Communicated on 10 June 2016

FIRST SECTION

Application no. 2153/15 Stephen Peter GOUGH against the United Kingdom lodged on 9 January 2015

STATEMENT OF FACTS

The applicant, Mr Stephen Peter Gough, is a British national, who was born in 1959 and is detained in HM Prison Winchester. He was represented before the Court by Bindmans LLP, a firm of solicitors based in London.

A. The circumstances of the case

The facts of the case, as submitted by the applicant, may be summarised as follows.

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

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.

The applicant was tried at Calderdale Magistrates ’ Court. On 11 March 2013 he was found guilty by the District Judge. In his stated case, prepared for the purposes of the applicant ’ s later appeal, the judge said:

“Mr Gough ’ s behaviour in walking naked was insulting and was also threatening in that it caused [one of the witnesses] to feel at risk. This behaviour could also be described as abusive and disorderly as it contributed to a breakdown of peaceful and law-abiding behaviour as evidenced by the reactions of the public to Mr Gough ’ s public display of nudity.”

The judge said that he did not doubt the sincerity of the applicant ’ s beliefs and expressed the view that Article 10 of the Convention was engaged on the basis that being naked in public was a form of expression. He reviewed the relationship between section 5 of the Public Order Act and Article 10, as described in Abdul v . DPP (see “Relevant domestic law and practice”, below). The judge observed that although public nudity was not, of itself, a criminal offence, section 5 was sufficiently clear and accessible and Parliament had left it to the courts to examine the context of particular facts. The judge considered that whether behaviour did or did not “cross the line” was heavily fact-dependent and not best criminalised on a “catch-all” basis. He added that although the applicant ’ s minority view had to be respected, it did not entitle him to “trample roughshod” over the rights of the majority “to enjoy a shared public space without being caused distress and upset”. The judge explained:

“(xii) Mr Gough was not prevented from being naked in certain public contexts where nudity is expected or tolerated. However, those adults and children in Halifax town centre on 25 October 2012 had no expectation of seeing Mr Gough naked and as such had no opportunity to avoid him until they had already seen him and decided to take avoiding action.

(xiii) The restriction imposed by s5 corresponds to this social need and the restriction is a proportionate response to that need.

(xiv) Given that this is a summary-only offence with a maximum penalty being a level 3 fine, that is a maximum fine of £1,000 subject to consideration of the means of the defendant ..., the prosecution for said offence was a proportionate response to the appellant ’ s behaviour.”

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.

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 chall enged.

2. The West Hampshire arrests and criminal proceedings

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.

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

Meanwhile, 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”.

Breach of an ASBO was punishable by imprisonment.

Following a hearing on 28 February 2013, the District Judge granted the interim ASBO.

(b) The breach of the interim ASBO

The applicant 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.

Prior to sentencing, the court heard submissions from counsel. 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.”

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.”

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.”

The judge passed a sentence of forty-eight weeks ’ imprisonment. She said that she anticipated that this would mean that the applicant would become eligible for release from custody on 14 August, one day after the date fixed for the full hearing of the application for the ASBO. She made it clear in her sentencing remarks that this was the “rationale” behind the length of the sentence she had passed.

The applicant applied for leave to appeal against sentence. His counsel argued that the judge had been wrong to pass a sentence which anticipated, and was based on the proposition, that the applicant if released would continue to breach the interim order. Counsel referred to sentencing guidelines which explained that the original conduct that led to the making of an order was a relevant consideration in so far as it indicated the level of harm caused and whether this was intended (see “Relevant domestic law and practice”, below).

The application for leave to appeal 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. It said that the sentencing guidelines should be read in light of the court ’ s observations in R v. Lamb and R v. H, Stevens and Lovegrove (see “Relevant domestic law and practice”, below). 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 forseeably 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.”

The court considered it plain that the trial judge had had very much in mind the practical reality of this case, which was that, based on his conduct to date, there was more than every likelihood that the applicant would continue to breach the interim ASBO until the final hearing. It said that “in a very real and practical sense”, the trial judge was passing a sentence which sought to achieve the objective of the reduction of crime, including its reduction by deterrence, until the hearing of the application for the full ASBO. It found the sentence of forty-eight weeks to be in itself appropriate and justified, and added that it also made good sense to limit the period of imprisonment to the day after the next hearing. In these circumstances, the court 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

1. 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.

