by Alan Hirsch
Not surprisingly, that position proved controversial during debates in Parliament. It nevertheless prevailed, but Parliament inserted a somewhat complicated new provision that modified the old rule substantially: “A person appropriating property belonging to another without meaning the other permanently to lose the thing itself is nevertheless to be regarded as having the intention of permanently depriving the other of it if it was his intention to treat the thing as his own to dispose of regardless of the other’s rights; and a borrowing or lending of it may amount to so treating it . . . if the borrowing or lending is for a period and in circumstances making it equivalent to an outright taking or disposal.”
In considering acts like the hijacking of Goya’s Portrait of the Duke to be a “borrowing,” this complicated provision remains unsatisfactory. It did, however, mitigate the problem posed by cases like this. The jury, instructed in this new provision, might well have convicted Kempton Bunton of stealing the painting (and not just the frame).
But starting in 1968, a jury faced with such a case would have another option as well. While the committee’s final report recommended maintaining the requirement of intending permanent deprivation, it recognized that something must be done to deal with “special cases” like that of Kempton Bunton. The committee opined that extra protection must be given to “articles displayed in churches, art galleries, museums and other places open to the public” and noted that “a striking recent instance is the removal from the National Gallery of Goya’s portrait of the Duke of Wellington.” Bunton’s case might be thought unique, but it turns out that the committee drew on somewhat similar cases, such as that of an art student who stole a Rodin statuette from an exhibition, in order to “live with it for a while,” and returned it four months later. The committee noted that while such conduct would seem punishable, particularly because it affected items “of the greatest importance and value,” the case could be made for leaving these odd instances unaddressed by the law: “It can be argued that serious cases of the kind are rare and, judging from the cases mentioned, these offenders are more eccentric than genuinely criminal.”
Wildly eccentric though Kempton Bunton may have been, he was the rare man whose conduct changed the terms of debate over a nation’s criminal law. The committee wrote, “Before the Goya case few people would have said that there was an evil unprovided for and serious enough to require the creation of a new offense.” The committee expressed reluctance about allowing a crank like Bunton to dictate the nation’s criminal code and acknowledged a special danger in doing so in the manner contemplated: If the law explicitly punished takings from museums and other public places, someone wacky like Bunton, having indulged his impulses, would be less inclined to return the work.
The committee, however, overcame its reluctance. “We have come to the conclusion that the situation, especially in view of the Goya case, is serious enough to justify the creation of a special offense in spite of the possible objections” (italics added). Parliament agreed, adopting what everyone called the Goya Clause—a new crime called “Removal of an Article from a Place Open to the Public.” This provision, section 11 of the Theft Act, states, “Where the public have access to a building in order to view the building or part of it, or a collection housed in it, any person who without lawful authority removes from the building or its grounds the whole or part of any article displayed or kept for display to the public in the building . . . shall be guilty of an offense.” The offense carries a penalty of up to five years imprisonment. They could have called it the Kempton Bunton Act.
Thus Bunton did have an impact on the law, albeit nothing to do with the BBC licensing fee. As a result of his odyssey, it became harder for people to “borrow,” not easier to watch television.
In June of the next year, 1969, Bunton was again in the news, with his seemingly settled affair taking another major twist. According to several newspaper reports, someone new had come forward and confessed to having stolen the Goya back in 1961. Someone identified in the media only as “a man from Leeds” gave a signed statement at West End Police Station, claiming that he, not Kempton Bunton, had taken the painting. Newspapers reported that the confession would be sent to the Director of Public Prosecutions (DPP) for evaluation and any necessary follow-up.
The London Times account of this new development harkened back to the hoopla surrounding the theft eight years earlier, noting that “hundreds of people claimed to know where [the painting] was. There were tales of how it had been smuggled out of the country by international art thieves.” The London Telegraph gave the most exhaustive coverage of the new confession, reporting that the confessor was in fact somehow connected to Kempton Bunton. He claimed to have taken the painting as support for Bunton’s campaign with regard to the BBC licensing fee and then notified Bunton about the theft. According to the new confessor, Bunton had proceeded to travel to London and the man turned the painting over to him.
