by Alan Hirsch
Such is the world of the criminal defense lawyer. Bunton insisted on taking sole responsibility for the theft, but his resourceful defense team wished to preserve the argument that he wasn’t in fact the thief. Where necessary, lawyers argue in the alternative: “My client did not take the painting, and if he did take it he intended to return it.” Besides, Bunton had already shown the proclivity for changing his story. Who knew when or how he might do so again?
Asked about his statement to police that “the case is as dead as a dodo with the exception that there is a price on my head,” he explained that he had in mind his reason for coming forward—to prevent someone from claiming the reward money for his capture. “In the last few weeks, the later stages of the affair, a friend of mine knew that I had the painting. . . . I had told him in a pub in Newcastle after I’d had a bit to drink. Rightly or wrongly, and I couldn’t be sure, I was afraid that he might offer to turn me in.”
As the police would learn a few months later, this account of why Bunton came forward was largely true but involved another of his red herrings. The “friend” he mentioned was not exactly a friend and certainly not a “him” but rather Pamela Smith, the girlfriend of Bunton’s son Kenneth. Bunton never explained, to the police or in his memoirs, why he was so determined to deprive Smith of the £5,000 reward. (The real reason for his aversion to Smith coming forward would eventually emerge, but not for decades.)
In the written statement he gave police when he had turned himself in, he also cited two other reasons for coming forward: “I am sick and tired of this whole affair” and “by surrendering in London I avoid the stigma of being brought here in ‘chains.’” At his deposition, he said that the first of these additional reasons “explains itself” and that the comment about chains was “just in fact a flippant remark.”
In that written statement he said, “I do not surrender with my head down—I am ashamed of nothing,” but at the deposition he walked back that defiance somewhat: “I only wish to say that I want to dispute this case on a fighting basis. I regarded the affair as skullduggery—not wicked, but something that I didn’t ought to have done.”
Why had he complained in the written statement that “this generous country of mine grants bail to molesters of little children”? Because, he explained at his deposition, “These latter I regard as the worst kind of criminals. I feel that this is a fairly average reaction and nothing unusual.”
What about his statement that “without criminal intent, there can be no crime”? Here, not for the first time, he said he was relying on the opinion of the London Times legal expert. “What I had read had given me reason to believe that a judge would throw the case out.” As noted, shortly after the painting’s return, the Times indeed quoted a barrister declaring that, under a straightforward reading of the Larceny Act of 1916, a man was not guilty of larceny if he intended to return the goods.
Perhaps Bunton’s strangest response at his deposition came when he was asked to explain his earlier statement that “the average man goes for wife and family—I am somehow different and trouble ensues.” He clarified what he had meant: “I did not regard myself as the average person, but regard myself as a social worker.”
Having dealt with all his own prior statements, at the end of his deposition Bunton was given the opportunity to respond to the prior depositions of all the prospective witnesses in the case. With respect to most of them, he opted for “I have no comment,” but with a few noteworthy exceptions. Apropos of testimony by gallery warder Sydney Settles Cadman, he said: “I disagree with the evidence of this witness when he says that the picture was missing between midnight and 12:30 A.M.” And apropos of testimony by Sergeant William Johnson, he offered a key clarification: “It says I replied to a question, ‘I was not after this painting, no more than any other.’ I made this reply because I did not think it was relevant at that time to say that I was after this particular painting. However, at the time I really was not after any other painting, only this one.”
This cleared up Bunton’s strangest response to the questioning when he turned himself in, a remark that his lawyers considered troubling. The ransom notes clearly implied that the Goya had been pilfered because of the extreme measures taken by the government to keep it in England. By denying that he was after the Goya in particular, Bunton created at least some doubt as to whether he was the author of those notes. Now, his acknowledgment that he was in fact after the Goya provided clarity to the prosecution and defense alike. But the explanation itself—that he had made a false statement because he “did not think [the truth] relevant”—underscored his sometimes cavalier approach to the truth. He said things because they were “theatrical” or justifiable “red herrings” or based on his assessments of relevancy, among other considerations.
