The Duke of Wellington, Kidnapped!

by Alan Hirsch

  Bunton was so outraged by the suggestion that he cut off his own attorney. “Well, I think it is the most ridiculous suggestion that ever has been made.”

  “I take it your answer is no, is it?”

  “Absolutely.”

  Hutchinson elicited that Bunton had wrapped the painting carefully before returning it and asked: “Did you ever from the time the picture was in your care, did you ever want to do it any damage at all?”

  “Well, I wouldn’t dream of doing such a thing.”

  That claim seems borne out by Bunton’s behavior. An underrated aspect of the whole affair was that The Duke had barely suffered a scratch. One of Bunton’s attorneys, Eric Crowther, later observed, “How Mr. Bunton managed to keep the picture undamaged during its travels around the country was little short of a miracle.”

  Hutchinson turned to Bunton’s May 25 and May 26 letters, both sent to the Exchange Telegraph but with a different target audience: The former railed against the Daily Mirror; the latter pleaded with Lord Robbins. Why did Bunton send these letters to the Exchange Telegraph rather than the Mirror and Robbins, respectively? Bunton explained that the Mirror would have suppressed his letter and that he lacked Lord Robbins’s address.

  The Exchange Telegraph had passed along the letters, and the Mirror had responded (in print) by justifying its failure to exhibit the Goya to raise money. At that point, Bunton testified, he regarded “the matter as now closed.”

  Why, then, did he turn himself in seven weeks later? Here he repeated the story he told consistently, starting that day, July 19, when he arrived at New Scotland Yard identifying himself as the thief. He had come forward “for the simple reason that by that time other people knew that I was the person. . . . I thought eventually with the reward still on my head, that somebody would squeal, and to stop that I decided to come south and give myself up.”

  Hutchinson next sought to turn the government’s witnesses into his own.

  “You heard the police officers giving evidence?”

  “Yes.”

  “Broadly, do you agree with their account of the things that you said [after he gave himself up]?”

  “Yes.”

  “Did you, as they have agreed, try to help them in every way that you could to convince them that you really were the person?”

  “Yes.”

  “You told them all about how it was packed and so on and so forth?”

  “Yes.”

  Hutchinson read aloud the written statement Bunton had given police, pausing to emphasize Bunton’s declaration that he had acted “without criminal intent.” Then Hutchinson asked him to reflect on the statement.

  “Did you have any criminal intent at the time?”

  “None whatsoever.”

  He asked Bunton to explain what he meant, in the written statement, when he said that “the average man goes for wife and family—I am somehow different and trouble ensues.” Bunton welcomed the opportunity to elaborate about his altruism, saying, “The average man is in the rat race, and looks after himself. I seem to get into trouble looking after other folk.”

  Hutchinson read aloud Bunton’s written statement that “my effort has been honest to goodness skullduggery.”

  “I do not know what your definition of skullduggery is, and what you meant,” Hutchinson said.

  “Well, neither do I,” Bunton replied.

  Such moments were greeted with raucous laughter in the courtroom. Bunton’s son John, who was present at the trial, recalls, “The whole case was like a Steptoe and Son comedy, unbelievable really, judge and jury laughing their heads off.”

  Hutchinson next asked several questions about Bunton’s comments to police (both in his written statement and orally) that, on account of the opinion rendered by a legal expert in the London Times, he believed he lacked criminal intent and would be acquitted if he came forward and was brought to trial. This could have no relevance to Bunton’s state of mind when he had stolen the painting four years earlier or returned it a few months prior, but Hutchinson sought every vehicle possible to emphasize that legal opinion—which, after all, formed the basis of the defense theory of the case.

  Then he returned to the crucial May 20, 1963, letter to Lord Robbins. Once again, as he had all along, Bunton claimed that he had “nothing whatsoever” to do with that letter. Hutchinson noted that this letter stated £5,000 as the price for the painting’s return and asked, “Did you ever throughout this period ask anybody for £5,000?”

  “Never at all.”

  “Is that a figure that came into your head at all ever?”

  “No.”

  “It appears to be a registered letter. Did you ever register any of the Com letters at all?”

  “No.”

  “Have you ever throughout this business wanted to ask for money for your own sake at all?”

  “Never at all.”

  Hutchinson turned to the letter to Lord Rothermere written the same day as the one to Robbins.

  “The copy of a letter, Exhibit 3, did you have anything to do with writing that, the foolscap one?”

  “No.”

  “There has been evidence about finger marks which the police say were on the original of that letter. Have you ever handled that letter to your knowledge?”

  “Not at all.”

  Hutchinson next elicited that Bunton had turned over to his solicitors his typewriter of twenty years, for examination. He showed Bunton the typewriter, which Bunton identified, and then placed it into evidence as a trial exhibit.

  With that, Hutchinson announced his questioning complete and turned the witness over to prosecutor Cussen.

