Goya's Wellington: The Duke Disappears
James Whitfield on why the theft of a Spanish master’s portrait of a British military hero led to a change in the law.
On August 3rd, 1961 the National Gallery in London’s Trafalgar Square proudly unveiled its latest acquisition: what is known as the bust portrait of the Duke of Wellington by the Spanish master Francisco de Goya (1746-1828), painted during the Peninsular War and completed in 1814. Eighteen days later the duke went absent without leave from the gallery. His unauthorised removal made headline news, stumped all attempts by Scotland Yard to solve the crime and, in 1968, prompted the Government to introduce a new criminal offence. Theories as to who may have been responsible for the theft, the first in the National Gallery’s 138-year history, abounded; all were to prove wide of the mark.
In May 1965 the portrait was discovered in a left-luggage locker at Birmingham’s New Street railway station. Two months later a 61-year-old man named Kempton Bunton from Newcastle-upon-Tyne surrendered himself to Scotland Yard and confessed that he had taken the portrait from the National Gallery. He was charged with theft and sent for trial at the Old Bailey. What seemed an open and shut case proved to be anything but and revealed a glaring deficiency in the larceny laws of England and Wales.
The Goya case had many similarities to an earlier incident in which the Government had missed an opportunity to resolve the legal anomaly regarding larceny; the theft of the Stone of Scone from Westminster Abbey on Christmas Day, 1950. Today the Scottish Culture website www.firstfoot.com describes the removal of the Stone of Scone, also known as the Stone of Destiny, in somewhat heroic terms:
In the wee small hours of Christmas Day 1950, as the rest of London slept, three young Scotsmen broke into Westminster Abbey and carried out one of the most audacious robberies of the 20th century ...
Once inside the abbey, thieves removed the stone from where it had lain for centuries set into the Coronation Chair and transported it to Scotland, its first journey north of the border for 650 years. Extensive police enquiries failed to locate its whereabouts but several months later the stone reappeared on the High Altar of Arbroath Abbey, draped in the Scottish flag. Four Glasgow students were eventually identified as responsible for the theft and the question turned to whether or not, and with what offences, they should be prosecuted.
The matter was considered in Parliament on April 19th, 1951 when the attorney general, Sir Hartley Shawcross, informed the House of Commons that:
The clandestine removal of the stone from Westminster Abbey, the manner of its taking and the manifest disregard for the sanctity of the abbey were vulgar acts of vandalism which have caused great distress and offence both in England and Scotland and have brought the individuals concerned in them into great disrepute. I do not think, however, that the public interest requires that I should direct criminal proceedings to be taken ... It is certainly impossible to forecast the decisions of juries in cases where no actual dishonesty in the ordinary sense is involved and I have no desire to provide these individuals with the opportunity of being regarded by their fellows as martyrs if convicted, or as heroes if they are not convicted.
The debate raged for several months over whether the stone should be returned to Westminster Abbey, or whether the wishes of many Scots should be fulfilled and it should remain in Scotland. On February 29th, 1952 a letter was received in Cabinet Registry confirming that the Queen had given approval for the Stone of Scone to be replaced in the Coronation Chair in Westminster Abbey. It was, but the discussion about the stone’s final resting place drifted on (it was eventually returned to Scotland in 1996).
The decision, for reasons of political expediency, not to prosecute the Scottish students put paid for the time being to any plans for the introduction of a new law to deal with the unauthorised removal of articles from museums and galleries in England and Wales. This would undoubtedly have remained the case had not Kempton Bunton decided to pay an unauthorised out-of-hours visit to the National Gallery one summer evening.
The duke disappears
On June 14th, 1961 the New York art dealer Charles Wrightsman bought Goya’s portrait of the Duke of Wellington at Sotheby’s for £140,000. The acquisition prompted widespread public disapproval that such an important historical painting was to be allowed to leave the country. In view of the weight of opposition to his purchase Mr Wrightsman generously offered to sell the picture to the National Gallery for the auction price. The painting was purchased for the gallery with the help of a donation of £100,000 from the trustees of the Wolfson Foundation and a special Exchequer grant of £40,000. Once purchased the portrait was immediately displayed at the National Gallery. It remained on public view until its disappearance on the evening of August 21st, 1961.
The duke’s absence was first noticed by two patrolling warders. Each assumed that the painting had been removed by a member of gallery staff and that they had failed to put up a notice to this effect. At the time it was gallery policy to position a notice, referred to by warders as a ‘tag’ or a ‘tablet’, in the place of a work of art removed by conservation staff to inform security and others of its whereabouts. A degree of laxity appeared to have crept in to this practice, however, and the procedure was not always adhered to. As a result warder staff did not immediately assume the worst in the duke’s unplanned absence.
