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Shubtill v Director of Public Prosecutions: Difference between revisions
Shubtill v Director of Public Prosecutions (view source)
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:''Contract — Licence — Implied Licence — Whether | :''Contract — Licence — Implied Licence — Whether Existence of Implied Licence Operates as Justification for Assault — Assault with Edible Weapon — Criminal Justice Act 1983 — Reasonableness — [[Officious bystander]] — Objectivity of test — Inherent subjectivity of objectivity'' | ||
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=== Ingredients of the offence=== | === Ingredients of the offence=== | ||
The ingredients, as it were, of “common assault with edible weapon” are not set out in the Criminal Justice Act, but from decided cases are clear. | The ingredients, as it were, of “common assault with edible weapon” are not set out in the Criminal Justice Act 1983, but from decided cases they are are, like ''consommé'', clear. | ||
First, there must be an “assault”. | First, there must be an “assault”. | ||
A person commits an assault if he performs an act ( | A person commits an assault if he performs an act (and not a mere omission) by which she [[Intention|intentionally]] or [[Degrees of liability|recklessly]] causes another to apprehend immediate ''unlawful'' violence. | ||
Secondly, | Secondly, she must do so with an “edible weapon”. | ||
Apparatus beyond a defendant’s own person or clothing will be a “weapon”: where it comprises consumable biomass, ''prima facie'' it maybe treated as ''edible''. It need not be eaten by, nor even palatable to, the victim.<ref>See ''R v Helmsley'', in which battery by steamed broccoli was held to constitute assault with an edible weapon notwithstanding the complainant’s allergy to certain varieties of wild cabbage, including broccoli.</ref> | Apparatus beyond a defendant’s own person or clothing will be a “weapon”: where it comprises consumable biomass, ''prima facie'' it maybe treated as ''edible''. It need not be eaten by, nor even palatable to, the victim.<ref>See ''R v Helmsley'', in which battery by steamed broccoli was held to constitute assault with an edible weapon notwithstanding the complainant’s allergy to certain varieties of wild cabbage, including broccoli.</ref> | ||
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Thirdly, there must be apprehension of “immediate violence”. | Thirdly, there must be apprehension of “immediate violence”. | ||
It is clear that violence need not involve injury. We are satisfied that pouring | It is clear that violence need not involve injury. We are satisfied that pouring soup over another conscious person would cause that person to apprehend “immediate violence” in this sense. | ||
Lastly, that violence must be “unlawful”. | Lastly, that violence must be “unlawful”. | ||
Many interpersonal interactions meet this loose juridical description of “violence” but are yet allowed: | Many interpersonal interactions meet this loose juridical description of “violence” but are yet allowed: those done with consent; those done in self-defence: that kind of thing. | ||
The complainants, plainly, did not consent to having soup tipped over them. The fact that | The complainants, plainly, did not consent to having soup tipped over them. The fact that, minutes earlier and with no better permission, they had tipped soup 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 he intervened, the | Nor was the appellant’s action in self-defence, the defence of another, nor in defence of property: by the time he intervened, the attack was was complete. Having glued themselves to the wall, and run out of soup, the complainants were in no position to continue it. The appellant conceded as much. | ||
At this stage, the prosecution must | At this stage, the prosecution must have felt it was in the home straight. At first instance, it was. The court accepted the prosecution’s case in full and entered a conviction. It sentenced the appellant to an anger management course. | ||
The appellant sought leave to appeal, was granted it, and we now fund ourselves gathered together once more. | The appellant sought leave to appeal, was granted it, and we now fund ourselves gathered together once more. | ||
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=== The Appeal === | === The Appeal === | ||
====Appellant’s submissions==== | ====Appellant’s submissions==== | ||
