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ECHR Case Part Three Continued
(ii) The Court’s assessment
(α) General principles
164. Freedom of expression constitutes one of the essential foundations of a democratic society and one of the basic conditions for its progress and for each individual’s self-
165. This freedom is subject to exceptions pursuant to Article 10 § 2, which must be construed strictly: the need for any restrictions must be established convincingly. The adjective “necessary”, within the meaning of Article 10 § 2, implies the existence of a “pressing social need”. The Contracting States have a certain margin of appreciation in assessing whether such a need exists, but it goes hand in hand with European supervision, embracing both the legislation and the decisions applying it, even those given by an independent court. The Court is therefore empowered to give the final ruling on whether a restriction is reconcilable with freedom of expression as protected by Article 10 (see Mouvement raëlien suisse v. Switzerland [GC], no.16354/06, § 48, 13 July 2012; and Animal Defenders International, cited above, § 100).
166. The breadth of the margin of appreciation to be afforded depends on a number of factors. The national authorities enjoy a wide margin of appreciation in matters of morals, since there is no uniform European conception of morals. Accordingly State authorities are in principle better placed than the international judge to give an opinion on the exact content of the requirements of morals as well as on the necessity of measures intended to meet them (see Handyside, cited above, § 48; andOpen Door and Dublin Well Woman v. Ireland, 29 October 1992, § 68, Series A no. 246‑A). A narrow margin of appreciation applies in respect of debates on questions of public interest and the freedom of expression enjoyed by the press whenexercising its vital role as a public watchdog (Animal Defenders International, cited above, § 102). While they do not benefit from the special protection afforded to the press, even small and informal campaign groups must be able to carry on their activities effectively. There exists a strong public interest in enabling such groups and individuals, outside the mainstream, to contribute to the public debate by disseminating information and ideas on matters of general public interest such as health and the environment (Steel and Morris v. the United Kingdom, no. 68416/01, § 89, ECHR 2005-
167. It must also be borne in mind that, by virtue of the express terms of paragraph 2 of Article 10, whoever exercises his freedom of expression undertakes duties and responsibilities, the scope of which depends on his situation and the technical means he uses. These duties and responsibilities must be taken into account in the Court’s assessment of the necessity of the measure (see Handyside, cited above, § 49; and Hachette Filipacchi Associés v. France, no. 71111/01, § 42, 14 June 2007). The Court has previously found that, in the context of religious opinions and beliefs, such duties and responsibilities may include an obligation to avoid as far as possible expressions that are gratuitously offensive to others and thus an infringement of their rights, and which therefore do not contribute to any form of public debate capable of furthering progress in human affairs. This being so, it said, it may be considered necessary in certain democratic societies to sanction or even prevent improper attacks on objects of religious veneration, provided always that the penalty imposed be proportionate to the legitimate aim pursued (see Otto-
168. However, although individual interests must on occasion be subordinated to those of a group, democracy does not simply mean that the views of a majority must always prevail: a balance must be achieved which ensures the fair and proper treatment of people from minorities and avoids any abuse of a dominant position (see Chassagnou and Others v. France [GC], nos. 25088/94, 28331/95 and 28443/95, § 112, ECHR 1999-
169. Finally, in assessing the proportionality of a restriction on freedom of expression, the nature and severity of the penalties imposed are factors to be taken into account (see Ceylan v. Turkey [GC], no. 23556/94, § 37, ECHR 1999‑IV;Tammer v. Estonia, no. 41205/98, § 69, ECHR 2001‑I; and Skałka v. Poland, no. 43425/98, § 38, 27 May 2003).
170. The Court will, in light of all of the above considerations, assess whether the reasons relied on by the competent national authorities, notably the courts, to justify the measures were both “relevant” and “sufficient” and whether the resultant interference was proportionate to the legitimate aim pursued. In this respect, the Court reiterates that it is not its task to take the place of the national authorities but it must review, in the light of the case as a whole, those authorities’ decisions taken pursuant to their margin of appreciation (Animal Defenders International, cited above, § 105). In conducting its review, the Court has to satisfy itself that the national authorities applied standards which were in conformity with the principles embodied in Article 10 and that they based their decisions on an acceptable assessment of the relevant facts (see Donaldson, cited above, 26).
