Banksy and Protest Rights: The View from The Robing Room

As I sauntered from the Old Bailey past the RCJ the Banksy painting caricaturing a judge attacking a protester was no longer even a ghostly shadow, but it very much remains in the public domain, after reports emerged that it had been reported as criminal damage.

On September 25, on Old Brompton Road, a comprehensive exhibition of Banksy’s work opened, which brazenly included the mural stencilled onto a different surface. This raised all sorts of issues about the commercialization of art and the edge of protest, not to mention whether or not he should be prosecuted.

Based on Fiat Justicia, Mr Bansky faces prosecution for the recent RCJ Mural as criminal damage. I also hear he may be charged with being in contempt of court, leading to his long anonymity being exposed. Being named and shamed is another feature of our hysterical times.

Recently, a bit like the opening to a P.J. Wodehouse novel, an erudite discussion was held among learned friends in the robing room of Hove Crown Court, steered by the most venerable member, as to whether the t-shirts, now selling fast, of this auspicious work should be deemed the proceeds of crime. The consensus was that in the U.K., post-conviction, the seller is responsible. Perhaps that is fanciful, but you never know.

Policy considerations were also broached, such as whether in prosecuting him would you create a martyr that would lead to more t-shirts being sold? Would the state then be complicit in facilitating crime not least by increasing his revenues.

Charles Dickens, his work the subject of many copyright violations and thieving particularly by Americans in his lifetime, expressed the view in Bleak House that it was far, far better to have nothing to do with the law. Well, it is certainly far better for the law to have nothing to do with Banksy, or is it?

The consensus in the robing room was that given he is profiting from the mural, there was a strong argument for a significant fine, with the trial perhaps being conducted through in camera proceedings, preserving his anonymity, with any receipts being diverted back into the criminal justice system.

Further, the venerable member concluded that he was inciting protest. The discussion took place over an entire lunch, and if any of us were briefed it would have occupied many days of court time, but should it occupy any court time at all is the real question?

Mr Banksy, I am reliably informed, arrived at around 4-5am masquerading as a delivery truck driver. There was just enough light to use his meticulously prepared stencil. It is not now simply guerilla art, but increasingly reflective on worrying times. Many people are in on the act.

Diego Rivera

Among the greatest painters of murals was Diego Rivera. His famous mural in the Rockefeller Center in New York was taken down because of his cheeky insertion of Lenin contrary to the edicts of one of the citadels of world capitalism. They destroyed it in violation of copyright law. An integrity right protects a work from being destroyed, mutilated or defaced or put it in an inappropriate setting.

Examples of violations include colorizing a black and white film such as The Maltese Falcon (1941), or including ad breaks during the Monty Python parrot sketch, or inserting cover ups of nudity, such as even in the Sistine Chapel, but outright destruction is rare. Indeed, there was uproar in Berlin when some of the murals on the Berlin wall were destroyed.

The Banksy mural was an insertion of overtly political content in a work of art, and the destruction or censorship of protest art has always been a feature of oppressive regimes. So, was the reaction disproportionate or ill-thought out?

Mr Banksy is a national treasure, and frankly as great an artists as any in England since Lucien Freud. I suspect any prosecution will backfire or has, revealing institutional incompetence and hubris.

The Banksy mural has significant political implications and presents authoritarian judges and the state cracking down on protest, not least in response to legitimate public outrage over Gaza, but what’s good for the goose is also for the gander. It is legitimate political art, but the regulation of protest as opposed to protest art is more complex now.

Protest Rights.

The flag of St George is also copyright protected, and very similar to the flag of Switzerland and indeed the Red Cross, but it has been traduced by maniacs spreading hatred and division. The visibility of the flag has increased significantly across England.

It is now the case that English, Irish and indeed American national identity is as fragile as the American flag fractured and loose as in the Jasper Johns painting. The Irish tricolour is also a symbol of unity of green and orange, but is now potentially divisive. Extreme nationalism, along with racism, is one of the scourges of our time. It is a reversion in my view to the 1930’s – symptomatic of a new dark age.

There is, of course, a marked distinction between genuine patriotism and the revival of tribalistic, exclusionary and racist nationalism. Not all patriotism to reference Jeremy Bentham is the refuge of the scoundrel.

But racism and chauvinistic nationalism go hand in hand and generally morph into fascism. The target is the excluded other, now the immigrant. Nigel Farage is now proposing to remove those without a settled status.

Timothy Snyder recently came off the fence in On Freedom (2024) labelling the alt-right fascists, after considering the etymology of the term. But is he also an enabler given some of the neoconservative views he has expressed?