Dame Marjorie, for the appellant insists | Dame Marjorie, for the appellant, insists her client was not motivated by anger. She says he justifies his actions not by consent, nor defence, much less in maintaining public order, but upon ''[[licence]]''. | ||
Dame Marjorie’s submissions run like this: | Dame Marjorie’s submissions run like this: | ||
Throughout the episode, the complainants struck a self-righteous tone. (There is little doubt that is so: it carried on in their evidence before the lower court, which Ms. [[Violet Elizabeth Bott|Bott]] delivered with the same stridency as she had her lecture at the Gallery.) | Throughout the episode, the complainants struck a ''self-righteous'' tone. (There is little doubt that is so: it carried on in their evidence before the lower court, which Ms. [[Violet Elizabeth Bott|Bott]] delivered with the same stridency as she had her lecture at the Gallery.) Dame Marjorie contends the complainants’ evident willingness to self-righteously pour soup on much-loved public artworks, without permission, can be generalised to their own view that “''one may freely pour soup on, or glue things to, things one finds irritating''”. | ||
Indeed, contends Dame Marjorie, we | Indeed, contends Dame Marjorie, we may impute the attitude that one may do this without the owner’s consent, and even notwithstanding a binding contractual obligation, set out on a ticket or terms of admission, to ''not'' do such a thing. The complainants’ behaviour, Dame Marjorie says, conveyed their personal conviction that such ''behaviour is acceptable and appropriate'', such that they cannot now complain if others indulge upon it. | ||
The appellants, that is, ''licenced'' that behaviour. | The appellants, that is, ''licenced'' that behaviour. | ||
Now it is an ancient principle of natural justice that ''[[nemo dat quod non habet]]'': one cannot give what one does not have. The complainants could not have granted such a licence to damage others’ property: only their own. | |||
Dame Marjorie tells us the appellant’s licence was confined to the complainants’ persons, and he respected it. Thus, he was doing no more than exercising his legal rights. | Dame Marjorie tells us the appellant’s licence was confined to the complainants’ persons, and he respected it. Thus, he was doing no more than exercising his legal rights. We were referred to the famous dictum in ''[[Albert Haddock|Haddock]]:''<ref>{{casenote|Board of Inland Revenue|Haddock}} [1930] UC 35.</ref> “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 | It would be similarly perverse, reasons Dame Marjorie, if in the very same city a man could not exercise a [[licence]] without being arrested. | ||
We find force in this submission. | |||
====Respondent’s submissions==== | ====Respondent’s submissions==== | ||
Sir Anthony opened brightly for the respondent. He invoked a principle of his own invention, He calls it “[[unequivocality]]”: for the | Sir Anthony opened brightly for the respondent. He invoked a principle of his own invention, He calls it “[[unequivocality]]”: for the law to intervene and impose a licence based upon behaviour, that behaviour must be ''unequivocal''. With their bewildering carry-on, Sir Anthony argues, the complainants failed to convey the clarity the [[common law]] requires. | ||
Now, we should not expect citizens to conduct their relations with the world in careful syllogisms: Sir Anthony concedes this would be too much. We agree: polite society lubricates its gears with ambivalent gestures. Nods, winks and waggled heads are quite enough to covey assent. The appellant knows this well.<ref>''[[Shubtill v Port Authority of Finchley]]''</ref> | Now, we should not expect citizens to conduct their relations with the world in careful syllogisms: Sir Anthony concedes this would be too much. We agree: polite society lubricates its gears with ambivalent gestures. Nods, winks and waggled heads are quite enough to covey assent. The appellant knows this well.<ref>''[[Shubtill v Port Authority of Finchley]]''</ref> | ||