Police would not release the name of the new confessor, but newspaper accounts indicated that this resident of Leeds was a twenty-eight-year-old (hence twenty at the time of the theft) who denied having a prearranged plan with Bunton. It was only after the fact that he thought to notify Bunton and eventually transfer possession of the painting to him. Newspaper accounts further indicated that, following the confession, detectives interviewed Bunton and his son John. These accounts did not explain why John Bunton had entered the picture, but they indicated that Kempton had corroborated the new confession: “I know the man involved. He is the man who did it.”
As promised, the confession, along with an accompanying report on the matter, was passed along to the DPP. And then? Nothing. For reasons not made public, the government chose not to prosecute the new confessor. The media, apparently regarding a nonprosecution as a nonstory, failed to stay on the trail. The matter faded, and Bunton’s guilt remained a matter of public record, occasionally alluded to in the media. For example, in May 1972, in his London Times column about famous art thefts, Bernard Levin, arguably the nation’s most famous journalist, complained tongue-in-cheek that the “splendid Mr. Kempton Bunton” had been “railroaded to jail in a very shabby manner” via the outrageous charge that he had stolen the frame of the painting that he was acquitted of having stolen. While lamenting Bunton’s mistreatment, Levin assumed that Bunton had in fact taken the painting.
After his declaration that the man who had come forward in 1969 was in fact the “man who did it,” Bunton himself never again publicly asserted his innocence. He undertook no action to clear his name and went to his grave in 1976 a convicted felon. Numerous books and articles thereafter cited and sometimes discussed Bunton’s daring theft.
So things stood for two more decades. Then, in 1996, something happened, though it is hard to say just what. One finds on the Internet and elsewhere many references to a statement released by the National Gallery in 1996 that apparently declared (without explanation) Kempton Bunton “probably innocent.” There was also speculation that the gallery had waited until 1996 because Judge Aarvold had placed a thirty-year gag order on discussion of the case. All of this is a case study in how history gets falsified by what has come to be called circular reporting: Something false gets stated as fact. Before long it is repeated, then repeated repeatedly, until it moves into the realm of long-established and incontrovertible truth.
No record of Judge Aarvold’s alleged thirty-year gag order exists, and almost certainly no statement by the National Gallery declaring Bunton innocent was ever given. (None can be found in the gallery’s exhaustive archives; nor is there any report of such a statement in newspapers at the time.) However, the misunderstanding can be explained. Gallery policy makes records public after thirty years. Accordingly, in January 1996, gallery records from 1965 were finally released. These records included a letter by director Philip Hendy to trustee Lord Robbins, written on December 2, two weeks after Kempton Bunton’s conviction: “I share the conviction of many of the police officers involved th
at Bunton probably did not organize and certainly did not himself steal the picture. . . . The theft is much more likely to have been carried out by two able-bodied men.”
This statement was reported in the media in January 1996. Accordingly, the oft-repeated exoneration of Bunton by the National Gallery actually consisted of the opinion of one man given thirty years earlier, before a jury decided otherwise. (There is no evidence that Hendy was privy to Pamela Smith’s claim that the wrong Bunton was being prosecuted, and Hendy’s two-thief theory contradicts her account.)
Perhaps because the basis of the belief in Bunton’s innocence was never stated (beyond the vague “National Gallery documents suggest”), the circular reporting had only limited impact. Despite the widespread, false suggestion that gallery documents established Kempton Bunton’s innocence, the world by and large continued to assume his guilt. Even after 1996, a half dozen books about art thefts, as well as numerous articles and blog posts, blithely declared Bunton to be the culprit in the theft of the Goya.
