Anti-Social Behaviour, Crime and Policing Bill

Written evidence from British Naturism (ASB 01)

Executive Summary

1) Naturism is practised by a substantial portion of the population, often in family groups with members of all ages. The number of naturists has almost quadrupled in ten years to nearly four million. Naturism is, and always has been, legal. Naturism is uncontroversial to 87% of the population, with only 9% opposed (Ipsos MORI 2011), yet it could be prohibited under any one of this bills anti-social behaviour provisions. It would be entirely wrong to enact this bill in its current vague form, with thresholds set so low that almost any activity could be prohibited. This is compounded by inadequate consultation requirements and unjustifiable restrictions on challenge. This can only lead to a grossly over regulated, repressed, and far from free society. We believe that without additional safeguards these powers will be abused, and that, combined with the extreme difficulty in challenging such abuses, will lead to increased alienation and disaffection of minority groups. The bill as presently worded will result in Human Rights abuses. We respectfully request that this bill be amended so that harmless practises such as Naturism cannot be prohibited as an unintended consequence. We would like to commend to the committee, the dictum of Roy Jenkins when home secretary :-

"If you want to stop people doing something which they enjoy doing, which they believe is within their liberty of action, then you've got to have an overwhelming social case. If you're going to stop them, you shouldn't do it out of prejudice, or out of habit, but only because you can show that definite social evil results".

General Submission

2) British Naturism is the nationally and internationally recognised representative body for Naturism in the UK.

3) According to a GfK NOP survey in 2001, there were just over a million people in the UK who described themselves as naturists. An Ipsos Mori survey in 2011 found that had increased to 6% of the population (around 3.7 million people), and many more practised some aspect of Naturism, for example, 10% of the population (about 6.2 million people) have swum naked. The survey also showed that 82% of the population considered that naturists are harmless, 5% thought them sensible, 9% thought Naturism disgusting, and 1% wrongly thought it illegal. Public acceptance of nudity is now such that there are annual "World Naked Bike Rides" in some of our major cities and towns, with enthusiastic crowds lining the streets in places. The atmosphere is overwhelmingly positive but even so one senior police officer has made it clear that if he had his way the event would be prohibited in his area. (The WNBR is a protest movement, not a naturist event). If committee members would like to see this acceptance for themselves, there are many videos of the WNBR on YouTube.

4) Naturism has been practised in this country since time immemorial. Parliament has been careful in the past to protect the interests of naturists. When attention was drawn to the threat posed to Naturism by s.66 of the sexual offences act 2003, the government brought in amendments to resolve the problem. In 2007, at the request of British Naturism, Parliament repealed powers to make bye-laws to regulate the costume required for bathing.

5) We know from bitter experience that if a power can be abused against naturists then it will be. Despite the careful wording of s.66 SOA, there have been many prosecutions under it for simple nudity, with naturists having to endure long stressful delays before being cleared, sometimes only on appeal.

6) We understand the government’s desire to strengthen local democracy by giving councils increased powers. Nonetheless we are very worried by councils having powers to prohibit Naturism. Councils receive complaints about Naturism from a smallish but vocal minority of residents in some places where there is a naturist beach nearby. Some councils react without regard to the general attitude of the public towards Naturism, as illustrated in 2) above. They react to complaints in isolation, as if they represented general or majority opinion, by seeking to impose bans without any consultation and without any consideration of alternatives.

7) Example. Gwynedd council, reacting to complaints from villagers, sought a bye-law to prohibit nudity on the whole of a beach. This was despite the beach being a mile from the village and the part used by naturists in a little used area a mile from an access point. The home office declined a bye-law. The council ignored this and put up signs purporting to restrict Naturism to a smaller portion of the beach, prohibiting "sun bathing in the dunes", and stating that disobedience would result in prosecution. This was accompanied by the institution of highly intrusive patrolling of the naturist area by council vehicles, with staff armed with megaphones ordering people out of the dunes, and even on one occasion breaking up a cricket game. The police co-operated in this harassment by instituting vehicular patrols which paid attention only to the naturist part of the beach, and by diverting the police helicopter to fly at very low altitude up and down the naturist area. From a haven of tranquillity, the beach became a very edgy and unsettled place. Peak season naturist use of the beach fell from an (estimated) 1,000 plus, to 350 (counted). Thankfully this harassment has ceased, but numbers have not recovered. The existence of this "official" beach has also been used as an excuse to order naturists off other traditional clothes optional beaches in the county. Has anyone stopped to consider the loss to local economies in camp and caravan site fees, shop takings, and the like?

8) We believe that extra-legal and anti-social behaviour such as that of Gwynedd council gives us good reason to oppose local authorities having the powers in this bill, without additional safeguards. Sadly, Gwynedd’s attitude is not unique. Whilst some councils do seek constructive solutions, others have refused to even discuss how best to manage beach Naturism, and the result has been continuing disaffection between objectors and councils, or naturists and councils, or both.

