Shubtill v Director of Public Prosecutions

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In the Contrarian’s Bench Division

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

2022: Oct 24

Lord Justice Cocklecarrot M.R.

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

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.

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 on Trafalgar Square’s northern boundary. 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 history’s inevitable progress: 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 Dutch 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 momentous events, both fair and foul. The erection of Nelson’s Column. Celebrations about the Victory in Europe. Protests about the War in Vietnam. The Suffragettes bombed it 1914. Taxpayers rioted in front of it in 1990.

So the goings on of this past October will not linger long. Fairer things, and fouler ones, will soon wipe them from the collected memory, 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

It was just after 11am on a busy Friday towards season-end. Two young persons entered Room 43 of the Gallery. Dressed in matching white tee-shirts, they might have been mistaken for Wham! enthusiasts or Frankie Goes To Hollywood fans. 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. What matters for our purposes is that these young persons were the complainants. They had mischief on their minds.

Deftly evading the Security department’s attention, the complainants gained entry to the Gallery with containers of soup concealed about their persons. Soon enough, it became clear they had not brought them for lunch.

Without ado, the complainants vaulted a velvet rope, emptied their soup 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 unobserved, and at a decent clip. We shall hear more about him shortly.

In the mean time, the complainants continued with their shouting. Presently — with curious haste, I am inclined to think — representatives of the world’s media arrived, with cameras, cine films, videographs and outside broadcast units. They formed a makeshift press gallery. Their scrum may have impeded security but by all accounts no-one: not the patrons, nor the press, nor Gallery staff, made any effort to eject the complainants, or even stop them talking. By now, they were stuck fast to the wall with Araldite™ and could not be removed in any case.

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

“Whath worth more: art or life?” she asked. “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 is estimated to be worth £72m, so many would answer Ms. Bott’s first question with “the art”. That being said, it is not for this court to parse Ms. Bott’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 now also carrying soup — chicken soup, as it happens — that he had acquired from a newsagent on the Strand. He found it no harder than had the complainants to spirit it into the Gallery.

When the appellant approached her, Ms. Botts was still mid-harangue: she barely registered him. But her confederate, a Ms. Gwendoline Mary Lacey, also of Surrey, did. She made no attempt to stop the appellant as he opened his soup tins. Indeed, the lower court heard in evidence that Ms. Lacey applauded when, at first, the appellant stepped forward, crying, “Oh, thuper! Come on and join uth!”

In any event, having opened his tins, the appellant emptied them not upon a painting, but upon the complainants.

There was a mêlée at this point, though less than there might have been had the complainants not been stuck fast to the wall. Ms. Botts’ language became a good deal less abstruse. By the time the police obtained her statement Ms. Botts would prove imaginative in her complaint but, in the moment, all she could muster was “It’th not fair! It’th dithguthting! I’m vegan!”

And that is the long and short of it: The complainants have been dealt with separately: their conduct is not, directly, at issue before this tribunal.

The appellant was summarily convicted at the London & Middlesex Assizes charged with common assault with an edible weapon. The appellant’s grounds for appeal are unusual so I shall set them out in full.

Ingredients of the offence

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”.

A person commits an assault if he performs an act (and not a mere omission) by which she intentionally or recklessly causes another to apprehend immediate unlawful violence.

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.

Thirdly, there must be apprehension of “immediate violence”.

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”.

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, 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 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 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 Appeal

Appellant’s submissions

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:

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. 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 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 in it.

The complainants, that is, licenced the appellant to behave as he did.

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. We were referred to the famous dictum in Haddock: “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, 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

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.

But nor, Sir Anthony urges, should we lightly impute an open invitation to pelt a citizen with cabbage, just because that citizen happens to be irksome. The common law has long expected citizens to approach it reasonably and having washed their hands; it does not require them, beyond that, not to grate. To the contrary, the reasonable man is famously a bore.

This court agrees. We find in fact the complainants were annoying, and in law that this makes no difference: they are entitled to civil protection notwithstanding.

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 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?” These are indeed good questions.

“Ms. Bott’s behaviour was a cry for professional help, not for a face full of soup.”

We were much persuaded by Sir Anthony’s submissions on this point (even though the complainants evidently were not. They barracked him roundly from the gallery). Had he stopped there, we might have found for him.

But, in closing his submissions Sir Anthony gave us pause, not because his arguments are wrong, but because they are right. He invited us to call to mind the “officious bystander” who first assisted this court as long ago as 1939. The test for unequivocality should be, he said, broadly the same: such a licence requires a clarity of conduct such that an officious bystander would understand the complainants’ intent. Presumptuously paraphrasing MacKinnon LJ’s classic dictum in Southern Foundries v Shirlaw, Sir Anthony concluded:

The statement inferred requires conduct so obvious that it goes without saying; so that if, while the complainants were ensouping the picture and heckling passers by, an officious bystander were to explain what the complainant was inviting with her conduct, the respondent would testily suppress him with a common “Oh, of course!”

Judgment

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”, 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 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.

The appellant’s proposition is that, having loudly announced their stance, the complainants cannot now object should someone else do just the same. What is soup for a goose is soup for the gander, so to speak.

By their own actions, the complainants licensed those who found them irritating to cover them in soup. We have as support for that proposition the very fate that then befell them. Res ipsa loquitur.

Appeal allowed.

See also

• Albert Haddock