2. The District Judge granted an ASBO in the same terms as the interim ASBO, to have effect until further court order. 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 proportionate and, therefore, not a disproportionate interference with the applicant ’ s Article 10 rights.

3. 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.

4. 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. He had been entitled to conclude that the application to state the case was frivolous for the reasons given. The High Court judge agreed that the application was indeed frivolous and that it was not reasonably arguable that the imposition of the ASBO was unlawful.

5. 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

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

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.

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 him to remain seated, noting that he was currently in breach of the ASBO because he was naked in public and there were members of the public in the public gallery. The applicant declined to sit, on the basis that he wished to be treated as a “normal defendant”. The judge warned him several times that if he refused to sit down the trial would proceed in his absence. The applicant continued to stand and the judge ordered that he be taken back to the cells.

The prosecutor then addressed the court as to the conduct of the proceedings in the case.

The judge then asked for the applicant to be brought into court again so that she could request him to wear clothes in order to stand trial. The applicant declined and was removed from the courtroom.

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.

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 committin g 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.”

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.”

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.

On 9 June 2015 the Court of Appeal dismissed the appeal against conviction.

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 v. the United Kingdom , no. 49327/11 , § 179, 28 October 2014, the Court of Appeal dismissed the appeal against conviction.

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 ...”

It therefore rejected the application for leave to appeal against sentence.

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

The applicant was released on licence on 14 August 2015. On 11 September 2015 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.

5. Public comment on the applicant ’ s case

The former Director of Public Prosecutions, Lord Macdonald QC, commented 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

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.”

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. It continues:

“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.”

The guidance lists evidential and public interest considerations. As to the latter, the guidance lists a series of questions that must be considered by prosecutors, including the seriousness of the offence, the level of culpability, the harm caused, the impact on the community and whether prosecution would be proportionate. The guidance identified the following as relevant in cases involving nudity:

“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 .”

In Abdul and Others v. DPP [2011] EWHC 247 (Admin), the Administrative Court dismissed an appeal against conviction for offences under section 5 of the Public Order Act relating to a protest at a parade to welcome troops home from Afghanistan and Iraq. The court identified a number of principles governing the relationship between section 5 of the Public Order Act and Article 10 of the Convention. The starting point, it said, was the importance of the right to freedom of expression. Such freedom was not limited to protecting popular, mainstream views but extended beyond that so that minority views could be freely expressed, even if distasteful. A justification for interfering with the right to freedom of expression had to be convincingly established and restrictions on the right were to be construed narrowly. There was no universal test for determining when speech went beyond legitimate protest so as to attract the sanction of the criminal law: the justification for invoking the criminal law was the threat to public order and context would be of the “first importance”. The court explained:

“The relevance of the threat to public order should not be taken as meaning that the risk of violence by those reacting to the protest is, without more, determinative; sometimes it may be that protesters are to be protected. That said, in striking the right balance when determining whether speech is ‘ threatening, abusive or insulting ’ , the focus on minority rights should not result in overlooking the rights of the majority.”

Even where there was an apparent case for contending that an offence had been committed under section 5 of the Public Order Act, it was still for the prosecution to establish that prosecution was a proportionate response, necessary for the preservation of public order. If the line between legitimate freedom of expression and a threat to public order had been crossed, freedom of speech would not be impaired by ruling out threatening, abusive or insulting speech.

2. ASBOs

Anti-social behaviour orders were introduced by the Crime and Disorder Act 1998. The relevant provisions of the 1998 Act were repealed by the Anti-Social Behaviour, Crime and Policing Act 2014, which entered into force on 23 March 2015 (explained in more detail below).

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.

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.

