by Alan Hirsch
Hutchinson would have been better off ignoring this line of inquiry altogether. He was free to emphasize to the jury (in closing argument) the differences between this letter and the others and to argue that it had originated from someone different. Why invite Robbins to give the jury the opposite conclusion from a neutral source? Hutchinson compounded this rare mistake by pursuing the matter after Robbins had forcefully stated his position.
“I wonder whether you could tell me why you thought that?” he asked.
Robbins replied, “The style has a truculence which suggested to me a common origin.”
“Anything else?” Hutchinson persisted.
Robbins responded that the letter to him seemed “very authentic”—meaning not a hoax, which thus linked it to the letters whose authenticity was borne out by the description of details on the back of the painting.
“I am afraid I must press you about this,” Hutchinson insisted. He asked Robbins to look at two of the Com letters concededly written by his client, eliciting from Robbins that “they are as alike as one sonnet by Shakespeare to another.”
“The sonnet in the typewritten one [to Robbins] is very different,” Hutchinson interjected, noting that it did not specifically mention charity, asked for just £5,000 as opposed to the £140,000 requested in the two other letters, and was typed rather than handwritten.
“That is true,” Robbins conceded, while maintaining that these differences “didn’t raise in my mind that the object of the request was any different from the request in the other letters.” Try as he may, Hutchinson could not shake Robbins’s conviction that the May 20 letter was written by Kempton Bunton. Eventually Hutchinson changed course and elicited opinions more helpful to his client, starting with the fact that the painting, in Robbins’s words, “had been packed [by Bunton] with care and solicitude for its condition.”
“You did not ever get the impression that the person who had it in his care was going to harm the picture on purpose?” Hutchinson asked.
“No, I always refused to believe that.”
Hutchinson then turned to the rumors that the painting was inauthentic, even though Judge Aarvold had declared the issue irrelevant just the day before. He asked Robbins to acknowledge that there was a controversy not only about whether the painting was worth £140,000 but also about “was it really by Goya at all.” Robbins replied that the question of authenticity “never worried me much,” since the gallery’s experts, who vouched for the painting, are “the best in the world.” Robbins conceded that the painting could be seen as overpriced (its value had been dictated by Charles Wrightsman’s auction bid, not any action by the gallery), but “it was a portrait of Britain’s most famous nineteenth century soldier by the most important painter of the time,” and thus its value transcended its aesthetic merit.
Judge Aarvold interjected to refocus Robbins’s attention on the issue of the painting’s authenticity—somewhat surprisingly given the judge’s previous ruling that the matter was out of bounds. Robbins replied that he thought the controversy was frivolous, prompting Hutchinson to jump in to observe that the original doubts about authenticity had been voiced by the estimable artist Sir Gerald Kelly, not some crank. Robbins snapped, “It would never occur to me to read Sir Gerald Kelly’s casual observations on art matters.” Hutchinson asked whether he was aware that Kelly had called the portrait “a very poor specimen of a picture.” (Though unremarked by Hutchinson, Kelly had also publicly declared, “If that’s a Goya, I’m a virgin.”)
Before Robbins could reply, Judge Aarvold again decided that he had heard enough of this side issue. He declared the matter “completely and utterly irrelevant” and told Robbins he need not answer. Robbins said, “I have got something I would like to tell learned counsel very much,” but this time Aarvold was steadfast and declared debate over the quality of the picture off-limits once and for all. Thus concluded Hutchinson’s mostly unsuccessful cross-examination of the witness.
On re-direct-examination, Cussen sought to establish the painting’s bona fides. He couldn’t do so directly, given the judge’s emphatic determination that the issue was off-limits, so Cussen cleverly asked Robbins to verify that the gallery had again exhibited the painting following its return. Robbins replied that it had, following a brief interval for slight repairs, procurement of a new frame, “and [provision of] a Perspex shade in case any member of the public should misbehave.”