A thorough search of the gallery’s conservation and photographic studios began at 8am the following morning. Police were informed at 9.30am and over the next few days the whole of the building was searched and the staff questioned. Almost 11 hours had elapsed between the discovery that the uninsured painting had vanished and the matter being reported to the police.
A fruitless search
The Metropolitan Police investigation revealed that building renovations were in progress at the gallery when the painting disappeared. A window in the men’s public lavatory overlooking the inner of the building’s two courtyards had apparently been left open and a builders’ ladder had been removed from its usual place and placed beneath the window. Samples of dirt found on the windowsill were examined and found to be identical to mud in the inner courtyard. Similar mud marks were found on the top of one of the gates leading into St Martin’s Street. Not unnaturally, police concluded that whoever had removed the picture had left by means of the lavatory window and the inner courtyard and scaled the outer gate into St Martin’s Street.
This low point in the gallery’s fortune was compounded when police removed all of the Duke of Wellington postcards from its shop for identification purposes. Despite extensive enquiries not a single positive lead was unearthed during the portrait’s almost four-year disappearance. Such was the speculation surrounding the painting’s whereabouts that its vanishing was even referred to in the 1962 James Bond film Dr No.
On September 26th, 1961 a widely publicised reward of £5,000 was offered for the painting’s return. This inevitably led to the receipt of a number of anonymous ransom letters. Particular attention was paid to a series of communications known as the ‘COM’ letters, as each was thus headed, the first of which had been received by the news agency Reuters on August 31st, 1961, postmarked ‘London SW1’. The writer gave details of identifying features on the back of the painting, marks that could only have been known to the thief, and added:
Query not that I have the Goya ... The picture is not, will not be for sale ... it is for ransom – £140,000 – to be given to charity. If a fund is started – it should be quickly made up, and on the promise of a free pardon for the culprits – the picture will be handed back ...
Another ‘COM’ letter, postmarked ‘Lancaster, Morecambe’, was received by the Exchange Telegraph News Agency on July 4th, 1962. ‘Goya COM 3’ read:
The Duke is safe. His temperature cared for – his future uncertain ... we want pardon or the right to leave the country – banishment? We ask that some non-conformist type of person ... start the fund for £140,000 ...
Almost 18 months elapsed before a further letter was received on December 31st, 1963. It had been posted in London NW1. By this time it was clear that although the writer was still demanding a charitable donation of £140,000 for the painting’s return, the desire to avoid prosecution for his actions was uppermost in his mind. The final ‘COM’ letter was received on March 16th, 1965 postmarked ‘Darlington, Co. Durham’. By now the writer had ceased to demand the ransom sum and was insisting that he would return the painting if it was agreed that it would be exhibited privately for one month and that all viewing fees (he suggested five shillings a ticket) should be paid to charity. A further letter received on May 25th, 1965 was addressed to the Daily Mirror and was headed ‘Ex. COM’. This contained a left-luggage ticket from New Street station in Birmingham. Police rushed to the station and took possession of the parcel to which the ticket referred. Inside they found the missing portrait of the Duke of Wellington minus its frame. The painting was brought to London and eventually returned to the National Gallery.
A remarkable confession
On Monday July 19th, 1965 a man walked into New Scotland Yard and confessed to having stolen the portrait. When interrogated, the 61-year-old Kempton Bunton, unemployed, of Newcastle-upon-Tyne told police that he had thrown the picture frame into the River Thames. He was charged with theft of the portrait and appeared at Bow Street Magistrates Court where he was further charged with stealing the picture frame and demanding money with menaces from Lord Robbins, Chairman of the National Gallery’s board of trustees. Through his counsel Bunton made the following statement at the remand hearing:
I had no intention of keeping the painting or of depriving the Nation permanently of it. As to the frame I believe it was gold coloured and I left it on August 21st or 22nd in 1961 in a cupboard under the stairs in a house where I lodged which was within three miles of Kings Cross. It is not true that I threw the frame into the Thames. I said this because I did not want to get the landlady into trouble ... My sole object in all this was to set up a charity to pay for television licences for old and poor people who seem to be neglected in our affluent society.
Police now had the ‘stolen’ painting and a suspect who had admitted in open court to having removed it without lawful authority and demanding a ransom for its safe return.