The Sentencing Guidelines Council published a guideline on “Breach of an Anti-Social Behaviour Order”. According to paragraph 6 of the guideline:

“ The main aim of sentencing for breach of a court order is to achieve the purpose of the order. Therefore, the sentence for breach of an ASBO should primarily reflect the harassment, alarm or distress involved; the fact that it constituted breach of a court order is a secondary consideration.” ( original emphasis)

The guideline explained that the sentence for breach of an ASBO had to be commensurate with the seriousness of the offence. In order properly to assess the seriousness of a breach of an ASBO, a court had to be aware of the purpose of the order and the context in which it was made. When considering the seriousness of breach of an ASBO, the court had to consider two aspects of culpability: (a) the degree to which the offender intended to breach the order; and (b) the degree to which the offender intended to cause the harm that resulted. Culpability would be higher where the offender foresaw the harm likely to be caused by the breach and would be at its highest where such harm was intended. The guideline also clarified that there were two dimensions to the harm involved in breach of an ASBO: (a) the breach might itself cause harassment, alarm or distress, which could reduce the quality of life in a community; and (b) breach of an ASBO contravened an order of the court and this could undermine public confidence in the effective administration of justice. The guideline explained that the original conduct that had led to the making of the ASBO was a relevant consideration in so far as it indicated the level of harm caused and whether this was intended. The court had to examine the prohibitions of the order itself, their necessity and their reasonableness in all the circumstances.

The guideline set out, in Annex A, a summary of the principles and other considerations relevant to the making of an anti-social behaviour order. The summary included the following principles:

“4. As the ASBO is a preventative order it is unlawful to use it as a punishment; so, when sentencing an offender, a court must not allow itself to be diverted into making an ASBO as an alternative or additional sanction.

5. The police have powers to arrest an individual for any criminal offence, and the court should not impose an order which prohibits the subject from committing an offence if it will not add significantly to the existing powers of the police to protect others from anti-social behaviour by the subject. An order must not prohibit a criminal offence merely to increase the sentence range available for that offence.

6. The terms of the order made must be precise and capable of being understood by the subject ... The prohibitions must be enforceable in the sense that they should allow a breach to be readily identified and capable of being proved.

7. An order should not impose a ‘ standard list ’ of prohibitions, but should identify and prohibit the particular type of anti-social behaviour that gives rise to the necessity of an ASBO.

8. The order must be proportionate to the legitimate aim pursued and commensurate with the risk guarded against. The court should avoid making compliance very difficult through the imposition of numerous prohibitions, and those that will cause great disruption to the subject should be considered with particular care. It is advisable to make an order for a specific period ...”

Annex B to the guideline listed aggravating and mitigating factors. Aggravating factors included that there had been previous convictions, particularly where a pattern of repeat offending was disclosed .

In R v. Curtis Braxton [2004] EWCA Crim 1374 the Court of Appeal said:

“It is undeniable that [an ASBO] represents a serious infringement upon the liberty of the applicant, not only because it represents a restriction on his right of free movement, but also because breach constitutes a criminal offence punishable with a term of up to five years ’ imprisonment, which is greater than the maximum penalty which could be imposed for offences which might otherwise be reflected within the terms of the order. It is, however, a response by Parliament to the increasing concern about the impact on the public of anti-social behaviour in its many constituent forms. It follows that this concern must be reflected in the sentences which the court imposes for breach of the order.”

In R v. Lamb [2005] EWCA Crim 3000 the Court of Appeal was confronted with an offender who, without committing crime or in fact harassing or causing distress to any member of the public, repeatedly breached an ASBO. However, the court noted, save for one occasion, none of the breaches resulted from anti-social behaviour as such. The ever longer sentences imposed had been driven only by the determination of the court to ensure that its orders were not flouted. The court continued:

19. We recognise that this is an important objective in itself. An order of the court must be obeyed. We do not accept, however, that being found in a place within the proscribed area without any evidence of associated anti-social behaviour deserves to be visited with a sentence as long as 22 months imprisonment. Where breaches do not involve harassment, alarm or distress, community penalties should be considered in order to help the offender learn to live within the terms of the ASBO to which he or she is subject. In those cases when there is no available community penalty (into which category we include this case given the appellant ’ s refusal to engage with agencies prepared to help him and the frequency of his breaches), custodial sentences which are necessary to maintain the authority of the court can be kept as short as possible ...

20. In the circumstances, we quash the sentence of 22 months imprisonment. Bearing in mind the features of the case to which we have referred ... a sentence of 2 months imprisonment will be imposed, such sentences to run consecutively ... The effective sentence therefore is one of 8 months imprisonment. We underline, however, that such short sentences are not appropriate if the breach of the ASBO itself involves harassment, alarm or distress to the public ...”