(β) Application of the general principles to the facts of the case
171. The present case concerns the applicant’s 2011 arrest, prosecution, conviction and imprisonment for the offence of breach of the peace on account of his appearing naked in public, in the context of a pattern of previous such measures.
172. The Court is prepared to accept that the extent to which, and the circumstances in which, public nudity is acceptable in a modern society is a matter of public interest. The fact that the applicant’s views on public nudity are shared by very few people is not, of itself, conclusive of the issue now before the Court (see, mutatis mutandis, Young, James and Webster v. the United Kingdom, 13 August 1981, § 63, Series A no. 44). As an individual intent on achieving greater acceptance of public nudity, the applicant is entitled to seek to initiate such a debate and there is a public interest in allowing him to do so. However, the issue of public nudity also raises moral and public-
173. Turning to examine the approach to manifestations of public nudity in Scotland, the police and the Crown Office had discretion in deciding how to respond to such incidents, as demonstrated by the applicant’s own case. The measures taken against him were not the result of any blanket prohibition: each incident was considered on its facts and in light of the applicant’s own history of offending. Following his early arrests, he was generally released with no further action being pursued (see paragraphs 8 to 31 above). On the occasions when he was prosecuted, the courts demonstrated a similarly individualised approach. The applicant was only convicted after it had established at trial, on the basis of evidence as to his conduct in a particularly public place, that the offence of breach of the peace had been made out, namely that he had caused alarm to other people and serious disturbance to the community (see paragraph 101 above) On one occasion the Sheriff found on the prosecution evidence that there was no case to answer and three times the applicant was found not guilty, either following acceptance of a not guilty plea or after a trial of the facts (see paragraphs 19, 24, 36 and 48 above). Following the applicant’s 2011 trial, at which he also appeared naked (see paragraph 76 above), the Sheriff was satisfied that the applicant’s appearance naked on a public road outside HMP Perth was sufficiently severe to cause alarm to ordinary people and serious disturbance to the community (see paragraph
80 above). Although the applicant could have avoided arrest outside HMP Perth by complying with the police officers’ request that he put on clothes, he refused to do so (see paragraph 75 above). The Sheriff commented that had the applicant appeared naked in a more remote place or in a place where fewer people would be congregated, rather than “in or near one of the main streets of a busy town”, he might have reached a different conclusion (see paragraph
174. As to the severity of the sanctions, it is noteworthy that after his early convictions the applicant was either admonished (see paragraph 10 above) or received short sentences of imprisonment of between two weeks and three months (see, for example, paragraphs 11, 16 and 31 above). It was only after a number of convictions for public nudity that the courts began to impose more substantial custodial sentences on the applicant. Even then, efforts were made to reach a less severe penalty. When sentencing the applicant for breach of the peace in 2009, the Sheriff explored the possibility of a non-
175. It is true that by the time that the 2011 sentence was imposed, the applicant had already served a cumulative total of five years and three months in detention since 18 May 2006, on remand pending fifteen criminal prosecutions and post-
176. The applicant’s case is troubling, since his intransigence has led to his spending a substantial period of time in prison for what is – in itself – usually a relatively trivial offence (see paragraph 100 above). However, the applicant’s imprisonment is the consequence of his repeated violation of the criminal law in full knowledge of the consequences, through conduct which he knew full well not only goes against the standards of accepted public behaviour in any modern democratic society but also is liable to be alarming and morally and otherwise offensive to other, unwarned members of the public going about their ordinary business. Having regard to the considerations set out above and to the wide margin of appreciation, the Court finds that the reasons for the measures adopted by the police, the prosecuting authorities and the courts, and in particular those adopted in respect of his arrest in 2011, were “relevant and sufficient” and that the measures met a pressing social need in response to repeated anti-
D. The alleged violation of Article 8 of the Convention
177. Article 8 of the Convention provides:
“1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-
1. The parties’ submissions
178. The applicant contended that restrictions pertaining to a person’s mode of personal presentation were a function of personal identity and an exercise of personal autonomy. As such, any restrictions or the imposition of sanctions to compel a particular mode of personal presentation constituted an interference with the right to respect for private life.
