Shubtill v Director of Public Prosecutions: Difference between revisions

=== Arguments ===

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.

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 edible by, nor palatable to, the victim.<ref>See ''R v Hemlsley'', in which aggravated battery by broccoli was held to consistute assault with an edible weapon notwithstanding the complainant’s allergy to certain varieties of wild cabbage, including broccoli.</ref>

It is clear that violence can include force involving no injury, and we are satisfied that pouring edible biomass over another person amounts to violence.

 

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

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

Mr Baxter-Morley advanced the striking argument that an evident willingness to ''righteously'' pour soup on much-loved public artworks 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, Mr. Baxter-Morley says, conveyed the complainants’ personal conviction that such behaviour is acceptable and appropriate.

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 are hard pressed to gainsay it, is that he was irritated by the complainants. So he took their lead. 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.

Is such a license grounds for justification? Does it displace the unlawfulness ingredient of the offence with which the appellant was charged? Mr Baxter-Morley contended that it did, citing as authority the famous case of {{casenote|Board of Inland Revenue|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 nice, in Mr. Baxter Morley’s submission, if in the heart of the very same commercial capital of the world, a man could not e3xercise an implied licence in public without being arrested.

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