In R v. Kerby [2005] EWCA Crim 1228 the Court of Appeal said:

“9. ... to make an anti-social behaviour order in a case such as the present case, where the underlying objective was to give the court higher sentencing powers in the event of future similar offending, is not a use of the power which should normally be exercised.”

In R v. Boness [2005] EWCA Crim 2395, the Court emphasised that following a finding that an offender had acted in an anti-social manner, the test for making an ASBO was one of necessity. It explained that each separate order prohibiting a person from doing a specified thing had to be necessary to protect persons from further anti-social acts by him and that any ASBO had therefore to be tailor-made for the individual offender. It continued:

“30. The purpose of an ASBO is not to punish an offender ... This principle follows from the requirement that the order must be necessary to protect persons from further anti-social acts by him. The use of an ASBO to punish an offender is thus unlawful ...

31. It follows from the requirement that the order must be necessary to protect persons from further anti-social acts by him, that the court should not impose an order which prohibits an offender from committing a specified criminal offence if the sentence which could be passed following conviction for the offence should be a sufficient deterrent. If following conviction for the offence the offender would be liable to imprisonment then an ASBO would add nothing other than to increase the sentence if the sentence for the offence is less than 5 years ’ imprisonment. But if the offender is not going to be deterred from committing the offence by a sentence of imprisonment for that offence, the ASBO is not likely (it may be thought) further to deter and is therefore not necessary.

33. It has been held, rightly in our view, that an ASBO should not be used merely to increase the sentence of imprisonment which an offender is liable to receive ...”

In R v. H, Stevens and Lovegrove [2006] EWCA Crim 255, the Court of Appeal reviewed the authorities and said:

26. The principle to be derived from the legislation and the authorities can, in our judgment, be readily identified. An Anti-Social Behaviour Order requires specific statutory criteria to be established. In brief, the order is intended to provide protection against harassment, alarm or distress, caused by anti-social behaviour . It is obvious that when passing sentence for breach of an anti-social behaviour order, the court is sentencing for the offence of being in breach of that order. Plainly, any sentence, in any court, must be proportionate or, to use the word with which all sentencers are familiar, ‘ commensurate ’ . Therefore, if the conduct which constitutes the breach of the Anti-Social Behaviour Order is also a distinct criminal offence, and the maximum sentence for the offence is limited to, say, 6 months ’ imprisonment, that is a feature to be borne in mind by the sentencing court in the interests of proportionality.

27. It cannot, however, be right that the court ’ s power is thereupon limited to the 6 months maximum imprisonment for the distinct criminal offence. That would treat the breach as if it were a stand-alone offence, which at the time when it was committed did not amount to a breach of the court order. In reality, the breach is a distinct offence on its own right, created by statute, punishable by up to 5 years ’ imprisonment. We therefore reject the submission that it was wrong in principle for the judge to have imposed a custodial sentence, where, for the instant offence of drunkenness, the maximum sentence would have been a fine ...”

The court clarified that it was not suggesting that an ASBO should be imposed as a kind of device to circumvent maximum penalties which were believed to be too modest, citing R v. Kerby and R v. Boness (see above).

In a written answer of 10 November 2009 (Hansard, 10 November 2009, Column 330W), the Secretary of State for the Home Department provided a table showing the number of ASBOs issued in England and the number of ASBOs breached in each year during the period 2005 to 2007. The table showed that in 2005, 3,907 ASBOs were issued and 2,098 ASBOs were breached. In 2006, 2,507 ASBOs were issued and 1,740 ASBOs were breached. In 2007, 2,136 ASBOs were issued and 1,502 ASBOs were breached.

The Anti-Social Behaviour, Crime and Policing Act 2014 repealed the legislation governing ASBOS and replaced ASBOs with civil injunctions and criminal behaviour orders.

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.

C. Relevant Council of Europe materials

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. The Commissioner explained (at paragraph 110 of his report):

“At first sight, indeed, such orders look rather like personalised penal codes, where non-criminal behaviour becomes criminal for individuals who have incurred the wrath of the community.”

