by Alan Hirsch
But having acquitted Bunton of stealing the painting, why did the jury convict him of stealing the frame? There were three ways of looking at the frame in relation to the theft of the actual painting. From the government’s perspective, the fact that Bunton failed to return the frame undercut his claim that he always intended to return the painting. The defense, of course, argued the opposite: The fact that Bunton had returned the painting showed that he intended to return the frame (even though he failed to do so). The jury quite reasonably split the difference. Whenever prosecutor Cussen suggested that Bunton had intended to keep the painting indefinitely, Bunton made the show-stopping reply that he had in fact returned it. Turnaround is fair play. If the return of the painting proved intent to return the painting, then why not infer that failure to return the frame proved the absence of intent to return the frame?
To be sure, Bunton had testified that he had placed the frame in the cupboard of his temporary lodging in London and had unsuccessfully attempted to retrieve it so that he could return it. If jurors believed him, they should have and presumably would have acquitted him of stealing the frame just as they had acquitted him of stealing the painting. But they had very good reason not to believe him, especially since he had initially told the police that he discarded the frame in the Thames. Moreover, Cussen’s otherwise shaky cross-examination of Bunton scored points with respect to the frame. Bunton did not help himself with his flip comments about his efforts to retrieve the frame four years after he had hidden it—saying that it would be “interesting” to see whether it remained with his landlady and that “it could turn up any day.”
Even so, the verdict with respect to the frame was questionable. It is obviously true that Bunton did not intend to return the frame if and when he discarded it. But the law defined theft at the time of the taking and required at that time an intent to deprive the owner permanently. How plausible is it that someone sneaks into a museum intending to take a painting and then return it minus the frame?
But it doesn’t follow that the jury acted absurdly. More likely, jurors consciously adopted a compromise, one that technically did not make sense but that resulted in a satisfying outcome. The jurors wished neither to punish Bunton severely nor to let him go. The strange Larceny Act, coupled with the missing frame, enabled them to find a comfortable middle ground.
NOT GUILTY OF UTTERING A MENACE BY WRITING THE MAY 20, 1963, LETTER TO ROBBINS
The basis for Bunton’s acquittal on the charge stemming from his alleged letter to Lord Robbins is unclear. The jury may have believed that the letters did not constitute a threat (or, in the exact word of the charge, a menace).a Alternatively, the jury may have concluded that the government had failed to prove Bunton to be the author of this letter.
Bunton’s attorney Eric Crowther recalled in his memoirs that “the jury rocked with laughter” when Hutchinson asked the following rhetorical questions during closing argument: “Can you imagine the editor of the Daily Mirror sitting trembling in his chair in case he got another letter from the defendant threatening not to return the Goya unless the editor got around to organizing the Kempton Bunton Trust? Do you think the editor is a man of such delicacy that he cares two hoots whether the Duke of Wellington is hanging in the National Gallery or reposing in Mr. Bunton’s bedroom?”
The question of whether Bunton wrote the letter to Robbins presents a fascinating question of historical fact. As discussed above, it pits direct physical evidence against substantial circumstantial evidence. The physical evidence—fingerprint analysis suggesting that Bunton wrote the pendant letter to Lord Rothermere—may seem decisive, but is somewhat neutralized by the disappearance of the original letter to Rothermere. Moreover, fingerprint analysis is not infallible even in the twenty-first century and was surely less reliable in 1965. The jury had seen Hutchinson bloody the government’s fingerprint expert on cross-examination.
Under the circumstances, the jury could not find beyond a reasonable doubt that Bunton had written the May 20 letter to Robbins. Accordingly, acquittal on that charge seems proper (quite apart from whether the letter constituted a threat or menace).
Proper, but probably mistaken. Evidence after the fact—specifically Kempton Bunton’s memoirs—suggests that Bunton did indeed write the disputed letter to Robbins. Toward the end of his chronicle, Bunton breaks the news abruptly: “And now for the Robbins Rothermere letters. Yes I typed them.” While Bunton’s word is not always reliable, he had zero reason to take credit after the fact for these letters, and doing so amounted to a confession of perjury.
