Peter Sylveire, the director of the Young Unknowns Gallery, and I went on trial at the Old Bailey Central Criminal Court in London on 30 January 1989 charged with the common law offence of “outraging public decency.”
This ancient crime was first committed in 1663 by Sir Charles Sedley when he walked naked onto a tavern's balcony while holding a glass of wine. Witnesses at his trial said that they saw him wash his penis in the glass of wine and then drink a toast to the king. They also said that he pissed on the crowd that was watching him from below the balcony, which caused the crowd to riot and destroy the tavern. As a result, Sir Sedley became the first person in British history to be found guilty of “outraging public decency” and fined GB£500.
The best modern definition for this crime came from the prosecutor at my trial who said:
“Outraging public decency” is like an elephant. Difficult to define, but you know it when you see it.
This definition is important because, up until my trial, British art galleries didn’t have to worry about this common law offence since they were protected by the “Obscene Publications Act” which allowed art experts to point out the good qualities of an offensive work of art with hope of convincing the jury to vote “not obscene”.
But the crime of “outraging public decency” prohibited the use of expert witnesses. This meant that the jury had to reach a verdict based solely on the sights, sounds and smells of the artwork. The reasons for making and exhibiting the art were irrelevant.
As for the trial itself: it was held in front of a jury of 2 men and 10 women for nine days. Throughout the trial, Peter and I were defended by the barristers Geoffrey Robertson and Francis Irwin and supported by the solicitors Mark Stephens and Richard Northridge. The government prosecution team was led by Michael Wolsely. The presiding judge was Sir Brian Smedley.
The opening day of the trial started with a fight among the lawyers. The prosecution wanted the jury to only see photographs of the sculpture, whereas our lawyers demanded that the actual sculpture be displayed in court. After some legal haggling, the judge agreed with our lawyers and the sculpture was brought into the courtroom, where it sat on public display for the longest time in its history.
The testimony part of the trial began when the prosecution called its only witness: the police chief who had raided the art gallery and seized the sculpture. His testimony was reported in the Sunday Times newspaper as:
Detective Chief Inspector Laurence Eva admitted in questioning that he had very little experience of art “other than in respect of stolen property”.
And on that note the government ended its case because as far as the prosecution was concerned the jury either liked the look of the sculpture or they didn’t. The reason for publicly exhibiting it was irrelevant.
Nevertheless, our lawyers scored a point when they questioned a newspaper reporter who had attended the police raid. Reading from his notes, the journalist reported:
…the gallery director, Peter Sylveire, said that he did not think the exhibit any more immoral than sculptors making art out of human hair. Human Earrings had been chosen as a valid piece of artistic expression.
At this point in the trial, all of the testimonies had been heard, all of the evidence had been seen and all of the laws had been interpreted, so the judge turned to the jury and instructed:
Do not be concerned with taste or the artistic merit of the work. Your role is to set the standards of public decency.
I still have no idea what he meant by that and I think the jurors felt the same way, because after deliberating for several hours they returned to the courtroom without a unanimous decision. As a result, the judge ordered them to go back to the jury room and reach a majority decision.
About an hour later, the jury returned to the courtroom and announced that Peter and I were guilty of “outraging public decency” by a count of 10 to 2.
Upon hearing the verdict, the judge looked at me and said, “For your penalty, I’m giving you a choice. You can either pay a fine of GB£500 or you can go to prison for 28 days.”
I paid the fine.
But the trial didn't end there. For me, it ended several months later when a person walked up to me in a London museum and said, “Hello. Do you remember me?”
I looked at them carefully and said, “No.”
“I was a juror at your trial.”
Suddenly I recognized them.
“As soon as I saw you in the museum,” they said, “I wanted to tell you in person that I thought you were innocent. Myself and another juror were the two dissenters who voted not guilty. We thought the sculpture raised valid social issues.”
I was happy to hear this and I thanked them for voting for me. But then they added, “I have to go now. It’s against the law for a juror to talk to a defendant after the trial. I could be arrested for being with you.” Then they smiled and walked away.
As for the whereabouts of the sculpture: the last I heard, it was in Scotland Yard’s crime museum.