Bunton’s trial began at the Central Criminal Court on November 4th, 1965. He was indicted on five counts: two of theft (the portrait and the frame) contrary to the Larceny Act of 1916; two of demanding money with menaces; and a rather obscure charge of causing a public nuisance by depriving members of the public the enjoyment of viewing the portrait, contrary to common law. He pleaded not guilty to each count.
The Crown began its case by focusing on the indictments relating to demanding money with menaces. Reference was made to a letter written to Lord Robbins on May 20th, 1963 in which an offer was made to return the missing painting for a payment of £5,000; the letter suggested that Lord Rothermere of the Daily Mail act as intermediary in the proposed transaction. A further letter seeking guarantees of confidentiality and instructions on what was referred to as ‘The Pay Off’ had also been sent to Lord Rothermere, demanding that he take the following course of action:
Your photograph to appear one day in all editions of the Daily Mail, and underneath the words, not necessarily the same but similar to following, ‘Lord Rothermere visiting so & so place yesterday commented upon the position of the two journalists in the Vassal Tribunal. He believes that newspapermen should to some great extent be entitled to treat a confidence as sacred ... personally he went on, that has always been my motto, and always will be, excepting perhaps in such cases as rape, murder, and other bestial crimes. Generally speaking, he continued, the successful men of this world are the men who having given their word, stand by it.’
The court was told by a member of the Metropolitan Police Fingerprint Branch that fingerprints found on this document were the only clear impressions detected on any of the letters in the case and claimed that a thumb print on this letter was that of Bunton. (The trial judge subsequently cast doubt on this.) Unfortunately, however, the police had lost the letter prior to Bunton’s arrest.
A detective sergeant told the court that on Monday July 19th, 1965 he saw the defendant at New Scotland Yard. He asked him what he wanted and was informed by Bunton that he was ‘giving himself up for the Goya’. During interrogation Bunton admitted that he had decided to surrender himself because he had carelessly told someone that he had taken the portrait from the National Gallery and feared that, if the £5,000 reward were still on offer, his confidant would report him in order to claim it.
Clearly no aficionado of fine art, Bunton told the police that he had kept the portrait of Wellington behind his wardrobe. He also confessed that he had been fined on three previous occasions for failing to have a television licence and was incensed that the Government would not allow free TV licences for the elderly. When cross-examined about demanding money with menaces from Lord Robbins and Lord Rothermere, Bunton denied drafting either of the letters. That completed the case for the Crown.
Examined by defence counsel, Bunton stated that in 1960 he had contacted the Post Office about his television licence. He informed them that he had altered his set to view Independent Television (ITV) programmes only and that he did not see why he should pay for BBC programmes. He had refused to pay court fines on each occasion and in default had served 13, 56 and one days’ imprisonment respectively. He had never implied in any of his letters that the picture would not be returned. There was no suggestion in any of the letters he admitted writing that he should receive any of the money. He did not tell his wife that he had the picture,‘otherwise the world would have known’.
No evil intent
Counsel for the prosecution addressed the jury and alleged that, at the time he took the portrait, Bunton had not intended to give it up without a ransom being paid. He had had ample opportunity to return it since 1961. It was not until 1965 that he did so and he only took this course of action because he feared incrimination by a third party and subsequent arrest when that person informed police and claimed the reward. The frame of the picture had never been found.
Counsel for Bunton pointed out that, before convicting his client, the jury must be satisfied beyond all reasonable doubt that he stole the picture, bearing in mind (and here was the rock on which the entire defence case rested) that at the time of taking it Bunton must have had in his mind the intention to deprive permanently the gallery of the picture and/or the frame. Section two of the Larceny Act 1916 stated that a person steals who:
(a) Without the consent of the owner;
(b) Fraudulently and without a claim of right made in good faith;
(c) Takes and carries away;
(d) Anything capable of being stolen;
(e) With intent at the time of such taking permanently to deprive the owner thereof.
Stealing was only a crime, counsel argued, if, at the time of taking, the person intended to deprive the owner of his property for good. The evidence was clear that Bunton had throughout intended to return the portrait to the National Gallery once a donation to charity had been made. With regard to the frame counsel considered that common sense dictated that when the picture was taken this principle also related to the frame. The whole incident was, he argued, honest to goodness skulduggery, but there was no evil intent.
