The Justice Game

by Geoffrey Robertson

  Boggs was represented by the solicitor for the ‘Young Unknowns’ Gallery, Mark Stephens, a legal ‘young unknown’ himself at this time. In his early thirties, like Boggs, he had formed a small firm which specialised in representing impecunious artists. Stephen Boggs, with his sense of humour, would have hired Mark for his name alone: the firm is called Stephens Innocent. Ten years on, Stephens is one of London’s best (and certainly best-known) litigators, and he demonstrated his skill as we combed the art world in search of expert witnesses. The British art establishment is surprisingly conservative, but Michael Compton, who had just retired as keeper of exhibitions at the Tate, did not share its inhibitions about giving evidence against the Bank of England, nor did Sandy Nairn, the brilliant young curator at the Whitechapel Gallery or René Gimpels, a Boggs aficionado who had galleries in London and Switzerland. I prevailed on Robert Hughes, art critic of Time magazine and author of The Shock of the New, to provide a witness statement. It was as lofty in its own way as the attitude of the Bank, but had the saving virtue of being right – or at least as right as it is ever possible to be about matters of art. Having placed Boggs somewhat diffidently in the tradition of Warhol (‘the only remarkable fact about Boggs’s work is that it has become the object of prosecution’), he made the helpful distinction between ‘reproduction’ (mechanical and exact copying, to produce a facsimile of the original) and ‘representation’ (making a picture of a subject):

  If I sit down with my watercolours and draw a tree, I am representing it. Nobody is expected to compare my drawing with a real tree, although (if I am lucky) there may be people who admire the fidelity and truth with which I have represented the tree – the way its branches go, the colour of the leaves and so forth. This simple distinction will, I hope, clarify the nature of what Boggs has been doing in these works. The Bank of England is putting itself in the position of the silly bird which, in Pliny’s story, flew down and pecked at a bunch of grapes painted by Zeuxis, believing them to be the real thing.

  We are in Court 1 of the Old Bailey on the opening day of Regina v Boggs. Unfortunately but inevitably, Mr Justice MacNeill does not think like an art critic. He is a sound lawyer and thinks like one. It is a crime to reproduce any part of a British banknote, and Boggs – accepting the OED definition of ‘reproduce’ – has done that beyond any reasonable doubt. Why, he has even copied some serial numbers – evidence which the judge shall in due course tell the jury is devastating to the defence, although, of course (thanks to the rule in Stonehouse) ‘it’s all a matter for you’.

  I am on one level relieved that we have drawn (so to speak) David MacNeill – he is one of the younger, gentler generation of High Court judges. Some of his older brethren would be apoplectic that this case was even being defended. On the other hand, judicial apoplexy might be a great help to Boggs: there is nothing so prone to provoke a ‘sympathy acquittal’ as a judge who exudes bias against the defence. MacNeill, however, will nudge the jury towards conviction with his charm and moderation, impose a small fine and order the pictures to be surrendered to the Bank (the Forgery Act gives the Bank special power to destroy them). I can imagine the Governor and his principals sipping sherry as Boggs’s larger pictures burn in their boardroom grate: his smaller drawings will go to Scotland Yard’s ‘Black Museum’ as mementos of its successful struggle against crime.

  Much will turn upon whether we are allowed to call expert evidence. It doesn’t much matter what our experts say: their very appearance will impress upon a jury that Boggs is not a pavement artist or a graffiti provocateur, but a creator of something they should hesitate to destroy. The prosecutor understands this and opposes my application to call the experts. So does the judge, and his is the final decision. But it is a decision which must be governed by law. This is where defence lawyers do matter, in their ability to ransack their dusty case-books to find precedents for requiring a judge to do what he does not want to do. The argument is taken at the outset of the trial. What we really want is to call experts to say Boggs is a good, even important, young artist, but as the judge rightly points out, that is precisely what the law disallows. ‘This is not an obscenity trial,’ Mr Justice MacNeill chides, ‘there is no artistic merit defence to a forgery charge.’ Expert evidence, he rules, is inadmissible on the subject of Boggs’s talent: it would only serve to confuse the jury. Boggs might be Vincent Van Gogh, but that would not save him from conviction were he proved to have reproduced a British banknote.

