A Curious Act of Vandalism

In June 2021 an accused vandal, who admitted spray-painting a publicly-sited sculpture by Antony Gormley, was found not guilty of committing an offence of criminal damage because the jury accepted the accused’s defence that ‘Gormley would have liked it’.

Clasp, 2018, is a 4.5-metre-high cast iron sculpture: one of Gormley’s Blockworks series, in which ‘rectilinear blocks replace anatomy with architectonic volumes, using stacking, cantilever and propping, to make a sculpture that juggles the dynamic and the stable’. Significantly (as we shall see), Gormley’s studio website explains that Clasp ‘is formed of 18 individual blocks cast as one single element in spheroidal graphite iron … its surface colour will naturally evolve over time as an organic response to environmental conditions’.

Gormley lent the sculpture to Newcastle University in 2018, where it was installed at the King’s Walk entry to the campus between the Students’ Union and Northern Stage theatre buildings.

Seen as grey in colour when first sited, the sculpture turned rusty-brown (as intended by the artist) during the following year.

In May 2019 witnesses and campus CCTV footage saw someone run to Clasp, quickly spray it with yellow and blue paint, then decamp. A person was later identified and arrested by Northumbria police, and charged with the offence of criminal damage to Clasp amounting to £27,000 (the cost of restoring/cleaning, representing around 10% of its estimated market value). The Crown Prosecution Service considered evidence gathered by the police, and prosecuted the accused vandal before the criminal courts.

Offences of criminal damage can range from minor to major acts of vandalism. Minor cases (less than £5,000 valued damage) are tried by magistrates’ courts where the maximum power of punishment on conviction is limited to three months’ imprisonment. Major cases (£5,000 or more valued damage) may be tried by magistrates with the accused’s consent, otherwise by a judge and jury in a crown court (where the maximum power of punishment on conviction is ten years imprisonment).

The damage to Clasp was of major value, and the accused vandal was indicted and tried by a judge and jury in the Crown Court at Newcastle Upon Tyne. The prosecution was required to prove to the satisfaction of the jury – beyond a reasonable doubt – that the accused was guilty of the following offence under the Criminal Damage Act 1971: ‘A person who without lawful excuse destroys or damages any property belonging to another, intending to destroy or damage any such property, or being reckless as to whether any such property would be destroyed or damaged, shall be guilty of an offence’.

‘Without lawful excuse’ is defined by law, and is effectively an escape-route from conviction that an accused may present as a defence to a jury: ‘A person has a lawful excuse if he believed at the time that those whom he believed to be entitled to consent to the destruction of or damage to the property in question had so consented, or would have so consented to it if they had known of the destruction or damage and its circumstances’. When deciding this matter, the law is clear that the jury must assess whether the accused’s belief was honestly held at the time of committing the damage – not whether such a belief was objectively justified or reasonable.

In the Clasp trial such a lawful excuse defence was indeed presented to the jury: that the accused truly believed at the time of spray-painting that Gormley had consented, or would have consented if he had been asked to do so. The accused’s defence lawyer contended that ‘he had an honest belief the artist would not have minded what he did’ – praying in aid that it was ‘fairly well advertised that the sculpture was meant to react to its environment’. Verdict: not guilty.

Some media reports of the Clasp trial asserted that the jury’s verdict established a legal precedent that ‘the artist would have liked it’ defence would govern future art vandalism trials; not so. A jury’s verdict applies only to acquittal of a specific indicted accused; not to the indictment of others accused in future. That said, the Clasp acquittal could perhaps influence future policies of police and prosecution services, who may together be wary of pursuing vandals of publicly-sited contemporary artwork through the criminal courts – lest they were criticised for expending public money ‘protecting merely art’, especially where there is an alternative possibility of an artist achieving a legal remedy via a non-criminal lawsuit.

Since 1989 UK law has automatically given artists the inalienable legal right to protect their original works against physical derogatory treatment that is or would be ‘prejudicial to their honour or reputation’. Treatment means ‘any addition to, deletion from, alteration to or adaptation of, the work’. This so-called moral right of integrity applies only where a mistreated work can be seen in public; and so is tailor-made for the protection of publicly-sited contemporary artwork.

An integrity violation lawsuit does not require the artist to prove an accused vandal’s state of mind when mistreating a work (intentionally or recklessly). Nor is the artist required to prove mistreatment beyond a reasonable doubt to a jury – the standard of proof in non-criminal lawsuits is decided by a professional judge (without a jury) assessing whether the accused probably mistreated a publicly-sited artwork. Moreover, an accused vandal has no Clasp escape-route available (to contend that ‘the artist would have liked it’); but is allowed to prove that the artist had consented to the treatment before it was undertaken.

If violation of an artist’s moral right of integrity is proved, the court may order the vandal to pay financial compensation to the artist of an amount reflecting the costs of remedying the damage to the work caused by the mistreatment: a just and useful remedy, which artists have the legal right to pursue even if they no longer own their publicly-sited work that has been mistreated.

In the UK artists are usually reluctant to pursue integrity violation lawsuits: partly for the obvious reason that most cannot afford to pay the legal costs of doing so; but mainly because they rely on the owner of their publicly-sited works to deal with any vandalism (either by cleaning and/or reporting an incident to the police as criminal damage). That said, it would be possible for an owner of a mistreated work to support an artist’s pursuing a vandal via the non-criminal courts seeking a financial court order – possibly on the basis that compensation paid to the artist by the accused would be remitted by the artist to the owner to defray any expenditure on cleaning/restoring.

© Henry Lydiate 2021

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This article is from the Artlaw Archive of Henry Lydiate's columns published in Art Monthly since 1976, and may contain out of date material. The article is for information only, and not for the purpose of providing legal advice. Readers should consult a solicitor for legal advice on specific matters. Artists can get free online legal information from Artquest.