  Chapter 16: THE MAIN EVENT

  The well-regarded Edward Cussen was a queen’s counsel, meaning in the top echelons of barristers, and his more than three decades as a prosecutor included participation at the Nuremberg Trials. It can safely be said that Cussen’s performance at Bunton’s trial, especially his cross-examination of the defendant, failed to advance his formidable reputation.

  He started, sensibly enough, by asking whether Bunton’s testimony amounted to “the whole of the story.” When Bunton assented, Cussen asked whether Bunton had an accomplice at any point, from the conception of the theft to the time when he had turned himself in.

  “No one at all.”

  A series of questions established that no one knew Bunton had the painting through the end of 1964.

  “What about 1965?”

  “Well, someone knew then.”

  “Who?”

  “I am not prepared to say.”

  “Why not?”

  “I am not involving anyone else in this affair.”

  “Do you wish the Court to know the whole of the truth in this matter in every particular?”

  “Yes.”

  “Then if that is your wish, will you be good enough to inform the Court on the matter about which I am asking you, Mr. Bunton?”

  “I am not prepared to say, sir.”

  A regular witness might be held in contempt by a judge for refusing to answer questions, but the situation is different with respect to a criminal defendant. Since the defendant is allowed to maintain silence altogether, he typically won’t be punished for maintaining silence selectively. But it doesn’t follow that he can do so with complete impunity. In 1965, at the time of Bunton’s trial, jurors were routinely instructed that they should not draw an adverse inference from the defendant exercising his right not to testify. (This remains the case in the United States but was changed in the UK in 1994.) However, that protection was removed when a defendant took the witness stand—the jury could draw adverse inferences from him taking the stand but refusing to answer certain questions.

  That posed a problem for many defendants, but not for Bunton. Here, as with much in his trial, the usual rules went out the window. The jury could infer whatever it wanted from Bunton’s refusal to discuss his accomplice; any such assumptions would hardly harm him, since he admitted his own involvement
in taking the painting. Moreover, the identity of anyone who had learned about Bunton’s theft in 1965 seemed beside the point. The pertinent question concerned Bunton’s state of mind on August 21, 1961, when he allegedly sneaked inside the National Gallery and emerged with The Duke of Wellington. Did he intend to return it or not? The issue of who had learned about Bunton’s possession of the painting four years later was far afield. Hutchinson could have objected to this line of questioning as irrelevant, but he had no reason to interrupt Cussen as the prosecutor went down a fruitless path. For whatever reason, Cussen relentlessly pursued the question of who knew Bunton’s secret years after the fact.

  “Mr. Bunton, I am going to give you every opportunity to deal with this matter in your own way, you understand?”

  “Yes.”

  But Bunton’s way of dealing with the issue was to stonewall, leading Cussen to grow increasingly frustrated.

  “As far as you are concerned, you are not going to answer the question I put to you?”

  “Well, that would get someone into the wrong, wouldn’t it?”

  Here the prosecutor missed an opportunity. By seeming to acknowledge that he was protecting someone from a criminal charge, Bunton was implicitly admitting to a crime himself. You cannot be a criminal accomplice to a noncrime. But instead of identifying that flaw in Bunton’s position, Cussen actually became apologetic.

  “Please do not think I am being persnickety or critical or anything.”

  “No.”

  “If you want to develop that matter I will give you the opportunity by putting the question to you.”

  “No.”

  Finally giving up on the who, Cussen asked when Bunton let someone in on his possession of the painting. Bunton replied that it was “when the £30,000 success was at hand. After I had the Mirror guarantee.”

  Actually, he was never given such a guarantee, proving only the durability of Bunton’s delusions and resentments.

  Cussen followed up with several questions trying to pin Bunton down on the date when he shared his secret. (It is unclear why he pursued this matter at all, much less so relentlessly.) They meandered for some time until Bunton, not responding to any particular question, again vented about how he had been double-crossed.

  “I was led into a trap by the Daily Mirror. They not only got the picture, but they trapped me also at the same period.” He paused and with undisguised bitterness added, “And now they are fully entitled to the full £5,000 reward.”

  The frustrated barrister replied, “I am going to keep you to this conversation with the person whose name you say you will not tell me.”

  “Yes.”

  “You have dealt with—and I am obliged to you—you have dealt as much as you can with the date when it happened. Where did it happen, what place?”

  “Well, a pub.”

  “A public house in Newcastle?”

  “Yes.”

  The oddly persistent barrister elicited that the conversation had taken place in the evening. He then asked Bunton to report the substance of it, “not word for word. Do it in any way you would like.”

  “Well, I told him I was responsible for the whole affair. He had heard of it, but he had never connected it with me, and I told him what it meant if £30,000 could be guaranteed. That would be eight, approximately eight free licenses each and every week. I told him that was like signing my signature, but that I thought I would get away with it.”

  Bunton did not explain, nor was he asked to, the apparent contradiction in his last sentence. Instead, the barrister finally moved on to new ground—at least temporarily.

  “Up to this time had you revealed at all in any of your communications that it was going to be used, when the money was raised, in connection with TV licenses?”

  “No.”

  But Cussen failed to pursue this potentially promising path. Instead he returned to the question of the accomplice, about which no detail was too small.