  We are not going to give up so easily. This is an attempt to use the law against forgery and counterfeiting to destroy works of art, and we should not pretend otherwise: somehow the jury must be told about the extra dimension, the limits of language in the definition of crime. It is like the problem which is used to test law students: imagine a regulation which makes it an offence to bring ‘vehicles’ into the municipal park. This rule is aimed at cars, but can it also cover golf-buggies or skateboards or motor-bikes, or aeroplanes making forced landings? These hypothetical cases are solved in real time by judges who juggle the literal meaning of the words with the purpose of the statute and the mischief against which it was passed, and purport to discover whether Parliament intended to cover the particular example. This is usually a fictitious exercise, since MPs pass such laws in a stupor late at night without thinking about their potential consequences. So it must be decided by judges, applying not their prejudices but the principles of their trade.

  We came up with an argument which runs like this. The cases say that expert evidence may be called to explain any technical or cultural background to an issue which jurors could not be expected to understand from their own life experiences. Jurors may be expected to know something about art and to have visited a gallery occasionally. But they cannot be expected to know about the surrealist movement, or about the trompe-l’œil school where some of Boggs’s ideas originate or about the concept of performance art in which the artist does not merely paint the picture but plays a part in its appreciation. The prosecution, predictably, says that this is irrelevant: the judge agrees, but is troubled by the weight of the case law which permits jurors to be given some expert insight. Reluctantly, he rules that I can call evidence as to the genre of Boggs’s art, but not its merit. ‘I shall keep you on a very tight rein, Mr Robertson.’ That’s fine, Judge. They’ll be passing around Magritte’s pipe in the jury room by the end of the trial.

  The jury is selected. We still have seven challenges per defendant, a right soon abolished by Tory MPs who claimed that defence lawyers were abusing it to empanel stupid or anarchic jurors. On the contrary, I had always used these challenges to try to obtain intelligent-looking jurors (my favourites carried the Financial Times), who may be less likely to follow the judge’s dictation and more capable of comprehending ‘reasonable doubts’. The jury which is selected to try Boggs looks intelligent, certainly looks interested and has a lower proportion of Sun readers than the population as a whole.

  The trial begins with the prosecutor, the charming and vastly experienced Robert Harman QC, presenting the jury with an open-and-shut case. He is a bit condescending to Boggs, a young American who clearly does not fully understand our British ways, and defensive about artists. ‘A man cannot call himself an artist and expect to be above the law.’ This is received wisdom at the Old Bailey in all cases involving literature or art: acts which are criminal if done out of greed or malice are equally criminal if done for some higher good. The only possible issue, the QC tells the jury, is whether the Boggs banknotes are sufficiently similar to original banknotes as ‘to suggest that original to the mind of every person seeing the picture’. They obviously are, but the jury looks unsatisfied – like a comedian’s audience awaiting a punchline. Is there to be evidence that Boggs had passed off his drawings as the real thing in a dimly lit pub? Or that he had inspired a school of artists busily churning out exact copies of the currency? No, admitted the prosecutor, there is not. The reason why Boggs deserves punishment is that he has disobeyed
the wishes of the Bank of England.

  The Bank’s witnesses strike pinstripe poses and insist that they had been right to stop Boggs pursuing his artistic endeavours. Not that they had been consistent in their refusals: they are forced to disclose the fact that in the past few years they have granted hundreds of permissions to reproduce British currency, to building societies and estate agencies and merchant banks and mortgage companies – organisations apparently deserving of the right to reproduce money because they make huge amounts of it. The bank had once even given a sex-shop the right to reproduce a fifty-pound note on the crotch of erotic lingerie. But the application by my struggling artist had been rejected with contempt – they had not even bothered to contact an art gallery to discover whether his work might be worth encouraging. The Bank officials claimed that since some of the pictures were the same size as real banknotes, there was always the danger that they might be taken out of their frames and passed off as genuine. So cross-examination became a ‘spot the difference’ competition, in which members of the jury were supplied with real banknotes to compare and contrast with the drawings arrayed around the courtroom. It took a day of valuable court time for the defence to establish beyond reasonable doubt that, inter alia:

  1. The banknote is a three-dimensional physical object used to make purchases. The Boggs is a picture to be looked at on a wall.

