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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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{{a| | {{a|jclr|{{image|soup 2|png|}}}}<center>In the Contrarian’s Bench Division <br><br> | ||
<big>{{citet|Shubtill|Director of Public Prosecutions|2022|JCLR|46}}</big></center> <br><br> | <big>{{citet|Shubtill|Director of Public Prosecutions|2022|JCLR|46}}</big></center> <br><br> | ||
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{{smallcaps|{{Cocklecarrot}}}}: 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]'' | {{smallcaps|{{Cocklecarrot}}}}: 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]'' | ||
<div style="text-indent: 20px;">Accompanying, and perhaps surpassing even these, are the works of that one-eared | <div style="text-indent: 20px;">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 | 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 | 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, [[Tedium|tiresome]] as they undoubtedly are, it falls to me to recount them. I shall do so as briefly as I can. | ||
===Facts=== | ===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 “{{caps|Just Stop Oil}}” and not “{{caps|Relax!}}” or “{{caps|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. | 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 “{{caps|Just Stop Oil}}” and not “{{caps|Relax!}}” or “{{caps|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. | ||
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One — the appellant — did not. He exited Room 43 unobserved, and at a decent clip. We shall hear more about him shortly. | 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 | 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{{Tm}} 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. | 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 | “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 | ''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 into the Gallery. | 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!” | 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 | 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!” | 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!” | ||
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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. | 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 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. | ||
The appellant’s grounds for appeal are unusual so I shall set them out in full. | |||
=== Ingredients of the offence=== | === Ingredients of the offence=== | ||
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First, there must be an “assault”. | First, there must be an “assault”. | ||
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 | 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, she must do so with an “edible weapon”. | Secondly, she must do so with an “edible weapon”. | ||
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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''”. | 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 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 | 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 | 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. | 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. | ||
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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'' 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''. | 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 in the subjunctive 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. | ||