The Legal Position - April '98 solicitors advice to nudists
In April 1998 we were fortunate enough to obtain a considerable amount of
advice from a solicitor, which follows.
"Nudity per se is not a criminal offence in English Law, but some of
the offences you might be alleged to have committed whilst nude are as follows:
- The Vagrancy Act of 1824 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.
- 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.
- The Public Health Acts Amendment Act of 1907 extends the
definition of street, for the 1847 offence, 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".
- A Public Nuisance is an offence at Common Law. Stones Justices
Manual states "A public nuisance is such an inconvenient or troublesome
offence as annoys the community in general etc." It goes on to give examples
as "...So is an indecent exposure of the person in a public omnibus, in the
view of persons travelling therein; or on the roof of the back of a house,
so as to be visible to persons in the back premises of many other houses,
and it is not necessary that the exposure should be on the public highway.
It may be at a spot where the public are in the habit of trespassing without
interference, although not a public place. More than one person at least
must have been able to see the act of indecency complained of, but actual
disgust or annoyance on the part of an observer need not be proved."
- The Public Order Act of 1986 (and this is one very often used by
the police where they find difficulty in finding an appropriate offence)
provides that a person shall be guilty of an offence if he uses ...
insulting words or behaviour ... 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.
Interestingly, most of the law concerns the penis, and the position with
regard to women is less clear. Our adviser suspects that, historically, women
have not been thought of as sexual, or at least possessing visible sexual
organs.
On the question of nude sunbathing, the position is less clear. The right to
sunbathe, or picnic on someone's land, whether clothed or nude, has never been
tested in a Court of Law. The real question is, if you sunbathe nude on National
Trust land, can you be prosecuted for a criminal offence? Can the National Trust
take steps to stop you? Subject to any easements, the National Trust are
entitled to include or exclude anyone from their land in much the same way as
you and I are' entitled to include or exclude anyone from our gardens. However,
they may not touch you. The real point is that the National Trust do not wish to
exclude people as a whole from the beach: indeed, it may be that if you were to
join the National Trust that you would be exercising your rights as members.
The National Trust might set up a barrier at the entrance, or at least a
notional one (bearing in mind that there are countless access points as well as
access from the sea) and only let in those wearing clothes and leave the naked
ones to complain and take Civil action. Their problem is that we do not get out
of our cars naked and we are normally clothed until we reach our sunbathing
point.
If you are questioned by a National Trust employee there is no reason for you
to give him your name. It is worth saying, if he tries to order you to move,
"No, I am not prepared to move from where I am. I believe that I have a
prescriptive right, established over very many years, to be here. I must warn
you that if you try to interfere with me physically in any way then, unless you
can prove that I have committed an arrestable offence, I will not hesitate to
take legal proceedings against you for trespass to the person and assault and
battery as may be appropriate". If the National Trust try to say that they own
the area and you must do as you are told, you could say to them "If you believe
that I am not entitled to be here, then I suggest you go to a Court of Law and
attempt to obtain an injunction to prevent me from coming here". DO NOT GIVE
YOUR NAME OR OTHERWISE IDENTIFY YOURSELF.
On the other hand, our adviser can see no way of preventing the employees of
the owners of the land from sitting next to you and saying unpleasant things
about you. (At this point, our adviser makes a very interesting comment - but
to reveal it NOW would be to show our hand too early.)
It has always been the case that private organisations (football clubs being
the prime example) can ask for the police to patrol, and they have to pay the
police to do so. However, the powers of the police in Civil law are no greater
than those of National Trust employees. Notwithstanding that limitation, the
police, if they believe a criminal offence is being committed, may be able to
report you for prosecution and take names and addresses, etc. They cannot order
you to move inside the red posts but they might say, if they consider an offence
is being committed, that if you move inside the red posts they would take no
action. (Of course, if you've got the bottle, you could
say to them "Prove it" But they might drag you off to Swanage Police Station and
I'll leave the rest to your imagination.) What is really
needed, our adviser says is some test cases!
Our adviser does not believe there is any duty or obligation enshrined in law
generally to help the police. However, this depends on each set of circumstances
and it is probably not worth refusing to give your name to the police - but
ensure they and you are not within earshot of any National Trust employees.
Our adviser, who is a member of SUN, spent a great deal of his own time
preparing this advice, and we are extremely grateful to him for that. Especially
as he tells us that Criminal Law is not one of his specialities. Let me end by
quoting from the very beginning of his letter:
"The basic premise in English Law, from at least the standpoint of SUN, is
that you can do anything, but you have to take the consequences of what you do."
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