Tuesday, 6 October 2009

The Alpha Course and Graffiti: Ticking The Wrong Box

There is a rumour that someone has been arrested after ticking "No" on one of those Alpha course posters.

This act - like any other graffiti on someone else's property - could well constitute criminal damage: see the relevant Crown Prosecution Service Guidance.

If it is a criminal offence - and so not just a private law infringement - the intention or even the implied consent of the advertiser would not normally matter.

That said, under section 5(2) of the Criminal Damage Act 1971, genuine belief in the consent of the owner of the actual property in question can constitute a defence:

A person charged with an offence to which this section applies shall, whether or not he would be treated for the purposes of this Act as having a lawful excuse apart from this subsection, be treated for those purposes as having a lawful excuse—

(a) if at the time of the act or acts alleged to constitute the offence he believed that the person or persons whom he believed to be entitled to consent to the destruction of or damage to the property in question had so consented, or would have so consented to it if he or they had known of the destruction or damage and its circumstances [...]

It would be interesting to know whether those running the Alpha course could be deemed to have consented, on the assumption that they actually owned the poster in question.

In any case, the CPS would normally only prosecute when it is in the public interest to do so.

It would therefore also be interesting to know whether the CPS would see such a prosecution as being in the public interest.


Richard Hurst said...

Perhaps they could pursue it as 'religiously aggravated criminal damage', for maximum entertainment value.

Zeno said...

Although many of the posters have had 'tick boxes' (and therefore it could be construed that they were soliciting responses) many of them now simply have:

> Yes
> No
> Probably

I wonder if they have removed the tick boxes deliberately?

Will said...

I reckon it will also make a difference - and this information was missing from the original report I read - if the graffiti was added to the plastic cover of a poster (i.e., part of the display box) rather than to the poster itself.

Tom Morris said...

Let me get this straight: 5(2)(a) is a subjective test. Two possible considerations then: is the fact that the guy who has been rumoured to have done this allegedly e-mailed Tessa K presumably in the knowledge that she'd post it somewhere like the Bad Science forum something of a counter-argument. If you honestly believe that ticking a box on the Alpha Course poster isn't criminal damage, sending an e-mail bragging about it rather ruins that defence. If this got to court, surely the prosecuting lawyer could just ask a police officer to testify to the defendant's state of mind during the arrest and while at the police station?

Also, what about preparation? I've seen some of those Alpha posters around London and you'd probably have to have a permanent marker to make any significant mark on them. Wandering around with a marker pen in your pocket (I'm hypothesising) at the ready (unless one can find a decent excuse for carrying a marker pen) seems like it would sway against 5(2)(a).

On the flip-side, there have been many more advertising boards in London and elsewhere that have been interactive: I've seen some with touch-screen elements, and plenty that contain an embedded Bluetooth radio transmitter that sends out files to people walking past with mobile devices.

(IANAL, just a trainee philosopher.)

TK said...

Not a rumour. I have the evidence but cannot reveal the person's name.

Interesting post, Jack. Thanks for the information.

Ivan said...

Richard Dawkins' bus adverts offered a 4th answer: "probably not". The promoters of the Alpha Course seem to want to deflect your attention from that possible answer.

Unless it was part of some broader campaign, I would assume that in general someone caught committing such a trivial item of graffiti, which is on a very temporary poster, would normally escape with a, er, ticking-off.

Steve Rolles said...

I cant help think they were hoping for this sort of controversy for some free advertising.

tom p said...

Hi Jack,

The Alpha course have a flickr photostream: which includes examples of graffiti with approving comments (including "Genius graffiti" under a poster with the "No" option ticked and a message written - so considerably more damage that this gentleman claims to have done.
Assuming that the photostream is genuinely from the alpha course, do you think it would be reasonable to assume their consent from these images?

Steve Jones said...

