Banksy's Graffiti: A Not-So-Simple Case of Criminal Damage?
| DOI | 10.1350/jcla.2009.73.4.583 |
| Published date | 01 August 2009 |
| Date | 01 August 2009 |
| Subject Matter | Article |
Banksy’s Graffiti: A Not-so-
simple Case of Criminal
Damage?
Ian Edwards*
Abstract Graffiti artists are, if caught, most likely to be prosecuted under
s. 1 of the Criminal Damage Act 1971. This article explores the extent to
which the substantive definition of criminal damage applies to them.
There is no separate exculpatory or justificatory defence of ‘aesthetic
value’, and so graffiti artists must argue that they either have not ‘dam-
aged’ property, they lacked mens rea or they had lawful excuse. It is argued
that the work of artists such as Banksy forces a reappraisal of the precision
and applicability of criminal damage.
Keywords Criminal damage; Graffiti; Lawful excuse; Mens rea
Are ‘graffiti artists’ such as Banksy1committing criminal damage in
spraying or painting murals, tags and other forms of ‘street art’? The
academic literature contains much sociological and anthropological
analysis of graffiti sub-culture (particularly in America and Australia)2,
but little discussion of the substantive criminal law’s treatment of graf-
fiti.3This article focuses on the potential liability of artists such as Banksy
for criminal damage under s. 1 of the Criminal Damage Act 1971
(hereafter ‘the CDA’), as it is the principal offence with which such
individuals could be charged. There is no graffiti-specific offence; other
states have targetted graffiti through distinct legislation, such as South
Australia’s Graffiti Control Act 2001 which criminalises a person who
‘marks graffiti’4without lawful authority (‘marks graffiti’ includes ‘de-
face[ment of] property in any way’).5Most criminal law textbooks and
articles that mention graffiti do so only in passing, assuming that spray-
ing graffiti is inevitably and indisputably criminal damage under s. 1.6
* Norwich Law School, University of East Anglia; e-mail: i.edwards@uea.ac.uk.
1 Banksy, Wall and Piece (Century: 2006, London). The identity of ‘Banksy’ was
apparently revealed by the Mail on Sunday in 2008: C. Joseph, ‘Graffiti artist Banksy
unmasked . . .’, 14 July 2008, available at http://www.mailonsunday.co.uk/femail/
article-1034538/Graffiti artist-Banksy-unmasked---public-schoolboy-middle-class-
suburbia.html, accessed 11 June 2009. He has not (yet) been prosecuted.
2 See references in M. Halsey and A. Young, ‘“Our Desires are Ungovernable”:
Writing Graffiti in Urban Space’ (2006) 10(3) Theoretical Criminology 275; M. Halsey
and A. Young, ‘The Meanings of Graffiti and Municipal Administration’ (2002)
35(2) Australian and New Zealand Journal of Criminology 165.
3 M. Watson, ‘Graffiti—Popular Art, Anti-social Behaviour or Criminal Damage’
(2004) 168 JP 668; on copyright issues arising from graffiti, see T. Rychlicki, ‘Legal
Questions About Illegal Art’ [2008] 3(6) Journal of Intellectual Property Law & Practice
393.
4 Graffiti Control Act 2001, s. 9.
5 Ibid. s. 3.
6 For example, A. Smith, Property Offences (Sweet & Maxwell: London, 1994)
para. 27-16: ‘Plainly, the painting of slogans on a wall almost invariably amounts to
damage . . . What message the dauber happens to scribble, for example, is irrelevant
to the question whether . . . what is done amounts to criminal damage’.
345The Journal of Criminal Law (2009) 73 JCL 345–361
doi:1350/jcla.2009.73.4.583
This article explores the application of criminal damage’s legal definition
to graffiti artists, and suggests it may be more complex than previously
thought.
The social and cultural statuses of graffiti are ambiguous. Halsey and
Young identify four types of graffiti (moving beyond Gomez’s 1993
dichotomous categorisation of graffiti into ‘graffiti art’ and ‘graffiti van-
dalism’7): ‘tagging’, ‘throw-ups’, ‘pieces’ and ‘slogans’. The differences
need not detain us here; what is significant is that graffiti is a ‘para-
doxical phenomenon . . . both aesthetic practice and criminal activity’.8
Graffiti’s aesthetic value is hotly debated in contemporary art criticism.
Iain Sinclair notes the ‘playful collages of argument and invective’ that
have a place in the ‘discourse of London’9while Jones argues contem-
porary urban graffiti merely evinces ‘the dead hand of convention’, with
a repetitive style of ‘chunky fat lettering, mega-sized cartoons, tags’.10
Graffiti’s socialsignificance is also contested. Anti-graffiti groups (such as
Keep Britain Tidy) and followers of Wilson and Kelling’s ‘broken win-
dows’ thesis argue that it blights communities, creates a sense of urban
decay and undermines processes by which communities maintain social
control.11 Graffiti artists may extol its subversive and political value; in
Banksy’s own words:
Modern street art is the product of a generation tired of growing up with a
relentless barrage of logos and images being thrown at their head every
day, and much of it is an attempt to pick up these visual rocks and throw
them back.12
Suppression of graffiti is part of society’s ‘headlong march into bland
conformity’.13
Already we can see problems of nomenclature: are graffiti writers
‘artists’, ‘vandals’, etc.? The term ‘graffiti artist’ will be adopted in this
article to emphasise the potential of such work to transcend the labels of
‘anti-social behaviour’ and ‘vandalism’. The potential prosecution of
artists such as Banksy (who has never been charged, but will be used
here as an exemplar) forces us to confront law’s role in regulating artistic
expression in public spaces. The question is sometimes posed, ‘Where is
the boundary between art and criminal damage?’ as if these concepts are
mutually exclusive, and as if a threshold exists beyond which something
7 M. Gomez, ‘The Writing on Our Walls: Finding Solutions through Distinguishing
Graffiti Art from Graffiti Vandalism’ (1993) 26(3) University of Michigan Journal of
Law Reform 633.
8 Halsey and Young (2006), above n. 2 at 275.
9 Quoted in H. Muir, ‘Is the writing on the wall for graffiti artists?’, Guardian, 6 May
2004, 11.
10 J. Jones, ‘Dim, cloned conservatives: Modern graffiti is not subversive—it is a
formulaic, bankrupt cliché’, Guardian, 7 August 2004, 21; Graffiti, Jones argues, has
lost its outsider status that had been described by the French artist Jean Dubuffet
(Dubuffet coined the term art brut, translated by Roger Cardinal in the 1970s as
‘outsider art’: R. Cardinal, Outsider Art (Littlehampton Book Services: London,
1972); Rychlicki, above n. 3 at 393).
11 Keep Britain Tidy Campaign, see http://www.encams.org, accessed 11 June 2009;
J. Wilson and G. Kelling, ‘Broken Windows’ (1982) Atlantic Monthly 29.
12 ‘The Writing on the Wall’,Guardian, 24 March 2006, available at http://www.
guardian.co.uk/artanddesign/2006/mar/24/art.australia, accessed 11 June 2009.
13 Ibid.
The Journal of Criminal Law
346
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