1. Public Order Act 1986, Section 5
The 1986 Public Order Act is very often used by the police
where they have difficulty in finding an appropriate offence.
Bournemouth CPS promoted this ‘catch all’ favourite as the preferred choice of legislation for use against
errant nudists and it's the one to watch as it has been used frequently against nude protestors,
campaigners, nude ramblers, and nudists on beaches.
Section 5 of this Act (which we could not find on a government website but it is
available
here) provides that a person shall be guilty of an offence if he
uses:
"threatening, abusive or insulting words or
behaviour, or disorderly behaviour. or displays any writing, sign or
other visible representation which is threatening, abusive or
insulting, within the hearing or sight of a person likely to be
caused harassment, alarm or distress thereby. The offence may be
committed in a public or private place".
It is a defence for the accused to prove:
"That he had no reason to
believe that there was any person within hearing or sight who was likely
to be caused harassment, alarm or distress or that his conduct was
reasonable."
CPS Website Quote on Public Order Act 1986, Section 5
The CPS website provides guidance for the use of this Act
which we recommend you read for a fuller understanding. Here's the kind of behaviour
they state the Act is intended to control:
- causing a disturbance in a residential area or common part of a
block of flats;
- persistently shouting abuse or obscenities at passers-by;
- pestering people waiting to catch public transport or otherwise
waiting in a queue;
- rowdy behaviour in a street late at night which might alarm
residents or passers-by, especially those who may be vulnerable,
such as the elderly or members of an ethnic minority group;
- causing a disturbance in a shopping precinct or other area to
which the public have access or might otherwise gather;
- bullying.
Not a peaceful nudist in sight! The CPS website continues:
"There must be a person within the sight or
hearing of the suspect who is likely to be caused harassment, alarm
or distress by the conduct in question."
"A police officer may be such a person, but
remember that this is a question of fact to be decided in each case
by the magistrates. In determining this, the magistrates may take
into account the familiarity which police officers have with the
words and conduct typically seen in incidents of disorderly
conduct."
In other words the officer can also be the person caused
'harassment, alarm or distress' (h-a-d) and it's up to magistrates to
decide. It's an absurd idea that an officer deployed to patrol a nudist
beach could rightfully claim to be 'caused h-a-d' by the sight of a
nudist!
"Although the existence of a person who is
caused harassment alarm and distress must be proved, there is no
requirement that they actually give evidence. In appropriate cases,
the offence may be proved on a police officer's evidence alone."
So, the existence of an individual who IS caused h-a-d is MUST be proved in evidence put forward by the police to magistrates.
If it is, a conviction could be achieved.
However, if there is nobody around you that has complained to an officer
claiming h-a-d you are not breaking any laws and it remains highly
questionable as to whether the officer even has the right to ask you to
dress.
Arrest: A constable may arrest without warrant if [the
offender] "engages in offensive conduct which the constable warns him to
stop, and he engages in further offensive conduct immediately or shortly
after the warning.
'Offensive conduct' means conduct the constable reasonably suspects
to constitute an offence under this section. The further conduct need
not be of the same nature.
Penalty: A person guilty of an
offence under this section is liable on summary conviction to a fine not
exceeding level 3 on the standard scale. (currently £1,000)
Bournemouth CPS Quote: This creates an offence when a person uses
threatening ,insulting or abusive words or behaviour WITHIN THE
HEARING OR SIGHT OF A PERSON likely to be caused harassment alarm or distress.
This offence DOES REQUIRE that a WARNING BE GIVEN
before arrest and an arrest can ONLY be made if the
behaviour continues OR if the PC has good reason to believe the
behaviour is likely to continue.
SUN: It's hard to imagine how the sight of somebody naked
on a traditional nudist beach can be regarded as "threatening or
insulting" so officers are left to argue that simply by being there
you are "likely to cause harassment alarm or distress".
The CPS
will only advise the police to pursue prosecutions if it is in the
public interest and it's becoming increasingly arguable that the likelihood of
causing "harassment alarm or distress" by simple nudity
at Studland is practically zero
when opinion polls now suggest only 2% of the general population object
to nudism and when you are naked in an area where visitors are well aware nudists are visible.