  “Were you sitting down with him at a table or were you and your friend at the bar, or what?”

  “Sitting down.”

  He further elicited that the conversation was with someone Bunton had drinks with “twice, thrice a week.” The questioning became increasingly irrelevant, something the barrister even acknowledged.

  “Which of you got there first?”

  “Well, this is a question—”

  “If you can remember. It does not matter if you cannot.”

  “No.”

  But the barrister still would not let go of the subject. He wanted to know why Bunton had divulged his secret (“I thought I was on the verge of success, and possibly a few drinks loosened my tongue”) and how his friend had reacted to the news (“He was amazed”). For some reason, Cussen felt the need to probe Bunton’s friend’s amazement.

  “Did he show every sign of being amazed? . . . For example, did he say, ‘Don’t try and have me on like this’ or anything of that sort?”

  When that inquiry yielded nothing fruitful, Cussen at last appeared to drop the subject, but after a few innocuous questions about other matters, he returned to it.

  “Did your friend ask questions about it?”

  “No, I told him to keep quiet about it.”

  “What did he address you as, how do you call each other?”

  If this was a trick question asked in the hope that Bunton would blurt out his friend’s name, the ploy failed.

  “Well, Christian names,” Bunton replied.

  “What name does he use for you?”

  “Kemp.”

  “After he had been amazed and incredulous, did he say ‘Kemp, tell me how you got away with it, how did you do it?’”

  “I gave him a rough idea how I did it.”

  “Did you tell him what you have been telling this Court as to why you had had this idea and all about the letters and so on? You told him the whole thing?”

  “Roughly speaking, yes.”

  “How did it end, this conversation?”

  “Well, it just ended. The next day I rued telling him, but nevertheless, if the £30,000 had been forthcoming it wouldn’t have made any difference by telling him.”

  “Was this friend a close friend?”

  “Yes.”

  “How many years have you known each other?”

  “Oh, fifteen to twenty?”

  Perhaps Cussen was laying groundwork that would help the police determine the identity of the mystery man. After all, how many people could have drunk with Bunton twice a week for fifteen years? A little sleuthing would surely unearth his accomplice. Of course, the police could have asked Bunton these questions months before. The courtroom is not usually the place to identify for future prosecution someone not on trial. Trials do sometimes serve this purpose as a collateral benefit, but Cussen seemed to be seeking this result at the expense of focusing on the issue at hand. And it’s not as if he were honing in on some dangerous felon: His probe, if successful, would merely identify someone who learned about Bunton’s theft four years after the fact.

  Any effort by Cussen to use the courtroom for investigative purposes ran headlong into another problem: Bunton’s answers were not truthful. As we shall see, a great deal of Bunton’s testimony, under both direct examination and cross-examination, was false. But his story about the drinking buddy who learned his secret was particularly revealing about his willingness to engage in elaborate perjury with what seemed like minimal angst or effort.

  Perhaps in part because he sensed as much, and was offended by the witness’s brazenness, Cussen persisted in probing the accomplice after-the-fact angle.

  “You trusted him and he you?”

  “Yes.”

  “So he was the first person to know that it was you, and he was the first person to know how you had done it? Is that right?”

  “Yes.”

  “And the first person to know why you had done it, is that right?”

  “Yes.”

  “How did you part from this, having made
this revelation to him? Did you say anything about keeping it quiet?”

  “I certainly did.”

  “What did you say to him?”

  “I said, ‘Now, not a word until it breaks.’”

  There was an apparent absurdity to Bunton’s story. Though his account with respect to many particulars (such as what he did with the painting’s frame) changed over many tellings, he consistently maintained that he had come forward because he had divulged the secret and did not want the recipient of his secret to claim the reward. But now, on the witness stand, he insisted that the person he had told was a trusted old friend sworn to secrecy. Moreover, his confidant had kept the secret for months before Bunton had turned himself in.

  Under Cussen’s prodding, Bunton did his best to explain away the absurdity.

  “He would be all right, but who would he talk to? That was the danger. He wouldn’t talk to the police, but he might talk to another friend, and therein lay the danger.”

  “Did you have any knowledge whether he had in fact told others about it?”

  “No, just strong suspicions.”

  “Why?”

  “Well, just the human failing. Very few people can keep a secret.”

  After some more give and take along those lines, the prosecutor sensed the witness’s vulnerability.

  “When you were giving your evidence a little time ago, you told the Court that your reason for surrendering yourself was because you thought somebody would squeal?”

  “Yes.”

  “Did you think your friend was going to squeal?”

  “No, I did not.”

  “Did you know whether he told anybody else?”

  “I did not.”

  “Did you really fear at all at that time that somebody might give you away?”

  “Very much so.”

  “Did you tell your friend that you were going to go down to London and go to Scotland Yard and reveal it?”

  “No.”

  “Now, you have told the Court how that came about, have you not?”

  “Yes.”

  At this point Judge Aarvold interjected, “Are you moving on to another matter, Mr. Cussen?”