9) There is considerable prejudice and myth concerning nudity. We strongly advocate evidence based policy making, not evidence of prejudice, but objective evidence of harm and benefit. It is extremely difficult to counter prejudice, and to present the evidence, if local authorities will not enter into a meaningful dialogue. There must be a requirement in this bill to consult with the appropriate representative organisations, locally and nationally, both to prevent problems arising and if they do occur to deal with them effectively. However, we stress that consultation can in no way remove the need to provide strong safeguards in the bill. Beaches are national assets and their management is not purely a local matter. The failure to require consultation with appropriate user groups is incomprehensible. Where co-operation has been possible problems have largely been eliminated. For example earlier this year the National Trust announced that due to the success of the co-operative approach at Studland beach the naturist area is being extended.

10) As defra wrote in their 2003 publication "Managing coastal activities: a guide for local authorities":

The benefits of consulting widely include:

· improving the … [list omitted for brevity]

Local knowledge should be used to identify people and groups who are likely to be affected by a scheme. It is sensible to anticipate from where interest is likely to come, during this stage and to include the appropriate people, organisations or groups of stake holders so that they can raise concerns at the earliest stages of plan preparation. This should help to avoid undue delay in later stages and increase the likelihood of success.

That advice remains just as valid today but in our experience few local authorities pay it any heed.

11) If harm is caused by a misapprehension then that should be dealt with by reassurance and education, not by criminalising the object of the misapprehension. Any other approach condones and encourages prejudice.

12) Every one of the bill’s anti-social behaviour provisions could be used against naturists. Naturists could be subjected to injunctions, or the various notices/orders used to prohibit Naturism in the places where Naturism is commonly practised – beaches, areas of open access land such as moorland or forests; and even naturists own gardens in some circumstances.

13) We do not believe, in view of the facts set out in 2) & 3) above that Parliament would suddenly set its face against Naturism. We feel sure that the threat to Naturism is an unintended consequence of the very low thresholds of behaviour upon which the injunction, notices, and orders in the bill can be brought into effect. Taking injunctions for prevention of nuisance or annoyance (IPNAs) as an example, the definition of anti-social behaviour as "conduct capable of causing nuisance or annoyance to any person" is hardly a threshold at all. Somewhere in the country there will be a person who is annoyed by almost any piece of conduct one can think of, or considers it a nuisance. There are definitely some people who consider Naturism annoying. Our members encounter them occasionally. Such a low threshold invites inappropriate use of the power.

14) We fully appreciate that there is a need to protect people, especially the vulnerable, from low level anti-social behaviour. However, faced with the apparent conflict between the need to have low thresholds to protect the vulnerable, and the need to expect reasonably robust and tolerant attitudes from people in general, without which an open and free society cannot function; they have opted for the former at the expense of the latter. In this respect the bill is a failure.

15) We submit that it is entirely possible to resolve such conflicts. Taking the example of IPNAs again, if the definition had two elements, one with a low threshold for conduct directed at a vulnerable person, and another with a much higher threshold for conduct affecting the public in general, we would have fewer concerns.

16) Police dispersal powers are clearly essential, but there must be a sensible threshold and there must be a sensible definition of locality. It is unacceptable that a person whose mere presence is contributing to a risk of disorder can be directed to leave. It invites inappropriate use, such as directing a victim of harassment to leave a scene because that is more convenient than issuing directions to multiple perpetrators. We can foresee the victim being a naturist on a beach, in which case the constable might think it expedient to direct the naturist to leave, lest another person come along who is one of the 1% who believes Naturism is unlawful, and the problem recur. But what happens to the naturists weekend at the seaside? It is punishment without charge or trial and unless the victim is wealthy enough to afford a high court action, and can show that the police officer was so unreasonable that no responsible police officer would take that action, there is no redress. "Locality" is not an appropriate term. Words like area and locality have been abused under previous legislation to refer to vast areas, the whole of Greater Manchester for example. The bill must include much improved safeguards.

17) Public space protection orders are to be made on the basis that a council "believes that activities carried on within a public space have had or are likely to have a detrimental effect on the quality of life of people in the locality, and the conduct is unreasonable". This is again a very low, and extremely vague, threshold. It could be applied for example to the noise from a local league football match. We believe that it is essential that there be an additional safeguard to protect Naturism and other legitimate pursuits. We suggest that there should be a requirement that the specified activities, (and anything which is prohibited from being done) are inherently and demonstrably harmful. The severe limitations to the grounds on which an order may be challenged are unacceptable and an affront to a free society. It should at least be possible to argue before a Court that particular activities are not inherently and demonstrably harmful. A court should be able to decide on the facts, not be bound by a councils "beliefs", which may be mistaken. The restriction on challenge to orders to within 6 weeks of being made is unreasonable and totally unnecessary. There should be no time limit. Another unsatisfactory aspect of this provision is the power to apply prohibitions or requirements to "categories of persons". This invites inappropriate discrimination.