One important partial exception came from Sandy Nairne, a well-known British museum director and art writer. Nairne’s 2011 book on the Turners stolen from the Isabella Gardner Museum in Boston in 1990 includes brief discussions of other famous stolen artworks, including Goya’s Portrait of the Duke of Wellington. In a footnote, Nairne refers to a “Museum Security Network” chat room “where the suggestion is made that the thief might have been Bunton’s son John.”
Nairne was being cagey. In the chat room he referred to, a blog post on August 15, 2010, did indeed make the suggestion that the real thief was John Bunton. That blog post was written by none other than Sandy Nairne. Talk about circular reporting!
Nairne’s reasoning combined two data: (1) the oft-mentioned fact remarked by Judge Aarvold that the seventeen-stone (238-pound) Kempton Bunton would have had difficulty squeezing himself in and out of a lavatory window and making his way down to the ground fourteen feet below, much less doing so with a heavily framed painting in hand; and (2) newspaper coverage of the 1969 confession suggesting that the new confessor claimed that he had given the painting to Kempton Bunton. Of course, these data hardly yield an airtight case against John Bunton. Realizing as much, in his book Nairne relegated his speculation to a footnote that referenced his own blog post. The true story remained unknown.
Chapter 21: CRIME SOLVED
In 2011, fifty years after the theft of the Goya, the author of this book became involved in the case. As noted in the foreword, I planned to write the book mostly because I thought the saga captivating but also because I doubted Kempton Bunton’s guilt. My skepticism hardly required remarkable sleuthing. It required only common sense and familiarity with the facts. For one thing, there was the sheer physical difficulty of the crime. I was hardly the first to find this point compelling: Judge Aarvold and Sandy Nairne had publicly expressed doubts about Bunton’s ability to pull off the theft of the painting.
Other aspects of the case also gave me pause, starting with Bunton’s statements to the police when he turned himself in in July 1965, as well as his testimony at his trial later that year. To put it mildly, his various accounts didn’t entirely ring true. Moreover, when in 1969 someone came forward and took “credit” for the crime, Bunton confirmed the truth of the new confession and asserted his own innocence. Bunton may have lacked credibility, but his say-so was the only real evidence that he had taken the painting in the first place. What reason was there to believe him in 1965 rather than to believe his recantation in 1969, especially when the latter was corroborated by the new confessor?
As recounted in the foreword, Noah Charney and I took the opportunity of the fiftieth anniversary of the crime in August 2011 to author two articles expressing skepticism about Bunton’s guilt, and the publication of these articles brought forward someone claiming that he could establish Bunton’s innocence. More specifically, and better still, he claimed to know the actual culprit.
Through this intermediary, I asked the alleged culprit some questions. In response, he assured me that he could prove his own guilt and Kempton Bunton’s innocence, and he made references to details about the crime that bolstered his credibility. He declined to meet with me but allowed the intermediary (whom, with a self-conscious sense of self-drama, I thought of as my Deep Throat) to do so on his behalf. As I prepared for the meeting, I saw my task as twofold. I had to satisfy myself of the new confessor’s bona fides and also ascertain what he wanted in exchange for his story. Intimately related, why was this man (whom I’ll call John Doe) coming forward now?
The first concern was resolved easily via email. Deep Throat explained how he had come to learn of John Doe’s guilt and why there was little doubt about that conclusion. He convinced me and gave a sensible explanation for John Doe coming forward all these decades later: John Doe had long felt bad that Kempton Bunton had taken the blame (albeit voluntarily) for the theft, and he wished to set the historical record straight. When he heard that people were writing a book about the case, he thought this the ideal opportunity to vindicate Bunton at long last. Posthumous vindication beats no vindication.
Of course, John Doe could have achieved his goals without my help. One phone call to the authorities, or for that matter to any British newspaper, and he could have set the record straight without relying on a stranger to publish a book. Why involve me? What did John Doe want in exchange for me outing him and clearing Bunton?
