Application no. 2153/15
Stephen Peter GOUGH
against the United Kingdom
The European Court of Human Rights (First Section), sitting on 12 June 2018 as a Committee composed of:
Kristina Pardalos, President,
Tim Eicke, judges,
and Renata Degener, Deputy Section Registrar,
Having regard to the above application lodged on 9 January 2015,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having deliberated, decides as follows:
1. The applicant, Mr Stephen Peter Gough, is a British national, who was born in 1959. He was represented before the Court by Mr M. Schwarz of Bindmans LLP, a lawyer practising in London.
2. The United Kingdom Government (“the Government”) were represented by their Agent, Ms A. Hennedy-Goble.
A. The circumstances of the case
3. The facts of the case, as submitted by the parties, may be summarised as follows.
4. 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. Between 2003 and 2012, he was arrested, convicted and detained in Scotland on a number of occasions for public nudity (see Gough v. the United Kingdom, no. 49327/11 28 October 2014). He left Scotland for England in October 2012.
1. The Calderdale arrest and criminal proceedings
5. On 25 October 2012 the applicant was arrested and charged in Halifax, England, under section 5 of the Public Order Act 1986 (“the Public Order Act”) for appearing naked in public. The maximum penalty for an offence under section 5 of the Public Order Act is a fine (see paragraph 40 below).
6. The applicant was tried at Calderdale Magistrates’ Court. On 11 March 2013 he was found guilty by the District Judge.
7. The applicant appealed against conviction arguing inter alia that it was a breach of his Article 10 rights. He pointed out that he posed no threat to the public and emphasised that well-publicised naked bicycle rides were not deemed offensive and took place legally.
8. The appeal was refused by the Administrative Court on 31 October 2013. The court emphasised that each case would be fact‑sensitive and would fall for consideration on its own merits. The unchallenged existence of naked bicycle rides was therefore unable to assist the applicant. As to the applicant’s Article 10 argument, the court referred to the analysis of the evidence and the law given by the District Judge which, it said, could not properly be challenged.
2. The West Hampshire arrests and criminal proceedings
9. Meanwhile, the applicant was arrested and charged nine times between 11 and 27 February 2013 under section 5 of the Public Order Act for appearing naked in West Hampshire, England.
10. A trial took place on 10 May 2013 before West Hampshire Magistrates’ Court. The applicant was convicted of all charges and fined two hundred pounds sterling for each offence. The fine was deemed paid by the time already served in prison on remand.
3. The interim ASBO
(a) The imposition of the interim ASBO
11. On 25 February 2013, the Chief Constable of Hampshire Constabulary applied to West Hampshire Magistrates’ Court for an interim anti-social behaviour order (“ASBO”). The proposed terms of the interim ASBO required the applicant not to appear:
“…in any place or venue to which the public have access other than his private dwelling without wearing sufficient clothing to cover his genitalia and buttocks save … where there is an expectation of a degree of nakedness, such as a changing room, a beach where naked bathing is authorised or a medical examination room.”
12. In support of the application the Chief Constable submitted statements from police officers and thirty-three members of the public who found the applicant’s behaviour to be offensive, insulting and abusive.
13. Following a hearing on 28 February 2013, the District Judge granted the interim ASBO.
(b) The breach of the interim ASBO
14. The applicant left the court naked and was arrested for breach of the interim ASBO immediately after the hearing on 28 February 2013 and was detained on remand. A trial in respect of the alleged breach of the interim ASBO took place on 19 June 2013 before the Crown Court. The trial proceeded in the applicant’s absence since he refused to attend court unless he was permitted to appear naked. He was, however, legally represented. At the conclusion of the trial, he was convicted.
