Self-Expression and the Law
On Tuesday 25 October 1977 Kerry Trengove was sealed inside a 15ft x 10ft breeze block bunker on the ground floor of the Acme Gallery in Covent Garden.
He then dug a 3ft-sq. hole to a depth of 3.5ft and started to tunnel his way out horizontally towards the front basement 20ft away. Apart from a small glass panel in one side of the bunker and a ventilation duct in another, he was sealed in and could only get out by breaking open the bunker – or by completing his 20ft passage, which he reckoned would take eight days. He called the work an ‘Eight Day Passage’. Inside the bunker he had tools, food and drink, and a video camera and microphone linked to a monitor in the upper gallery where staff, friends and members of the public could see and discuss with him the work as it progressed.
On Friday 28 October at 4pm the gallery was served with a Notice of Irregularity issued under the London Building Acts requiring the ‘builder’ (the Gallery) to break open the bunker so that the Greater London Council’s District Surveyor could inspect the excavation. Under these Acts the District Surveyor has a duty to inspect all work carried out in London buildings simply to see if the Acts do apply; and if they do, he must supervise it to ensure that it is properly and safely carried out. In this case the District Surveyor could not inspect the excavation because of the bunker; so the Notice gave the ‘builder’ until midnight on Sunday 30 October to break it open. It was now Friday evening, the passage was only 2ft long and could not possibly be completed within 48 hours; so the Artlaw office was consulted.
I went to see the work that night and the next day had a meeting with the Gallery directors. Their position was difficult. Should they break open the bunker and destroy the artwork, thereby complying with the law but breaking their commitment to the artist and the public (that the work would continue for eight days); or not? The consequences of not doing so were outlined. By law the District Surveyor could send his workmen in to break open the bunker – but only if he knew or saw there was a state of ‘immediate danger’ in the Gallery; Kerry Trengrove was consulted and confirmed that this was not so. Or, the District Surveyor could complain to a magistrates’ court that the ‘builder’ had not complied with the Notice of Irregularity, and ask the court for an order requiring the Gallery to do so – this could take weeks to obtain and only after a court hearing. The Gallery decided not to break it open.
On Monday 31 October at 11.30am the District Surveyor called to inspect the excavation but could not do so because the bunker remained sealed. It was explained that the Gallery had tried to comply with his Notice (by instructing the ‘contractor’ – Kerry – to try and finish the passage by Sunday night) but had failed. They promised access to the excavation by Tuesday evening when the ‘contractor’ could be finished. The District Surveyor went away to consider applying for a magistrates’ court order requiring the bunker to be broken open.
Later that day a further complication arose when the Gallery received a letter from the owners of the adjoining building requiring that the excavation cease, because they thought it was too close to their foundations and feared a subsidence. The Artlaw office was again consulted and it appeared to me that the neighbour probably had legal rights of support from the Gallery, but that these could only be enforced by obtaining a High Court injunction ordering the Gallery to cease the excavation. This would only be granted in an emergency, and only if the neighbour could satisfy the court that there was real and imminent threat to their property. Kerry was consulted and confirmed that this was not so. The Gallery decided not to stop the work.
On Tuesday 1 November at 8pm Kerry Trengove successfully completed his passage.
This case is an important illustration of what Artlaw is about. It highlights the need for readily-accessible, swift and sympathetic advice from lawyers with specialised professional experience who are able to comprehend the nature of complex or obscure work, and provide whatever legal assistance is required. Access to such support and help can and does enable artists to establish and maintain their freedom of expression.
- The District Surveyor should not be regarded as the villain of the piece. He was doing his duty. There were potential dangers for which he was publicly responsible: possible severance of a gas, electricity or water main; possible subsidence from the roof and sides of the passage. Any of this might cause injury to the builder and members of public in the gallery or outside, or cause damage to adjoining property.
- The emergency confrontations could have been foreseen and avoided if legal advice had been sought beforehand, because the law lays down procedures for notifying the District Surveyor and neighbours before carrying out such work. But it is hardly surprising that it was not done in this case; most of us have had bad experiences with the red tape of rules and regulations and fight shy of opening up a Pandora’s box.
- The use of an exhibition agreement (see Art Monthly issue 12) would have provided a framework for artist and Gallery to sett up a situation free of legal hazards. Potential dangers could have been identified and tackled at agreement stage by deciding who would be responsible if Kerry Trengove or members of the public were injured or the Gallery and adjoining property were damaged by severance of a main or by a subsidence. Such an agreement could also have dealt with insurance and clarified what must have been extremely complicated administrative arrangements.
- Even though none of this was done, it is important that Artlaw was still able to come in on a first-aid level rather than as preventive medicine.
In the local pub, on the night Kerry Trengove completed his passage, the Acme Gallery directors asked my advice on matter of some urgency. Should they give written notice to the District Surveyor of their intention to fill in the excavation? Yes, as soon as possible, was my advice. They had already done so.
Henry Lydiate wishes to acknowledge and thank Kerry Trengove and the Acme Gallery directors for kindly giving their permission to write about this case and mention matters which otherwise would have been treated as strictly confidential.
© Henry Lydiate 1977