Deep Throat assured me that John Doe did not want money. Nor was he making any other unreasonable demands. That said, he did have one demand that, though entirely reasonable, would make my job difficult. John Doe insisted that I not write anything that could land him in prison.
Great Britain does not have a statute of limitations for most crimes. If I identified John Doe as the culprit in the theft of the Goya, he could be arrested and charged with the crime. Of course, the odds that the British authorities would go to the trouble of prosecuting someone for a theft a half-century old, when the item stolen had been returned forty-six years earlier, were close to zero. Nor, presumably, would the National Gallery urge law enforcement to do so. Just the opposite—why would the gallery want this embarrassing chapter of its history reopened?
I explained all that to Deep Throat, who relayed the message to John Doe, but the latter’s reply was a conversation-stopper: He was not interested in taking chances. Still, while understandably unwilling to risk his freedom, John Doe felt strongly about shedding the burden of this crime and vindicating Kempton Bunton. I just had to find the right way to balance these competing concerns. A delicate negotiation ensued, and it culminated in my promise to protect John Doe’s identity in exchange for his story. I would find a way to write the book without naming him or saying anything that would give away his identity.
For various reasons, John Doe did not wish to meet with me personally. Instead, he agreed to type out his account of the crime and his answers to whatever questions I posed and to convey them to me via Deep Throat. I met with Deep Throat at a mutually convenient location—a nondescript coffee shop in New York’s Penn Station. It was a far cry from the stealthy meetings in parking garages between the original Deep Throat and Woodward and Bernstein that had led to Richard Nixon’s fall, but it was thrilling just the same, especially when my Deep Throat turned over John Doe’s written account of the crime. Right before my eyes, I saw solved a crime that Scotland Yard had investigated for years only to end up with the wrong guy.
That wasn’t the end of my good fortune. As mentioned in the foreword, Deep Throat revealed to me something almost as intriguing as the identity of the real thief: After his trial and conviction, Kempton Bunton had authored his memoirs. Bunton’s 114-page, single-spaced narrative had never been published. Indeed, during his lifetime it had never left his Newcastle home. Now, just as John Doe wished the world to know of Bunton’s innocence, Deep Throat wished the world to know all about Bunton’s life. He let on that he actually had the memoirs in his possession, and before lo
ng he sent them to me.
The memoirs were a godsend, but my arrangement with John Doe remained flawed, perhaps fatally. I knew the story of how he, and not Kempton Bunton, had stolen Goya’s Portrait of the Duke of Wellington, but I couldn’t tell it—not fully anyway, not if I was to protect John Doe’s identity, as I’d promised to do. I could, of course, call him John Doe, rather than by his real name, but that would hardly suffice. The problem was that John Doe had stolen the painting in part for reasons related to Kempton Bunton. Indeed, John Doe had testified at Kempton Bunton’s trial! The more I told, the greater the risk that the authorities would be able to identify John Doe. The more I withheld, the less I would be able to tell a satisfying story. Can you really write a whodunit without telling . . . who done it?
My problem dissolved on November 30, 2012, when the London Guardian reported that the release of a confidential DPP file at the National Archives established the innocence of Kempton Bunton and identified the actual culprit. Yes, John Doe (aka John Bunton) was publicly outed as the man who had pulled off the perfect crime. Lucky for him, the authorities made clear that they had no interest in prosecuting him for his ancient crime. For the record, Deep Throat was Christopher Bunton, John’s son and Kempton’s grandson, a thirty-five-year-old man living in New York City.
You may wonder why John, who had outed himself in 1969, only to see the government decline to prosecute him, would worry that his identification in a book fifty years later could lead to his prosecution. I made this very point to him, but it understandably failed to convince him. Just because some cautious or prudent DPP officials in 1969 had elected not to reopen the embarrassing case did not guarantee that some ambitious officials in 2011 would feel the same way.