On the morning of 14 October 2022 Van Gogh’s Sunflowers, 1888, was vandalised by two environmental protestors throwing the contents of two tomato soup cans over most of the painting exhibited in Room 43 at UK’s National Gallery in London’s Trafalgar Square. Each protestor then glued one hand to the wall below the work, where they were arrested by police. A gallery spokesperson said ‘there is some minor damage to the frame but the painting is unharmed’.
Although the painting’s estimated market value is thought to be around £80 million, cost of its restoration will be substantially lower – and will determine a court’s powers of punishment on conviction for a criminal damage offence. If the cost of damage to Sunflowers is less than £5,000, prosecution of the protestors would be tried by a local magistrate’s court, where maximum punishment on conviction is three months’ imprisonment. If valued at £5,000 or more, trial would be by judge and jury at a regional Crown Court, where maximum punishment on conviction is ten years’ imprisonment. (It has since been reported that the damage to the frame will cost less than £5,000 to repair.)
This incident is the latest in a catalogue of similar such incidents in recent years. In June 2020, at London’s Whitehall, the national Cenotaph war memorial was graffitied and its Union Jack flag set alight during anti-racism protests, and Sir Winston Churchill’s statue was daubed with the words ‘was a racist’. That same month, vandalism of Edward Colston’s statue fuelled parliamentary and public concerns, and raised issues about public freedom of expression via violent protest in the UK.
Edward Colston (1636–1721) was a Bristol-born merchant, transatlantic slave trader and MP for Bristol, whose bronze statue was funded by public and charity donations. The statue was erected in a public park in Bristol’s city centre in 1895 to commemorate Colston’s significant philanthropy throughout the city. The statue – and its siting – was also intended by its commissioners to be a demonstrable public rejoinder to another statue that had been erected nearby the previous year, commemorating the life and work of a notable slavery abolitionist Edmund Burke (1729-1797). A later Bristol MP, Burke was also an acclaimed economist and philosopher, and leading parliamentary campaigner against Britain’s slave trade.
Bristol in the late 19th century was conflicted about its instrumental involvement in Britain’s transatlantic slave trade throughout the previous two centuries. Many Bristolians viewed Colston’s public statue as a potent reminder and symbol of the city’s shameful past, and challenged the morality of his public glorification. Such concerns resurfaced in the 1990s, and grew over subsequent decades. In June 2020, public protestors gathered at Bristol’s city centre, beset Colston’s statue, and toppled and pitched it into nearby Bristol Harbour. Days later, the statue was recovered by Bristol City Council, and later exhibited to the public in a local museum, where it is now in storage.
During December 2021, four of the protestors were tried by a judge and jury at Bristol Crown Court on indictments for causing criminal damage to Colston’s statue without lawful excuse, for which the maximum penalty on conviction is up to ten years imprisonment. In January 2022 the jury acquitted them. This result caused many parliamentarians to voice ‘outrage’ at what some called a ‘perverse’ verdict that ‘undermined the rule of law’; as legislators, it rekindled their broader concerns over the inadequacy of current criminal damage law. The UK Government had similar concerns, and determined to act to provide better protection for publicly-sited ‘memorials’ in future. Before doing so, government lawyers reviewed legal issues and arguments examined at the Colston trial.
The facts of the toppling were not contested at the trial – they had been recorded live on camera. The hearing therefore focused on whether the indicted protestors had a ‘lawful excuse’ for causing the damage by way of protest: in legal-speak the protestors had to satisfy the jury that their actions were ‘reasonable’, and that they honestly believed in those reasons at the time they acted – not whether such a belief was objectively justified or reasonable. During a UK jury trial, the judge decides legal issues and arguments that may be considered by the jury, explaining and summarising ones that have been allowed in final jury directions before they retire to consider their verdict. But a judge always concludes by underlining that any verdict is decided solely by the jury. Defence lawyers had offered the jury various legal reasons that would justify a ‘not guilty’ verdict.
Legislation expressly provides that someone has a lawful excuse for committing criminal damage if they ‘believed at the time that those … entitled to consent to the destruction of or damage to the property in question had so consented, or would have so consented to it if they had known of the destruction or damage and its circumstances’. When deciding this matter, the law is clear that the jury must assess whether the accused’s belief was honestly held at the time of committing the damage.
Defence lawyers argued that the protestors honestly believed the people of Bristol owned the statue – as evidenced by the plaque on its plinth saying ‘erected by citizens of Bristol’ – and would have consented to its removal by the protestors – as evidenced by petitions that had been sent to Bristol City Council over many years calling for the statue’s removal from public view. Prosecution lawyers counter-argued that the council was the statue’s owner, not the public. The judge allowed the jury to decide this matter. It is likely that defence lawyers had in mind the widely reported Newcastle Upon Tyne Crown Court trial in 2021, concerning a publicly-sited sculpture by Antony Gormley (Clasp, 2018): an accused who admitted spray-painting Clasp was acquitted of committing the offence of criminal damage – evidently because the jury accepted the accused’s professed belief that ‘Gormley would have liked it’.
Beyond deploying that express statutory defence of ‘lawful excuse’ by way of ‘consent’, another defence argument was made in terms that the protestors had removed the statue to halt the crime of ‘public indecency’. In other words, that Colston’s slave trading had been so egregious that his statue’s ongoing public presence was ‘offensive, abusive and distressing’ to the Bristol public. The judge allowed the jury to decide whether this argument gave the protestors a ‘lawful excuse’.