15. Prior to sentencing the applicant’s counsel submitted that this was the first breach of the order; that no harm had been done to the public; that there was no sexual element to the offence; and that in ordinary circumstances a short custodial sentence would be appropriate which would not require the applicant to serve more time than he had already served, which was the equivalent of an eight-month sentence. The judge said:
“Yes, I understand that submission but there is a reality here to consider, which is that he has appeared here today, the jury did not see him, but he is stark naked apart from his boots and his socks, and once released he will walk onto these court steps and there are four people in uniform in this court where I am sitting now, and I do not think I can ignore that reality.”
16. The applicant’s counsel submitted that despite that reality, which she acknowledged, the court was only sentencing for a single breach. She said:
“What is to happen should Mr Gough walk out of this court and breach it again is not, in my submission, for your Honour’s consideration. I do not see, short of imposing an indefinite custodial sentence, and I do not think your Honour is suggesting anything of the sort, that there is any other option.”
17. The judge then proceeded to sentence. She said:
“This is a much more serious offence than any of the Public Order Act offences are in themselves, because this involves a disregard, and a disobedience, of a court order. In those circumstances I take the view that a significant custodial sentence is appropriate in this case.”
18. The judge passed a sentence of forty-eight weeks’ imprisonment. The applicant applied for leave to appeal against sentence which was refused by the Court of Appeal on 31 July 2013. The court considered that the case did not easily fall within the sentencing guidelines for breach of an ASBO and was far more akin to a contempt of court. Further, the guidelines made it clear that in order properly to assess the seriousness of the breach of an ASBO, the court had to be aware of the purpose of the order and the context in which it was made. The Court of Appeal continued:
“18. … The context in which this order was made was a very long history of flagrant breaches of the criminal law resulting in many previous terms of imprisonment, all (as we understand it) relating to the applicant’s obsession with going about naked in public, heedless of any harassment, alarm of distress such conduct is likely to cause. The majority of those convictions have been in Scotland. There have been sentences for contempt of court as well as substantive criminal offences. More recently, he has been dealt with in Scotland for incidents charged as breach of the peace …
19 The context of the present offence is therefore a history of refusing to heed orders of the court and sentences for precisely the same conduct. We remind ourselves that section 143 of the Criminal Justice Act 2003 provides that in considering the seriousness of any offence the court must consider the offender’s culpability in committing the offence and any harm which the offence caused, was intended to cause or might foreseeably have caused. The applicant’s culpability here was very high because it was a deliberate breach committed very soon after the order was made. As for harm, the guideline acknowledges at paragraph 12 that breach of an order of the court can itself undermine public confidence in the effective administration of justice, and that is part at least of the harm caused by an offence of breaching an ASBO such as this.”
19. The court found the sentence of forty-eight weeks to be in itself appropriate and justified it did not consider the sentence to be manifestly excessive, or even arguably so. It concluded with the following comment:
“24. We would add only this. The magistrates’ court dealing with the full hearing of the application for the ASBO on 13th August will need to be mindful of the potential danger, identified in the authorities to which we have referred, that the making of an ASBO in wide terms must not be used as a device to circumvent maximum penalties which are thought to be too modest or to criminalise conduct that may not truly constitute a matter of real social concern of a type that the legislation was designed to address. It would be a disturbing consequence of an order, if it is made in terms that are too wide, that a man such as this applicant might spend his life in and out of prison for what may be seen as increasingly serious failures to comply with orders of the court.”
4. The full ASBO
(a) The imposition of the ASBO
20. On 13 August 2013 a hearing on the application for a full ASBO in the same terms as the interim ASBO took place before the Magistrates’ Court. The applicant, who was represented by counsel and solicitors, argued that the ASBO was unnecessary and punitive, was designed to circumvent the maximum penalties available for public nudity under section 5 of the Public Order Act and was a disproportionate interference with his Article 10 rights.
21. The District Judge granted an ASBO in the same terms as the interim ASBO, to have effect until further court order. He noted that the applicant had not challenged the evidence submitted by the Chief of Police when requesting the ASBO (see paragraph 12 above) commenting:
“.14 b) … there is unchallenged evidence within the examples I have identified that a significant number of persons found this display to be offensive, insulting and abusive and there is the not inconsequential fact that courts have found it so (see list of convictions). It seems to me that those matters are inescapable truths.”