179. He argued that his criminal prosecution for public nudity was not “in accordance with the law” and that his arrest, prosecution, conviction and imprisonment were not in pursuit of any of the stated aims listed in Article 8 § 2. He did not elaborate on these submissions. Relying on his submissions in respect of Article 10, he invited the Court to find a violation of Article 8 of the Convention.
180. The Government argued that the rights guaranteed by Article 8 did not extend to matters concerning personal appearance; nor did they extend to acts done publicly or in a sense done for a public purpose. They emphasised that Article 8 did not cover every opportunity to establish and develop relationships (citing Friend and Others v. the United Kingdom (dec.), no. 16072/06, 24 November 2009). They further contended that Article 8 did not have the effect of protecting conduct which would otherwise be considered criminal. Accordingly, they concluded that the criminal law of breach of the peace did not impinge on the sphere private to the applicant.
181. In the event that Article 8 was found to be applicable, the Government contended that the interference was in accordance with the law and pursued the aims of prevention of breach of the peace or of crime and disorder and the protection of the applicant. They maintained that the measures taken against the applicant were both necessary and proportionate and referred again to the wide margin of appreciation applicable in the field of morals.
2. The Court’s assessment
182. The concept of “private life” is broad in scope and not susceptible of exhaustive definition. In general terms, it secures to the individual a sphere within which he can freely pursue the development and fulfilment of his personality (see Sidabras and Džiautas v. Lithuania, nos. 55480/00 and 59330/00, § 43, ECHR 2004‑VIII; and Shtukaturov v. Russia, no. 44009/05, § 83, ECHR 2008). In S.A.S. v. France [GC], no. 43835/11, § 107, 1 July 2014, the Grand Chamber stated that personal choices as to an individual’s desired appearance, whether in public or in private places, relate to the expression of his personality and thus fall within the notion of private life. The notion of private life also protects a right to identity and to establish and develop relationships with other human beings and the outside world. There is, therefore, a zone of interaction of a person with others, even in a public context, which may fall within the scope of “private life” (see P.G. and J.H. v. the United Kingdom, no.44787/98, § 56, ECHR 2001-
183. On the other hand, not every activity that a person might seek to engage in with other human beings in order to establish and develop relationships will be protected by Article 8: it will not, for example, protect interpersonal relations of such broad and indeterminate scope that there can be no conceivable direct link between the action or inaction of a State and a person’s private life (see Friend and Others, cited above, § 41). However, the fact that behaviour is prohibited by the criminal law is not sufficient to bring it outside the scope of “private life” (see A.D.T. v. the United Kingdom, no. 35765/97, § 23, ECHR 2000‑IX; and Pay v. the United Kingdom (dec.). no. 32792/05, 16 September 2003). Finally, the notion of personal autonomy is an important principle underlying the interpretation of the guarantee afforded by Article 8, (see Pretty v. the United Kingdom, no. 2346/02, § 61, ECHR 2002‑III; and Gillan and Quinton, cited above, § 61).