The judge also allowed the jury to consider a further ‘lawful excuse’ defence argument: that a conviction for criminal damage in this case would violate the protestors’ legal freedoms of expression and assembly given by the European Convention on Human Rights. The UK Government was one of the first European countries to sign that convention – in 1953 well before joining what became the EU. Post-Brexit, the Convention’s legal freedoms continue to be embedded in UK law. The judge allowed the jury to decide the matter.
UK juries do not announce reasons for their verdicts, and so it is impossible to know why they convict or, as in the Colston case, acquit. The prosecution has no legal right of appeal against acquittals. In the months following the January 2022 acquittals, UK MPs pressed the UK Government to promulgate legislation to reform criminal damage law. The government did so, and convinced Parliament to enact legislation to strengthen protection for publicly-sited ‘memorials’ via provisions of the Police, Crime, Sentencing and Courts Act.
Coming into force on 28 June 2022, this new legislation for England and Wales (Scotland’s Parliament is currently considering its own similar legislation), enacted that damage to or desecration of a ‘memorial’ in future became a new type of criminal damage offence. ‘Memorial’ is defined as a building or other structure, or any other thing that is erected or installed on land (or in or on any building or other structure on land); and may include a moveable object, a garden or any other thing planted or grown on land.
At least one purpose of a ‘memorial’ is to commemorate an individual or animal (whether living or deceased or capable of being identified) or an event or a series of events (such as an armed conflict); and includes any flowers or wreath left in or on or at it for ‘commemoration’ purposes, albeit temporarily. Most significantly, criminal damage to a ‘memorial’ may well cost less than £5,000 to rectify (say, paint daubed on a statue) and under the previous law (which still applies to non-memorials, such as Sunflowers) would be tried by a local magistrate’s court, but ‘memorials’ are now treated differently by the legislative change, so that criminal damage to them of any value is always tried by judge and jury at Crown Court.
The new ‘memorial’ protection having been enacted into law, the UK Government took further legal action. The Attorney General asked the Criminal Court of Appeal to rule on the human rights point of law the defence had raised in the Colston trial, namely: ‘The extent to which the European Convention on Human Rights sanctions the use of violence against property during protest, thereby rendering lawful causing damage to property which would otherwise be a crime’. On 28 September 2022 the criminal appeal court ruled, clarifying that its decision did not disturb the acquittals by the Colston trial jury, and focused only on the legal question of whether a conviction for the damage done to the statue would have been a ‘disproportionate interference with the defendants’ right to protest’.
The appeal court’s ruling concluded that ‘the prosecution was correct in its submission … that the conduct in question fell outside the protection of the [European Human Rights] Convention.’ A written judgment gave extensive analysis of relevant law, which included the following reasoning. ‘The Convention does not provide protection to those who cause criminal damage during protest which is violent or not peaceful. Neither does it provide protection when the damage is inflicted violently or not peacefully.’ As for the facts in the Colston case ‘the circumstances in which the statue was damaged did not involve peaceful protest. The toppling of the statute was violent. Moreover, the damage to the statue was significant.’
This authoritative ruling and rationale by the criminal appeal court sets a legal precedent, which all prosecution and defence lawyers and judges must follow and apply in all future criminal damage via violent protest cases – not only cases of damage to a ‘memorial’. The UK Government had therefore succeeded in effectively closing off a legal line of defence for future protestors committing criminal damage.
Time will tell whether the legal changes, wrought by the UK Government’s reactions in 2022 to the Colston trial acquittals, will succeed in better protecting publicly-sited property – including artwork – against physical abuse. It is important to note that legal frameworks are enacted to encourage a society’s good behaviour, and discourage bad; and that laws cannot guarantee the good, nor prevent the bad. Key to a legal framework’s effectiveness is law enforcement, which ultimately relies on courts of law to judge and justly punish criminal behaviour, but only after the event – those responsible for the very recent vandalism of Sunflowers were evidently not discouraged by the risk of a prison sentence.
Publicly-sited artwork will continue to engage with minds of spectators, and the law is not responsible for that dialogue and has no part in it, save when freedoms of the society in which the art is placed are threatened by it. Over time, publicly-sited artwork may fall out of step with the society in which it exists and cause public comment, discussion and debate. The latter can take the form of new artistic expression, which itself could be new publicly-sited artwork. Erasing that which challenges or inflames any public sensibilities of the day also obliterates the catalyst for continuing engagement with those issues. The law must protect the public, and artwork, from violent disagreement and vandalism as criminal damage. But the freedom to protest and respond – artistically or otherwise – is not for the law to prohibit, any more than it is for opponents of arguments to prohibit, silence or cancel.
© Henry Lydiate 2022
HL’s Note September 2024: On 27 September 2024 at Southwark Crown Court in London, the two vandalisers of Sunflowers in 2022 were sentenced to prison: one for 27 months, and one for 20 months.
HL’s note April 2025: This month Bristol City Council mounted a plaque on the plinth where Edward Colston’s statue stood, which reads: “On 13 November, 1895, a statue of Edward Colston (1636-1721) was unveiled here. In the late 20th and early 21st Century, the celebration of Colston was increasingly challenged given his prominent role in the enslavement of African people. On 7 June 2020, the statue was pulled down during Black Lives Matter protests and rolled into the Floating Harbour. Following consultation with the city in 2021, the statue entered the collections of Bristol City Council ‘s museums.”