BBC News Magazine

Page last updated at 13:21 GMT, Thursday, 3 September 2009 14:21 UK

When does public nakedness become a crime?

The Magazine answers...

A man who stood naked on a Trafalgar Square plinth was not breaking the law say police, so when does being naked in public become a crime?

According to Justin Holwell, he was just expressing his personality when he stripped off on a plinth in London's Trafalgar Square. But ex-detective Mark Williams-Thomas didn't see it that way.

Nelson's Column and nude man
Justin Howell and Nelson's column

He said his wife and children were "annoyed and upset" by Mr Holwell's nakedness. He complained to police but the 24-year-old from Leicestershire was not told to put his clothes back on.

A police spokesman said it was not a crime to appear naked in public, but other people have been arrested for it. Naturist Stephen Gough, who goes by the name of The Naked Rambler, is currently in prison in Scotland after being found guilty of breach the peace. So when does it become a crime?

Under the Sexual Offences Act 2003 it is not an offence to be naked in public in England and Wales. It becomes an offence if it can be proved the person stripped off with the intention to cause distress, alarm or outrage.

Then they run the risk of three possible offences, says a spokesman for law firm Kingsley Napley. These are:

• Indecent exposure - an offence under section 66 of the Sexual Offences Act 2003

• Intentional harassment, alarm or distress under section 4A of the Public Order Act 1986

• "Outraging public decency" under common law

If a case did get to court the onus would be on the prosecution to prove this intention to upset. If found guilty, the offender would face anything from a fine to several years in prison.

In Scottish law there is no statutory offence, just the common law offence of offending public decency - a strand of the breach of the peace. The test is essentially the same as in English law - that a member of the public has been put in a state of fear or alarm.

It's not an offence to be naked in public in England and Wales
Becomes offence if it can be proved the person stripped off with the intention to upset and shock
Complainant has to prove this

"With regards all of these offences, whilst there is obviously nudity in this case I suspect it would be very difficult to prove the necessary intent to cause distress, alarm or outrage," says the spokesman.

The police spokesman says such complaints are considered on a case-by-case basis.

Andrew Welch of British Naturism says the issue all comes down to a person's intention.

"For obvious reasons we've had to look at this issue with our lawyers," he says.

"Causing upset is definitely not what naturism is about, our challenge is a cultural one. The law is fine, we just need to change people's attitude to the naked body."

Question mark floor plan of BBC Television Centre
A regular part of the BBC News Magazine, Who, What, Why? aims to answer some of the questions behind the headlines

Mr Holwell posed naked for an hour on the plinth as part of the One & Other exhibition by artist Antony Gormley. Participants were chosen at random and told they could do anything on the plinth as long as it was legal.

Mr Holwell, who works in a double-glazing factory, has defended his actions saying: "It's the human form, everyone's the same, it's not like I'm showing off something that no one else has got."

He is not the first person to have used the position to strip off - in early August a man known simply as Simon also disrobed on the plinth.

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