity, which he expresses by being naked in public. In 2003 he decided to walk naked from Land’s End in England to John O’Groats in Scotland, earning the nickname “the naked rambler”.

7. The following chronology is a summary of the details provided by the parties pertaining to the applicant’s arrests, prosecutions, convictions and sentences of imprisonment since July 2003. All arrests listed were the result of nudity in public unless otherwise indicated.

(a) The first trek 2003/2004

8. The applicant began his trek at Land’s End in 2003.

9. He was arrested in Scotland on five occasions between 29 July 2003 and 18 August 2003 on charges of breach of the peace (see paragraphs 100‑102 below) and public indecency for being naked in public. No further action was taken in respect of the first two offences. He was released on bail in respect of the others but no further action was ultimately taken.

10. On 19 August 2003 he was arrested and detained for breach of the peace. He was released on bail on 26 August after agreeing to remain clothed. However, he was rearrested on 27 August on a charge of breach of the peace committed while on bail for being naked in public. On 3 October 2003 he was convicted at Dingwall Sheriff Court in respect of the 27 August offence and admonished. He was then released. He lodged an appeal which was later dismissed for unknown reasons.

11. Meanwhile, on 3 October 2003 following his release, he was arrested and charged with breach of the peace committed while on bail. He was remanded in custody. On 7 November 2003 he was convicted at Dingwall Sheriff Court and sentence was deferred. On 28 November 2003 a sentence of three months’ imprisonment was imposed, backdated to the date of his arrest. He was released on 29 November 2003.

12. On the same day he was arrested and charged with breach of the peace committed while on bail. He was remanded in custody. Following a trial on 7 January 2004 he was convicted and sentenced to three months’ imprisonment, backdated to 1 December 2003. He lodged an appeal which was later dismissed for unknown reasons. He was released on 15 January 2004 and resumed his trek.

13. All periods of detention were spent in HMP Inverness in segregation as the applicant refused to dress.

14. On 22 January 2004 the applicant completed his trek at John O’Groats and returned to his home in Eastleigh, England.

(b) The second trek 2005/2006

15. In June 2005 the applicant commenced a second trek at Land’s End, intending to walk to John O’Groats.

16. On 1 September 2005 he was arrested in Scotland and charged with breach of the peace. He was detained on remand and convicted on 9 September. He was sentenced to fourteen days’ imprisonment. He was released on 15 September 2005.

17. Upon leaving the prison, the applicant was arrested and charged with breach of the peace. He was released on bail.

18. On 20 September 2005 the applicant was arrested and charged with breach of the peace. He was released on bail.

19. On 3 October 2005 he was arrested and charged with breach of the peace and an offence under section 27(1)(b) of the Criminal Procedure (Scotland) Act 1995 (breach of bail conditions – see paragraph 103 below). He was detained on remand. On 21 October 2005 he was convicted in Dingwall Sheriff Court of a breach of bail conditions and sentenced to imprisonment for two months, the sentence being backdated to 4 October 2005. He was found not guilty of breach of the peace.

20. He was released on 3 November 2005 and immediately rearrested. He was charged with breach of the peace and a breach of bail conditions for being naked in public. On 15 November 2005 he appeared at Edinburgh Sheriff Court naked to be tried on the charges relating to the arrest on 3 November 2005. The Sheriff found the applicant to be in contempt of court and sentenced him to three months’ imprisonment.

21. On 1 December 2005 it was decided that no further action would be taken in respect of the applicant’s arrest on 20 September 2005.

22. On 19 December 2005 the applicant appeared again for trial at Edinburgh Sheriff Court but refused to wear clothes. The Sheriff again found the applicant to be in contempt and deferred the matter of sentence.

23. On 21 December 2005 the applicant was due to stand trial at Edinburgh Sheriff Court on the charges relating to the arrest on 15 September 2005. He refused to dress. The Sheriff found him to be in contempt of court. She adjourned the trial proceedings and deferred consideration of the matter of sentence for the contempt charge until 9 January 2006.