22. He recognised that Article 10 was engaged and considered that, when a balance had to be struck, the rights of the community should prevail. He concluded that an order which underlined and reinforced “societal conventions” was not a disproportionate interference with the applicant’s Article 10 rights.
23. The applicant applied to the District Judge to state a case for the opinion of the High Court. On 17 September 2013 the District Judge refused to state a case on the ground that it was “frivolous”. He noted that there was no dispute on the facts, namely that the applicant walked naked in public at places where the public were directly affected by his conduct and that formal complaints about his conduct had been made to the police. The judge was therefore of the opinion that the law applicable was entirely settled and clear and that there was no question for the opinion of the High Court.
24. On 16 December 2013 the applicant sought permission from the High Court to judicially review the refusal to state a case. On 7 March 2014 permission was refused on the papers. The judge said he did not regard it as reasonably arguable that the District Judge had acted unlawfully in refusing to state a case.
25. The applicant renewed his request for permission to seek judicial review. Following an oral hearing on 11 July 2014, the High Court refused permission. It found that the District Judge had been entitled to make the ASBO that he had made, noting that the evidence was uncontested. The court was equally satisfied that the judge had been entitled to conclude that an ASBO was necessary and that the argument that it was a way of circumventing section 5 of the Public Order Act was misconceived. The court was also satisfied that there was no reasonable argument that the ASBO was disproportionate. It concluded that the application to state the case was “futile, misconceived and hopeless”.
(b) The breaches of the ASBO
(i) The August 2013 arrest
26. Meanwhile, on 14 August 2013, the applicant was released from prison. He was arrested immediately for breach of the ASBO and remanded in custody pending trial. On 16 January 2014 he was convicted in the Crown Court for breaching the ASBO. He was sentenced to sixteen months’ imprisonment.
(ii) The April 2014 arrest
27. The applicant was released from prison on 15 April 2014. He was met in the prison car park by a police officer who offered him clothing. The applicant declined the offer of clothing. He was then arrested for breaching the ASBO. He was interviewed under caution and asserted as a reasonable excuse for his nakedness that he did not agree with the contents of the court order and was not therefore prepared to obey it.
28. The trial took place on 6 October 2014 in the Crown Court. The applicant chose to represent himself. Having declined an invitation to dress, he was brought into the courtroom naked. The judge asked the applicant to wear clothes in order to stand trial. The applicant declined and was removed from the courtroom.
29. The judge proceeded to sum up the case and instruct the jury. She told them that the applicant had been offered the choice to appear clothed in court but as he had refused to dress, he had forfeited the right to be present or give evidence. She instructed them not to hold that against him. She directed the jury that it was not a reasonable excuse to disobey a court order simply because one disagreed with its terms.
30. The jury then retired to consider their verdict. After deliberating for twelve minutes, jury returned a unanimous guilty verdict. At the sentencing hearing, the judge observed that the applicant had been convicted thirty times for forty-eight different offences. She commented:
“I have asked the police … to have a discussion with you, Mr Gough, whether there is any community, closed community, away from the public in which you are prepared to live so that you would not be committing a further offence of the anti‑social behaviour order, but that is not something that I can take into account at the moment. If there is a way out of this cycle of endless prison for you, then I would like that to be found, but, at the moment, there is little that I can do. My hands are tied; you have been found guilty again for a breach of the anti-social behaviour order. It seems to me that this sort of behaviour you must have been committing since at least the early 2000s, because since that time you seem to have been constantly sent to prison for short periods of time; but now that the anti-social behaviour order is in force, you are going to be committing offences if this cycle continues for the whole time.”
31. The judge sentenced the applicant to thirty months’ imprisonment. She added:
“As I have already said, Mr Gough, I would like to find a way out of this problem, and for somewhere to be found for you to live where you would not have to keep committing offences of this sort; but, if not, I am afraid, if you walk again out into public, you are simply going to be rearrested and sent back to prison again; so I am afraid matters are absolutely in your hands now. You are the author of your own destiny.”