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Sir Anthony contends that the appellants must, therefore, establish a basic sense of ''coherence'' to the complainants’ behaviour before there can be any talk of a licence. And Ms. Bott’s cloth-headed oration, he contends, had none. It was baffling: a confused assemblage of illogicalities, sophistries, begged questions, trite slogans, miscued rhetoricals and conclusions not even hinted at by whatever meagre premises led up to them. One could not safely say that even [[Violet Elizabeth Bott|Ms. Bott]] herself understood her point. | Sir Anthony contends that the appellants must, therefore, establish a basic sense of ''coherence'' to the complainants’ behaviour before there can be any talk of a licence. And Ms. Bott’s cloth-headed oration, he contends, had none. It was baffling: a confused assemblage of illogicalities, sophistries, begged questions, trite slogans, miscued rhetoricals and conclusions not even hinted at by whatever meagre premises led up to them. One could not safely say that even [[Violet Elizabeth Bott|Ms. Bott]] herself understood her point. | ||
“What,” asks Sir Anthony, “is one to make of someone whose tee-shirt says “Just Stop Oil,” but who carries on to decry the cost of energy? What sort of moron demonstrates against hunger,” he continues, “by tipping away soup?” | “What,” asks Sir Anthony, “is one to make of someone whose tee-shirt says “Just Stop Oil,” but who carries on to decry the cost of energy? What sort of moron demonstrates against hunger,” he continues, “by tipping away soup?” These are indeed good questions. | ||
“Ms. Bott’s behaviour was a cry for professional help, not for a face full of soup.” | “Ms. Bott’s behaviour was a cry for professional help, not for a face full of soup.” | ||
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===Judgment=== | ===Judgment=== | ||
Though Sir Anthony may regret to hear it, this frames the the issue nicely. For however neat | Though Sir Anthony may regret to hear it, this frames the the issue nicely. For however neat a legal statement, by way of fact, it sinks his case. | ||
The “[[officious bystander]]” was, in MacKinnon LJ’s original reckoning, an ''objective'' measure, derived by reference to that hypothetical figure known to all in a modern society, the “amateur referee on Clapham Common”. Unlike her fellow hypothetical the [[reasonable person]], the officious bystander is not “devoid of human weaknesses, without a single saving vice”<ref>''[[Fardell v Potts]]''</ref>, but rather is shot through with them. He is, after all, ''officious'': pedantic, literal, punctilious, parochial, small-minded, given to wielding the small authorities life bestows upon him for the simple pleasure brought by wreaking inconvenience on others. | The “[[officious bystander]]” was, in MacKinnon LJ’s original reckoning, an ''objective'' measure, derived by reference to that hypothetical figure known to all in a modern society, the “amateur referee on Clapham Common”. Unlike her fellow hypothetical the [[reasonable person]], the officious bystander is not “devoid of human weaknesses, without a single saving vice”<ref>''[[Fardell v Potts]]''</ref>, but rather is shot through with them. He is, after all, ''officious'': pedantic, literal, punctilious, parochial, small-minded, given to wielding the small authorities life bestows upon him for the simple pleasure brought by wreaking inconvenience on others. | ||
But here is the thing: when it comes to deciding how such an officious bystander would have reacted to the complainants’ doltish conduct, we need not conjecture. There is no call for an ''imaginary'' | But here is the thing: when it comes to deciding how such an officious bystander would have reacted to the complainants’ doltish conduct, we need not conjecture. There is no call for an ''imaginary'' onlooker, because we have an actual one: the appellant himself. The appellant is just the judgmental little twerp the court in ''Shirlaw'' had in mind. And nor need we ask him what he ''would'' have done ''—'' risking a convenient ''ex post facto'' reply: we can see what he ''did'' do. Would an officious bystander have considered this an open licence to tip soup upon the complainants heads? Answer, without a doubt: ''yes''. | ||
Here we find a paradox: we fabricate our “objective” test from the lived experiences of ordinary people ''—'' each by its own terms subjective ''—'' as they are then assembled by those who sit in judgment from the bench. Somehow, the court must extrude from this collection of biases objective truth. We fear at its root they may be just the same. | Here we find a paradox: we fabricate our “objective” test from the lived experiences of ordinary people ''—'' each by its own terms subjective ''—'' as they are then assembled by those who sit in judgment from the bench. Somehow, the court must extrude from this collection of biases objective truth. We fear at its root they may be just the same. | ||