  2. The banknote has a constant value, assigned by the government. The Boggs has value only in the eye of its beholder.

  3. The perspective is different – you can see through a banknote, but not through a Boggs.

  4. A banknote has two sides. A Boggs has only one side.

  5. A banknote crinkles and has a distinctive smell when fresh. A Boggs is odourless.

  6. Banknotes are unsigned by their designers. A Boggs is signed by Boggs in the place reserved in the banknote for the signature of the Governor of the Bank of England.

  7. Banknote language is not exactly replicated on a Boggs. ‘Pay Bearer on Demand’ becomes ‘Pay Bear on Demand’: the language of officials becomes mock-officialese.

  8. The banknote is legal tender, the Boggs only acceptable to those who like it.

  9. The banknote originated in Pitt’s decision to replace gold and silver coinage during the Napoleonic Wars. The Boggs originated historically in a Chicago coffee shop in 1980.

  10. Banknotes were originally an artless promise to pay. Art was introduced to make forgery more difficult and then as a means of inducing loyalty and pride in national achievement. A Boggs has no national symbolic purpose, and no attempts have been made at this stage in the artist’s career to forge his work.

  I had not engaged in an exercise like this since I studied metaphysics at university. ‘Banknotes and Boggs notes bear no comparison. They are as different as chalk and cheese – or perhaps I should say, members of the jury, different as a piece of chalk and a piece of chalk-shaped cheese. The one is not the reproduction of the other. If we look at the Mona Lisa, we don’t say that is a reproduction of a sixteenth-century Italian woman with a slight smile, do we?’

  No doubt I thought this point profound, although the lines now read as if they might more appropriately have been delivered by John Cleese. Cross-examination of the senior bank officials was designed to ridicule the Bank of England’s rules on reproduction:

  Let me see if I have this right. If Mr da Vinci was proposing to include some pound notes in his upcoming painting of Christ Driving the Money-lenders from the Temple you are suggesting that, in keeping with the guidelines, he’d have to send the bank a detailed sketch, in triplicate, taking care to leave the space intended for the notes blank pending your approval of the whole scheme? And, in keeping with your guidelines, were you to grant permission, he’d still be required upon completion of his project to destroy all materials associated with the image’s manufacture. What does that include? The brushes? The palette? The easel? The painting itself?

  Most witnesses adopt avoidance techniques to deal with hypothetical questions to which the answer ‘yes’ makes them look ridiculous: the principals of the Bank of England, however, actually agreed with these propositions, and did so with relish, having first made the serious point that money-lenders in Christ’s time would not have been counting out British banknotes. They had no difficulty at all in envisaging the destruction of great art, were it to ‘lower the dignity or prestige of the currency’. Messrs Freshfields, their expensive commercial solicitors, were not often seen in the well of a criminal court, but they had a client determined to waste money by defending it.

  Our experts located the accused’s genre in the mainstream of three artistic traditions. There was trompe-l’œil, ‘deceiving the eye’ by the ambiguities of depicting flat objects (like documents and dollar bills) on a flat surface. There was collage, exploiting the contradiction between the flat surface of the canvas and the three-dimensional objects represented. And there was performance art, deriving from Marcel Duchamp. ‘Boggs’s work belongs to the tradition which raises the question of the relationship of the picture to the thing represented,’ averred Michael Compton, instancing Magritte’s The Use of Words and Jasper John’s ‘Flags’. ‘The meaning, as with all true works of art, must be supplied by the viewer, but they inescapably raise questions of the relation of art to money and money to power. The banknote is intended to exude anonymity and authority. Boggs’s drawings instantly and overwhelmingly exude individuality.’ The judge intervened – the expert was telling the jury too much – but the jury did not seem to mind.