Apart from the curious diversion concerning the painting’s authenticity, most of the trial proceeded smoothly enough, if only because few knew about the bombshell dropped behind the scenes.
Chapter 14: BOMBSHELL
On November 11, 1965, one week into the trial, a woman named Pamela Smith of Newcastle dropped in at West End Central Station and asked to speak to the officers who had conducted the investigation into the stolen Goya painting. When Detectives William Johnson and Ferguson McGregor Walker emerged, she told them that she had information about the case and, at their request, proceeded to give an oral statement. Johnson typed it up and Smith signed it. Her story, covering five double-spaced pages, included substantial material about her various encounters with Kempton Bunton, which for the most part conformed to his account of their relationship in his memoirs (described in chapter 10). But Smith contradicted Bunton on the single-most important point, offering evidence that called into question the central claim of not only Bunton’s memoirs but also his numerous versions of events told to the police, at his depositions, and before long at trial. According to Smith, Bunton had not stolen the painting.
Smith told the officers that she had separated from her husband in 1961 and in late September 1963 met Kenneth Bunton, Kempton’s oldest son. They hit it off, and a week later she moved in with Kenneth in Birmingham. In June 1964 the couple moved to Newcastle, where Kenneth had grown up and his parents still lived. They briefly stayed with his parents, Kempton Bunton and his wife, before finding a flat of their own. (Pamela and Kenneth had split up by the time this statement was given, and she was living in Stoke.)
According to Smith, Kenneth Bunton often talked about the Goya theft but had never associated himself or his family with it until the latter part of June 1964, after she and Kenneth had been living in Newcastle roughly three weeks, At that point, Kenneth shared a family secret: The Goya had actually been stolen by John Bunton, Kenneth’s younger brother and Kempton’s youngest son, with assistance from another man Kenneth did not name. John kept the painting hidden behind a wall “in a cottage on the coast” where an old lady lived by herself.
That, at least, is what Kenneth told Smith at first. A few days later, he admitted to Smith that while his brother John was in fact the thief, the rest of the story was “a pack of lies.” There had been no accomplice, and the painting was in fact in Newcastle, though he did not disclose the precise location. Smith asked him how the painting had been transported north from London and also how Kenneth knew so much. It turns out the answers to the two questions were intimately related.
Kenneth claimed that, following the theft, he loaned his father £70 so that the latter could travel to London, along with Kenneth, to assist John. And so they did. Kenneth and Kempton wrapped the painting in hardboard, transported it to Kempton’s home in Newcastle, and put it in the cupboard in an upstairs room. They covered the hardboard with wallpaper “in order to disguise the fact that there was a cupboard. It was supposed to be walled in.” Smith hastened to add, “All this is what Kenneth was telling me. I did not see it for myself.”
Meanwhile, the father and two sons formulated a plan. If money could be raised from the National Gallery to reclaim the painting, Kempton, Kenneth, and John planned to split the proceeds—50 percent to John, 25 percent each to Kempton and Kenneth.
That was the initial bare-bones story, but, according to Smith, “Over a few weeks I heard the story many times and Ken kept adding details.” She eventually learned that John had not gone to the National Gallery in search of the Goya. He was after any
painting, intending to extract money from the insurer. After the heist, he wrote to his father to tell him he was in unspecified trouble and to request his father’s presence in London. When Kempton (not accompanied by Kenneth) arrived in Kings Cross, where John was staying, John told him about the theft and asked Kempton to take the painting off his hands.
After Kempton did so, they learned that John had miscalculated: “They found out [the painting] was not insured.” Trouble between the collaborators ensued. “According to Kenneth, John and his father were at loggerheads over the next few years over what to do with it. . . . They argued for a long time.” John wanted to burn the painting, an idea Kempton considered unthinkable. “Kempton eventually convinced John to do it the father’s way”—which meant keeping the painting “so they would eventually get money from a story.”
