Shubtill v Director of Public Prosecutions

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In the Court of Appeal

Shubtill v. Director of Public Prosecutions [2022] JCLR 46

2022: Oct 24

Lord Justice Cocklecarrot M.R.

Appeal against the conviction of Ernest Shubtill, the appellant, for the assault with an edible weapon of Violet Elizabeth Botts. The appellant was convicted on 17 October 2022, at the London & Middx Assizes.

Contract — Licence — Implied Licence — Whether existence of Implied Licence operates as justification for assault — Criminal Justice Act 1983

Dame Marjorie Wrigley, K.C. for the appellant
Sir Anthony Clunge, K.C., for the respondent

(Cur adv. vult)

Lord Justice Cocklecarrot M.R.: London’s National Gallery has stood for 170 years at the northern boundary of Trafalgar Square. Originally conceived by Parliamentary Commission to “give the people an ennobling enjoyment”, the Gallery houses paintings which, on any account, are the highest peaks of the grand massif that is the western cultural tradition. Cimabue’s Virgin and Child with Two Angels hangs there. So does Leonardo’s Madonna of the Rocks. The Gallery records the inevitable progress of history: Constable’s The Hay Wain graces a wall not far from Turner’s requiem to the obsolescence of sail, The Fighting Temeraire. No less fulsomely endowed is the Gallery’s modern art collection: Cézannes hangs beside Monets, who accompany Renoirs and Rousseaus. [Rousseaux? — Ed]

Accompanying, and perhaps surpassing even these, are the works of that one-eared Flemish wizard, Vincent Van Gogh. Foremost among them is Sunflowers, a painting whose sister, Sir Anthony tells us, was once the most expensive painting ever to change hands.

As might any structure which has stood for so long in so vital a place, in its time the Gallery has witnessed great changes and momentous events, both fair and foul. The erection of Nelson’s Column. Celebration of Victory in Europe. Protests about the War in Vietnam. The suffragettes bombed it 1914. Taxpayers rioted in front of it in 1990.

So the paltry goings on of Friday 14th October 2022 will not linger over the aeons. Fairer things, and fouler ones, will soon wipe them from the collected consciousness, just as a sponge might spilt soup. The sooner the better. But alas, they are on our agenda today so, tiresome as they undoubtedly are, it falls to me to recount them. I shall do so as briefly as I can.

Facts

Just after 11am, two young women entered Room 43 of the Gallery. Dressed in matching white tee-shirts, they might have been mistaken, at a glance, for devotees of Wham! or Frankie Goes To Hollywood. No arguments were advanced, either way, but their tee-shirts read “Just Stop Oil” and not “Relax!” or “Choose Life”, so we can suppose they were not. In any case, nothing turns on it.

Being a normal Friday at season-end, the Gallery was busy. The women did not attract the attention of the Gallery’s security detail. This the Gallery has since come to regret, for the women had, concealed about their persons, containers of soup. Soon it became clear they had not brought them for lunch. Without ado, the women vaulted a low velvet rope, emptied their soup tins onto the Sunflowers, glued themselves to a nearby wall and began shouting at everyone.

Media reports tell us there were gasps, roars and a shout of “Oh, my gosh!” from nearby patrons, but beyond this, the bystanders took little action. Most stood transfixed.

One — the appellant — did not. He exited Room 43, largely unobserved, and at a decent clip. We shall hear more about him shortly.

In the mean time, the women continued with their shouting. Presently — with curious haste, I am inclined to think — the world’s media representatives arrived, with cameras, cine films, videographs and outside broadcast units. They formed a makeshift press Gallery. Their scrum may have impeded Gallery security — again, a regrettable dearth of evidence on the point — but by all accounts no-one: not the patrons, nor members of the press, nor Gallery staff, made any effort to eject the young women, or even stop them talking. By now, Dame Marjorie contends, they were in any case fastened to the wall securely with Araldite™ such that they could not be removed even if one wanted to.

The young women warmed to their task. The more loquacious of the two was Ms. Violet Elizabeth Bott, of Surrey. She embarked upon something of a monologue.

“Whath worth more: art or life?” she asked, rhetorically. “Ith it worth more than food? More than juthtith? Are you more contherned about the protection of a painting or the protection of our planet and people? The cotht of living crithith ith part of the cotht of oil crithith! Fuel ith unaffordable to millionth of cold, hungry familieth. They can’t even afford to heat a tin of thoup.”

Sunflowers has an estimated value of £72m, so for most people the answer to Ms. Bott’s first question is probably “the art”. That being said, it is not for this court to parse this young woman’s non-sequiturs, perplexing though they are, for she is not the one on trial here. So I shall return to the story, for it is at this point that the appellant returned to Room 43.

The appellant was by this stage also in possession of soup — chicken soup, as it happens. He had acquired it from a newsagent on the Strand. It seems he found it no harder than had the protesters to spirit materials of vandalism calculated into the National Gallery.

Ms. Botts was still mid-harangue when the appellant approached. She barely registered him. But her confederate, a Ms. Gwendoline Mary Lacey, also of Surrey, did. She watched the appellant carefully as he opened his soup tins. She made no attempt to stop him: indeed, the lower court heard in evidence, and was satisfied, that Ms. Lacey applauded. She cried, “Oh, come on!” though, as we shall see, just what she meant by that was open to interpretation.

