FOURTH SECTION
Application no. 49327/11
Stephen GOUGH
against the United Kingdom
lodged on 29 July 2011
STATEMENT OF FACTS
1. The applicant, Mr Stephen Gough, is a British national, who was born in 1959 and is currently in detention. He is represented before the Court by Bindmans LLP, a firm of solicitors based in London.
A. The circumstances of the case
2. The facts of the case, as submitted by the applicant, may be summarised as follows.
3. The applicant, who normally resides in England, 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. He has on numerous occasions, apparently beginning in October 2003, been convicted in Scotland of breach of the peace arising out of the fact of his nudity in public, as a result of which he has cumulatively served over five years in prison.
1. The 2008/2009 arrest and conviction
4. On 18 December 2008 the applicant was convicted of breach of the peace at Glasgow Sheriff Court for being naked in public. He was sentenced to eight months’ imprisonment.
5. On 18 June 2009 the applicant was released from prison. He walked out of the prison naked and was immediately arrested by two police officers waiting some metres from the prison gates after refusing to get dressed when asked to do so. The police officers had been alerted by prison staff that the applicant was due to be released and was likely to refuse to wear clothes.
6. The applicant was subsequently charged with breach of the peace and was detained in prison on remand.
7. On 16 July 2009 his trial, under the summary procedure (i.e. without a jury) took place at Perth Sheriff Court. The applicant chose to remain naked and represented himself. He was asked by the Sheriff if he wished the service 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.
8. During cross-examination by the applicant, the police officer witnesses admitted that the human body was not alarming, harmful or frightening. They further admitted that nothing in the applicant’s behaviour or the context as a whole amounted to such conduct on the day of his arrest.
9. The applicant was found guilty of breach of the peace and contempt of court. He was sentenced to twelve months’ imprisonment for the breach of the peace conviction and a further four months’ imprisonment, to run concurrently, for contempt of court. The sentence was backdated to the date of the applicant’s arrest, and his release date was therefore 17 December 2009.
10. The applicant sought to appeal his conviction and sentence by way of note of appeal and a draft stated case was prepared by the presiding judge in September 2009. The applicant was provided with a copy and was asked for details of any proposed changes. By letter of 5 October 2009 the applicant proposed a number of changes. A hearing was subsequently held to consider the proposed adjustment to the case stated but the applicant was not permitted to attend the adjustment hearing because he elected to remain naked. Concerned that the stated case was biased, he did not lodge it with the Justiciary Office. His appeal was subsequently deemed abandoned.
2. The 2011 arrest and conviction
11. The applicant was released from prison after detention following an unspecified conviction on 20 July 2011. As he left the prison he was naked. He was approached by two police officers who arrested him for breach of the peace. The officers had previously been alerted by prison staff of the applicant’s scheduled release and the likelihood that he would leave the prison naked. He appeared in court on 21 July 2011 and pleaded not guilty.
12. He was tried on 24 August 2011 and argued, inter alia, that his arrest and trial violated Articles 5, 6, 8, 9, 10 and 14 of the Convention. He was convicted of breach of the peace and contempt of court for appearing naked in court. He 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. The sentences were not backdated and they were to run consecutively.
13. On 28 October 2011 the applicant lodged an appeal by way of case stated, relying on Articles 5, 6, 8, 9, 10 and 14 of the Convention.
14. 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.”
15. On 21 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.
16. The applicant was released on 17 July 2012.
17. On 20 July 2012 he was arrested on the outskirts of Dunfermline and charged with breach of the peace.
18. He subsequently appeared at Kirkcaldy Sheriff Court in August 2012 and represented himself. He is awaiting sentence and pre-sentencing reports have been ordered.
3. Treatment while in prison
19. The applicant has been detained in various prisons in Scotland since 18 May 2007. He appears to have spent much of that time in solitary confinement as a result of his refusal to wear clothes. As a consequence, he does not meet other prisoners and is not permitted to exercise.