32. The applicant sought leave to appeal his conviction, arguing that the judge had erred in excluding him from his trial when he had confirmed his wish to appear naked, and that the judge had failed to give sufficient weight to his rights under Articles 6 and 9 of the Convention. Leave to appeal was granted. At the hearing before the Court of Appeal, he also sought leave to appeal against sentence, relying on Article 10 of the Convention. He was represented by counsel and was present via video link. He argued that the sentence was disproportionate given that no serious harm had been caused by the breach and that lengthening periods of imprisonment were pointless, excessive and oppressive.
33. On 9 June 2015 the Court of Appeal dismissed the appeal against conviction.
34. As to whether there had been any unfairness in the proceedings, the Court of Appeal noted that the applicant had had no challenge to the prosecution’s evidence. His case had been that he had had a reasonable excuse to breach the ASBO. The court noted that the judge’s direction in the summing-up that in law he did not have any reasonable excuse was unimpugned, and unimpugnable. The jury had had before them the applicant’s argument, foreshadowed in interview and appropriately summarised by the judge, and could have chosen to return a different verdict. The applicant had wished to flout an order of the court and thus, by his own decision-making process, had detached himself from proceedings knowing, before he did so, what the outcome would be. Referring to the rejection by the High Court of his claim seeking judicial review of the imposition of the ASBO and to the comments of this Court in Gough, cited above, § 179, 28 October 2014, the Court of Appeal dismissed the appeal against conviction.
35. In respect of the request for leave to appeal against sentence, the court said:
“21. … Although we acknowledge that two-and-a-half years for breach of an Anti‑Social Behaviour Order might, absent narrative, appear manifestly excessive, this case must be read in context. That context reveals that it is the persistence of the conduct which leads to longer and longer sentences. The applicant had 26 previous convictions and a history of failure to comply with orders of the court. Additionally, he chose to breach his Anti-Social Behaviour Order immediately upon release from prison. No guidelines were likely to assist the judge in these unusual circumstances, as she rightly identified. A combination of those factors we have identified more than justifies the course she adopted …”
36. It therefore rejected the application for leave to appeal against sentence.
37. The applicant applied for the court to certify that a point of law of general public importance was involved, for the purposes of an appeal to the Supreme Court. The application was refused on 11 August 2015.
(iii) The August 2015 arrest
38. The applicant was released on licence on 14 August 2015. On 11 September2015 he was arrested at a bus stop for being naked and his licence was revoked. He was tried on 19 October 2015 at the Crown Court. He represented himself and the judge refused to allow him to address the jury while naked. He was, however, permitted to write an address to the jury, parts of which were read to the court by the judge during the summing up to the jury. The applicant was convicted of breaching the ASBO. On 18 December 2015 he was sentenced to two hundred days’ imprisonment. The judge commented:
“The amount of distress and upset that you caused was, it must be said, of limited nature, because the police dealt with you speedily and properly.”
The applicant was released on 15 January 2016. On his website he states he is taking care of a family member who is dependent on him, and so he is wearing clothes and has not been re-arrested.
5. Public comment on the applicant’s case
39. On 3 September 2015 the former Director of Public Prosecutions, Lord Macdonald QC, was reported as commenting on the applicant’s case as follows:
“This man is not a danger to anybody, he’s a nuisance. He’s an eccentric, as far as one can tell he’s a harmless eccentric. He’s spent around 10 years in prison, that’s £40,000 a year. This seems to be a draconian, quite inappropriate response to his behaviour.
He’s served 10 years, which on normal remission terms would be the equivalent of a 15-20 year sentence in prison …
Very few rapists get that sort of sentence, not many murderers serve more than that. Prison should be for people who represent a risk to the public, not for people who annoy the public in the way that he seems to from time to time.”