While Kempton’s story and Pamela’s diverged on who stole the painting, they converged on one key fact: “About a week before he gave himself up, Kempton told me that he had stolen the Goya.” (A little later in her statement to the police, she offered a crucial clarification: “The old man never said to me that he was the one who had stolen it—he just said that he had it.”) She added, “He did not know that Kenneth had already told me and I did not want Kempton to know what I knew already.” Accordingly, she said to him, “Pop, you’re living in a fool’s paradise and there’s no fool like an old fool.”
According to Smith, Kenneth told her that Kempton and John had arranged the return of the painting to the left luggage office at the Birmingham railway station. John had personally returned it there (which would make him “Mr. Bloxham,” though Smith shed no light on that choice of name). They had cooked up some elaborate plan involving a letter that would mention television licenses to get Kempton arrested, but the plan fell through. (“Ken thought that John had been afraid to keep to the plan.”) Accordingly, “The old man had to give himself up,” though Pamela failed to explain why in fact that was necessary. However, later in her statement she remarked, “His idea is to carry on as he has been doing at his trial, go to prison if he has to, then sell his story to the highest bidder.”
Smith cleared other members of the Bunton family: Kempton’s other sons, Tommy and Harry, knew nothing about the theft except what they read in the newspapers, and Bunton’s wife “thinks it’s all a publicity stunt by the old man to get his plays published.”
In his memoirs, Kempton portrays Pamela Smith unflatteringly. Whether he knew it or not, he was returning fire. Pamela Smith told the detectives, “Kempton himself is not interested in old age pensioners, he is just looking after himself.”
Her signed statement was the only time Pamela Smith (who died in 1974) would ever go on the record about her relationship with the Buntons and the kidnapping of The Duke of Wellington. Smith gave no explanation for coming forward then rather than before the trial began. Though her motives must forever remain a mystery, with the benefit of hindsight we can make several safe statements related to Smith’s involvement in the case.
First, when Kempton Bunton had told police that he came forward because he worried about someone identifying him as the culprit and claiming the reward money, he was telling the truth, and he had in mind Pamela Smith (not, as he would testify, some drinking buddy). She was clearly telling the truth when she said that Kempton Bunton told her he had the painting. He told the authorities in no uncertain terms, and reiterated in his memoirs, that he returned the Goya because he had blurted out his involvement and did not want the recipient of his confession to get the reward. Kenneth Bunton and John Bunton would later confirm that Pamela Smith was the person Kempton wished to keep from receiving the reward.
Beyond that, it is difficult to determine how much of her story is true. (Falsity could have emerged either from Kenneth Bunton dissembling to Smith or from she to the police.) Some of what she said was manifestly untrue, such as the claim that Kempton did not care about old age pensioners. That alone could justify suspicion that she was indulging a grudge rather than simply sharing relevant information. Smith could have been motivated to come forward by the reward money (as Kempton obviously feared), since she was naming a new suspect, but she never mentioned the prospect of a reward to the police.
Whatever impelled Smith to share information would lead her only so far. Toward the end of her statement she said: “I have told the truth in this statement but I do not wish to go to Court and give evidence.” The reason for her resistance was straightforward: “I am afraid of Kenneth—he is violent and has struck me before. Since he told me about the Goya he has kept a close eye on me. He will come to Stoke and assault me I am sure.” She also claimed to fear for the safety of her husband and children, claiming that Kenneth threatened to harm them if she ever divulged the secret. (As it happens, Smith and Kenneth Bunton later reconciled and lived together until he died of a heart attack in 1973 at the age of forty-two.)
Later that day, the police shared Smith’s statement with the prosecution, and the following morning, Friday, November 12, Cussen brought her statement to the attention of lead defense counsel Hutchinson. Hugh Courts, who assisted Hutchinson, recalls discovering that morning that the trial had taken a curious turn. The prosecution had finished its case, and Courts expected the defense to begin calling its witnesses.
