Oblique intent

Why the name? Well criminal law afficionados will recognise the phrase 'oblique intent' as referring to a problem of mens rea:can a person who intends to do x (such as setting fire to a building to scare the occupants) also be said to have an intention to kill if one of the occupants dies? This is a problem that has consumed an inordinate amount of time in the appeal courts and in the legal journals, and can be taken to represent a certain kind of approach to legal theory. My approach is intended to be more oblique to this mainstream approach, and thus to raise different kinds of questions and issues. Hence the name.

Monday, 17 September 2012

On naked rambling

The latest step in the long saga of the 'naked rambler' was played out in Scotland last week, as Stephen Gough was sentenced to five months in prison - around his twentieth such sentence.

For those unfamiliar with the story the basic facts are these. Former marine, Stephen Gough, has become known as the 'naked rambler' for his desire to hike through Britain without wearing any clothes. He completed a Land's End to John O'Groats walk in 2003-4, but his attempt to repeat this, which began in 2006 has been dogged by controversy. He was arrested at Edinburgh Airport, after removing his clothes on the flight and refusing to put them on again, and has subsequently spent most of the past six years in prison, as each time he has been released he has attempted to walk without his clothes on and each time has been rearrested and charged with the crime of breach of the peace. He has been kept in near solitary confinement in prison, because of his refusal to wear clothes, and has also been charged with contempt of court on several occasions for his refusal to wear clothes in the courtroom.

And so last week Gough was once again charged with breach of the peace, after complaints from members of the public as he tried to walk near to a children's playground in Dunfermline, and on refusing to either wear clothes in court or to submit to a psychiatric assessment was sentenced once again to a period of five months in prison.

It seems clear that this does not reflect well on anyone. Whatever your views on the acceptability or even the advisability of naked rambling, it is surely not desirable to keep on sending to Gough to prison, and little is being accomplished by this protracted stand-off. This seems to have been recognised by the Scottish authorities as, according to reports last week, they apparently offered him either a lift out of Scotland or suggested that he might change his route to avoid populated areas in an attempt to break the cycle of release and re-arrest. On Gough's side, his seeming inflexibility has drawn criticism from some members of the groups who supported his campaign, and there have to be legitimate concerns about the impact of solitary confinement on his mental health. Either way, without something changing it seems likely that the whole situation will play out once again in a few months time once Gough is released from prison.

So what should be done here? One of the proposals of the Scottish police is admirably pragmatic - a lift out of Scotland, so that he can become someone else's problem. And indeed this might be an end to the problem. It is possible that Scottish society is more prudish or disapproving of public nudity than elsewhere in the UK. And there is no direct counterpart in English law to the Scottish crime of breach of the peace, which has been notorious for its flexibility and for its use by the courts as a means of maintaining community moral standards, and so it might be harder to charge him with a criminal offence merely for public nudity.

The arguments here tend to be reduced to questions of individual freedom versus (repressive) public morality, or questions of public versus private morality. This indeed is how Gough seems to want to frame the question himself, presenting himself on his website and in interviews as someone who seeks only to be himself, presenting an inner truth, and is fighting against oppressive social conventions. And there may be room for debate about whether members of the public were generally alarmed or distressed by the sight of a naked man, or whether this was an assertion by the police to obtain a conviction. But the matter is surely more complex than this, as our ideas about what is disgusting or offensive are not simply black and white - liberty versus repression - but depend on complex social expectations of each other and the appropriateness of certain conduct to certain places.

One of the most acute analyses of how conventions about public behaviour work was carried out by the American sociologist, Erving Goffman, in the 1960s. Goffman argued that public conduct is governed by conventions about how one interacts with strangers – not making eye contact, avoiding physical contact, not talking too loudly, and so on – and that conduct which breaches these conventions may disturb both particular individuals and the social order itself. He thus concluded that social relations, and in particular public interaction, depend on a minimal demand to make oneself ‘disattendable’ by not making claims on the fears or concerns of others. This, crucially, demands not only a respect for others but also on the setting of the interaction. That is to say that it does not make sense only to talk of private and public space, but it is also important to recognise that there are different kinds of public space. There are thus two factors at work here. First, it is necessary to recognise the negotiated nature of public interaction, in which as individuals we need to tailor our conduct to the expectations and fears of others - and one of the roles of the criminal law is to police the boundary of the acceptable and to intervene when conduct becomes threatening. This is not to say that such conventions cannot, or should not be challenged, but that simply asserting that something is natural is not likely to be an effective mode of challenge. There may be lots of things that are natural but that we would not tolerate or permit in public places. Second, this is situation and space dependent - what is acceptable in one setting or space may not be so in another. There are certain kinds of social situations where one might expect to see naked bodies, and others where such conduct would be challenging or a surprise. And likewise, naked rambling might be non-threatening (if surprising) on the remote moors or mountains of Scotland, but more threatening by a school playground or outside a church on a Sunday morning.

All of which can tell us something about why Gough is in the situation he is in, and perhaps also something about the naivete of his arguments. It is probably also the case that it tells us something about the criminal law. It may be justifiable for the law to intervene, but it is only really justified where there is some real threat to others in public places. A mere threat to the dignity of the law should not be enough.

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