B. Relevant domestic law and practice
1. Public order offences
40. Section 5 of the Public Order Act 1986 is in the following terms:
“5 Harassment, alarm or distress
(1) A person is guilty of an offence if he—
(a) uses threatening, abusive or insulting words or behaviour, or disorderly behaviour, … within the hearing or sight of a person likely to be caused harassment, alarm or distress thereby.
(3) It is a defence for the accused to prove—
(a) 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 …
(c) that his conduct was reasonable.
(6) 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.”
41. The Crown Prosecution Service (“CPS”) has issued guidance on handling cases of public nudity. The guidance begins by emphasising the need to strike a balance between the naturist’s right to freedom of expression and the wider right of the public to be protected from harassment, alarm and distress.
2. Anti-social Behaviour Orders (ASBOs)
42. ASBOs were introduced by the Crime and Disorder Act 1998. At the time when the ASBO was imposed in the applicant’s case, section 1 of the 1998 Act, as amended, provided that a “relevant authority”, which included a local authority or chief of police, could apply for an ASBO in respect of a person who had acted 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) where an ASBO was necessary to protect relevant persons from further anti-social acts by him. Where these conditions were proven, a Magistrates’ Court could make an ASBO which prohibited the defendant from doing anything described in the order. When determining whether a person had acted in an anti-social manner, the court had to disregard any act which the defendant showed was reasonable in the circumstances.
43. Pursuant to section 1(10) of the Act, a person who did anything which he was prohibited from doing by an ASBO, without reasonable excuse, was guilty of an offence. Such a person was liable, on summary conviction, to imprisonment for a term not exceeding six months or to a fine not exceeding the statutory maximum, or to both; or on conviction on indictment, to imprisonment for a term not exceeding five years or to a fine, or to both.
44. A decision on whether to prosecute for breach of an ASBO was taken by the Crown Prosecution Service, who in accordance with the Code for Crown Prosecutors had to consider (i) whether there is sufficient evidence to provide a realistic prospect of conviction; and (ii) whether it would be in the public interest to prosecute.
45. The Anti-Social Behaviour, Crime and Policing Act 2014 repealed the legislation governing ASBOs, replacing them with civil injunctions and criminal behaviour orders.
46. A civil injunction may be imposed where it is established, on a balance of probabilities, that behaviour is likely to cause harassment, alarm or distress and that it is just and convenient to grant the injunction to prevent anti‑social behaviour. Breach of a civil injunction is not a criminal offence. Instead, it is treated as a civil contempt of court and liable to an unlimited fine or up to two years in prison. Criminal behaviour orders may be imposed when a person has been convicted of a criminal offence and is involved in persistent anti-social behaviour. Breach of a criminal behaviour order attracts a sentence of up to five years’ imprisonment or a fine, or both.
47. Section 21 of the Anti-Social Behaviour, Crime and Policing Act 2014 established a transitional period of five years for orders made under the previous legislation, including ASBOs. At the end of the transitional period any existing ASBO is transformed automatically to an injunction under the Act.
C. Relevant Council of Europe materials
48. In his report of 8 June 2005 on his visit to the United Kingdom in June 2004, the Commissioner for Human Rights commented on ASBOs, which he said appeared to be “particularly problematic” civil orders designed to combat low-level crime and general nuisance by obliging or banning specified behaviour by a given individual. The fact that they were designed to protect not just specific individuals but entire communities inevitably resulted in “a very broad, and occasionally, excessive” range of behaviour falling within their scope, as the determination of what constituted anti‑social behaviour became conditional on the subjective views of a given collective. He considered that it also made it difficult to define the terms of orders in a way that did not invite inevitable breach, a consideration which was particularly important since breach of the order was a criminal offence with potentially serious consequences.
49. The applicant complained that the imposition of the ASBO breached his rights under Article 10 of the Convention. He argued that its only purpose was to circumvent the maximum penalties permitted for public nudity by the Public Order Act and that as a result, it did not pursue a legitimate aim.
