Laws relevant to naturists

POA 1986

Public Order Act 1986

Of the offences defined in the POA, that most usually relevant to naturists is:

A less serious offence than Section 4A and carrying a maximum penalty of a fine of £1,000 The prosecution do not have to prove that a member of the public was actually caused harassment alarm or distress and do not have to prove that the offender intended to cause anybody harassment alarm or distress but, as the Crown Prosecution Service notes:

In relation to Section 5 it is a defence for the accused to prove -

Police power of arrest under Section 5 is limited:

In other words, the police must give you a warning to stop your "disorderly behaviour" and only when you ‘refuse to stop being disorderly’ can they arrest you. You can therefore avoid being arrested by getting dressed when requested to do so by a police officer. Furthermore, there has to be evidence of disorder and until someone complains to the police about your nakedness, the police cannot even give the legal warning asking you to re-clothe.

However, the prosecution do not have to prove that anybody was actually caused harassment alarm or distress, and do not have to prove that the offender intended to cause anybody harassment alarm or distress.

PLEASE NOTE: Police powers of arrest have been widened considerably by the Serious Organised Crime and Police Act 2005 (SOCPA). More Details

Comment

When this law is invoked by Police officers, they will usually state that "we have received a complaint about nude bathers", etc. However, the police have no general duty to act on a complaint and the powers they employ are generally coupled with wholesale discretion as to their use.

When offences are as broadly drawn as they are in this case - and much else that emanates from the Home Office - there is a natural tendency for that discretion to be exercised in whatever way seems expedient at the time. Thus, a situation can arise where [relatively powerless] law-abiding naturists can be repeatedly harassed because their presence offends the nearby [relatively powerful] golf club.

This has the unfortunate effect of moving toward a situation where the rule of law ceases to exist because there is almost nothing in life beyond the discretionary power of officials of various sorts (including the police). Anything at all may result in punishment.

SOA 2003

Sexual Offences Act 2003

This act has completely overhauled the law as it relates to all aspects of sexual behaviour.

The SOA created a new offence of "Exposure" which replaces several archaic "Indecent Exposure" offences:

In this case, "he" can mean either a man or a woman - the offence is "gender neutral".

The SOA requires that cautions and convictions for Exposure result in Sex Offender registration where:

A conviction for Exposure is possible even in cases where there is no actual victim and where no-one was caused "alarm or distress".

Given the implications of Sex Offender registration and disclosures as a result of pre-employment Criminal Record Bureau checks it is essential that a caution for "Exposure" should only be accepted after receiving proper legal advice.

However, the legal concensus is that Section 66 of the SOA does not criminalise nude sunbathing where there is no sexual activity and that it cannot be used against genuine naturists. There is now some case law to support this opinion.

Fixed Penalties

Fixed Penalty Notices and Penalty Notices for Disorder

Often known simply as "on the spot fines", these penalties are in fact two separate summary punishments, or "interventions" to use the Home Office's preferred term:

Fixed Penalty Notices (FPNs) generally deal with "environmental offences" and can be issued by Local Authority officers and by Police Community Support Officers and "other accredited persons".

FPNs can be issued to anyone over 10 years old and are penalties of £50 (or £100 for noise-related offences).

Examples of offences where a FPN may be issued include:

• dropping litter
• minor graffiti offences
• fly posting
• not clearing up dog fouling
• excessive noise is coming from a private residence during the night

Receiving a penalty notice does not count as getting a conviction. Recipients have 14 in respect of a FPN to pay the penalty or to request a hearing. Failure to pay a penalty may result in a higher fine imposed by the court or imprisonment.

Penalty Notices for Disorder (PNDs) are issued for "more serious offences" and have been issued to naturists using traditionally tolerated naturist beaches. (As in the case of "Operation Crow" at Ainsdale in 2005)

PNDs can be issued by the police and, in a limited capacity by Community Support Officers and "other accredited persons".

PNDs can be issued to anyone over 16 years old and are for either £50 or £80 depending on the severity of the behaviour.

According to the Home Office

A naturist issued with a PND is likely to be told that his behaviour is "likely to cause harassment, alarm or distress" to others.

Receiving a penalty notice does not count as getting a conviction and does not form part of a Criminal Record.

If you are issued with a PND, you have 21 days to pay the penalty or to request a hearing or the penalty will be reissued at one and a half times the original amount. Failure to pay a penalty may result in a higher fine imposed by the court or imprisonment.

The legal form of this penalty is an offer by the authorities not to prosecute if you pay it. In this way it avoids being contrary to the prohibition of punishment without trial in both the Bill of Rights and the European Convention on Human Rights. Nonetheless, it can be registered and enforced as if it were a fine.

In order to assert his rights, the recipient must make an application to be tried (and thereby pay substantial amounts in legal costs and risk greater punishment). In essence being isued with FPN or PND means you must be prepared to suffer considerable cost and inconvenience in order to prove (or at least assert) your innocence, because the constable issuing the penalty summarily need not have the strength of case to justify a prosecution.