Why did he, in the May 20 letters, suddenly reduce his demand from £140,000 to the relatively paltry £5,000? Bunton offers an elaborate explanation. The money to be raised by ransoming the Goya was always a means to an end. What mattered was old people being able to watch television. Bunton had decided that he didn’t need the full £140,000 because he’d hatched a new idea: to open “something in the nature of a TV shop,” which would issue free televisions to aged folks. The idea (“romantic to me, even though it would sound crackerjack to the ‘I’m all right jacks’”) required seed money, and £5,000 might do the trick. “I thought of the old piece of wood in the cupboard and I cried. Thus came the idea of writing the two R letters.”
Why did he type these letters rather than resort to the usual handwritten notes? That was simply a matter of keeping separate his two plans: “I wished to keep the Com plan compact, and if the shop idea failed, I still felt a hope of the Com plan eventually succeeding.” The idea of a two-tiered plan, one proceeding by typewriter and one by hand, will seem implausible only to those not familiar with Kempton Bunton’s modus operandi. “Too clever by half” aptly describes much of what he did.
Bunton had insisted to his attorneys that he had not authored the disputed Robbins/Rothermere letters, and he went to the trouble of having his typewriter sent over for testing to show that the letters were not his. And the defense expert verified that these letters did not come from Bunton’s typewriter. That, Bunton explained in his memoirs, stemmed from his shrewd planning. Back when Bunton decided to send the letters to Robbins and Rothermere, “I knew it would not be prudent to type them on my own typewriter, and so I went to the salerooms and paid a few shillings for an old one which I could destroy afterwards.”
Bunton’s memoirs offer a healthy distaste for law enforcement, but at least on this occasion he gives credit where it is due. “The fingerprint [on the Rothermere letter]? A complete mystery to me, as I was certain that gloves were worn always. . . . We must give credit to the Yard for that clever piece of detection.”
And yet, though we can now presume that Bunton wrote the relevant May 20 letter to Robbins, the jury may still have been correct to acquit him of the charge of “uttering a threat.” Robbins himself testified that he did not regard the letter as threatening or menacing, stating that he “always refused to believe” that the thief would deliberately harm the painting. If the recipient of the letter did not feel threatened, why assume that the writer wanted him to?
LETTER TO THE DAILY MIRROR NOT A MENACE
Kempton Bunton indisputably wrote the March 21, 1965, letter to the Daily Mirror, which formed the basis of count four of the indictment against him. Apparently, the jury decided that this letter did not constitute a threat. That was an understandable determination. Even though technically a threat can be to a third party, we tend to think of threats as direct. Bunton essentially told the Mirror, “If you don’t exhibit the painting, the National Gallery won’t get it back.” The indirectness of the threat may have spared him the jury’s wrath. In addition, Bunton’s letter to the Mirror sounds more like a man desperately trying to salvage something from a plan gone awry than someone menacing anyone.
All told, a reasonable case can be made that the Bunton jury acquitted itself well. It had before it someone who, in the grip of a well-meaning crusade, had committed a quixotic act to raise money for charity and had eventually returned what he had taken (exc
ept for an accoutrement). And the letters in question had established battiness more than genuine criminality. The jury did not wish to punish severely this odd, well-meaning creature whose behavior caused no lasting harm. On the other hand, he could not be let off entirely, since he had in fact stolen something valuable and had indeed “permanently deprived” the National Gallery of the painting’s frame. The jury, it might seem, arrived at a justified compromise verdict.
But major questions remained, starting with the problem identified by Judge Aarvold in his summation: Could Bunton really have performed the “remarkable athletic feat” required to seize the painting?