184. The applicant, by deliberately and consistently appearing naked in very public places such as urban centres, courtrooms and the communal parts of prisons, was intent on making a public statement of his belief in the inoffensive nature of the human body. The Court has found that his conduct amounted to a form of expression protected by Article 10 (see paragraph 150). It has previously indicated that a distinction must be drawn between carrying out an activity for personal fulfilment and carrying out the same activity for a public purpose, where one cannot be said to be acting for personal fulfilment alone (see Friend and Others, cited above, § 42). Furthermore, as concerns in particular an individual’s personal choices as to his desired appearance in public (as referred to in S.A.S., cited above), on analogy with the applicability of Article 9 of the Convention to religious beliefs (text of Article 9 cited below at paragraph 185), Article 8 cannot be taken to protect every conceivable personal choice in that domain: there must presumably be a de minimis level of seriousness as to the choice of desired appearance in question (see, mutatis mutandis, in relation to Article 9, Bayatyan, cited above, § 110; and Eweida and Others v. the United Kingdom, no. 48420/10, § 81, ECHR 2013 (extracts)). Whether the requisite level of seriousness has been reached in relation to the applicant’s choice to appear fully naked on all occasions in all public places without distinction may be doubted, having regard to the absence of support for such a choice in any known democratic society in the world. In any event, however, even if Article 8 were to be taken to be applicable to the circumstances of the present case, the Court is satisfied that those circumstances are not such as to disclose a violation of that provision on the part of the public authorities in Scotland. In sum, any interference with the applicant’s right to respect for his private life was justified under Article 8 § 2 for essentially the same reasons given by the Court in the context of its analysis of the applicant’s complaint under Article 10 of the Convention (see paragraphs 171-
E. The alleged violation of Article 9 of the Convention
185. Article 9 of the Convention provides:
“1. Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance.
2. Freedom to manifest one’s religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.”
186. The applicant made no submissions on the applicability of Article 9 of the Convention.
187. The Government noted that the applicant had not elaborated on his claim under Article 9 of the Convention and contended in particular that he had not presented his views as a “belief” which attracted Article 9 protection. They challenged whether his views satisfied the requirements of cogency and seriousness. Even if there was a belief, there was no manifestation attracting the protection of Article 9.
188. The applicant failed to make submissions as to the applicability of Article 9 to the case. On the basis of the material before it, the Court finds that he has not shown that his belief met the necessary requirements of cogency, seriousness, cohesion and importance to fall within the scope of Article 9 of the Convention (see Bayatyan, cited above, § 110; and Eweida and Others, cited above, § 81). This complaint must accordingly be declared inadmissible as incompatible ratione materiaewith the provisions of the Convention pursuant to Article 35 §§ 3 (a) and 4.
F. Other complaints
189. The applicant also complained under Article 6 § 3 (c) that he was not permitted to attend an adjustments hearing in respect of his stated case in October 2009. He further invoked Articles 13 and 14 and Articles 2 and 4 of Protocol No. 7. On 20 May 2013 he invoked for the first time Article 3, arguing that the sentences imposed on him were individually and cumulatively grossly disproportionate.
190. Having regard to all the material in its possession and in so far as these complaints fall within the Court’s competence, it finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. It follows that this part of the application must be rejected as manifestly ill-
II. TREATMENT IN DETENTION
191. The applicant complained of a violation of Articles 3, 8, 9, 10, 13 and 14 as a result of his treatment while in detention, referring to: (i) the failure to provide dental and optical treatment; (ii) the failure to provide medical treatment regarding a lump on his testicle; (iii) his segregation from other prisoners and the failure to allow him to exercise; and (iv) the denial of visits from family and friends.
A. Compliance with Article 35 § 1 of the Convention
1. The parties’ submissions
(a) The Government
192. The Government contested the admissibility of the applicant’s complaint concerning his treatment in detention. They contended that he had on 12 April 2012 impermissibly extended his original complaint to include matters relating to his detention. They further argued that there was no evidence of any continuing conduct such as to elide the application of the six-
193. The Government also submitted that the applicant had failed to exhaust domestic remedies. The Prison Rules embodied and promoted respect for some of the very Convention rights which the applicant claimed had been breached. There was a clear and accessible internal procedure for making complaints. If he remained dissatisfied, he could have sought judicial review. However, at no point did the applicant make a claim for damages in respect of the alleged Convention violations, either by way of judicial review proceedings or through an ordinary action in the Sheriff Court. There had been successful judicial review actions brought by prisoners about the features of the very regime of segregation to which the applicant was subjected and about conditions of detention. Judicial review was a flexible and quick procedure in which the applicant could have advanced all claims for a breach of his Convention rights and sought damages.