24. On 9 January 2006 the applicant’s plea of not guilty to the two outstanding breach of the peace charges was accepted. He was convicted of breaching of bail conditions and admonished. Sentence was further deferred in respect of the contempt findings and the applicant was released on bail on 10 January 2006.

25. On 12 February 2006 the applicant was arrested for breach of the peace. No further action was taken.

26. On 14 February 2006 the applicant was again arrested for breach of the peace. He was released on bail.

27. On 21 February 2006 he completed his trek at John O’Groats.

28. On 1 March 2006 he entered Edinburgh Sheriff Court naked to face proceedings related to the outstanding findings of contempt of court. He was arrested and charged with breach of the peace.

29. On 2 March 2006 he appeared on those charges before the Sheriff. He was found to be in contempt of court for appearing naked in court and sentenced to two months’ imprisonment. He lodged an appeal against the sentence.

30. On 15 March 2006 it was decided that no further action would be taken in respect of the applicant’s arrest on 14 February 2006.

31. On 6 April 2006 the applicant was convicted of breach of the peace committed while on bail in respect of his nudity on 1 March 2006. He was sentenced to three months’ imprisonment, backdated to 2 March. It appears that he was released on 14 April 2006 and returned home to Eastleigh.

32. All periods of detention except for a week from 16-23 November 2005 were spent in segregation in HMP Inverness and HMP Edinburgh because the applicant refused to wear clothes.

(c) Detention from 2006-2009

33. On 18 May 2006, during a flight from Southampton to Edinburgh to attend the appeal hearing in respect of the sentence for contempt of court, the applicant removed his clothes. Upon arrival at Edinburgh airport, he was arrested for breach of the peace and public indecency committed while on bail. He was detained on remand. On 23 June 2006 he was convicted of the charges and sentenced to four months’ and two months’ imprisonment respectively, to run concurrently backdated to 19 May. He lodged an appeal which was later dismissed for unknown reasons. He was released on 19 July 2006.

34. On the same day, he was arrested on a charge of breach of the peace committed while on bail and detained on remand. He was convicted on 25 August 2006 and a seven-month prison sentence was imposed. He lodged an appeal which was later dismissed for unknown reasons. He was released on 3 November 2006.

35. On the same day, he was arrested in the prison car park on a charge of breach of the peace committed while on bail. He was detained on remand. He appeared naked in court on 6 November 2006 and was found to be in contempt of court. A two-month sentence was imposed. On 13 December 2006 he was found guilty of breach of the peace in respect of the 3 November charge. He was sentenced to six months’ imprisonment, backdated to 5 December. He was released on 5 March 2007.

36. Upon his release, he was rearrested on a charge of breach of the peace in the prison car park. He was detained on remand. On 9 April 2007 he was found not guilty of a charge of breach of the peace as the Sheriff was not persuaded that he had caused any alarm or disturbance. He was subsequently released.

37. On 10 April 2007 he was arrested on a charge of breach of the peace and detained on remand. He was convicted on 9 May 2007 and sentenced to three months’ imprisonment, backdated to 11 April. He lodged an appeal which was later dismissed for unknown reasons. He was released on 25 May 2007.

38. On the same day, he was arrested on a charge of breach of the peace committed while on bail and detained on remand. He was convicted on 25 June 2007 and sentenced to sixty days’ imprisonment, plus fourteen days outstanding from his previous sentence. He lodged an appeal; the outcome of the appeal is not known. He was released on 31 July 2007.

39. On the same day, he was arrested on a charge of breach of the peace and detained on remand. He was convicted on 3 September 2007 and sentenced to sixty days’ imprisonment, plus twenty-three days outstanding from his previous sentence. He lodged an appeal which was later dismissed for unknown reasons. He was released on 12 October 2007.

40. On the same day he was arrested and charged with breach of the peace. It appears that he was not held in custody. Three days later, on 15 October 2007, he was arrested on a charge of breach of the peace and detained on remand. A decision was made to take no further action in respect of the 12 October arrest.