In any event, having opened his tins, the appellant emptied them, all over Mesdames Botts and Lacey.

There was something of a melée at this point, though less than there would have been had the young protesters not been stuck fast to the wall. Ms. Botts’ language became a good deal less abstruse. Patrons who were having trouble what she sought to achieve by her own actions were left in no doubt what she thought of the appellant’s. By the time the police were able to take her statement Ms. Botts would prove compendious and imaginative in her complaints at her treatment by the appellant, but in the moment the most she could muster was “It’th not fair! I’m vegan!”

And that is the long and short of it: Mesdames Botts and Lacey have been dealt with separately: their conduct is not, directly, at any rate, at issue before this appeal.

The appellant was summarily convicted at the London and Middlesex assizes on charges of common assault with an edible weapon: in this case, a pint of tinned chicken soup.

The appellant’s grounds for appeal are unusual so I shall take the unusual step of setting it out in full.

Ingredients of the offence

The ingredients of common assault with an edible weapon are not set out in the Criminal Justice Act, but from decided cases are clear.

First, there must be an “assault”. A person commits an assault if he performs an act (which does not, for this purpose, include a mere omission to act) by which he intentionally or recklessly causes another person to apprehend immediate unlawful violence.

Secondly, it must be with an “edible weapon”. If that assault is conducted by means of aparatus other than by the defendant’s own person or closing covering it, there will be a “weapon”. If that weapon takes the form of consumable biomass, whether liquid or solid or, as in this case, something in between, it may prima facie be treated as edible. It need not be eaten by, nor even palatable to, the victim.

Thirdly, there must be apprehension of “immediate violence”. It is clear that violence can include force involving no injury, and we are satisfied that pouring edible biomass over another person, while conscious, would cause that person to apprehend immediate violence in this sense.

Lastly, that violence must be “unlawful”. Many interpersonal interactions meet this loose juridical description of “violence” whilst being permitted at law. Consensual interactions. Self-defence. That kind of thing. At this stage, the prosecution must feel it is in the home straight. The complainants, plainly, did not consent to having soup tipped over them. To this enquiry, the fact that they had, minutes earlier, tipped soup without permission over something else is beside the point. Nor was the appellant’s action in self-defence, the defence of another, nor in defence of property: by the time the appellant intervened, the complainants’ attack on the painting was complete. Having glued themselves to the wall, and run out of soup, it would have been plain to a reasonable person that they were in no position to continue it.

The lower court therefore accepted the prosecution’s case in full, and entered a conviction. The appellant was sentenced to anger management course. The appellant sought leave to appeal, was granted it, and we now fund ourselves gathered together once more.

The Appeal

Appellant’s submissions

The appellant is adamant that anger formed no part of his motivation for acting. His counsel advances a justification for his actions based not on consent, defence of person or property, much less maintenance of public order, but licence. His submissions run like this:

Throughout the episode, the complainants struck a tone of righteousness. There is little doubt that is so: indeed, it carried on in their evidence before the lower court, which Ms. Bott delivered with the same stridency as she had her lecture at the Gallery.

Dame Marjorie advanced the striking argument that the complainants’ evident willingness to righteously pour soup on much-loved public artworks notwithstanding a clear lack of permission can be generalised to the view that “one may pour soup on, or glue things to, things one finds irritating”: that, indeed, one may do this without the owner’s consent; indeed, even notwithstanding a binding contractual obligation, in the form of a ticket containing terms of entry, not to do such a thing. The appellants’ behaviour, Dame Marjorie says, conveyed the complainants’ personal conviction that such behaviour is acceptable and appropriate. The appellants licenced that behaviour.

Now, to Gallery patrons, a person who pours soup over a celebrated painting, glues herself to the floor and then embarks upon a monologue of loud, self-righteous non-sequiturs is, on any reasonable account, irritating. And, if she has done a decent job with the glue, stuck. The appellant was a patron of the gallery. His evidence, and we cannot gainsay it, is that he was irritated by the complainants. So he took advantage of the licence they had granted.

It is an ancient principle of natural justice that nemo dat quod non habet: no-one may give what she does not have. The complainants could not a grant the licence to damage other person’s property, only their own. Dame Marjorie tells us the appellant’s soup-pouring licence was confined to the persons of the complainants. He respected the conditions and limits of his licence.

The appellant was doing no more than exercising his legal rights. Dame Marjorie referred us to a dictum in the famous case of Board of Inland Revenue v Haddock [1930] UL : “it would be a nice thing if, in the heart of the commercial capital of the world, a man could not convey a negotiable instrument down the street without being arrested.”

It would be similarly perverse, Dame Marjorie tells us, if, in the heart of the very same commercial capital, a man could not exercise a licence without being arrested.

Respondent’s submissions

Sir Anthony Clunge

Judgment

The appellant’s proposition is that, having loudly announced their stance, the complainants are not well positioned to object should someone else follow it. What is soup for a goose is soup for a gander, so to speak. By their own actions, the complainants licensed those who found them irritating to cover them in soup.

See also

• Albert Haddock