The Commissioner did not question the fact that low-level crime and anti-social behaviour constituted a serious nuisance to ordinary members of the community and that the State had an obligation to protect society from the “rogue behaviour of hoodlums and vandals”. He accepted that well ‑ drafted orders, prohibiting clearly proven and seriously vexatious behaviour, accompanied by appropriate assistance and supervision, might well usefully protect citizens from activity that gravely prejudiced their welfare but fell outside the scope of effective criminal prosecution. However, in his view many ASBOs appeared to fail to satisfy these requirements. He noted the increase in the number of ASBOs imposed, from 200 in 1999-2000 to 2,600 in the first nine months of 2004. The ease of obtaining ASBOs was also demonstrated by the statistics available: of the 3,069 ASBO applications made between 1 April 1999 and 30 June 2004, only 42 were turned down by the courts. He said (at paragraph 113):

“It is to be hoped that this burst of ASBO-mania will quieten down, and that its use will in time be limited to appropriate and serious cases, where no other means of intervention might succeed. Responsible guidelines and realistic rhetoric is required, however, for this to happen.”

The Commissioner noted that, despite being a civil order, the standard of proof applicable to the determination of anti-social behaviour was the criminal-standard proof. However, since the proceedings were civil for the purposes of domestic law, hearsay evidence was admissible. The Commissioner observed (at paragraphs 115-116):

“For my part, I find the combination of a criminal burden of proof with civil rules of evidence rather hard to square; hearsay evidence and the testimony of police officers or ‘ professional witnesses ’ do not seem to me to be capable of proving alleged behaviour beyond reasonable doubt. The rationale behind the admissibility of such evidence is stated to be that witnesses may be afraid to testify in respect of anti-social behaviour they have themselves been victims of for fear of future reprisals – suggesting that activity causing serious and actual harassment is what is meant to be targeted. It is unfortunate, therefore, that ASBO proceedings are drawn up in such a way as to permit a range of behaviour that is merely disapproved of (even by only very few people) to be brought with their scope. My attention has been drawn to Home Office Guidelines outlining both the kind of evidence required and the kind of behaviour that is meant to be targeted. It seems to me that they both unduly encourage the use of professional witnesses and hearsay evidence and fail to emphasise the seriousness of the nuisance targeted.

Proper evidential requirements and a sensible control of what actually constitutes anti-social behaviour are essential as ASBOs can bring their subjects, literally, a misplaced step away from the criminal justice system. Indeed, the ASBO blurs the boundaries between the civil and criminal justice systems and great care must consequently be taken to ensure that the rights to fair trial and liberty are respected.”

The Commissioner emphasised that ASBO breaches were punishable by up to five years in prison, which he considered to be “an extremely heavy punishment for behaviour that is not recognisably criminal”. He further noted that forty two per cent of all ASBOs up to December 2003 were breached and that fifty-five per cent of these breaches were punished with a custodial sentence. He continued (at paragraph 116)

“It seems to me that detention following the breach of an ASBO drawn up in such a way as to make its breach almost inevitable (such as not entering a demarcated zone near one ’ s residence), and which was applied on the basis of hearsay evidence in respect of non-criminal behaviour, would almost certainly constitute a violation of Article 5 of the ECHR. Such cases would appear to occur and, in so far as they do, the functioning of ASBOs needs to be addressed.”

COMPLAINT

The applicant alleges that the imposition of the ASBO breached his rights under Article 10 of the Convention. He argues 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. He further argues that it was neither necessary nor proportionate since it conferred no further powers on the police to deal with his behaviour and constituted a blanket prohibition on public nudity, removing any police and prosecutorial discretion. The consequence of the imposition of the ASBO was automatic prosecution and imprisonment indefinitely and in conditions akin to solitary confinement. This was disproportionate to the prevention of a low-level, non- imprisonable public order offence. Further, the terms of the order were wide and ambiguous, so that it was impossible to enforce it consistently within the prison system.

QUESTION TO THE PARTIES

Did the imposition of the ASBO constitute an unjustified interference with the applicant ’ s right to freedom of expression under Article 10 of the Convention (see, for example, Murat Vural v. Turkey , no. 9540/07, 21 October 2014; and Gough v. the United Kingdom , no. 49327/11, 28 October 2014)?