In any event, with the depositions in place, Bunton and the other prospective witnesses were largely locked into their stories. The attorneys could now review the evidence and determine which witnesses to call and which points to emphasize at the criminal trial. As it approached, Kempton Bunton felt rickety. As he explained in one of his depositions, “I have been married for 40 years and although we have had rows from time to time and have not spoken to one another, the marriage has not been brought to an end. At the moment my relations with my wife are rather strained, due entirely to this case.”
But Bunton’s marital problems were nothing new and were perhaps the least of his troubles. He faced prolonged prison time, which for a sixty-one-year-old man could amount to a death sentence.
The police had originally charged Bunton with just one count of larceny. When the prosecution got involved, however, a more ambitious charging document emerged:
FOR THAT HE, in the said Area and District and within the jurisdiction of the Central Criminal Court did:
1) On or about the 21st day of August, 1961 at the National Gallery, Trafalgar Square, LONDON. W.C.2., feloniously stole a painting of the Duke of Wellington, vested in the Trustees of the National Gallery.
CONTRARY TO SECTION 2 OF THE LARCENY ACT. 1916
2) On or about the 21st day of August, 1961 in the Greater London Area, feloniously stole one picture frame valued at £100, the property of the National Gallery.
CONTRARY TO SECTION 2 OF THE LARCENY ACT, 1916
and
3) On a day between the 19th and 22nd days of May 1963. At 10 Headway Close, London, N.W. II, utter, knowing the contents thereof, a letter demanding money from Lord ROBBINS, with menaces and without any reasonable or probable cause.
CONTRARY TO SECTION 29 (X) (1) OF THE LARCENY ACT. 1916
Later the document was amended to add two more charges: a second count of sending a letter “with menaces,” stemming from the letter to the Daily Mirror posted on March 21, 1965 (during Bunton’s final effort to have the painting exhibited to raise money for charity); and a charge of “public nuisance,” which alleged that “Her Majesty’s subjects were desirous of viewing the said painting [and] were obstructed in the exercise of their rights and deprived of the enjoyment of the same.” Thus in the case of Regina v. Kempton Bunton, the defendant faced five charges.
It has long been common for prosecutors to squeeze as many charges as possible from a single criminal act, for several reasons: to enhance leverage in plea bargaining, to achieve a greater sentence upon conviction, or to give jurors the option of compromising and finding the defendant guilty of a lesser charge if they have misgivings about convicting on the most serious charge. Accordingly, it is not surprising that the prosecution charged Kempton Bunton with writing ransom notes (albeit only two of them) as well as stealing the painting.
What might seem surprising was the government separately charging Bunton with stealing the frame, which is akin to charging someone with theft of an automobile while drafting a separate charge for stealing items inside the car. Or, to use the analogy Bunton himself invoked in his memoirs, it was “like charging a bandit who had admitted stealing thousands of pounds in cash with also steal
ing the tin box it was held in.” He added, rhetorically, “but who was I to question the mysterious ways of the prosecution?”
Actually, there was nothing mysterious about the extra charge, and Bunton himself triggered it through his gratuitous comments to police. He indicated to the officers at Scotland Yard, as well as in the written statement he offered them, that he planned to argue that he lacked the requisite criminal intent because he had intended to return the painting all along. Notwithstanding the language of the Larceny Act that, read literally, seemed to authorize it, such a defense was unorthodox and seemed unlikely to succeed. But the prosecution saw no need to take chances. If jurors felt they should not convict a thief for a painting eventually returned, well, the same could not be said of the frame, which was never returned. Bunton’s lawyer Eric Crowther later acknowledged that the separate charge of stealing the frame was “cunning.”b
Surendra Popat, who assisted the defense, recalls running into Sergeant William Johnson (one of the lead investigators in the case) at a social event a year after the trial. Johnson claimed that he had convinced the prosecutors to charge separately theft of the frame.
