Public-order offences: High Court clarifies section 5, reasonable conduct and human rights
The High Court has dismissed an appeal concerning when public nudity can amount to disorderly behaviour under section 5 of the Public Order Act 1986. The judgment is fact-specific, but its wider importance lies in the court’s explanation of the elements of a section 5 offence, the statutory defence of reasonable conduct and the role of human-rights proportionality.
What happened in Cox v Director of Public Prosecutions?
In Neil Cox v Director of Public Prosecutions [2026] EWHC 2437 (Admin), the appellant had walked completely naked along a public footpath near Macclesfield at about 6.30am. He did not approach or speak to the two women he passed and the Crown Court accepted that he did not intend to cause harm or distress. He was nevertheless convicted after the court found that, in the particular circumstances, his conduct was disorderly and likely to cause harassment, alarm or distress.
The Divisional Court upheld the conviction on 23 September 2026. It stressed that public nudity is not automatically an offence. Whether conduct is “disorderly” is an objective and fact-sensitive question for the trial court, applying the ordinary meaning of the word and considering the whole context.
Relevant circumstances included that the path linked a residential estate with the town centre, was being used by people walking alone to work and offered those encountering the appellant little opportunity to avoid him. The appellant also knew from previous experience that some people might be upset by encountering him naked.
Why does the judgment matter?
The court set out a useful sequence for section 5 cases. The prosecution must prove that:
the behaviour was threatening or abusive, or was disorderly;
it occurred within the hearing or sight of a person likely to be caused harassment, alarm or distress; and
the defendant intended the behaviour to be threatening, abusive or disorderly, or was aware that it might be.
The defendant may then establish that the conduct was reasonable under section 5(3)(c). Importantly, the High Court confirmed that this defence does not disappear merely because the prosecution has proved the ingredients of the offence. Where Articles 8 or 10 of the European Convention on Human Rights are engaged, the reasonableness defence is also the mechanism through which the court decides whether a conviction would be a justified and proportionate interference with those rights.
The judgment also explains the status of College of Policing guidance. Guidance recognising that passive public nudity may be lawful is relevant, but it does not bind a court or determine whether particular conduct was disorderly. Context remains central.
Practical implications for defendants
A section 5 allegation should not be assessed from the label attached to the behaviour alone. The location, time, proximity and vulnerability of other people, the defendant’s knowledge, the reactions likely to be caused, any expressive purpose and all facts supporting reasonableness may matter.
The prosecution must prove each element beyond reasonable doubt. If reasonable conduct is raised, the defendant bears the burden of proving the facts relied upon on the balance of probabilities, but the prosecution must satisfy the court that any interference with a Convention right is justified. Early legal advice can help preserve relevant evidence, identify witnesses and ensure that these separate questions are properly addressed.
Further information
Authoritative sources
Peter Bonner & Co Criminal Defence Team
This article provides general information only and does not constitute legal advice. Every case depends on its own facts. Anyone facing investigation or prosecution should obtain advice from a solicitor about their individual circumstances.