Let us cease bandying about anodyne terms like crypto-fascism and use language with precision and exactitude. There are now fascists and a gathering mob, but this has been engineered by, and is under the control of, others. Who then are the enablers is the crucial question?

Is Banksy an enabler? I am not so sure

London Protests

On the streets of central London recently I was reminded of three things: John Reed and Ten Days That Shook the World (1919), his blow-by-blow account of the Russian Revolution; the scene in Cabaret (1972) where, semi-fictitiously, Christopher Isherwood decides to leave Berlin after hearing a version of Horst Wessel being sung. Finally, surveying the hate-filled eyes I was also reminded of Leni Riefenstahl’s Triumph of the Will (1935).

I would argue that a similar species of Irish hatred is more vicious but far less powerful in electoral terms, bu there is now a real danger of the extreme right winning power in the U.K..

Dozens of police officers were injured at the protests, yet only twenty-five arrests were made.  The counter demonstrators, understandably smaller in number, were non-violent, and let us be clear that a right to protest is intrinsic to democracy. Peaceful protest that is, an idea as old as Gandhi or Martin Luther King. Yet there were 500 arrests made at the peaceful Gaza protests in early October.

This casts the right to protest into doubt, or at the very least demonstrates a need for greater regulation and proportionality. The insurrectionist riots and arson attacks on accommodation related to asylum seekers in Ireland in recent times is also a case in point, demonstrating the necessity of regulating (violent) protest.

The Just Oil protesters, with others to come, were convicted under the Police, Crime, Sentencing and Courts Act 2022 (PCA) of conspiracy to cause a public nuisance, in response to the M25 motorway disruption in November 2022. Judge Hehir dismissed the defence of mere political opinion and belief as excluded from the present English legislation.

That decision undoubtedly opens a dangerous vista, but the crucial question is that of whether a demonstration potentially causes harm, and that one clearly could have caused harm, and it certainly caused a significant furore and inconvenience.

Orange lily

In the famous common law prosecution orange lily case Humphries v O’ Connor (1864) plucking an orange order lily from a woman in the nationalist area of Belfast was deemed a justifiable police act and regulation of protest, as the offending lily had the potential to cause a breach of the peace. This occurs when an individual causes harm, or if it is likely that they will cause harm to another individual or property, or if it puts another person in fear of being harmed.

As Shakespeare put it in Sonnet 94:

For sweetest things turn sourest by their deeds;
Lilies that fester smell far worse than weeds.

But what harm or public nuisance has Banksy caused? He has frankly adorned RCJ with better artwork outside than there is inside. Is it really an incitement to protest in contravention of the law or a protest to survive?

Ronald Dworkin, towards the end of his career, wrote an article on the Right to Ridicule peculiarly appropriate to Banksy. There are, for sure, limits, such as Enoch Burke silently or not so silently protesting outside his school. He is not an artist and most decidedly frankly a nuisance, disturbing children being educated. So perhaps certain forms of protest should be consigned to Mountjoy. But there are also demonstrators from Stop Oil, Gaza Extinction Rebellion residing, perhaps excessively, in custody in the U.K.. Now, perhaps a great artist in will be in there next. But that mural was created before 150,000 people turned up in central London.

The great political artist of our time, a private and ostensibly decent man, should not be publicly prosecuted for making legitimate points of criticism, with a drawing that Goya Picasso, Schiele or indeed Hergé would have been proud of. Hergé’s TIN TIN books were about the Manichean divide between good and evil. So who is the demon today, the contemporary Captain Haddock?

Banksy deserves an anonymous knighthood not public humiliation. He should be known by his self-designation and not outed by a magistrate’s court.

Whether he should pay a fine for profiting commercially from the mural is a different question. After all, would he not approve of charges being pressed against the fascist mob that attacked the police?  Perhaps any proceeds should go to police wellness programmes?

In the film Cabaret the Isherwood character says: “do you really think you can control them?” Well, Banksy do you? And are you encouraging them or inciting the mob, the robbing room sagely discussed.

It is crucial to realize that the Populist alt-right and indeed at times the extreme left have served to reduce speech and protest rights in an increasingly vigilante age, and now use protest to destroy democracy. So be careful about admonitions of judicial crackdowns even through art. For many are using democracy to destroy the social democratic consensus. And fringe leftist protests such as Just Oil are not much better.

So, the legal arguments about disproportionately cracking down on violent or even peaceful protests certainly are no longer as clear-cut as the mural might suggest.

In the robing room the venerable member concluded that perhaps an arbitral solution might involve a private settlement, i.e. a charitable gift. But none of that settles the regulation of the right to protest, which is now increasingly fragile.

Feature Image: Banksy mural, 8 September 2025.