41. On 7 November 2007, while the applicant was on remand, his appeal against sentence for contempt of court was rejected by the Appeal Court of the High Court of Justiciary (“the Appeal Court”).

42. On 15 November 2007 he was convicted in respect of the 15 October arrest. Sentence was deferred and the applicant remained in detention.

43. On 30 November 2007 the applicant was sentenced to three months’ imprisonment for contempt of court in respect of a contempt finding dating back to December 2005.

44. On 4 December 2007 the applicant was sentenced to thirty days’ imprisonment in respect of each of the two outstanding contempt of court rulings, to run concurrently.

45. On 18 January 2008 the applicant appeared at Edinburgh Sheriff Court in respect of the deferred sentence for the 15 November 2007 conviction. Sentence was further deferred and the applicant was released. As he emerged from court naked, he was rearrested on a breach of the peace charge and detained on remand. On 26 February 2008 he was convicted and sentenced to four months’ imprisonment. He lodged an appeal which was later dismissed for unknown reasons. He was released on 7 March 2008.

46. On the same day, he was arrested on a charge of breach of the peace committed while on bail and detained on remand. He was convicted on 15 April 2008 and sentenced to twelve months’ imprisonment.

47. On 23 April 2008 he was admonished in respect of the breach of the peace conviction of 15 November 2007.

48. On 14 October 2008 the applicant was released. He was arrested in the prison car park on a charge of breach of the peace and detained on remand. On 14 November 2008 the Sheriff ruled that there was no case to answer.

49. The applicant was released but was immediately rearrested on a charge of breach of the peace and detained on remand. On 18 December 2008 he was convicted at Glasgow Sheriff Court. He was sentenced to eight months’ imprisonment.

50. The applicant’s detention throughout this period was spent in HMP Edinburgh, HMP Barlinnie, HMP Glenochil and HMP Perth in segregation because he refused to put on clothes.

2. The June 2009 arrest

(a) The arrest

51. At around 7.45 a.m. on 18 June 2009 the applicant was released from HMP Perth. He walked out of the prison naked and was arrested, after refusing to get dressed when asked to do so by two police officers waiting some metres from the prison gates, on Edinburgh Road. He was charged in the following terms:

“... [Y]ou ... did conduct yourself in a disorderly manner, did walk in a public place naked, refuse to wear any clothing when asked to do so, indicate that you had no intention of wearing any clothing when in public and did commit a breach of the peace.”

52. He pleaded not guilty and was detained in prison on remand in segregation as he refused to dress.

(b) The trial proceedings

53. On 16 July 2009 the applicant’s trial took place at Perth Sheriff Court. He chose to remain naked and represented himself. He was asked by the Sheriff if he wished the services of a lawyer but replied that he did not. He maintained his plea of not guilty. The Sheriff indicated that he risked being found in contempt of court if he failed to put on clothes. The applicant refused to dress. The Sheriff allowed him to be present in court after a screen covering the lower half of his body was hastily constructed.

(i) The evidence

54. The two police officers who had arrested the applicant gave evidence. Police Officer A described Edinburgh Road as a “major route into Perth” from the motorway. It was a “busy road” and at the material time there was a continuous flow of traffic along the road. He was firmly of the view that the applicant’s nudity in a public place would cause alarm to anyone. During cross-examination by the applicant, Police Officer A agreed that the human body was in itself decent and was not harmful or alarming. He accepted that nothing in the applicant’s behaviour at the time of his arrest, other than his nakedness, gave the police any cause for concern. Police Officer B gave evidence that she considered the fact that the applicant had no clothes on in a public place to be very strange and unusual and that she was “quite shocked” by it. She explained that at the time, Edinburgh Road had been very busy with vehicular and pedestrian traffic. She had previously seen elderly people and children in the area, and there were schools and housing nearby. In cross-examination she also agreed that the human body in itself was not harmful, indecent or bad but maintained that although she had been forewarned that she would be likely to see a naked man in public she had still been shocked. She confirmed that no complaints had been received from members of the public.