The trial judge, Mr Justice Aarvold, began his summing up by outlining the law pertaining to the several indictments. He pointed out that security at the National Gallery was not as good as it should have been. The danger that something like this might happen had not been appreciated. He asked the jury to look at the letters sent to Lord Rothermere and Lord Robbins and referred to the Crown’s allegation that Bunton’s fingerprints had been found on the letter to Lord Rothermere. He believed that the letters to Lord Robbins and Lord Rothermere were out of character with those the defendant admitted sending and asked the jury to consider whether such letters were a hoax or written by a crank. He referred to Bunton’s contrasting statements as to his disposal of the picture frame; initially informing police that he had taken it to the Embankment and, as it was too big, he had broken it up and thrown it in the Thames; but later claiming that he had left it under the stairs at his lodgings near Kings Cross. He went on:
Do you think he [Bunton] would have left the frame where it was likely to have been found almost immediately by the landlady, who would no doubt have reported the matter to police? Is it likely that he would willingly have taken a chance at that stage of the adventure?
On November 16th, 1965 Bunton was found Not Guilty to indictment one (theft of the Goya portrait); Guilty to indictment two (theft of the picture frame); Not Guilty to indictments three and four (demanding money with menaces from Lord Robbins and Lord Rothermere); and Not Guilty to indictment five (public nuisance). In passing sentence Mr Justice Aarvold told Bunton:
Motives, even if they are good, cannot justify theft. Creeping into public galleries to extract pictures of value so that you may use them for your own purpose has got to be discouraged. You will go to prison for three months.
Twice in little more than a decade the removal of articles from public display had made national and international headlines. They had also exposed defects in the criminal law of England and Wales. Would Goya’s portrait of the Duke of Wellington prove to be the catalyst for reform? It was, perhaps, fortuitous that on March 18th, 1959 the then home secretary, R. A. Butler, had asked the Criminal Law Revision Committee (CLRC):
To consider with a view to providing a simpler and more effective system of law, what alterations in the criminal law are desirable with reference to larceny and kindred offences and to such other acts involving fraud or dishonesty as, in the opinion of the committee, could conveniently be dealt with in legislation giving effect to the committee’s recommendations on the law of larceny.
It was even more fortunate, in view of the timespan of the duke’s absence from the National Gallery, that the committee deliberated for several years before presenting its final report to the incumbent home secretary, Roy Jenkins, in 1966. The decision to recommend the complete replacement of the existing law was taken only after weighing the advantages of keeping a system that had been in force without radical alteration for centuries and of the possible dangers of introducing a wholly new one. The law, it was argued, worked reasonably well; it was only the exceptional cases that caused difficulty. The committee then considered each of the proposed new offences separately, including for the first time that of ‘removal of articles displayed or kept in churches, art galleries, museums and other places open to the public’.
It was noted that: ‘a striking recent instance is the removal from the National Gallery of Goya’s portrait of the Duke of Wellington’. Before the Goya case few people would have suggested that there was an evil unprovided for and serious enough to require the creation of a new offence. Some members of the CLRC expressed their reservations about the extension of the criminal law to deal with exceptional cases. There was also the danger that the taker would be less likely to return the property eventually, if he was liable to punishment for having removed it. However, the Committee reported:
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 offence in spite of the possible objections.
The committee believed that a maximum prison sentence of five years would be appropriate in respect of such an offence. Their recommendations were subsequently given legislative form as Section 11 of the 1968 Theft Act.
A silver lining
Bunton’s antics exposed deficiencies in the criminal law of England and Wales that had never been addressed by Parliament. Consequently the Goya case became the driving force for the creation of an entirely new criminal offence; namely, the removal of articles from places open to the public. The crime also prompted the trustees of the gallery to realise that there was a new danger to be added to traditional concerns of vandalism and fire. As a result of the deliberations of the CLRC into the theft of the Goya portrait security arrangements were revised and a senior officer of the Metropolitan Police was placed in charge of the gallery’s security.
The Goya case was also important for the way in which it exposed the difficulties that arise in the investigative process when traditional criminal motivation is absent. The police would no doubt have considered the possibility that the portrait was destined for an art lover with underworld connections. Yet none of the ‘usual suspects’ and regular outlets for stolen property were of any assistance to their enquiries simply because the expected criminal motivation was absent. As Kempton Bunton himself had commented, police were looking for a needle in a haystack but did not have a clue where the haystack was.
It was he who gave the game away, foolishly boasting to an acquaintance of what he had done. Ironically, however, Bunton’s unsuccessful campaign for free television licences for the elderly was to have its belated silver lining when 34 years later, in 1999, the Labour Government introduced such a scheme for those aged 75 and over.
As for the Duke of Wellington, he continues to survey a daily audience of art-loving visitors to the National Gallery; an audience who will in large part be blissfully unaware of his brush with the criminal law.