Treasure law: The commercial aspects of treasure
When you think of disputes over treasure you tend to think of pirates fighting on sandy beaches or ancient families hiding valuables from raiders. Now, of course, fights about treasure take place in court rooms.
In December, law firm Clyde & Co hosted an Institute of Art and Law seminar on commercial aspects of treasure. It gathered leading legal experts and academics to discuss the key issues involved which really came down to: defining treasure and reporting treasure finds. Both sound simple enough but the issues involved can be confusing.
Tony Baumgartner, partner at Clyde and Co, analysed the relevant English law – particularly the Treasure Act 1996 – to try and define treasure.
Under the Treasure Act 1996, ‘treasure’ includes any object at least 300 years old when found which (i) is not a coin but has a metallic content of which at least 10 per cent is weight by precious metal, (ii) when found is one of at least two coins in the same find which are at least 300 years old at that time and have that percentage of precious metal, or (iii) when found, is one of at least ten coins in the same find which are at least 300 years old at that time.
This sounds simple. But there are – of course – subtleties. Many objects of historical and archaeological importance do not match the applicable criteria and are therefore not considered treasure, which subsequently means they may not be properly dealt with when found. Although under the Act the Secretary of State can ‘designate any class of object that he considers to be of outstanding historical, archaeological or cultural importance’, that power has not been widely used. Roger Bland of the British Museum spoke at length on the importance of finds outside the definition of treasure, using examples such as ‘The Rudham Dirk’ which was bought by Norfolk Museum Service for £41,000.
“Even surprising things are worth money,” said Norman Palmer QC CBE, a practising barrister and chairman of ArtResolve, who spoke in depth on the legal status of antiquities (including human remains) excavated from foreign sites, and the ways in which English Law enabled such material to be recovered before the English courts. In particular he described the potent influence of the decision in Iran v Barakat, which not only clarifies and strengthens the black-letter arguments open to foreign States seeking to retrieve and illegally-excavated and illegally-exported antiquities, but also gives powerful moral support to the principle that civilised nations should recognise the claims of other nations to be the true owners and guardians of the keys to their ancient history. Palmer also pointed out that while these were developments of crucial significance, not only to victim States but to investors and commercial agencies within the field, they were also subject to limitations, some of uncertain width.
Other speakers covered more specific areas of definition and reporting, including Harry Martin, a barrister at 3 Stone Buildings, who discussed the legalities of a find on a building site. Hetty Gleave, partner at Hunters, spoke on the need for alternative dispute resolution in the process for allocating rewards for found treasure and Richard Harwood OBE QC, spoke about the issues that arise with public law and conservation.
One of the main topics discussed was the process for reporting treasure. English law makes it an offence not to report found treasure. If there is reasonable belief that an object may be treasure it must be reported within 21 days, and failure to do so can be punishable by imprisonment or fine. The find should be reported to the Coroner in the area in which the object was found. The local reporting centre will process the object, writing a description and issuing a receipt to the finder. It is then offered to both local and national museums for purchase. If at this point there is no interest in purchasing the object, an inquest is then held to determine whether or not the find is actually treasure; if it is found to be treasure the title becomes vested in the Crown and is no longer the finder or landowner’s property. If a museum does wish to buy the object the landowner and finder are then entitled to a reward.
Throughout the seminar there was an emphasis on the Portable Antiquities Scheme (PAS). Set up in 1997, the scheme is run by the British Museum and sets out to record all archaeological finds in England and Wales. The primary aim of the scheme is to aid the process which follows uncovering an object and to preserve the natural historical importance of each find.
Roger Bland, head of the Portable Antiquities Scheme, said 95% of treasure finds are discovered using metal detectors. In most European countries metal detector enthusiasts require a license, though that is not the position in England and Wales. With around 9,000 active detectors in the UK, English law provides that the user must have permission of the landowner and must avoid scheduled archaeological sites.
When you are dealing with treasure a century can seem like a short time. Antiquities law can seem similar. In closing remarks at the, Geoffrey Bennett, a Professor of Law at the University of Notre Dame, said there is “disappointingly slow rate of reform” for treasure law. And he does not expect this to change, adding that it is “optimistic to expect too much too soon.”
Bennett said that this is not necessarily a bad thing. He says that politicians and lawyers often introduce new laws as quick steps toward a solution, but this does not always work. He ended by saying that “incremental progress is the way ahead.”
“incremental progress is the way ahead.”
He also posed an argument for “widening the definition of treasure to include some antiquities” not currently covered by the Act.