55. The applicant gave evidence in his defence. When asked by the prosecution why he was wearing no clothes, he replied that he was making a stand and that “we’re innocent until we do something wrong”. He did not believe that he was causing harm by not wearing clothes. He said that he did not wear clothes in order to provoke a reaction: although he had not always been like that, as he had grown older he had thought more about his beliefs. When asked what he hoped to achieve by making his stand, the applicant replied that he did it because he felt that it was right and that the world changed in its own way.

(ii) The conviction and sentence

56. The Sheriff found the applicant guilty of breach of the peace and contempt of court. He considered that being naked in a public place and refusing to wear clothes in a public place was conduct that would be alarming and disturbing, in its context, to any reasonable person. In his stated case prepared in the context of the applicant’s later appeal, the Sheriff explained:

“56. ... There was no dispute on the facts of the case ... I accepted that the police officers were concerned that if the appellant did not put clothes on there was a very real likelihood of him causing fear and alarm to other members of the public ...”

57. He continued:

“58. The position of the appellant is somewhat difficult to understand. He made it clear to the two police officers that he had no intention whatsoever of putting clothes on. He insisted on being naked in a public place. He believed that he was doing no wrong by being naked in a public place. He did not accept that he had committed an offence.”

58. He noted that in questioning the police officers, the applicant had chosen not to differentiate between private and public places when it came to nakedness. He concluded:

“60. I was entirely satisfied that the conduct of the appellant with the aggravation of his refusal to wear clothing in a public place amounted to a breach of the peace. The criteria for a breach of the peace as discussed in the case of Smith v. Donnelly had been met ... The evidence of the appellant did not raise a doubt in my mind. Accordingly I convicted the appellant as libelled.”

59. At sentencing, the Sheriff had before him the applicant’s previous convictions. According to the stated case, the applicant confirmed to the Sheriff that all previous convictions were for breach of the peace. The Sheriff’s stated case continued:

“61. ... He acknowledged that he had spent the last five years or thereby in prison for the same offence. A pattern has emerged namely that on his release from prison when he ‘stepped out’ of the prison gate, always naked, he was immediately arrested.

62. I asked the appellant what he was hoping to achieve by insisting on being naked in public. He talked about ‘his beliefs’. I simply could not understand what he had to say in this regard. He did not appear to be waging any campaign or making a protest. He informed me that he would rather not be in prison. If he was not in prison, he would go back to live with his mother in a village in Cornwall. He had previously worked as a driver of large goods vehicles ...”

60. The Sheriff discussed sentencing options with the applicant. In his stated case he explained:

“32. ... I enquired of him if I was minded to defer sentence for whatever reason and admit him to a bail order would he then wear clothes. After some thought the appellant stated that he would not be prepared to wear clothes ...”

61. The Sheriff’s stated case concluded:

“63. Taking all these matters into account I could see no alternative to a custodial sentence. In view of the content of the Notice of Previous Convictions I deemed it appropriate to impose the maximum of 12 months’ imprisonment which I backdated to the date that he had been taken into custody.”

62. A further four months’ imprisonment, to run concurrently, was imposed for contempt of court.

(c) The appeal

63. The applicant sought to appeal his conviction and sentence by way of note of appeal and a draft stated case was prepared by the Sheriff in September 2009.

64. The applicant was provided with a copy of the stated case and was asked for details of any proposed changes. By letter of 5 October 2009 the applicant proposed a number of changes.

65. On 12 October 2009 a hearing was held to consider the proposed adjustments to the case stated. The applicant was brought from HMP Perth to attend the hearing and blankets were provided to facilitate his attendance. He was told that if he refused to wear clothes or make use of the blankets he would not be admitted into the court. He refused to wear clothes or to make use of the blankets and was accordingly not permitted to attend the adjustment hearing. The hearing proceeded in his absence and his requested adjustments were considered by the Sheriff. Two adjustments were allowed and the remaining adjustments rejected.

