The art of protest: cultural objects and criminal damage
23 January 2023 | Applicable law: England and Wales | 5 minute read
Throughout history artists have often been the maverick voices in society, pushing at boundaries and spearheading social change. However, artworks are currently the target of protesters seeking publicity. What has been going on, and what are some of the consequences of targeting artworks in the furtherance of a cause?
Art and protest in the news
On 14 October 2022, two demonstrators threw soup at Van Gogh's work 'Sunflowers' and glued themselves to the walls of the National Gallery. They did this under the auspices of Just Stop Oil, an activist organisation concerned with halting British fossil fuel licenses. The pair have been released on bail pending their trial, set for 22 July 2024. A condition of bail includes a restriction from having glue or paint in their possession in a public place.
This case is one example of the recent proliferation of attacks on art in the name of protest. It has been reported that Alex De Koning, a Just Stop Oil activist, indicated that the group may start slashing paintings to further their cause. As De Koning notes, this is not a new phenomenon; the group references the suffragettes who 'violently slashed paintings in order to get their messages across.' In 1914, Mary Richardson slashed Velazquez’s painting The Rokeby Venus in response to the arrest of fellow suffragette Emmeline Pankhurst, an act for which she was imprisoned for the maximum sentence then of six months.
De Koning's statements contrast with some protesters attempting to adopt a more considered approach by consulting conservators to try and avoid harm to works. It has been reported that the demonstrators who glued themselves to Constable's work The Hay Wain at the National Gallery maintain they were advised by an 'art expert' that low tack tape and small amounts of glue would not cause damage to the frame. In that case, such efforts to fall within the ambit of the law did not assist the protesters, and they were ordered in December 2022 to pay £1,081 in restoration costs.
How is the criminal justice system responding?
Practitioners in the criminal justice system have been grappling with how to apply the current law in a changing political and societal landscape. Proceedings for criminal damage relating to protest have seen attempts to run novel legal arguments to try and justify demonstrators' actions. On 7 June 2020, a statue of Edward Colston was memorably toppled into Bristol Harbour, with four individuals acquitted of criminal damage on 5 January 2022. At that trial, the defendants had advanced a range of defences, including that conviction for damage to the statue interfered with their rights under Article 9 (freedom of conscience), Article 10 (freedom of expression) and Article 11 (freedom of assembly) of the European Convention on Human Rights (the 'Convention'). In a criminal trial before a jury, the judge directs the jury on the relevant law, and the jury applies the law to their determination of the facts. In this case, the judge directed the jury that it was open to them to conclude that the defendants had a 'lawful excuse' defence to the criminal damage allegation, on the basis that a conviction for the statue's damage was a disproportionate interference with the defendants’ right to protest.
Following the jury returning 'not guilty' verdicts, the Attorney General referred the matter to the Court of Appeal on a point of law. The issue, in short, concerned the extent to which the Convention permits the use of violence against property during protest, thereby rendering lawful the causing of damage to property which would otherwise be a crime. The appeal court opined that 'causing significant damage to property during protest would fall outside the protection of the Convention either because the conduct in question was violent or not peaceful, alternatively (even if theoretically peaceful) prosecution and conviction would clearly be proportionate.' This means that if significant damage to property is caused (even if the protest is peaceful), then prosecution and conviction would be found to be a proportionate interference with a protester's rights under the Convention.
Despite attempts by some demonstrators to minimise their risk of prosecution, there may be an increasing willingness by protesters to escalate their actions with more aggressive tactics, regardless of the clear risk of incurring criminal liability. Moreover, there are very real overarching concerns that "copycat" demonstrators may not be so considered in their approach.
Who else is affected?
Putting aside the impact upon the causes which are championed by such protesters, and the impact upon the protesters themselves, what does this all mean for other stakeholders concerned?
It is hard to imagine how the long-departed artists who created the artworks mentioned above would have felt. Any mutilation is at odds with current day artists' moral right to object to having a copyright artistic work 'subjected to derogatory treatment' (a right which is enshrined in statute).
On a practical level, contemporary artists (or their galleries) might find themselves with increased insurance premiums where they exhibit works to the public. Additionally, museums, already managing limited budgets, face increased security costs, staff training, and raised insurance premiums. As a public policy issue, for those museums and galleries taking advantage of the Government Indemnity Scheme, an increase in claims due to damage from protesters could diminish the public purse. Private collectors contemplating loaning their artworks to museums may seek greater contractual protections from museums, thereby excluding smaller institutions, or those owners might simply decide to decline public access. Museum trustees must carefully consider and balance their duties in the context of (amongst other things) these attacks, and rapidly changing cultural and ethical environments. Finally, the viewing public may find themselves admiring artworks from behind security glass or cumbersome barriers.
Demonstrators and their followers may say that any such consequences are minor in comparison to the causes being highlighted. The law will continue to evolve as it has always done, to attempt to achieve a fair balance between competing rights and duties.
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