This article is taken from Paul Howcroft’s blog Art Law London
When and where I studied law, the Roman Law course was compulsory. In retrospect, all I got from it was a collection of Latin legal terms. The use of legal Latin became politically incorrect in the 1990s, culminating in the Civil Procedure Rules, which even changed “writ” to “claim form“. Perhaps a new generation of lawyers brought up on Harry Potter will restore the balance, but I digress.
A res nullius in Roman Law was a thing that belonged to no one, and yet, I was taught, there was no such thing in English Law, except perhaps a corpse. If an object’s owner cannot be identified, it does not make the object ownerless, and therefore ownership cannot be acquired by the taking. That can make some objects problematical, and one such object is on a plinth outside the Houses of Parliament. I refer to Henry Moore’s sculpture “Knife Edge Two Piece” which is the subject of an interesting article by Martin Bailey in The Art Newspaper.
Apparently, the artist and the Contemporary Art Society, which paid for the casting, gave the work to the grateful nation in 1967, and what was then the Ministry of Public Buildings and Works accepted delivery. However, when the British Council recently wanted to send the sculpture for display in the garden of the Kremlin (as it would), it could find no national or local government department or agency that had any record of ownership, which explains its neglected state.
In recent years there have been several reports of Moore’s scuptures disappearing from public spaces, perhaps due more to the rising price of bronze than enthusiasm for 1960s art. In light of that, and a case called Sullivan , where a defendant was acquitted of theft because the money he took did not seem to belong to anyone, should one not be organising a hoist and a heist? Sadly there are two reasons why not. The first is that the Sullivan case has not been followed and is regarded as bad law, and the second is that “Knife Edge Two Piece” is in one of the highest security areas in England.
Paul Howcroft, partner, Fladgate LLP (firstname.lastname@example.org)