50. Article 10 of the Convention provides:
“1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.
2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.”
1. The parties’ submissions
(a) The Applicant
51. The Applicant argued that his public nudity was a form of freedom of expression and that his arrest, prosecution, conviction and detention interfered with his right to freedom of expression under Article 10. He argued that the use of an ASBO did not pursue a legitimate aim because its use was only to circumvent the use of the maximum penalty otherwise available in law, which was a fine. He also argued that use of the ASBO was unnecessary as other powers in law were sufficient, and that it was disproportionate because it amounted to a blanket prohibition on public nudity. Furthermore, use of the ASBO had the effect of placing the applicant in indefinite detention in conditions akin to solitary confinement. Finally, he argued that the terms of the ASBO were so vague it was impossible to enforce it in the prison system.
(b) The Government
52. The Government argued that the applicant did not raise any new issues of substance compared with the previous case brought by the applicant (see Gough, cited above). Nonetheless addressing the issues raised by the applicant the Government accepted that Article 10 applied to the applicant’s public nudity and that his rights under that Article had been interfered with. The Government argued that the interference was justified as it was in accordance with the law. Imposition of the ASBO pursued a legitimate aim that is the interests of public safety, the prevention of disorder and crime and the protection of the rights of others. In this connection, it referred to the Court’s previous findings in Gough, cited above, §§ 172-176. The Government argued that the ASBO was a proportionate response to the persistent behaviour of the applicant; that there was a discretion over whether to prosecute a breach of an ASBO; that the terms of the ASBO were clear; the ASBO did not apply to the applicant in prison, and notwithstanding the applicant’s nakedness in prison no proceedings were brought against him during that time.
2. The Court’s assessment
53. The Court is satisfied, and the Government did not contest, that the applicant’s public nudity can be seen as a form of expression which falls within the ambit of Article 10 of the Convention and that imposition of the ASBO constituted a repressive measure taken in reaction to that form of expression. There has therefore been an interference with the applicant’s exercise of his right to freedom of expression (see Gough, cited above, § 150).
54. An interference with the right to freedom of expression can only be justified under Article 10 § 2 if it is prescribed by law, pursues one of more of the legitimate aims to which Article 10 § 2 refers and is necessary in a democratic society in order to achieve any such aim (see Gough, cited above, § 152).
55. The applicant argues that the terms of the ABSO adopted in his case were too vague and therefore did not comply with the requirements of legality and were not ‘prescribed by law’. In particular the terms of the ASBO were not sufficiently precise or foreseeable and so offered no protection against ‘arbitrariness’.
56. The Court notes that this complaint was not advanced before the domestic courts. It is therefore difficult for the Court in its fundamentally subsidiary role to evaluate it, in particular as it raises certain questions of fact and interpretation of domestic law (see S.M.M. v. the United Kingdom, no. 77450/12, § 69, 22 June 2017). Accordingly, it limits itself to noting that the proposal for the ASBO, including its wording was the subject of judicial review (see paragraph 60 above). It also recalls that the applicant stated under caution that he did not agree with the contents of the ASBO and was not prepared to obey it, implying that he understood its contents and could foresee the actions that would amount to a breach of its terms (see paragraph 27 above).
57. It also notes that the applicant has not impugned the general legislative scheme imposing ASBO’s, which was set out in detail in legislation (see paragraphs 42 to 44, above).
58. Accordingly, the Court is satisfied that the imposition of the ASBO was prescribed by law.
59. As to the general question of “legitimate aim” the Court considers there was such an aim and recalls its previous findings in Gough (cited above,§ 158), which apply even more forcefully in the present case where the applicant has continued to persistently flout the law because of his personal opinion on public nudity.
60. As to the applicant’s specific argument that the ASBO was not imposed for a legitimate aim because it was designed to circumvent the use of maximum penalties available under other legal provisions, the Court notes that this was framed as an assertion, without calling into question to any particular element concerning the imposition of the ASBO.
