Shubtill v Director of Public Prosecutions
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Shubtill v. Director of Public Prosecutions [2022] JCLR 46
2022: Oct 24
- Contract — Licence — Implied Licence — Whether existence of Implied Licence operates as justification for assault — 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
Lord Justice Cocklecarrot M.R.: London’s National Gallery has stood for 170 years at the northern boundary of Trafalgar Square. 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 inevitable progress of history: 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]
As might any structure which has stood for so long in so vital a place, in its time the Gallery has witnessed great changes and momentous events, both fair and foul. The erection of Nelson’s Column. Celebration of Victory in Europe. Protests about the War in Vietnam. The suffragettes bombed it 1914. Taxpayers rioted in front of it in 1990.
So the paltry goings on of Friday 14th October 2022 will not linger over the aeons. Fairer things, and fouler ones, will soon wipe them from the collected consciousness, 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
Just after 11am, two young women entered Room 43 of the Gallery. Dressed in matching white tee-shirts, they might have been mistaken, at a glance, for devotees of Wham! or Frankie Goes To Hollywood. No arguments were advanced, either way, but 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.
Being a normal Friday at season-end, the Gallery was busy. The women did not attract the attention of the Gallery’s security detail. This the Gallery has since come to regret, for the women had, concealed about their persons, containers of soup. Soon it became clear they had not brought them for lunch. Without ado, the women vaulted a low velvet rope, emptied their soup tins onto the Sunflowers, glued t elves 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, largely unobserved, and at a decent clip. We shall hear more about him shortly.
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™ such that they could not be removed even if one wanted to.
The young women warmed to their task. The more loquacious of the two was Ms. Violet Elizabeth Bott, of Surrey. She embarked upon something of a monologue.
“Whath worth more: art or life?” she asked, rhetorically. “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 has an estimated value of £72m, so for most people the answer to Ms. Bott’s first question is probably “the art”. That being said, it is not for this court to parse this young woman’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 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 calculated to be of use in acts of vandalism into the National Gallery.
Ms. Botts was still mid-harangue when the appellant approached. She barely registered him. But her confederate, a Ms. Gwendoline Mary Lacey, also of Surrey, did. She watched the appellant carefully as he opened his soup tins. She made no attempt to stop him: indeed, the lower court heard in evidence, and was satisfied, that Ms. Lacey applauded. She cried, “Oh, come on!” though, as we shall see, just what she meant by that was open to interpretation.
In any event, having opened his tins, the appellant emptied them, all over Mesdames Botts and Lacey.
There was something of a melée at this point, though less than there would have been had the young protesters not been stuck fast to the wall. Ms. Botts’ language became a good deal less abstruse. Patrons who were having trouble what she sought to achieve by her own actions were left in no doubt what she thought of the appellant’s. By the time the police were able to take her statement Ms. Botts would prove compendious and imaginative in her complaints at her treatment by the appellant, but in the moment the most she could muster was “It’th not fair! I’m vegan!”
And that is the long and short of it: Mesdames Botts and Lacey have been dealt with separately: their conduct is not, directly, at any rate, at issue before this appeal.
The appellant was summarily convicted at the London and Middlesex assizes on charges of common assault with an edible weapon: in this case, a pint of tinned chicken soup.
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 a “common assault with 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 conducted with an “edible weapon”.
Apparatus beyond a defendant’s own person or clothing will be a “weapon”: where it takes the form of consumable biomass, prima facie it maybe treated as edible. It need not be eaten by, nor even palatable to, the victim.[1]
Thirdly, there must be apprehension of “immediate violence”.
It is clear that violence need not involve injury. 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. 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. At this stage, the prosecution must feel it is 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 attend 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
The appellant is adamant that anger was no part of his motivation. He justifies his actions not on consent, nor defence of person or property, much less maintenance of public order, but upon 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 legal permission, can be generalised to their own personal view that “one may pour soup on, or glue things to, things one finds irritating”.
Indeed, contends Dame Marjorie, we must impute to the Complainants the attitude that one may do this without the owner’s consent, and even notwithstanding a binding contractual obligation, in the form of a ticket containing terms of entry, not to 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 upon it. The appellants, that is, licenced that behaviour.
It an ancient principle of natural justice, of course, is nemo dat quod non habet: one cannot give what one does not have. The complainants could not a grant the licence to damage other persons’ property, only their own.
Dame Marjorie tells us the appellant’s licence was confined to the persons of the complainants and he respected it.
Thus the appellant insists he was doing no more than exercising his legal rights. Dame Marjorie referred us to a dictum in the famous case of Board of Inland Revenue v Haddock [1930] UC 35: “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 reasons, if, in the heart of the very same city, a man could not exercise a licence without being arrested. I find force in this submission.
Respondent’s submissions
Sir Anthony opened brightly for the respondent. He invoked a principle of his own invention which he calls “unequivocality”. With it he argues that for the common law to construe a licence based solely upon behaviour, that behaviour must be unequivocal. In their carry-on, 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 subtle gestures. Nods, winks and waggled heads are quite enough to covey assent. The appellant knows this well.[2]
But nor , Sir Anthony urges, should we lightly impute an open invitation to make mess of a citizen’s oufit, just because that citizen is 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.[3]
The 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 is any talk of a licence.
And Ms. Bott’s cloth-headed oration, he contends, had nothing of the sort. It was baffling: a confused assemblage of illogicalities, sophistries, begged questions, trite slogans, miscued rhetoricals and conclusions not even hinted at by what premises there were. One could not with safety say that Ms. Bott understood herself.
“What,” asks Sir Anthony, “is one make of someone whose tee-shirt says “Just Stop Oil”, but who carries on to decry the cost of energy? What kind of moron demonstrates about hunger,” he continues, “by tipping away soup? 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, apparently, the complainants were not). Had he stopped there, we might have found for the respondent.
But, in closing his submissions Sir Anthony gave us pause, not because his arguments are wrong, but because they are right. Sir Anthony invited us to call to mind the “officious bystander” who first assisted the common law as long ago as 1939.[4] The test for unequivocality should be, broadly the same: A licence such as this requires a clarity of conduct such that an officious bystander would understand the complainants’ intent. Somewhat presumptuously paraphrasing MacKinnon LJ in ''Southern Foundries v Shirlaw'', Sir Anthony suggested:
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
This is an excellent way of framing the issue. Sir Anthony may yet regret it, however. For however neat a statement of the law, by way of fact, it does not help 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 the reasonable man, the officious bystander is not “devoid of human weaknesses, without a single saving vice”[5], but is rather 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 simple pleasure of wreaking inconvenience of others.
But here is the thing: when it comes to deciding how such an officious bystander would have reacted, we need not conjecture. We have no need of an imaginary such figure, because we have an actual one: the appellant himself. he is just the judgmental twerp the court in Shirlaw had in mind. Here we find a paradox: we fabricate our “objective” test from the lived experiences of common folk — each by its own terms subjective — as they are assembled in the imagination, likewise personal, of those who sit in judgment on them. 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 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. We have as support for that proposition the fate that then befell them. Res ipsa loquitur.
See also
- ↑ See R v Helmsley, 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.
- ↑ Shubtill v Port Authority of Finchley
- ↑ Fardell v Potts
- ↑ Southern Foundries v Shirlaw [1939] 2 KB 206
- ↑ Fardell v Potts