  Behind the high wall of the maximum-security dock, the artist in question had been busily breaking the law by sketching more banknotes, at the request of the prison officers meant to be guarding him. He was entitled to his right of silence, but no true artist can resist the platform provided by the witness box at the Old Bailey. Boggs was loquacious, but polite and sincere as he told of his struggles as an artist (for several years he had worked part-time in a blood bank) and of the epiphany in the coffee house and of the long hours he lovingly invested in painting the currencies of many nations. He was the walking embodiment of Adam Smith’s dictum ‘labour creates value’. He told the jury how, as part of the concept, he acted as advocate for his own art, persuading shopkeepers to accept it at face value (giving the appropriate change), and then notifying the collectors who would contact the purchaser, offering to buy it for a much higher price.

  This evidence was so obviously true that there was not much to ask him in cross-examination: the prosecutor’s tactic was to raise a little heat by accusing him of ‘defying the Bank of England’, as if that were a crime, and trying to trap him into the assertion that he was above the law because he was an artist. Whether this was damaging would depend on the way it was phrased, and Boggs was delicate:

  Harman: Are you suggesting that because your drawings are works of art, they are incapable of being reproductions?

  Boggs: I suppose so, because once you crossed over the line into reproduction, it would no longer be a work of art.

  Robert Harman’s final speech was short and to the point: Boggs was a reproduction artist. Given the similarities between his notes and the real thing, any defence was preposterous.

  My speech was long and not so much to the point. Barristers are artists, in a way: the exhibits we make are of ourselves:

  By drawing a picture for exhibition, the artist makes an effort and invites his viewers to make an effort to appreciate it. This was the point Boggs made to the police when he said that a picture of a horse may have all the features of a horse but you don’t saddle it. This was a point made by Magritte, when he drew a picture of a pipe made for smoking tobacco against a plain background. Underneath he wrote ‘This is not a pipe’ and signed the drawing. A picture like that is not what it represents, and is not a reproduction of what it represents. The pipe and the banknote do not exist: what does exist, and has reality as we look at it, is a drawing which provokes thought and triggers memory.

  I don’t kn
ow what associations a Boggs banknote might trigger in your mind, if you viewed it in a gallery. You might be mildly amused at a penniless artist who can only make money by drawing it. You may think, despite the expert evidence, that Boggs is an artist of little merit. That you wouldn’t have a Boggs in any room of your house if he paid you. That a Boggs isn’t worth the paper it is drawn on. ‘Come up and see my Boggs’ may not be an invitation you would wish to extend to anyone under any circumstances. That should not affect your answer to the question ‘Is he guilty of reproducing banknotes?’ Because however you respond, Stephen Boggs has created something so completely different, that it cannot be described by any stretch of language as a reproduction.’

  The judge began his summing-up by telling the jury that this ‘pretty straightforward’ case had nothing to do with art – which must have come as a surprise. Lawrence Weschler’s report in the New Yorker gives the flavour of the judge’s directions:

  His tone was friendly, congenial, but finally no-nonsense. He was particularly succinct in his summary of the case for the defence, enumerating each defence argument in turn and affably declaring each, in turn, to be utterly without merit. After reviewing the basic provisions of Section 18, he said, for example, ‘The fact that a drawing might not resemble a currency note in every particular cannot provide a defense against this charge. The fact that the maker did not intend it to be passed would not provide a defence, either. Nor would the assertion that the copy in question were a work of art constitute any sort of defence whatsoever.’ He paused to smile warmly at the jury, and resumed, ‘This case is not about artistic freedom or freedom of expression or anything of the sort . . .’ Even veteran British trial reporters, who had seen a lot of biased summations by judges, were taken aback. ‘This is the world’s most friendly hanging judge,’ one reporter scrawled in a note he passed to another.