Has anybody considered that this whole thing might just be a spoof? It might be significant that the alleged perpetrator has opted to remain anonymous (or somebody has opted to do that for him/her). I suppose this would be subject to contempt of court if a charge had been actually laid which might explain that, but I'm not wholly convinced.

Ben Murphy said...

It is a great opportunity for the people running Alpha courses to turn the other cheek.

Anonymous said...

Would sticking a Post-It note on something constitute criminal damage?

Jo said...

I was also wondering about the Post-it note question, also having specially made re-postable transparent adhesive stickers with a nice ballot-style X on them ;)

But if they've altered the posters in light of the sneakery that's no fun.

Jack of Kent said...

Re Post It Notes.

The case law suggests that throwing mud against a wall, even if will then all slide off, can nonethelss still be criminal damage.

However, a court held that spitting on a policeman's coat did not constitute criminal damage.

One wonders how the courts would approach post it notes...

Steve Rolles said...

its striking how this sort of 'graffiti' is being prosecuted (messing with ad posters is absolutely the best kind IMHO - given its essentially temporary and culturally positive qualities) whilst ubiquitous rogue commercial poster flyering seems to continue unmolested .

keen to direct everyone towards the utterly brilliant

Mike Hoffman said...

I have been in touch with about this campaign, on the grounds that their "survey" was missing a rather obvious answer from the array of tick boxes.

After a good-natured dialogue via email, they supplied me a link to a website that posts different "graffitied" versions of the campaign for my enjoyment. They were clearly of the view that defacing the posters is in the spirit of open debate they claim to foster on their courses. So if Alpha aren't bothered about it, that surely weakens any public interest case?

Niklas said...

@Jack of Kent: but I imagine the person in question was still convicted of assault for spitting in the policeman? Or was the policeman not wearing his coat at the time?

Regarding this case, I don't know the facts so I couldn't comment. But perhaps changing the design of the posters is a tacit admission that providing tickboxes is an invitation to someone to tick them?

Mike Hoffman said...

Returning to the whole premise of this story, can anyone actually verify this arrest took place with reference to a media news source or official record? I've tried to find out, but all online searches seem to lead back to this blog.

Michael Kingsford Gray said...

As far as I am concerned, the poster is a stunningly clear "Invite to Treat", by which an acceptance of said invitation is thereby exempt from trespass.

In effect: they are inviting one and clearly encouraging one to make a mark on their poster, no matter what that may entail, including marking it's covering, as a matter of necessity in order to comply with the invitation.

I cannot see any problems with this potential defense.

tom p said...

Mike Hoffman,

the original report of it is from an email that was sent to Tessa K who posts at the bad science forums and works for a prominent non-religious organisation.
It's posted here:

I suspect that TK (above) is Tessa.
I also know that Tessa is honest and reliable and wouldn't be lying about this, however whoever emailed it to her might be.
Given her history of probity online, if she says that she's got proof that she can't show for now, I have no reason not to believe her.

Jack of Kent said...

I concur with Tom P.

Whatever the credibility of the original source (and that I do not know), I will vouch completely for Tessa K who I have known for some years as a fellow skeptic.

Ben Emlyn-Jones said...

I've seen these posters on railway stations. The form of the poster seems to entice a response. The controversy over this alleged defacement reminds me of the episode of "The Simpsons" where Homer has a form sent back to him. In the section of the form which said: "For office use only. Please do not write here", Homer wrote: "OK" :-)

David said...

Apparently the alleged perp has been communicated with, as follows -

I acknowledge receipt of your request for a court hearing in respect of the above-mentioned Penalty Notice, and would advise you that the necessary arrangements will now be made. The Penalty Notice will be referred to the Issuing Officer who will prepare and submit a prosecution file. The matter will then be adjudicated on, at which time any statement of mitigation that you have submitted will receive due consideration. Once a decision as to whether to prosecute or not has been made, you will be notified by letter or alternatively, receive a summons from the Court.'

David B