66. Concerned that the stated case was biased, the applicant did not lodge it with the Justiciary Office. On 29 October 2009, the expiry of the applicable time-limit for lodging, his appeal was deemed abandoned.

67. The applicant spent his sentence in segregation at HMP Perth as he refused to wear clothes. On 17 December 2009 he was released from prison.

3. The December 2009 arrest

68. Minutes after his release on 17 December 2009, the applicant was arrested and charged with breach of the peace for being naked in public. He was detained on remand.

69. On 11 January 2010 he was convicted of breach of the peace. Sentence was deferred to 8 February for up-to-date psychiatric and psychological assessments.

70. On 8 February 2010 the applicant was sentenced to a term of twelve months’ imprisonment plus 180 days unserved from previous sentences. He lodged an appeal; the outcome of the appeal is not known. He was kept in segregation at HMP Perth while in prison because he refused to dress.

71. He was released on 29 October 2010.

4. The October 2010 arrest

72. Minutes after his release on 29 October 2010, the applicant was arrested and charged with breach of the peace for being naked in public. He was detained on remand.

73. On 24 November 2010 he was found guilty of breach of the peace and contempt of court. On 25 November he was sentenced to 312 days’ imprisonment in respect of the breach of the peace charge together with 74 days unserved from previous sentences plus 90 days for contempt of court, to be served consecutively. He was not kept in segregation while in prison at HMP Perth.

74. He was released on 20 July 2011.

5. The July 2011 arrest

(a) The arrest

75. Minutes after his release on 20 July 2011 at around 9 a.m., the applicant was approached by two police officers on Manson Terrace, a public road leading from HMP Perth to Edinburgh Road. The officers suggested that he put on some clothes but he refused to do so. He was arrested him for breach of the peace and detained on remand. He appeared in court on 21 July 2011 and pleaded not guilty.

(b) The trial proceedings

76. The trial commenced on 24 August 2011. The applicant appeared in court naked and was warned by the Sheriff that if he refused to dress or to cover himself he might be held in contempt of court. He refused to put on clothes.

(i) The evidence

77. The prosecution led evidence of two police officer witnesses at trial. Their evidence was similar to that given at the 2009 trial and the applicant’s cross-examination was also in similar terms and elicited similar responses (see paragraph 54 above).

78. The applicant did not give evidence in his defence. He argued that his arrest and trial violated the Convention. He relied, inter alia, on Article 5, arguing that there was no reasonable suspicion which would satisfy an objective observer that he had committed an offence; Article 8, arguing that his arrest was arbitrary as it was based on the subjective belief that his nakedness was offensive; Article 9, arguing that he had a strong view that there was nothing indecent about his body and that view was not being respected; Article 10, arguing that he ought to have been given the right to express his views that nakedness was not indecent in the way that he had chosen to do; and Article 14, arguing that he was being discriminated against because he had different views from the majority of people.

(ii) The conviction and sentence

79. The Sheriff found that the applicant’s conduct on 20 July 2011 was severe enough to cause alarm to ordinary people; threatened serious disturbance to the community; and presented as genuinely alarming, in its context, to any reasonable person. He therefore convicted the applicant. In his stated case prepared in the context of the later appeal proceedings, the Sheriff referred to the applicant’s Convention arguments and continued:

“14. I should say that none of these arguments were developed to any extent and it was not always easy to see what [the applicant’s] full argument was. I came to the conclusion that none of the articles suggested by the appellant had been contravened in the procedure ...”

80. As to the conviction handed down, he explained:

“15. In my view there was no doubt about the facts in this case ... The question was whether the conduct amounted to a breach of the peace. I was of the view that the first part of the test was easily met by the conduct. The appellant was walking along a public street in full view of anyone passing and he was completely naked with his private parts entirely on show. Such conduct would be severe enough to cause alarm to ordinary people especially when it was being carried out in an ordinary public street. It might be different if he had been naked somewhere in private, even in a public place which was remote or where fewer people would be congregated, but in or near one of the main streets of a busy town his appearance in that state would be alarming.

