Protests involving works of art and cultural property are nothing new. From the slashing of the Rokeby Venus in the National Gallery in 1914 to the defacing of a Rothko mural at Tate Modern almost a century later, those seeking to draw attention to a cause have long recognised the publicity value of attacks on art and artefacts. In the most recent example, two Just Stop Oil protestors launched cans of tomato soup over the National Gallery’s Sunflowers – following hot on the heels of another food-related attack: the smearing of cake on the Mona Lisa by a campaigner who urged shocked onlookers to “think of the earth”.

Vincent van Gogh’s ‘Sunflowers’ at the National Gallery London

Whilst Van Gogh’s masterpiece has apparently survived relatively unscathed, the two protestors have been charged with causing criminal damage to the frame. Interestingly, appearing before Westminster Magistrates Court on Saturday, the soup throwers entered not guilty pleas.

Should we be surprised at such apparent boldness, given the incontrovertible video and photographic evidence of the incident, from start to finish? The media coverage was, of course, the very point of the exercise, but on the face of it, seems to put the protestors in a rather weak position to defend a charge of criminal damage (defined in section 1 of the Criminal Damage Act 1971 as: without lawful excuse, intentionally or recklessly destroying or damaging any property belonging to another).

There is, however, very recent precedent for a successful defence to a criminal damage charge where a cultural artefact was damaged by protestors. Readers may recall the much publicised event in June 2020, when the statue of slave trader Edward Colston was toppled from its plinth and unceremoniously deposited in Bristol harbour by a group participating in the Black Lives Matter protest in the city. Although the context was very different, the entering of not guilty pleas in the face of clear evidence of damage being wrought by the defendants is somewhat analogous (albeit that we don’t yet know whether the Just Stop Oil protestors will maintain their pleas through to trial).

Colston Statue as now displayed, lying on its side in the M Shed Museum in Bristol

As we reported following the trial of the ‘Colston Four’, the not guilty verdict returned by the Jury in that case proved controversial. Not only did it polarise public opinion, it resulted in a referral by the Attorney General to the Court of Appeal on a point of law. The key concern was to clarify whether the defendants in the case could properly raise a defence to the criminal damage charge based on their human rights. More specifically, was it right for the Jury in this case to be asked to consider the following: Would the conviction of the defendants be a proportionate interference with the exercise of their rights to freedom of thought and freedom of expression, as protected by the European Convention on Human Rights?

The answer, delivered by the Court of Appeal at the end of last month, was clear: on the facts of this case, taking into account the significance of the damage and the violence involved in the protest, “…the conduct in question fell outside the protection of the Convention. The proportionality of the conviction could not arise for consideration by the jury.” This conclusion does not affect the verdict and was specific to the context and facts of the case. Nonetheless,  it does provide useful guidance on the approach of the courts to the issues in hand. To quote the prescient words of barrister Richard Harwood KC, writing at the time of the trial in January 2022, “human rights point in favour of allowing representations and art to be publicly displayed and allowing demonstrations against them, rather than allowing individuals to impose their will by force”.^* It is worth noting, however, that the Court of Appeal recognised that in some circumstances, namely where damage to property during protest is “transient or insignificant” the protection of the Convention may still be available to the perpetrators. It remained “theoretically possible” that in cases involving minor or trivial damage to property heard in the Magistrates’ Court “a conviction may not be a proportionate response in the context of protest” (see Judgment paragraphs 120-121 and Press Summary final paragraph).

To return to the current case, what fate could potentially await the soup throwers? If they continue to plead not guilty, the contextual difference renders it a little unlikely that the defences which seemed to prove persuasive in the Colston case would be appropriate here (though we should note, of course, that we can never know how the Colston Jury arrived at their verdict, the secrecy of Jury deliberations being one of the fundamental pillars of English criminal law).

If convicted for damage to the frame of the National Gallery’s Sunflowers, what factors might affect their sentencing? As discussed on the IAL blog in 2019 the sentencing of those convicted of damaging art and cultural artefacts is a matter to which the Sentencing Council has turned its attention relatively recently. From October 2019, one of the specific categories of harm to be considered by a court in sentencing those convicted of certain arson and criminal damage offences has been damage caused to heritage and/or cultural assets. Such damage is to be regarded as an aggravating factor in assessing the overall harm of the offence thus prompting a possible uplift in the sentence considered appropriate. It will be interesting to see how the court addresses the point, should convictions ensue.

While Van Gogh’s iconic work thankfully appears to have escaped significant damage this time, the recent spate of attacks by protestors on artworks shows few signs of abating. Those responsible for protecting the world’s masterpieces should probably steel themselves for further incidents. Meanwhile, whether the intended deterrent effect of the change to sentencing guidelines will make a difference over the longer term remains to be seen.

*The Colston case is discussed in detail in the recently published book, Contested Heritage: Removing Art from Land and Historic Buildings by Richard Harwood KC, Catherine Dobson and David Sawtell. For a review of the book, see the latest issue of Art Antiquity and Law.

Images: Vincent van Gogh, Sunflowers, Public domain, via Wikimedia Commons

Colston Statue as now displayed, lying on its side in the M Shed Museum in Bristol © A. Herman