Related, there was the issue of Mr. Bloxham. As Milton Esterow would write in his book about art theft, published shortly after the trial, “The identity of the young man—Mr. Bloxham—who brought the painting to the railway baggage office in Birmingham, has never been disclosed. . . . [That] is all a mystery, for Scotland Yard has said absolutely nothing about Bloxham.” Almost two decades later, in his book about famous art thefts, Hugh McLeave proposed what Judge Aarvold seemed to believe: Bunton was likely involved in the theft but with an accomplice.
McLeave proposed that the accomplice was “the mysterious and bogus Mr. Bloxham”—bogus meaning that he wasn’t the “teddy boy” Bunton claimed to have spontaneously recruited at the Birmingham station. Bunton’s story about Bloxham did not add up. He insisted that Bloxham was a stranger whom he casually enlisted to return the Goya. McLeave observed that if Bunton’s story were true, Bloxham had nothing to fear: Why, then, had he never come forward? The name Bloxham added to the suspicion. Recall that Lady Bloxham figures in an Oscar Wilde play in which a baby is found in a handbag in the cloakroom of a railway station. If Bunton had indeed randomly recruited a passerby to deliver the painting, that his name would happen to be Bloxham seems a far-fetched coincidence.
As later became known (and as shall be discussed in chapter 21), Judge Aarvold and Hugh McLeave were right to believe that Kempton Bunton had not stolen the Goya alone but were wrong to think that he was present when it was stolen. McLeave also receives a mixed score with respect to Mr. Bloxham: The mysterious stranger was indeed involved in the theft, but McLeave wrongly assumed that he never came forward. As with so much of this case, life has more imagination than we do.
Indeed, with the benefit of hindsight, we can say that the jury got things pretty much backward. Bunton had not stolen the painting (frame or otherwise), but he had written threatening letters that probably ran afoul of the law.
Chapter 20: NEW LAW, NEW CONFESSION
Kempton Bunton served the first few days of his three-month sentence in Wandsworth Prison, in a cell of three, but “what does it matter, 1, 3 or 33, was all the same to me.” Though assigned the job of cleaner, he intended to use the time behind bars to catch up on reading. He grabbed a few books from the prison library and returned to his cell, planning to read all day. “I would not push myself forward as cleaner until my activities were queried.”
After a few days of reading, he learned that he was being transferred to Ford, an “open” prison—a minimum-security arrangement aiming to maximize the inmates’ freedom and employment and thereby rehabilitation. Bunton was displeased because Ford was fifty miles from London, making it more difficult to meet with counsel and plan his appeal. In part for that reason, he “decided to forego appeal, go to Ford, do my time quietly, and get the matter over and done with.” Indeed, just two weeks after the trial, newspapers reported attorney Hutchinson’s announcement that there would be no appeal of the verdict.
In Ford, Bunton worked at a tag shop, making tags, an activity so menial that “a few minutes experience . . . told me that the open prison experiment was a failure.” Failure became fiasco when a sadistic warder named Croucher (“out of Dickens,” Bunton writes) began harassing him. Bunton complained to the head warder, the prison chaplain, and anyone else who would or would not listen. When going through proper channels failed, Bunton let Croucher himself know what he thought of the man. His candor succeeded only in producing a two-day stay in a punishment cell. Bunton welcomed the sanction, because it meant he could read in peace instead of working in the shop, but before long he was reassigned to a normal cell and transferred to the plastic shop. This, at least, distanced Bunton from his tormentor. Apart from assorted complaints about mistreatment by the authorities (the prison doctor, among others) and irrational rules (such as a prohibition on tobacco), Bunton passed the rest of his sentence uneventfully.
He ends his memoirs there, except to note his future plans: to tell and sell the full Goya story, in order to “pay off my small debts, and give the rest in one go to my original object”—helping the elderly watch television. He offers a final, ambivalent assessment of his alleged criminal deed. On the one hand, he felt bitter that “this affair is looked upon with suspicion, and not [as] the reckless magnificent adventure it in reality was.” On the other hand, “I at least did have a go, and whatever the final outcome, I shall never regret it.”