The public nuisance charge, on the other hand, seemed a bit of a stretch, one the Bunton team planned to protest. But that, like the entire case from the defense standpoint, figured to be an uphill climb.
Chapter 13: BEFORE THE BOMBSHELL
The long-awaited case went to trial on November 4 in Central Criminal Court (better known as Old Bailey) in London. The august Old Bailey, named after the street where it is located, was completed in 1907 and officially opened for court business by King Edward VII. A gold leaf statue of Lady Justice stands atop the imposing, sixty-seven-foot neo-Baroque dome, and above the main entrance are inscribed two of the court’s principal roles: “Defend the children of the poor and punish the wrongdoer.” Lady Justice holds the customary sword in one hand and the scales of justice in the other but, for whatever reason, is not blindfolded, unlike the usual iconic Lady Justice.
The inside of Old Bailey features Sicilian marble floors and ornate mosaic arches as well as four spacious oak-paneled courtrooms. In one of these courtrooms, Kempton Bunton stood trial before a jury of ten men and two women, presided over by Judge Carl Aarvold (the “recorder,” as judges in England are called), a former professional rugby player once oddly described by a journalist as “not only gracious in defeat but fluent in French, a rare combination.” First appointed to the bench in 1951, Aarvold was promoted to senior judge at Old Bailey in 1964, the year before the Bunton trial, and he would become knighted in 1968.
The first day and a half of the trial witnessed perfunctory prosecution testimony recounting nondisputed circumstances surrounding the theft of the painting and its return. In the middle of the second day, the trial took its first surprising turn. Defense counsel Jeremy Hutchinson requested a hearing to seek dismissal of three of the five charges against his client. (Defense attorneys usually await completion of the prosecution’s case before making such a motion.) The judge said, half-smiling, ‘I have no doubt that Mr. Hutchinson is going to throw the books at me,’ to which the quick-witted solicitor replied, ‘With all due respect, M’Lord, I shall present the books to you.’”
So he did, during a two-hour hearing held outside the presence of the jury.
Hutchinson urged the court to dismiss all but the two larceny charges, arguing that (1) the government had failed to present evidence from which a jury could convict with respect to the two counts of sending a letter “with menaces”; and (2) the public nuisance charge was simply inappropriate in this type of case.
He devoted most of his argument to the public nuisance charge, an hour-long presentation that would have done any trial lawyer proud. Hutchinson discussed dozens of cases going back centuries, summarized learned commentaries (especially those of the revered legal historians Blackstone and Stephen), and responded sharply but sycophantically to the judge’s requests for clarifications (“No, my Lord, with great respect”). His introduction of some of the cases left laypeople in the courtroom scratching their heads, as these cases involved circumstances bearing little resemblance to the theft of a painting. For example, Hutchinson quoted at length from a nineteenth-century opinion holding that “burning rather than burying a body” does not constitute a public nuisance under the law.
While such cases would strike some as far afield, it is common for attorneys to dig up any cases from which favorable language can be extracted, especially court opinions authored by famous or well-regarded judges. The burning versus burying case, for example, was decided by a well-known judge, whose notion that the public nuisance language should be construed narrowly served Hutchinson’s purposes. Indeed, Hutchinson actually turned to his advantage the fact that the cases he cited seemed unrelated to the present case: The disconnect, he explained, was precisely because no one ever thought to prosecute as a public nuisance a mere act of theft. Courts, especially British courts steeped in the common law (legal doctrines established by judges in previous cases), rely heavily on precedent, and Hutchinson emphasized the unprecedented nature of the application of the public nuisance charge to cases like the present one.