61. In this connection, the Court notes that at each step – proposal, imposition, and breach – the ASBO was reviewed by an independent court taking into account the applicant’s circumstances. In total there were reviews on eight occasions by three levels of jurisdiction and neither the underlying proposal, nor those reviews appear arbitrary (see paragraphs 11‑38, and 60 above). The Court reiterates that in exercising its function, it’s task is not to take the place of the national courts, but rather to review, in the light of the case as a whole, whether the decisions they have taken pursuant to their power of appreciation are compatible with the provisions of the Convention relied on (see Axel Springer AG v. Germany [GC], no. 39954/08, § 86, 7 February 2012). Accordingly, it notes that relevant and sufficient reasons were given by the domestic courts for the imposition and application of the ASBO and the penalties imposed for breaching it, taking account of the requirements of the Convention.
62. The Court also notes that the proposal of the Chief Constable to impose the ABSO was based on the need to find an appropriate reaction in law, taking into consideration the applicant’s previous conduct, his personal opinions and balancing this against the rights of others (see paragraph 12, above). Moreover, the police, prosecution and courts did not circumvent the maximum penalties available under other legal provisions; on the contrary they had repeatedly applied those maximum penalties to the applicant over a long period (some fifteen years (see Gough, cited above, §§ 6‑90). However, the imposition of those penalties apparently had no impact on the applicant’s pattern of behaviour and he continued to flout the decisions of the courts. Accordingly, it does not seem unreasonable for the police and prosecuting authorities, to have asked the courts to impose restrictions on the applicant under other legal provisions. The Court also underlines that the authorities retain a discretion over the choice of measure to pursue especially where the margin of appreciation is wide (see Gough, cited above, § 172), and there is no right as such under the Convention not to be criminally prosecuted (see Merabishvili v. Georgia [GC], no. 72508/13, § 320, ECHR 2017 (extracts)).
63. The Court therefore considers that the imposition of the ASBO was for a legitimate aim.
64. Having arrived at the above conclusions that the imposition of the ASBO was an inference with the applicant’s rights under Article 10, which was in accordance with the law and served a legitimate aim, the Court will now turn to examine the question of whether that interference was proportionate. At the outset of that examination the Court highlights that with regard to the question of proportionality it largely agrees with the Government that the present case rehearses a number of arguments examined in the previous case brought by the applicant (see Gough, cited above). The starting point for its examination is therefore to recall its conclusion in that case that the interference was proportionate (see Gough, cited above, §§ 173-176).
65. Nonetheless, the factual situation in the present case is slightly different from that in the previous one because it concerns a further period of just over three years (from mid-2012 until the end of 2015 (see paragraphs 5‑38 above) where there was a continuation of the established pattern of arrest, prosecutions, convictions and sentences of imprisonment resulting from the applicant’s nakedness in public (see Gough, cited above, § 146). That pattern was again provoked by the applicant’s persistent public nudity and his wilful and contumacious refusal to obey the law during that period (see Gough, cited above, § 174, and paragraphs 30, and 35, above). It also concerns the imposition of an ASBO on the applicant, which was a novel legal development and which the applicant has argued had a particularly disproportionate impact on him. As such, the Court will address points arising from these two elements in its examination of proportionality.
66. In that examination, the Court must look at the impugned interference in the light of the case as a whole. In particular, it must determine whether the interference in question was “proportionate to the legitimate aims pursued” and whether the reasons adduced by the national authorities to justify it are “relevant and sufficient”. In this connection, the Court reiterates that the nature and severity of the penalties imposed are also factors to be taken into account when assessing the proportionality of the interference (see, Murat Vuralv.Turkey, no.9540/07, § 64, 21 October 2014).
