Shubtill v Director of Public Prosecutions: Difference between revisions

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{{Tm}} such that they could not be removed even if one wanted to.

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.   

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

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.<ref>See ''R v Hemlsley'', 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>

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.  

===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 {{casenote|Board of Inland Revenue|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===