(a) Medical treatment regarding lump on testicle
20. In April 2011 he discovered a lump on his right testicle. He requested referral to a health centre and was examined by a nurse on 29 April 2011. He was informed on 10 May 2011 that he would not be examined again unless he got dressed. He made a prison complaint on 11 May 2011. He received a reply on 12 May 2011 to the effect that an appointment would be arranged to see the doctor provided that he agreed to attend the health centre appropriately dressed. On 16 May 2011 the applicant referred his complaint to the Scottish Ministers, arguing that his refusal to dress was not reason enough to refuse him potentially life-saving treatment. On 27 May 2011 he was informed that his symptoms warranted urgent investigation and that an examination by a doctor would be arranged, to take place in his cell if he refused to dress.
21. He was subsequently examined by a doctor in his cell and advised that he needed further specialist attention in a hospital. An appointment was arranged on 8 July 2011 but the nurse refused to take him to a hospital as long as he remained naked. The applicant made a prison complaint regarding the refusal on 11 July 2011. By reply dated 12 July 2011, he was informed that appropriate care had been planned for him and that he was required to dress in order to attend an outpatient hospital appointment. He referred the complaint to the Scottish Ministers. By reply dated 10 August 2011 he was told that the matter had been discussed with the clinical manager and that a full multi-disciplinary meeting had taken place to consider the management of his clinical condition. He was advised to refer to the clinical manager if he was unhappy with aspects of his care and treatment. His complaint was therefore not upheld.
22. The applicant subsequently contacted the Scottish Public Services Ombudsman. However, he was advised that his complaint was not one which the Ombudsman could pursue.
23. The applicant was examined again by a doctor on 8 February 2012. He was told that the lump had gone but that he still needed a hospital examination.
(b) Visits from family and friends
24. On 27 August 2011 the applicant made a complaint about the fact that he was not allowed visits. A reply of 28 August 2011 indicated 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 not permitted to attend the inquiry because he refused to dress but he was advised on 26 September 2011 that in his absence 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. It appears, however, that no visits took place.
25. The applicant subsequently contacted the Scottish Public Services Ombudsman. His complaint was not upheld because according to information from the Scottish Prison Service, 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
26. On 14 September 2011 the applicant made a 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 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
27. On 29 January 2012 the applicant complained 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.
28. The applicant referred the complaint to the ICC on 2 February 2012. The ICC discussed the complaint but 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.
4. Attempts to secure legal representation and exemption from court fees
29. The applicant contacted the Law Society of Scotland seeking details of solicitors in Edinburgh experienced in the area of 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.
30. 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.
B. Relevant domestic law and practice
1. Breach of the peace
31. 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 of the High Court of Justiciary 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.”
32. In the recent case of Her Majesty’s Advocate v. Harris [2010] HCJAC 102, the Appeal Court of the High Court of Justiciary, 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.
2. The procedure for appeal
33. Section 175 of the Criminal Procedure (Scotland) Act 1995 (“the 1995 Act”) provides for a right of appeal in respect of a conviction in summary proceedings. Section 175(2) provides:
“Any person convicted, or found to have committed an offence, in summary proceedings may, with leave granted in accordance with section 180 or, as the case may be, 187 of this Act, appeal under this section to the High Court–
(a) against such conviction, or finding;
(b) against the sentence passed on such conviction;
...”
34. Section 176(1) requires any appeal in respect of section 175(2)(a) to be by way of case stated.
35. Under section 180 of the 1995 Act, the decision whether to grant leave to appeal for the purposes of section 175(2)(a) 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.
36. Section 187 contains similar provisions regarding a request for leave to appeal against sentence pursuant to section 175(2)(b) of the 1995 Act.
37. Under the applicable procedure set out in the 1995 Act, 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.
COMPLAINTS
The applicant complains under Articles 8 and 10 of the Convention that his repeated arrest, trial, conviction and imprisonment owing to his refusal to wear clothes amounts to an impermissible and disproportionate interference with his rights.