But when I arrived in the morning at the usual hour, between half an hour and three quarters of an hour before commencement of the day’s trial, to my astonishment I found an empty chamber. Upon my enquiries I was told that all the barristers in the case were in the judge’s room, and no-one else was to enter, so that they could discuss that which—at that time I knew not. All I knew then . . . was that one of Kempton’s sons may have done that which, given Kempton’s girth and age, would have been very difficult indeed. Consequently there was obviously an extraordinarily difficult legal question to answer.
In his memoirs, Kempton Bunton gives a similar account of what transpired when the bombshell was dropped in the middle of the trial, though he leaves his sons out of it:
This morning there seemed to be an unusual delay, and I could hear the distant voices of the lawyers conversing. Some 15 minutes later I was ushered into the dock and the Judge addressed the jury to the effect that some fresh evidence had been submitted which the prosecution would be talking over with the defense.
Indeed, the judge adjourned the trial until Monday, sending the jury home for the weekend and informing them that the two sides were engaged in “private consultation.” Plea bargaining can take place during a trial, and occasionally agreements are reached mid-trial. The more savvy jurors probably guessed that such talks had progressed to the point that the trial might be derailed. The continuation of the trial was indeed up in the air, though the commotion and interruption had nothing to do with efforts to settle the case.
After the adjournment, when his attorneys explained the situation to Kempton Bunton, he informed them that he indeed knew Smith and “knew her to be a dangerous lunatic.” He insisted that she was simply looking for the £5,000 reward. He neglected to tell them that the threat of her coming forward was precisely what led him to come forward—in other words, that she was the one he feared would turn him in. (It was just as well, as Bunton would shortly perjure himself with respect to this matter and would have made his lawyers accomplices to his perjury if he told them the truth.)
The parties and the judge faced what Hugh Courts called an “extraordinarily difficult legal question”—how to handle this new information.
Pamela Smith declared herself unwilling to talk, and in any event, her most relevant information (Kenneth Bunton’s claim that his brother, not his father, had stolen the painting) was probably inadmissible hearsay.a Still, the prosecution was wise to apprise the defense of her statement. Had it not done so, if the defense ever learned about her statement it could have asked for a mistrial—or, if an unfavorable verdict had already been reached, a vacating of the conviction. Starting in 1946, seventeen years before the United States fo
llowed suit, Great Britain’s Court of Appeals imposed a duty on prosecutors to disclose to the defense the names of anyone who might provide exonerating information.b
Hearsay is a statement made to the witness by someone else. The problem comes from the inability of the adversely affected side to cross-examine the person who allegedly made the statement. Had Pamela Smith been allowed to testify that Kenneth Bunton had told her that his brother had committed the crime, the prosecution would have been unable to probe Kenneth Bunton’s story. If either party had wished to present Kenneth Bunton’s story, they would have had to call him as a witness. But, as it happens, he was merely reporting what his brother had told him—which was itself hearsay. In other words, Pamela Smith’s prospective testimony would have been double hearsay (“Someone told me what someone told him”) and clearly inadmissible. Although Great Britain has substantially loosened its restrictions on hearsay, back in 1965 it had strict rules limiting such testimony.
England’s Court of Appeals went further in 1965, in a case decided shortly before the Bunton trial. The court held that if the prosecution “knows of a credible witness who can speak to material facts which tend to show the prisoner to be innocent, [it] must either call that witness himself or make his statement available to the defense.”
But, as it happens, the defense did not wish to utilize this potentially exonerating information. Smith’s statement cleared Bunton only by suggesting that his son was the actual culprit. The last thing Kempton Bunton would have authorized his attorneys to do was to make John the fall guy. Besides, the defense team felt that the evidence had gone favorably to this point (and they hadn’t begun putting on their own witnesses) and expected an acquittal. They didn’t need or even want evidence that someone other than the defendant had taken the painting. They would stick to the original plan and argue that he had taken the painting but was nevertheless not guilty.