16. The question which was more troubling was whether the second part of the test was met. Would the conduct cause serious disturbance to the community? I came to the conclusion that the context in which the conduct was taking place – being naked in a brazen fashion in the public street with no attempt to cover himself and no obvious explanation or reason for the conduct – would cause serious disturbance to the community because of the reaction of ordinary people to his presence in that state in that place. That would be particularly so if the community could see that children or vulnerable old people might be present. I considered that the test was met and that the charge was proved beyond reasonable doubt. I therefore found the appellant guilty.”

81. The applicant was sentenced to a term of imprisonment of 330 days for the breach of the peace and 90 days for the contempt charge, together with 237 days unspent from his previous sentence, a total of 657 days. The sentences were not backdated and they were to run consecutively. The total length of the sentence was therefore one year, nine months and eighteen days.

(c) The appeal

82. The applicant sought to appeal his conviction by way of note of appeal and a draft stated case was prepared by the Sheriff.

83. Adjustments to the stated case were proposed by both parties and a hearing was held. The applicant was not permitted to attend the hearing since he refused to wear clothes.

84. On 28 October 2011 the applicant lodged an appeal by way of case stated, relying on Articles 5, 6, 7, 8, 9, 10 and 14 of the Convention.

85. On 18 November 2011 the applicant’s application for leave to appeal was considered by the first sift judge. Leave was refused for the following reasons:

“The appeal is not arguable. The Sheriff has carefully explained the reasons for arriving at his decision. There was no infringement of the appellant’s rights in terms of the European Convention on Human Rights.”

86. On 22 December 2011 the applicant was refused leave on the second sift. The judges found that for the reasons given by the first sift judge the appeal was not arguable.

87. The applicant was not kept in segregation while serving his sentence at HMP Perth. He was released on 17 July 2012.

6. Subsequent arrests in Scotland

88. On the same day the applicant was arrested and charged with breach of the peace. He was not held in custody. On 2 August 2012 a decision was made to take no further action.

89. Meanwhile, on 20 July 2012 he was arrested on the outskirts of Dunfermline and charged with breach of the peace. He was detained on remand and appeared at Kirkcaldy Sheriff Court in August 2012. He was convicted of breach of the peace and detained at HMP Edinburgh and HMP Kilmarnock. He was kept in segregation during his detention.

90. He was released on 5 October 2012 and headed south towards his home in Eastleigh.

B. Treatment while in prison

1. Background facts

(a) Medical treatment regarding lump on testicle

91. In April 2011 the applicant discovered a lump on his right testicle. He was examined in his cell but was required to wear clothes for external appointments. He refused to dress and subsequently made prison complaints about alleged inadequate medical treatment. When they were unsuccessful, he referred the complaints to the Scottish Ministers but on 10 August 2011 he was informed that they were not upheld. The applicant then contacted the Scottish Public Services Ombudsman (“the Ombudsman”). However, he was advised that his complaint was not one which the Ombudsman could pursue. On 8 February 2012 he was told that the lump had gone.

(b) Visits from family and friends

92. On 27 August 2011 the applicant made a prison complaint that he was not allowed visits. He was told in reply that he was permitted visits provided that he was appropriately dressed. He referred the complaint to the Internal Complaints Committee (“ICC”) on 1 September 2011. He was advised on 26 September 2011 that the ICC had fully endorsed the suggestion that visits be accommodated in the segregation unit. He was told to discuss this with the relevant staff and book a visit. No visits took place.

93. On 9 November 2011 the applicant contacted the Ombudsman with a complaint that the Scottish Prison Service (“SPS”) was unreasonably refusing to enable him to receive visits. By letter dated 10 January 2012 he was informed that the Ombudsman had not upheld the complaint because according to information from the SPS, he had been asked to cover his genitalia when walking from A Hall, where he was detained, to the segregation unit. He had refused to do so.