67. In assessing the nature and severity of the penalty, the Court recalls that peaceful and non-violent forms of expression in principle should not be made subject to the threat of a custodial sentence (see Sinkova v. Ukraine, no. 39496/11, § 111, 27 February 2018). The applicant’s custodial sentence for public nudity therefore raises concerns, but the Court considers that his situation is not comparable in fact or degree with that in the case of Murat Vural, cited above, where the applicant was sentenced to just over thirteen years’ detention following a single offence where he defaced statutes of Atatürk (see Murat Vural, cited above, § 20). In contrast, the applicant in the present case was sentenced on three occasions for three breaches of the ASBO for respective periods of sixteen months; thirty months and two hundred days in prison (see paragraphs 26, 35, and 38, above). Even considered cumulatively, those sentences were much shorter than the thirteen-year sentence imposed on the applicant in Murat Vural, cited above, for a single offence which this Court characterised as “extreme” (see Murat Vural, cited above, § 67).
68. Moreover, the applicant’s sentences were imposed in the context of a pattern of behaviour. This context was taken into account by the Court of Appeal (see paragraph 35, above), and the sentencing judge who indicated, he had been “…convicted a total of thirty times for forty-eight different offences”, all related to his public nudity (see paragraphs 30 and 65, above). Accordingly, the Court finds that in the present case the imposition of custodial sentences by the domestic courts was not disproportionate.
69. As to the applicant’s argument that the use of the ASBO amounted to the imposition of a blanket ban, the Court is not convinced. In the first instance, it notes that the ASBO was created only for the applicant, taking into account his circumstances (see paragraph 12, above). It also notes that the imposition of the ASBO and prosecutions for breaching it were decisions taken in the context of court hearings in which the applicant was given the possibility to participate and which examined his individual situation on each occasion (see paragraphs 11 to 38, 60 and 61, above). The Court also takes account of the fact that a degree of discretion was available over whether to prosecute following breach of an ASBO. In particular according to the Code for Crown Prosecutors consideration must be given to whether it is in the public interest to prosecute (see paragraph 44, above).
70. Given the extent to which the ASBO and the procedures surrounding it were designed to correspond specifically the applicant’s situation, it is difficult to see how its imposition could amount to a blanket ban.
71. The applicant also complained that the terms of the ASBO were too vague to be applied to him in prison, and he was ill-treated whilst detained. The Government disagreed, stating that the ASBO did not apply to the applicant in prison as it is not a ‘public place’. They also contested the applicant’s allegations of ill-treatment.
72. The Court notes that these arguments were never raised before the domestic courts. The Court has previously found inadmissible the applicant’s complaints concerning his conditions of detention for failure to exhaust domestic remedies (see Gough, cited above, § 200). For the same reasons the Court considers that the applicant’s complaints about his conditions of detention in the present case inadmissible.
73. Insofar as his complaints relate to the imposition of the ABSO rather than his conditions of detention, the Court again underlines that it is not for it, in its fundamentally subsidiary role, to evaluate them in particular as they raise certain questions of fact and interpretation of domestic law (see paragraph 56, above). It therefore limits itself to observing that the ASBO does not appear to have been applied to the applicant whilst he was in prison. Therefore his complaints do not appear to be borne out on the facts.
74. Finally, the Court notes that concerns have been raised in relation to ABSOs about the proportionality of criminalising certain types of behaviour or activities which would otherwise not be criminal. Whilst those concerns do not appear to have been invoked by the applicant in the domestic proceedings, the courts considered they had a degree of resonance in his case (see paragraph 35, above). It also notes the criticism of the former Director of Public Prosecutions and the Council of Europe Commissioner of Human Rights (see paragraphs 39 and 48, above). Therefore, it observes that the legislation providing the possibility to impose ASBO’s was repealed in England, Wales and Northern Ireland in 2014, and existing ASBO’s weretransformed automatically into civil injunctions under the new legislation (see paragraphs 42 to 46 above).
75. In light of the above, the Court considers that the applicant’s claim is manifestly ill-founded.
For these reasons, the Court, unanimously,
Declares the application inadmissible.
Done in English and notified in writing on 5 July 2018.
Renata Degener Kristina Pardalos
Deputy Registrar President