Cox v DPP: Divisional Court rejects "narrow construction" approach to section 5 Public Order Act offence

The Divisional Court has dismissed a naturist's appeal against a conviction for disorderly behaviour for walking naked on a public footpath, and used the case to clarify how section 5 of the Public Order Act 1986 accommodates Convention rights. In Cox v DPP [2026] EWHC 2437 (Admin), Dame Victoria Sharp P, giving the judgement of the court with Mrs Justice Hill, held that the "appropriately narrow construction" approach in Hicks v DPP and DPP v Coskun is inconsistent with the authorities.

The appellant was walking naked at about 6.30am on a footpath linking a residential estate and a town centre. He met an off-duty police officer and two women walking alone. He was fined £800 and the Crown Court dismissed his appeal, finding that two encounters caused alarm or distress. It also found that he was a genuine naturist who had chosen what he considered the quietest route, knew he might meet people, and intended no harm.

On interpretation, the court held that the section 5 words bear their ordinary meaning, neither specially wide nor specially narrow, following Brutus v Cozens and Chambers v DPP. Where Convention rights are engaged and the ingredients are proved, the proportionality of a conviction is assessed through the reasonable conduct defence in section 5(3)(c), following Percy, Norwood and James v DPP. The defendant proves the facts relied on to the civil standard, but the prosecution must show that the interference is justified. There is no further freestanding proportionality question.

The court gave several reasons for rejecting the narrow construction approach. It conflicts with Brutus and Chambers, and with the authorities locating the Convention analysis in the defence. Section 3 of the Human Rights Act 1998 is unnecessary where Parliament has provided such a defence, unlike in Casserly. The approach would give words different meanings depending on whether Convention rights are engaged, is circular and unworkable, and obscures where the burden lies. The references in Hicks and Coskun are best read as reminders that the ordinary meaning is itself stringent.

Applying those principles, the court held the Crown Court entitled to treat the conduct as disorderly. The path was used at that hour by people walking to work, who could not expect or avoid him. The court accepted that there is no rule that public nudity is disorderly, but relied on Gough v DPP. It said addressing each ingredient separately is better practice, but found that the Crown Court had in substance done so.

The Crown Court's remark that the defence could not avail save in exceptional circumstances could have been better expressed, but reflected Norwood, and it went on to weigh articles 8 and 10. Even if that were an error, only one conclusion was open.

On proportionality, the court gave modest weight to article 8, citing Gough v UK and Borzykh v Ukraine, and placed article 10 at the lower end of the hierarchy because the nudity was a lifestyle choice, not protest. Against that stood the interest of unwarned members of the public and a penalty for a summary offence carrying a maximum of a level 3 fine. College of Policing guidance for officers cannot answer whether conduct was disorderly. The court also held that the proportionality of a decision to prosecute is not a matter for the trial court, and that Dehal and Abdul should no longer be followed on that point.

Kirsty Brimelow KC and Christopher Jeyes, instructed by VHS Fletchers, appeared for the appellant. Louis Mably KC and Megan Millar, instructed by the Crown Prosecution Service, appeared for the DPP.