Friday, November 1, 2013

Nudity in Public - Guidance on handling cases of Naturism (UK CPS Code)

The correspondent to CPS in Portugal is the Public Prosecutions, however we do not have a known guideline concerning nudity/naturism or something like this one included in CPS Code to help us.

The CPS have issued guidelines with regards to nudity/naturism

In Portugal nudity is allowed but nude or sexual exhibitionism is not, so if the local authorities outside official naturist beach tell you to dress up you must comply. Sometimes nudity and exhibitionism could be very close one to each other.

Nudity in Public - Guidance on handling cases of Naturism 

Issues covered in the passage are included under the following headings:

  • What is ‘Naturism’
  • Recommended approach to naturism
  • Evidential considerations
  • Public interest considerations
  • Other offences that might involve nudity
  • Exposure contrary to section 66 of the Sexual Offences Act 2003
  • Outraging public decency OPD)
  • Public nuisance
  • Anti-Social Behaviour Order
What is ‘Naturism’?

Naturism is used to describe the activities of persons who espouse nudity as part of their lifestyle. Whilst many naturists will restrict their activities to specially designated areas and/or places where there is a tradition of naked activity, such as nudist beaches, others may wish to enjoy nudity more widely.

In the case of naturism a balance needs to be struck between the naturist’s right to freedom of expression and the right of the wider public to be protected from harassment, alarm and distress.

Recommended approach to naturism

Although every case should be considered according to its own facts and merits in accordance with the Code for Crown Prosecutors a consistent approach to naturism should be adopted to maintain public confidence in the CPS. Where none of the features exist that would bring behaviour within the ambit of one of the offences set out in the section on Other offences that might involve nudity below, the recommended approach to naturism should be as follows.

In the absence of any sexual context and in relation to nudity where the person has no intention to cause alarm or distress it will normally be appropriate to take no action unless members of the public were actually caused harassment, alarm or distress (as opposed to considering the likelihood of this).

In this case such conduct should be regarded as at most amounting to an offence under section 5 of the Public Order Act 1986; and regard needs to be had to the question of whether a prosecution is in the public interest.

Evidential considerations

In order to breach section 5 of the Public Order Act 1986 a person needs to have used threatening, abusive or insulting behaviour or disorderly behaviour within the hearing or sight of a person likely to be caused harassment, alarm or distress. Section 5 is summary only and a non-imprisonable offence.

When deciding whether a case passes the evidential stage of the Full Code Test, prosecutors should consider whether the behaviour can be described as ‘disorderly’ (rather than threatening, abusive or insulting). This is because the behaviour in question will often not appear to cross the threshold for being ‘threatening’ or ‘abusive’. Furthermore section 5 will be amended by section 57 of the Crime and Courts Act 2013 which will remove the word “insulting”. Whilst for now “insulting” behaviour remains in breach of section 5, particular care needs to be taken before prosecuting on this basis alone.

Given that someone conducting their business naked in public is acting in a way that does not conform to the normal standards of society that require people to be clothed in public, ‘disorderly’ would appear to most aptly describe this behaviour.

Public Interest considerations

A prosecution will not automatically follow where a case passes the evidential stage of the Full Code Test. Careful consideration of the public interest will be required in such a case. The Code for Crown Prosecutors (7th edition) requires prosecutors to consider the following questions:

  • How serious is the offence committed?
  • What is the level of culpability of the suspect?
  • What are the circumstances of and the harm caused to the victim?
  • Was the suspect under the age of 18 at the time of the offence?
  • What is the impact on the community?
  • Is prosecution a proportionate response?
  • Do sources of information require protecting?

In reviewing a section 5 case involving nudity the following factors (reflecting the paragraph letters above) may be relevant:

On a scale of seriousness this offence is at the lower end, a factor making prosecution less likely to be required.

Whether the offending is premeditated and likely to be repeated, and whether the suspect has previous convictions for similar conduct.

Victims or witnesses with vulnerabilities might include children (and their carers) who are faced with the suspect’s genitals and bottom in close proximity. Any views expressed by victims or witnesses on the impact the offence has had are important, in particular whether they have felt harassment, alarm or distress. However prosecutors need to form an overall view of the public interest and to consider whether any harm caused to victims is likely to be short-lived and minimal in the absence of specific evidence to the contrary.


Any impact on the local community, the extent and whether or not it is likely to be transitory.

Whether prosecution may be disproportionate to any eventual penalty, given that the offence is summary only and non-imprisonable.

Other offences that might involve nudity

Exposure contrary to section 66 of the Sexual Offences Act 2003

This requires a person to intentionally expose their genitals and intend that someone will see them and be caused alarm or distress. It is triable either way. Depending on the age of the defendant and the sentence that is imposed, an offender may be subject to the notification provisions (the sex offender register).

The need to prove that the person exposed their genitals intending that someone will see them and be caused alarm or distress means that a naturist whose intention is limited to going about his or her lawful business naked will not be guilty of this offence.

Outraging public decency (OPD)

At common law it is an offence to do in public any act of a lewd, obscene or disgusting nature which outrages public decency. Although this may be widely interpreted, most cases will involve indecent exposure of the human body. If conduct falls within the scope of a statutory offence, such as exposure contrary to section 66 of the Sexual Offences Act 2003 (see above) it is better practice to charge that offence unless, exceptionally, the offence merits a higher penalty than that available in relation to the statutory offence. OPD is triable either way and there is no maximum penalty.

The requirement for the behaviour to ‘outrage’ public decency was said by Lord Simon in Knuller (Publishing, Printing and promotions) Ltd v DPP to: “go considerably beyond the susceptibilities of, or even shocking, reasonable people”. The circumstances surrounding the conduct will need to be carefully considered.

A naturist whose intention is limited to going about his or her lawful business naked will not be guilty of this offence.

Public nuisance

At common law it is an offence to (a) do an act not warranted by law; (b) omit to discharge a legal duty if the effect of the omission is to endanger life, health, property, morals, of comfort of the public, or to obstruct the public in the exercise of enjoyment of rights common to all Her Majesty’s subjects.

The House of Lords in Rimmington [2006] 1 AC 459 made it clear that this offence should not ordinarily be used where there is a statutory offence covering the relevant conduct.

A naturist whose intention is limited to going about his or her lawful business naked will not be guilty of this offence.

Anti-Social Behaviour Order

An Anti-Social Behaviour Order (ASBO) may be imposed either as an ancillary order following conviction or on a ‘standalone’ basis by the police or a local authority. Although naked behaviour may fit the anti-social rather than the criminal category, an ASBO carries with it the risk of an early and repeated breach followed by prosecution and ultimately imprisonment. It is questionable whether such an outcome is proportionate either in terms of the cost to the CJS or the penalty incurred. Very careful consideration needs to be given before an ASBO is sought. It should be regarded as a last resort.

Where the decision is taken that an ASBO is required it is essential that prohibitions are drafted clearly and with care to enable effective prosecution of any ensuing breach.

Published and photo credits: The Naked Truth by The Activist

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