A public nuisance charge usually involved damage to the public health and safety. Hutchinson claimed to have plowed through all the relevant law books and “been unable to find any case . . . where an individual has been indicted for depriving a section of the public of the enjoyment, or the satisfaction of contemplating a work of art.” To allow the charge to stand, Hutchinson insisted, would “enlarge the scope of criminal law quite enormously.”
Hutchinson buttressed his argument from precedent with a more technical argument: Depriving members of the public of some pleasure constitutes a public nuisance only if they have the right to that pleasure. Thus, for example, “digging a hole or blocking the entrance to the Gallery” might constitute a public nuisance because people have the right to enter the gallery and view paintings. They do not, however, have the right to view any particular painting. Indeed, which paintings are viewable is a function of many arbitrary factors, such as the curators’ whims. It was a matter of happenstance that Goya’s Portrait of the Duke had been exhibited in the first place. Accordingly, depriving people of seeing it could not constitute an independent crime.
Hutchinson also advanced the related argument that Bunton’s thievery had deprived the public of seeing only a single painting. This was, in the words of the law, de minimis—too trivial to rise to something legally actionable. By analogy, someone might commit a public nuisance by bombing a library and destroying its collection, but a person who “took a book from a public library and retained it for a long time to the great annoyance of any other members of the public who wanted to read it”—while surely causing a nuisance in lay terms—did not create a public nuisance as a matter of criminal law.
This latter argument gave the prosecutor (or counsel for the crown, as he was called) an opening, and, in his best moment in response to Hutchinson’s long argument, Edward Cussen exploited it. Playing to the nation’s pride in the Duke of Wellington, Cussen acknowledged that one overdue library book would not amount to a public nuisance but that the matter was different with respect to a “national treasure.” Suppose, he said, someone removed the Magna Carta—surely that would support a charge of public nuisance.
Otherwise, the prosecutor did not shine during the hearing. Since Cussen maintained that deprivation of the pleasure of looking at the painting constituted a public nuisance, the judge posed an analogy that also involved viewing pleasure: “If somebody stopped on a highway to enjoy a scene or a view, and somebody puts up a post to prevent them stopping there, would it be committing a public nuisance?”
The best response would have been either “yes” or “no, but,” followed by an explanation of why the present case was different. Instead, Cussen did what shrewd lawyers generally avoid—he thought out loud. His meandering response involved musing, “If, for some purpose of his o
wn, a man saw fit in these astonishing scientific days to cause an artificial cloud perpetually to hang over Box Hill so Her Majesty’s subjects could never see it at all,” it might indeed constitute a public nuisance. Except Cussen lacked conviction with respect to his own far-flung hypothetical, saying only that “the first thought which would come to mind would be that thereby he was bringing himself within the purview” of the criminal law.
Cussen did a better job responding to the fact that decades of cases applying the public nuisance offense included none resembling this one. That, he said, is precisely the beauty of the common law: It involves the evolution of doctrine in response to new scenarios not previously envisioned or encountered. Precedent is nice, it may even be the lifeblood of the law, but it has limits. It must be supplemented with new doctrines, or new applications of old doctrines, when unanticipated or changed circumstances arise.
But in the course of making that reasonable argument, Cussen committed what for lawyers is sometimes (and may have been here) a fatal mistake: the sin of candor. Unprompted, he explained at length why he added the charge of public nuisance to the four earlier charges against Bunton. He confessed that the other charges made him nervous. He knew that the defense planned to argue that Bunton always intended to return the painting and that the Larceny Act on its face required that the thief intend to “permanently deprive” the owner of his possession. He feared that a jury would accept that argument. So too the two charges of “uttering a threat” left him uneasy—”My Lord, supposing this is not supported. Supposing that counts three and four are not supported?”
Having fretted that the first four charges might fail, yet knowing that a man could not be allowed to steal a valued painting without suffering criminal consequences, Cussen racked his brain to find “any other offense of law” that just might be deemed applicable to the defendant’s acts. And, he concluded in his confession, “That is the reason for the inclusion of count five in this indictment.”