18) A closure notice/order applied annually from April to September and framed to close premises to "all persons except persons clothed so that their genitals/breasts, are covered" could also be used to effectively prohibit Naturism. Notices are issued on exactly the same weak grounds as public space protection orders, but by individuals. This raises the possibility of notices being issued on the basis of personal prejudice. Again, there is a need for an additional safeguard, such as a requirement that closure could only be ordered if the behaviour or nuisance is inherently and demonstrably harmful.

19) A community protection notice could be used to prohibit Naturism by requiring a person to take reasonable steps to keep their genitals and breasts covered at all times. The same weak grounds apply. An additional safeguard such as that the conduct is inherently and demonstrably harmful is necessary.

Human Rights Considerations

20) There is a fundamental problem with Annex C to the draft Anti-Social Behaviour Bill. It is very obvious that the impact on minority groups such as naturists was not considered and we know from bitter experience that even relatively clear and well defined laws are abused. In recent years we have supported every defence request for assistance in defending a prosecution for Naturism and every defence has succeeded. There is growing evidence of institutional clothsism from both police and CPS.

· The police all too often just assume that all public Naturism must be criminal and serious mistakes result. Of the cases that we have dealt with in recent years over a third of complainants were off-duty police officers.

· The CPS all too often just assumes that all public Naturism must be criminal and serious mistakes result. Some of the charges have been absurd. For example in one case it required the instigation of proceedings for judicial review before the CPS would think seriously about what the law actually is.

· Councils all too often just assume that all public Naturism must be criminal and again mistakes result.

21) The repetitive "self justification" that the bill is compatible with Human Rights legislation is formulaic: "anyone against whom this bill is used must be doing something wrong therefore their human rights are not being ignored." This is incompatible with the operation of a civilised democracy and betrays a very worrying naivety concerning how law of this nature can be, and is, abused. A person is not doing wrong simply because those in authority think that they are doing wrong.

22) The Bill falls into the same trap as the notorious s.5 Public Order Act 1986; it is even more vague and ill defined and lacks even the inadequate safeguards of that Act. It will be subject to the same downward creep of thresholds.

23) There have been numerous court rulings emphasising the importance of balance between competing rights but this bill largely negates those safeguards.

24) If the bill is enacted as currently worded then it will require substantial reference to case law to establish what it means, a clear indication that it has failed to meet the requirement of clarity and precision.

25) The threshold is so low, "anything ... which might cause nuisance or annoyance … to any person", and level of proof required so inadequate that it could apply to most human behaviour. This is incompatible with Article 7, "no punishment without law". See, for example, Brumarescu v Romania (2001) 33 EHRR 35 at para 61 and Kokkinakis v Greece (1993) 17 EHRR 397 at para 52.

26) There is a general principle that "dog law", judge made law, is an injustice. With this bill it won't even be judges, it will be police officers, councils, and others making law retrospectively. Pretending that many of the orders will not amount to punishment is sophistry.

27) The powers in this bill enable punishment to be imposed for something that is not a crime. Pretending that there is a distinction to be made between civil and criminal penalties, and between restrictions on conduct, or requirements to do things, and a criminal penalty is sophistry. It is a distinction without a difference.

28) Requiring somebody to leave an area, which may be very large (similarly worded law has been applied to whole cities), and for a substantial period is punishment. Recording on the PNC is punishment as it can blight a career for life. There is, for most people, no effective means of appeal. Even the Independent Police Complaints Commission agreed with the Select Committee that they were not fit for purpose due to a lack of powers and resources. The courts are prohibitively expensive and hazardous for most people. Few people can afford to risk a year's pay on a case when the burden of proof is so heavily biased in favour of the police and councils.

29) We in this country continue to owe a debt to the jury which in 1670 refused to convict the Quakers William Penn and William Mead for preaching ideas which offended against state orthodoxy. From the condemnation of Socrates to the persecution of modern writers and journalists, our world has seen too many examples of state control of unofficial ideas.

30) How one dresses is in general a means of self expression and more specifically nudity is recognised as a means of expression. However police and councils too often fail to give that any consideration.

31) Naturism is for many naturists a matter of belief. The Human Rights Act and the Equality Act provide protection not just for deist religions but also for belief. Moreover it provides a right to manifest the religion or belief. It is apparent that many police officers and councils do not even consider the possibility that it is applicable.

32) In our view all of the anti-social behaviour provisions of this bill as presently drafted are incompatible with the Human Rights Act and extensive amendments will be required to remedy the defects.

June 2013

Prepared 20th June 2013