(c) General dental and medical treatment

94. On 14 September 2011 the applicant made a prison complaint about refusal of dental and general medical treatment over the previous five years while he was in detention. By reply dated 20 September 2011 he was advised that the full range of clinical services were available to prisoners and that he was required to comply with the dress code to attend appointments. He referred the complaint to the Scottish Ministers, who did not uphold his complaint.

(d) Association with other prisoners and exercise

95. As noted above, the applicant spent much of his detention in segregation. Even when not in segregation, his ability to participate in activities and to associate with other prisoners was generally limited as long as he remained naked. He was not permitted to access the gym, for health and safety reasons. However, efforts were made to give him access to books and to explore further work or hobbies that could be conducted in his cell. Throughout his time in segregation, the applicant was reviewed regularly by health care professionals.

96. On 29 January 2012 the applicant complained to the prison authorities that he was not allowed to associate with other prisoners or to exercise. By reply dated 31 January 2012 he was told that he was not being denied association or exercise but had excluded himself from these activities by refusing to wear clothes. The applicant referred the complaint to the ICC on 2 February 2012 but the ICC decided that the current arrangements were satisfactory. It noted that if the applicant were to wear clothes, he would be permitted to associate with other prisoners. However, his choice to remain naked gave rise to serious concerns that he might be the victim of violence or unwarranted comments, and the prison had an obligation to ensure his safety.

97. In March 2012 the applicant complained to the Ombudsman that the SPS had given an unreasonable explanation for denying him access to association and exercise. By reply dated 24 May 2012 the Ombudsman informed him that his complaint had not been upheld because prison staff had confirmed that if he wore clothes, he would be able to associate with other prisoners and exercise.

2. Attempts to secure legal representation and exemption from court fees

98. The applicant contacted the Law Society of Scotland seeking details of solicitors in Edinburgh experienced in judicial review. He received a list containing the names of fourteen firms, which he duly contacted. None were willing to represent him. However, a further seven firms were recommended to him. He contacted them and was informed that none were willing to represent him.

99. He then contacted the Court of Session to request information regarding exemption from court fees, with a view to commencing judicial review proceedings without legal assistance. He was advised that as he was a prisoner and not in receipt of any State benefits, he was not eligible for exemption from court fees.

II. RELEVANT DOMESTIC LAW AND PRACTICE

A. Criminal offences in Scotland

1. Breach of the peace

100. The leading case as to what constitutes a breach of the peace under Scots law is Smith v. Donnelly 2001 SLT 1007, where the Appeal Court said:

“17. The crime of breach of the peace can be committed in a wide variety of circumstances, and, in many cases, it is a relatively minor crime. It has therefore been said, more than once, that a comprehensive definition which would cover all possible circumstances is neither possible nor desirable. Equally, in our view, it is neither possible nor desirable to derive a comprehensive definition from a close analysis of the facts of individual cases in which it has been held that a breach of the peace had been committed ... [I]t is, in our view, clear that what is required to constitute the crime is conduct severe enough to cause alarm to ordinary people and threaten serious disturbance to the community ... What is required, therefore, it seems to us, is conduct which does present as genuinely alarming and disturbing, in its context, to any reasonable person.

18. That interpretation is supported by the fact that ... if there is no evidence of actual alarm, the conduct must be ‘flagrant’ if it is to justify a conviction. ‘Flagrant’ is a strong word and the use of that word points to a standard of conduct which would be alarming or seriously disturbing to any reasonable person in the particular circumstances ... We therefore conclude that the definition of the crime found in the principal authorities does meet the requirements of the Convention.”

101. In Her Majesty’s Advocate v. Harris [2010] HCJAC 102, the Appeal Court, citing Smith, emphasised that it was now clear that the crime of breach of the peace involved two elements: conduct (1) severe enough to cause alarm to ordinary people and (2) which threatened serious disturbance to the community.

