The taking of a major artwork from a national gallery would not normally sound like a promising scenario for an entertaining comedy-drama. Its portrayal in the recently released film The Duke is a testament to the highly unusual story that lies behind it and its central character, the improbably named Kempton Bunton.

The film tells the story of the removal of Francisco Goya’s portrait of the Duke of Wellington from the National Gallery in London in 1961. The background, which is important to the story, is that the painting was sold by Sotheby’s in London in 1960 to an American art collector, Charles Wrightsman, for £140,000. A public uproar ensued about the loss to America of a national treasure which led to Mr Wrightsman generously offering to sell the painting to the nation for the price he had paid for it. The Wolfson Foundation and the Treasury funded the purchase and Wellington promptly went on display at the National Gallery in London. Only nineteen days later it had disappeared without trace, the first time in the history of the National Gallery that something like this had happened. There was widespread concern at the highest levels. A reward of £5,000 was offered for the return of the painting (see the 1961 Reward Notice below). It was widely assumed that this was the work of a skilled and highly professional criminal enterprise. The gulf between this assumption and the story of the improbable reality behind it is what the film explores, one might say luxuriates in.

The first half of the film sets the scene and paints a vivid portrait of the insufferable but well-meaning Bunton and his long-suffering wife played magnificently by Jim Broadbent and Helen Mirren. The broad outline of the story is accurate although the film makes one egregious departure from the facts. In the film the Bunton character is portrayed as returning the painting himself to the National Gallery. In fact, the editor of the Daily Mirror received an anonymous communication containing a left luggage ticket  for Birmingham New Street Station. The painting was found in this unlikely spot to be rolled up and frameless but not seriously the worse for its travels almost four years after its disappearance. Some weeks later Bunton surrendered himself to the police and made a fulsome confession to rather incredulous officers. Bunton was some six feet tall and weighed eighteen stone and the agile perpetrator had had to climb a fence, ascend a ladder and enter and exit through a small window to remove the painting from the gallery. The result nevertheless was that he was charged on an indictment with three counts, theft (or larceny as it then was), making demands with menaces and public nuisance. He pleaded not guilty.

It was his good fortune to be represented by one of the most able and leading defence counsel of the time, Jeremy Hutchinson. His other clients included, at various times, the spies George Blake and John Vassal, Christine Keeler and Penguin Books in the trial of Lady Chatterly’s Lover (his biography, left, makes for truly fascinating reading). Some of the best lines in the film come from the climatic court scenes where Hutchinson helps to present Bunton as an eccentric but essentially decent and sympathetic character. Whilst again largely accurate the compression of the trial scenes disguises the skill of Hutchinson in subtly undermining the prosecution’s case. His ingenious central line of defence, as the film makes clear, is that, then as now, an essential ingredient of theft is an intention permanently to deprive the owner of their property. Borrowing is not theft. Bunton disarmingly insisted that he always intended to return the painting and thought that after the first ransom letter there would be an, ‘immediate collection for the picture as the money was to go to charity’.

What the film does not deal with is the disposal of the demanding with menaces charge. The letter that formed the basis of this count was addressed to Lord Robbins as Chairman of the Trustees of the National Gallery. An essential ingredient of the charge was the need for the victim to be caused fear or apprehension by the menaces. Hutchinson asked Lord Robbins if he had felt at all alarmed when he received Bunton’s letter of demands, to which he replied, ‘No, of course not’. That effectively undermined the second count.

Public Nuisance is not a common charge but, in this case, the essence was that the defendant by his taking had, ‘deprived people of their enjoyment of it’, it being presumably a superb example of Goya’s later work. What the film does not portray is Hutchinson’s skilful attempt to undermine the quality and even the authenticity of the painting, so buttressing Bunton’s point that the money could have been better spent on helping to provide TV licences to pensioners. On more than one occasion the Bunton character comments that the painting, when observed closely, is really not very good. In the actual trial Hutchinson went further in his cross-examination of Michael Levey, then assistant keeper of the National Gallery, by putting it to him that, on the authority of a past president of the Royal Academy, it was, ‘slick, incompetent and vulgar’. This built up to the suggestion that there was respectable support for the notion that £140,000 was an outrageous sum to pay for a dubious picture. Although the judge made clear that this line of questioning could not be pursued, as he regarded it as irrelevant, one might think that by then the jury had taken the point that Bunton’s view that the money could have been better spent was not as eccentric as it might have first appeared.

The upshot was that Bunton was indeed convicted only of theft of the picture frame, valued at some £100, which was never recovered, and he was sentenced to three months imprisonment. The sentencing judge’s remarks reflect his obvious displeasure at the jury’s verdict commenting, ‘…motives even if they are good, cannot justify creeping into art galleries in order to extract paintings of value so that you can use them for your own purposes. This has got to be discouraged’. Hutchinson’s reaction, according to his biographer, was that,  ‘…the judge committed a serious offence under section 1 of the Dirty Tricks Act’. The added irony, as the film latterly makes clear, is that Bunton did not commit the theft at all as his son later confessed.

As a footnote to the story portrayed in the film the law did subsequently take heed of concerns that such behaviour should be discouraged. Whilst retaining the need for an intention permanently to deprive, section 6(1) of the Theft Act 1968, which completely replaced the law of larceny, expands that concept to include,  ‘…an intention… to treat the thing as his own to dispose of regardless of the other’s rights; and a borrowing…may amount to so treating if,…the borrowing…is for a period and in circumstances making it equivalent to an outright taking’. This drafting would not win awards for lucidity but, whatever it means, it would almost certainly block a defence such as Bunton’s where a painting is held to ransom.

This may render otiose the further offence introduced in section 11 of the Theft Act 1968, known in its passage through the House as the Goya Clause, of Removal of Articles from Places Open to the Public. The advantage to a prosecutor of charging this offence, which appears not to have been widely used, is that even temporary deprivation of property is enough. The mental element is merely an intention to remove the article knowing that there is no lawful authority for doing so. ‘Dishonesty’, a core ingredient in theft, is not a constituent of the offence (for more on the crime and this offence, see the December 2001 article from National Gallery curator Humphrey Wine in Art Antiquity and Law, shown above). Still, one may wonder whether even this discouragement would ever have been enough to inhibit the incorrigibly principled Mr Bunton from his protest.

Images above are: Poster for The Duke, Goya’s Duke of Wellington, the cover to Thomas Grant’s 2015 biography of Jeremy Hutchinson and the original 1961 Reward Notice (Another Nickel in the Machine blog post, 2014). In case of doubt, images are used under fair dealing in the UK for the purposes of criticism/review and reporting current events (section 30 of the Copyright, Designs and Patents Act 1988).