You are only at risk of arrest if you refuse to stop the behaviour
the officer considers disorderly so if you are worried about being
arrested or don't want the hassle of confrontation get dressed when
requested to do so by a police officer.
Despite all the threats
SUN knows of no nudist that has been
arrested or charged with any offence simply for being naked in the
traditional nudist area at Studland.
If you are threatened with arrest under the Public
Order Act please let SUN
know
2. Crime and Disorder Act 1998
Bournemouth CPS Quote: This provides for the making of
Anti Social
Behaviour Orders (ASBO) in certain circumstances and could be used to target
specific persons if they persistently caused harassment alarm or
distress to others.
Office of Public Sector Information Website
Here's the first part of this Act which covers Anti-social behaviour orders:
1. - (1) An application for an order under
this section may be made by a relevant authority if it appears to
the authority that the following conditions are fulfilled with
respect to any person aged 10 or over, namely-
(a) that the person has acted, since
the commencement date, in an anti-social manner, that is to say,
in a manner that caused or was likely to cause harassment, alarm
or distress to one or more persons not of the same household as
himself; and
(b) that such an order is necessary to
protect persons in the local government area in which the
harassment, alarm or distress was caused or was likely to be
caused from further anti-social acts by him;
and in this section "relevant authority"
means the council for the local government area or any chief officer
of police any part of whose police area lies within that area.
SUN:
This piece of legislation is the new kid on the block and is receiving
much publicity of late. If it was in the public interest, and the courts
agreed, it is feasible that a persistent 'beyond the posts offender’ at Studland could be a candidate for an
ASBO. The mix of civil and criminal burden of proof and procedures as well
as the nature of the behaviour will make for an interesting hearing.
SUN believes ASBOs could only be issued to those known to be
persistent CRIMINAL offenders and our latest information is that the act
of being naked in the traditional nudist area is not being viewed by
police as grounds for seeking an ASBO at Studland.
3. Public Nuisance
CPS
Website Quote
This is a common law offence,
which should be used sparingly. It is reserved for situations which
amount to substantial criminality but do not amount to a statutory
offence or an infringement of bye-laws. An exception to this is where
the penalty for a statutory or bye-law offence is plainly inadequate to
reflect the seriousness of the facts. This would amount to a nuisance
affecting a substantial number of members of the public.
Bournemouth CPS Quote: This is an offence that can be dealt with either in
the Magistrates or the Crown court and is committed when a person acts
in a way that endangers the life, health, property, morals or comfort of
the public. There is case law that says exposure of genitals can
constitute a Public Nuisance.
SUN: The use of a Public Nuisance charge against nudists is VERY unusual
and we have never heard of such a case in the usual
naturist situation and suggest it is not a major threat.
The Freedom to Be Yourself nude
campaigner Vincent Bethell was tried on a Public Nuisance charge at Southwark Crown Court after
spending six months on remand in Brixton prison - mostly in solitary
confinement. Although the jury threw it out the judge felt it was a proper charge to be answered.
Even
if Vincent had been found guilty the CPS would struggle hard to know how this
charge might be applicable to a genuine nude sunbather and there's no strong feeling that
this law could be applied readily against beach nudists.
We do our best to keep an eye on reported cases.
If you know of any nudist who is or has been threatened with Public Nuisance please let SUN
know
4. Outraging Public Decency
CPS Website Quote:
The Law: This is a common law
offence, and is currently indictable only. There are also offences of
conspiracy to corrupt public morals and conspiracy to outrage public
decency.
Charging Practice: Prosecutors
should consider carefully whether alternative charges (such as the ones
outlined in
this section) are more appropriate.
Bournemouth CPS Quote: This is an offence
that can be dealt with either in the Magistrates or the Crown court. This requires a person to commit an act in public that is
seen by at least one person and is of such a lewd, obscene or disgusting
character as to constitute an outrage of public decency. This act has
been used to prosecute persons who have engaged in sexual activity in
the dunes at Studland in the past.