Thereafter he kept in touch with his attorneys, sending occasional letters to Hugh Courts, Eric Crowther, and Jeremy Hutchinson (or Hutch, as Bunton called him). In a letter to Courts in March 1966, shortly after he completed his prison term and returned to New Castle, Bunton explained that London “got my goat, and that is why I left so abruptly.” He let on that he was busy at work on his biography. Crowther, who would fondly remember Bunton as “one of the most interesting and idealistic clients I have ever had,” recalled that for several years after the trial he would receive occasional signed picture postcards from Bunton—all displaying photographs of The Duke of Wellington. It seems safe to surmise that Bunton meant what he said at the end of his memoirs: he never regretted L’Affaire Goya.
But turning his story into a lucrative book, as he hoped, never transpired. He completed his memoirs and many other fiction and nonfiction works, but regrettably before the advent of ebooks and self-publishing. A snippet in 1966 in Publisher’s Weekly reported that he had written a new novel, a racing story called Mickey Lowbrow, but added that his wife called him a frustrated writer. Bunton never sold this novel, his autobiography, or any of his other works; nor did he achieve his aim of sparing the elderly the BBC licensing fee—at least not in his lifetime. In 2000, almost a quarter century after Bunton’s death, the UK introduced free television licenses for people seventy-five and older.
Even so, his odyssey would leave a legacy. Almost immediately after his trial, Parliament pondered a change in England’s criminal law to make a repeat impossible. A committee created by Parliament addressed the matter in a May 1966 report, noting that “in view of the Goya case,” sacred objects in museums and churches appeared to be fair game for thieves. It noted that the Malicious Damages Act of 1861 authorized punishment for destruction of or damage to works of art, but only six months in prison. More problematic, such a law would not apply to a thief who returned a work undamaged (Bunton arguably could have been—but wasn’t—prosecuted under this law because of the missing frame), and in any event, the committee considered a six-month sentence “clearly inadequate” for a crime like Bunton’s.
In its own aforementioned 1967 report, the National Gallery weighed in, lamenting that Bunton’s trial “had the unfortunate result of informing the world that deeds like his could be performed in England with impunity” and insisting that “legislation is now urgently needed to redress this.”
When the Criminal Law Revision Committee met to draft what would become the Theft Act of 1968, it was undertaking a periodical revision of the criminal code that would have occurred even if Kempton Bunton had never hijacked The Duke of Wellington. Over the course of the life of any nation, a criminal code becomes rusty. Laws drafted a century before may be a poor fit for a changing society. Many such laws require repeal or amendment, and entirely new provisions become needed to address new ideas, technologies, and other unforeseen circumstances. Sometimes, though, the law must change not because of new dev
elopments but because a new case reveals the inadequacy or inanity of an old law.
In 1959 Parliament had created the committee to revise the criminal law. It was charged with making recommendations for a “simpler and more effective system of law . . . with reference to larceny and kindred offenses.” The committee worked for seven years, culminating in its May 1966 report presented to Parliament. The report reveals that Kempton Bunton’s trial in November 1965 had very much gotten the committee’s attention.
The obvious problem with the criminal code exposed by the case was the requirement that someone intend “permanently to deprive” his victim of the object taken. The implicit distinction between a legal “borrowing” (in which a borrower received no permission from an involuntary lender) and illegal theft made little sense. The committee acknowledged this problem, which it succinctly captured as follows in its final report: “There is certainly a case for making temporary deprivation punishable in circumstances in which it may involve dishonesty comparable with that involved in the theft and may cause serious loss or hardship. The taker gets the benefit of the property without payment, and the owner is correspondingly deprived.”
Surprisingly, however, the committee still felt the need to maintain the distinction between taking something with intent to return it whenever one chooses and taking with intent to keep forever. The former is in fact “essentially different from stealing,” and thus removing the requirement of intended permanent deprivation would mark “a considerable extension of the criminal law [not] called for by any existing social evil.” Accordingly, the committee report recommended maintaining the requirement of intent to deprive permanently as an element of theft.