He further complains under Article 6 § 3 (c) of the Convention that his right to defend himself in person was violated as he was not permitted to attend the adjustment hearing in 2009 at which the contents and parameters of his appeal by way of case stated were to be discussed.
The applicant also complains of a violation of Articles 3, 8, 9, 10, 13 and 14 as a result of his treatment while in detention, including: (i) the failure to provide dental treatment or eye care; (ii) the failure to provide medical treatment regarding a lump on his testicle; (iii) his segregation from other prisoners and the failure to allow him to exercise; and (iv) the denial of visits from family and friends.
QUESTIONS TO THE PARTIES
A. The applicant’s repeated arrest, trial, conviction and detention
1. The Government are invited to provide information, including dates and sentences imposed, regarding all previous arrests, trials, convictions and detentions in respect of the applicant’s nudity in public.
2. Is the applicant, and/or has he been, deprived of his liberty in breach of Article 5 § 1 of the Convention? In particular, is, and/or was, the applicant’s arrest and detention for breach of the peace and contempt of court:
(a) lawful (see, for example, Steel and Others v. the United Kingdom, 23 September 1998, Reports of Judgments and Decisions 1998‑VII)?
(b) arbitrary (see Saadi v. the United Kingdom [GC], no. 13229/03, ECHR 2008‑...; and James, Wells and Lee v. the United Kingdom, nos. 25119/09, 57715/09 and 57877/09 , 18 September 2012 (not yet final))? In this regard the Government are invited to provide information as to what alternative sanctions were available, the extent to which such sanctions have been considered and what specific steps, if any, have been taken by the relevant authorities to avoid the applicant’s arbitrary detention.
3. Was the law which defined the offence for which the applicant was convicted sufficiently accessible and foreseeable, as required by Article 7 of the Convention (see Kokkinakis v. Greece, 25 May 1993, § 52, Series A no. 260‑A; and Scoppola v. Italy (no. 2) [GC], no. 10249/03, § 99, 17 September 2009)?
4. Has there been, as a result of the applicant’s arrest, trial, conviction and detention, an interference with the applicant’s right to respect for his private life within the meaning of Article 8 § 1 of the Convention; freedom of thought or conscience, within the meaning of Article 9 § 1 of the Convention; or freedom of expression, within the meaning of Article 10 § 1 of the Convention?
5. If so, then in terms of Articles 8 § 2, 9 § 2 and 10 § 2:
(a) was that interference in accordance with, or prescribed by, the law;
(b) did it pursue a legitimate aim; and
(c) was it necessary?
6. The parties are invited to provide comparative information to the Court concerning the approach of other Contracting States to public nudity.
B. Conditions of detention
7. The Government are invited to provide information concerning the conditions of the applicant’s detention and in particular any restrictions which are or have been applied to him as a result of his nakedness and the time spent in solitary confinement.
8. Is the applicant being, or has he been, detained in conditions which breach Article 3 of the Convention, having regard in particular to:
(a) restrictions on his access to medical, dental and optical treatment?
(b) his detention in solitary confinement;
(c) restrictions on his access to exercise facilities;
(d) restrictions on visits from family and friends?
9. Has there been, as a result of the conditions of the applicant’s detention and the factors identified above, an interference with his right to respect for his private life within the meaning of Article 8 § 1 of the Convention; freedom of thought or conscience, within the meaning of Article 9 § 1 of the Convention; or freedom of expression, within the meaning of Article 10 § 1 of the Convention?
10. If so, then in terms of Articles 8 § 2, 9 § 2 and 10 § 2:
(a) was that interference in accordance with, or prescribed by, the law;
(b) did it pursue a legitimate aim; and
(c) was it necessary?
11. Did the applicant have access to court in respect of his complaints regarding the conditions of his detention, in accordance with Article 6 § 1 of the Convention?
12. Did the applicant have at his disposal an effective domestic remedy in respect of his complaints regarding the conditions of his detention, as required by Article 13 of the Convention?
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