194. They considered the applicant’s reasons for not pursuing a judicial review claim (see paragraphs 195-
(b) The applicant
195. The applicant explained that he had pursued his complaints within the SPS internal complaints procedure on numerous occasions. He had also applied to the Ombudsman more than once. His complaints were rejected. He had sought legal representation to challenge his detention in judicial review proceedings but was unable to do so. He had contacted solicitors on a list provided to him by the prison authorities but was unsuccessful. Pursuant to rules on legal advice and assistance, to which the Government referred, the maximum fee for solicitors was GBP 35. This was often insufficient to cover the basis expenses of a prison visit, let alone remuneration for the legal advice provided.
196. As for the possibility of commencing judicial review proceedings, in person, the applicant emphasised that this would have required knowledge of a specialised area of Scots administrative law and procedure as well as an ability to sift and analyse documents and evidence. The applicant, as a serving prisoner, had limited or no access to the kind of legal, administrative or technical resources necessary for this task. Nor did he have the legal expertise or knowledge required. He could not, he argued, be expected to know all the finer points of judicial proceedings and the absence of legal assistance meant that he was not in a position to pursue a remedy which might have been theoretically open to him.
2. The Court’s assessment
197. By letter dated 8 February 2012 the applicant first complained to this Court about his treatment while in prison. Relevant prior complaints had been rejected by the domestic authorities less than six months before the date on which he first complained about his conditions of detention. The applicant has therefore lodged his complaint within the six months provided for in Article 35 § 1 of the Convention.
198. The applicant did not dispute that judicial review proceedings were in principle effective and would have offered reasonable prospects of success in respect of his complaints concerning his treatment in detention. The Government have therefore satisfied the burden of proof of showing the availability of a remedy which was an effective one available in theory and in practice at the relevant time (see paragraph 139 above).
199. The applicant must accordingly establish that judicial review proceedings were inadequate and ineffective in the particular circumstances of his case or that there existed special circumstances absolving him or her from the requirement to exhaust (see paragraph 139 above). The Government did not contest the applicant’s submission that he sought assistance from the Law Society of Scotland and subsequently contacted a number of solicitors, all of whom declined to act for him. It is therefore clear that the applicant took some steps to pursue domestic remedies which were available. However, it is noteworthy that on 28 September 2011, only two months after the applicant had lodged his case with this Court while in prison by the submission of a letter of introduction which he had himself prepared, Bindmans solicitors contacted the Court to confirm that they had been recently instructed by the applicant to represent him. The applicant has not explained how he was successful in obtaining representation for his case before this Court, having been unsuccessful in obtaining Scottish legal assistance for judicial review proceedings in the Court of Session. Nor has he explained why Bindmans were unable to arrange for the commencement of judicial review proceedings on his behalf at that time. Indeed, by 8 February 2012, when he first informed the Court of his complaints about his treatment in detention, he had already enjoyed legal representation from Bindmans for over four months.
200. In the circumstances the Court concludes that the applicant has not discharged the burden upon him to demonstrate that the remedy offered by judicial review was ineffective or that there were special circumstances which exempted him from pursuing it. He has accordingly failed to exhaust domestic remedies in respect of his complaint about his treatment in detention. It must therefore be rejected pursuant to Article 35 §§ 1 and 4.
FOR THESE REASONS, THE COURT, UNANIMOUSLY,
1. Declares the complaints under Articles 8 and 10 concerning the applicant’s arrest, prosecution, conviction and imprisonment admissible and the remainder of the application inadmissible;
2. Holds that there has been no violation of Article 10 of the Convention;
3. Holds that there has been no violation of Article 8 of the Convention.
Done in English, and notified in writing on 28 October 2014, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Fatoş Aracı Ineta Ziemele
Deputy Registrar President
Scottish Law Courts Judgement on Stephen Peter Gough; (Only one record found online)
For the Scottish Law Courts Judgement on Stephen Peter Gough click Here
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