102. The maximum sentence for a breach of the peace depends upon the court in which the offence is tried. When prosecuted in summary proceedings in the Sheriff Court, the maximum sentence is a fine of up to five thousand pounds sterling or imprisonment of one year.

2. Breach of bail conditions

103. Pursuant to section 27(1)(b) of the Criminal Procedure (Scotland) Act 1995 (“the 1995 Act”), it is an offence to fail, without reasonable excuse, to comply with any condition imposed on bail. Section 27(2) provides that a person guilty of an offence under section 27(1) is liable to a fine or to imprisonment for up to twelve months.

3. Contempt of court

104. In HM Advocate v. Airs 1975 JC 64 contempt of court was described as:

“conduct which challenges or affronts the authority of the court or the supremacy of the law itself.”

105. Every court in Scotland has the inherent power to punish persons who are in contempt of it. Where contempt occurs in the court itself, it may be dealt with immediately by the judge without a prior formal charge.

106. Pursuant to section 15(2) of the Contempt of Court Act 1981, contempt of court in summary proceedings before a Sheriff is punishable by a fine or imprisonment for up to three months.

B. Criminal proceedings in Scotland

1. The decision to prosecute

107. In Scotland, the decision whether to prosecute an individual is taken by the Crown Office. The Crown Office is wholly independent of the police and is under the responsibility of the Scottish Law Officers (the Lord Advocate and the Solicitor General).

108. There are two forms of criminal procedure in Scotland. The most serious crimes are tried under “solemn procedure” on indictment. Determinations of fact in such cases are made by a jury. Less serious crimes are tried under “summary procedure” by a judge sitting without a jury.

2. The determination of the sentence in summary proceedings

109. In summary proceedings, the Sheriff determines the sentence to be imposed on a person found guilty. He is required to take into account a number of considerations including: the offender’s personal circumstances; his criminal record or lack thereof; the circumstances of the offence; the age of the offender (if under 21); the absence of any previous custodial sentence; any guidance issued by the High Court; any plea of guilty; and any time spent in custody awaiting trial. The court may decide that it is sufficient to admonish a person found guilty. Typically, this may be done where the case concerns a first offence or is minor or there are other extenuating circumstances.

3. The procedure for appeal in summary proceedings

110. Section 175 of the 1995 Act provides for the possibility of lodging an appeal against conviction in summary proceedings. Section 175(2) stipulates that leave is required.

111. Pursuant to section 176(1), any appeal against conviction must be by way of case stated. The presiding judge at the trial must prepare a draft stated case and provide a copy to the appellant. The stated case sets out the matters competent for review by the High Court, the facts proved in the case, any points of law decided and the reasons for the decision. Parties to the proceedings may propose adjustments to the stated case. If adjustments are proposed, the judge must arrange a date for a hearing for the purpose of considering proposed adjustments. Once the case stated has been finalised, a copy is sent to the appellant, who must lodge it with the Clerk of Justiciary within one week of receipt. If he fails to do so, the appeal will be deemed abandoned.

112. Under sections 180 and 187 of the 1995 Act, the decision whether to grant leave to appeal against conviction or sentence is made by a judge of the High Court who, if he considers that there are arguable grounds of appeal, must grant leave to appeal and make such comments in writing as he considers appropriate. In any other case, the judge must refuse leave to appeal and give reasons in writing for the refusal.

C. Prison Rules and Directions

113. The Prison Rules are contained in secondary legislation. At the relevant time the rules were set out in the Prisons and Young Offenders Institutions (Scotland) Rules 2006 (“the Prison Rules 2006”). From 1 November 2011, the relevant rules were the Prisons and Young Offenders Institutions (Scotland) Rules 2011 (“the Prison Rules 2011”). There is no material difference between the two sets of rules in so far as they applied to the applicant. The references below are to the 2006 Rules.

1. Rules on segregation

114. Rule 94(1) of the Prison Rules 2006 provided that a prisoner could be removed from association with other prisoners for the purpose of maintaining good order or discipline; protecting the interest