SUN: To secure
a conviction of Outraging Public Decency needs a strong sexual element -
either visible masturbation or sexual intercourse.
There are a number of cases on
record where charges of Outraging Public Decency are upheld by local
magistrates against those who engage in sexual activity at Studland. In addition the local
newspapers relish naming and shaming those
found guilty of this offence.
Nudists acting in a lawful manner are not threatened by this law. There is case history where a charge of Outraging Public Decency was
brought against a nudist couple (A & B) and a nudist male (C) although not against C's
wife who was with him at the time.
The case was heard at Sefton in Lancashire. All charges were
dismissed by the Judge (on his direction not after a jury trial) because
the defendants were naturists and there was no suggestion of any sexual
activity. Charges were dropped and costs were awarded to A & B, we're
not sure about C.
5. Sexual Offences Act 2003, Section.66
Office of Public Sector Information Website:
Section 66 - Exposure
(1) 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.
(2) A person guilty of an offence under this section is liable-
(a) on summary conviction, to
imprisonment for a term not exceeding
6
months or a fine not exceeding the statutory maximum or both;
(b) on conviction on indictment, to
imprisonment for a term
not
exceeding 2 years.
Bournemouth CPS Quote: This is an offence
that can be dealt with either in the Magistrates or the Crown court. The
Act creates an offence of exposing genitals but this does require proof
that of an intention that someone should see them and be caused alarm
and distress.
SUN: This Act does not
criminalise plain nude sunbathing and common legal consensus is that it
CANNOT be used against genuine naturists inside or outside the
designated area Studland, indeed, the CPS rep did not suggest that it
could.
For many years most laws used to restrict nudists concerned the penis, and the position with regard
to women was less clear. Under the 2003 Act exposure of genitals can be by male or female TO
male or female.
We believe some parts of the Sexual Offences Act could be used
against those engaging in sexual activities but are not sure which. If you are prosecuted under the Sexual Offences Act your name could
also be placed on the sexual offenders register.
Old Acts considered non-operational:
Bournemouth CPS made no reference to the following legislation,
believed to be defunct.
6. Breach of the Peace: It is
believed that, due to an appeal to the House of Lords by hunt saboteurs the opportunity for the police to use
Breach of the Peace as a last resort catch all against naturists
(especially female) is now gone forever.
7. The Vagrancy Act of 1824: This
Act provides that every person who wilfully, openly, lewdly and obscenely exposes his
person with intent to insult a female shall be deemed a rogue and a
vagabond and liable to imprisonment therefore for a period of three months.
Offences under this Act require the offender to own a penis and
insult a female. The 2003 Sexual Offences Act introduced gender equality
of perpetrator AND ALSO victim and effectively swept away use of this
very old legislation.
8. The Town Police Clauses Act of 1847 provides that every person who wilfully
and indecently exposes his person in a street* to the annoyance of residents or
passengers shall be guilty of an offence and liable for up to 14 days'
imprisonment. In this case there is no need for a female to be insulted.
Offences under this Act also require the offender to own a penis. The
2003 Sexual Offences Act introduced gender equality of perpetrator AND
ALSO victim and effectively swept away use of this very old legislation.
* The Public Health Acts Amendment Act of 1907 extended the definition of
street to include "any place of public resort of
recreation ground belonging to, or under the control of a local authority, and
any unfenced ground adjoining to or abutting upon any street in an urban
district".
~ Please Note ~
The information provided here is
provided as a general guide only and should not be taken as a definitive
guide to the law. Every care has been taken to provide accurate and up
to date information but SUN cannot be held responsible for any errors or
omissions. Neither can SUN be held responsible if you are arrested
or prosecuted for any offence. The law in Scotland
or Northern Ireland may be different.
SUN Nudists' Rights Card (Pilot & Update) | Five laws the police could use against nudists | Your rights when dealing with the police | What to do if challenged by a National Trust warden | Nudist Legal Rights FAQ | SUN's Legal Fund: Ready to support YOU in 2005 |
