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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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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 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. | ''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. | ||
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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. | ||