After Kevin Harman took a scaffolding pole and smashed it through the window of an art gallery in Edinburgh he was charged by police with a criminal offence. People quietly moving about in the gallery had been understandably shocked and distressed when the pole came crashing through the glass. Harman’s unusual answer to the charge was that his destructive disorder was not a crime but a form of art.

At Edinburgh Sheriff Court, the prosecutor explained that Harman had some months earlier decided to embark on “a living art project” which he initially entitled “Brick”. With self-professed artistic flair, and after careful study, Harman had written to the Collective Gallery to tell them he had selected them for his project and that at some unspecified time in the future he would be arriving there with a brick to throw through their window. He told them, helpfully, that he would also be filming the event for later audiences to enjoy, and that he would bring a glazier to replace the window after his bout of art.

That plan, however, was never executed because when the glazier found out exactly what was supposed to happen he refused to take part. Harman, who is a postgraduate art student, then came up with his Plan B which involved the cunning artistic technique of replacing his brick with a metal scaffolding pole.

It was then that Harman strode confidently to the gallery to create “Pole” and duly hurled one through the window. It might have looked like a mindless act of vandalism but for the culprit it was an act of creativity. Harman said it was “the most important work of my life”.

There are precedents in which defendants pleaded that their alleged crime was, in fact, art. Those defendants, however, usually gave ample justification in their defence. In 1960, for example, Penguin Books Ltd was prosecuted for obscenity after it published the DH Lawrence novel Lady Chatterley’s Lover. The prosecution claimed the book was criminal filth. The publisher relied on a defence that excuses something if it is in the interests of art or literature. At the trial, a unique range of distinguished scholars, professors of literature, and writers queued up to praise the book including the novelist EM Forster and the poet Cecil Day-Lewis. Penguin Books was acquitted and the novel sold three million copies in a year.

Harman’s work, by contrast, has been eulogised but rather less convincingly. Richard Demarco, an art promoter, said of Harman “The word destruction does not apply to him. His whole ethos is about making things which are positive negative”. The judge in the criminal law court took a more conventional view of language. He found that because Harman had deliberately destroyed a window the word “destruction” was applicable. The judge’s verdict was not “positive negative” but just plain negative. He found Harman guilty of conducting himself in a disorderly manner and breaching the peace and fined him £200.

Gary Slapper is Professor of Law at The Open University

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