Penalty notices are a favourite of the Labour government. They dispense with the inconvenient possibility that the non-compliant might escape punishment.

ASBO's

Anti-Social Behaviour Orders

Introduced by the Crime and Disorder Act 1998, Anti-social behaviour orders (ASBOs) are court orders which prohibit the recipient from specific "anti-social behaviour". In practice, ASBO's are a way of criminalising behaviour that is not, in itself, against the law.

ASBO's can be used to target specific persons if they persistently cause "harassment alarm or distress" to others.

According to the Home Office:

The following agencies can apply for an order:

• Local Authorities
• Police Forces and British Transport Police
• Registered Social Landlords (RSLs) and Housing Action Trusts (HATs)

ASBOs can be issued to any person aged 10 or over and run for a minimum of two years.

While ASBO's have been used in circumstances that were not envisaged when they were first proposed, the requirement that the behaviour is 'persistent' would make it difficult to apply to a single incident of nudity in a public place.

Byelaws

Local Byelaws

In rare cases local byelaws may exist which can, if enforced, prohibit naturism

In most cases these byelaws date from early in the last century and were enacted to deal with various examples of what were then regarded as "nuisances". They often appear anachronistic by modern standards.

For example, enforcement action was taken against naturists by Folkestone council's "Crime Reduction Officer" in response to a complaint from a local resident. The officer visited the beach in question and told people to dress, otherwise they risked arrest under byelaws relating to 'Bathing' and 'Nuisances Contrary To Public Decency'.

The byelaw cited was granted in 1935 to the 'Borough of Folkestone' (which no longer exists) "For the good rule and government of the Borough and for the prevention of nuisances". It provides that:

Although it may seem laughable, antiquated rules such as this may, sometimes, be wheeled out to attack naturists. It should be noted that such byelaws apply only to council controlled land and are usually limited to specific geographical areas - a specific beach, rather than all beaches in the area.

Byelaws relating to nudity or nude bathing frequently refer to "indecent" behaviour- this term is not well defined in law and is, therefore, open to interpretation by magistrates and others.

At the time of writing (June 2007) the Government is committed to altering the process by which local councils apply for new Byelaws. Under these proposals, it will no longer be necessary for them to apply to central government for confirmation - a situation which many naturists fear will lead to the imposition of new restrictions on swimming and sunbathing without clothes.

Public Nuisance

Public Nuisance

According to the Crown Prosecution Service Public Nuisance is "an offence against public morals and decency", a common law offence which:

This is an offence that is committed when a person acts in a way that endangers the life, health, property, morals or comfort of the public. The CPS asserts that there is case law that says exposure of genitals can constitute a Public Nuisance.

However, in January 2001, campaigner Vincent Bethell was tried on a Public Nuisance charge - “ being naked in a public place and refusing to clothe himself” - at Southwark Crown Court and was found not guilty by a jury. Bethell had been arrested on six separate occasions for his displays of public nudity, five times in London and once in Bristol.

It appears unlikely that such a charge would be applicable to a naturist behaving reasonably on a beach or similar remote location.

Outraging Public Decency

Outraging Public Decency

This is a common law offence, it was developed by the courts and has never been defined or debated by Parliament. Its consequent vagueness has allowed the police, judges and (since 2004) magistrates to adapt it as it suits them.

According to the Crown Prosecution Service:

Since "outrage" is not defined in statute, we have to rely on judicial interpretation.

In 1973 Lord Simon, sitting in the House of Lords, [Knuller v. DPP]. said:

In 1990 the Lord Chief Justice [Regina v May] defined it as:

From the above it can be seen that to be an offence the act must be in the presence or sight of two or more members of the public, at least one of whom must witness the act. A recording from a CCTV camera is not a member of the public but in this context a police officer may be.

However, in a case in the Court of Appeal, Criminal Division in October 2007 (Regina v Hamilton) Lord Justice Thomas held that the two-person rule was capable of being satisfied if there were two or more persons present who were capable of seeing the nature of the act even if they did not actually see it.

This clearly differs from previous interpretations.

Times Law Report

It should be the case that to secure a conviction of Outraging Public Decency the behaviour in question needs to be so "lewd, obscene or disgusting" that it would outrage public decency. Often, but not always, such behaviour would be of a sexual nature. Nudists acting in a lawful manner should not be threatened by this law, but charges of Outraging Public Decency have been laid against people engaging in sexual activity on naturist beaches.

Prior to 20 January 2004 Outraging Public Decency was only triable on inditement (i.e. at a Crown Court). The option of a jury provided naturists with considerable protection as it was most unlikely that a jury would convict. Trial before magistrates removes this protection.

At Bournemouth Magistrates' Court in October 2004, a couple from Christchurch admitted a charge of outraging public decency. They had been observed "performing sex acts" behind a windbreak at Studland beach. Magistrates fined them £200 each and ordered them to pay £43 costs.

In at least one other case naturists who were charged with Outraging Public Decency were cleared on the directions of a Judge because they were not engaged in any sexual activity.