THURSDAY 13 APRIL 2000

DR PETER ADDYMAN, PROFESSOR NORMAN PALMER AND MR DAI MORGAN EVANS

  Chairman: Gentlemen, I would like to thank you very much indeed for coming here this morning. I will call Mr Fearn to ask the first question.

97  Good morning. Can you tell us first how great is the scale of looting in the United Kingdom?

  (Dr Addyman) That is a question we would dearly like to have answered I think.

98  You must have thoughts on this.

  (Dr Addyman) Because of its nature, it is clandestine, it is extremely difficult to be certain. One can turn to well known instances, and several of them have been mentioned in papers, places like Wanborough which clearly has not only been looted but repeatedly looted, and even in the same area in the last month or two another coin hoard site has been visited repeatedly at night by people looking for more coins. In a sense it is a series of individual instances, in this case documented. The ones we do not know about we cannot quantify. I think we are beginning to feel that it is a very large problem simply by looking at what is turning up not only in antiquities shops and sale rooms but also looking at what is turning up in places abroad. My colleague at the York Archaeological Trust attended a conference on Viking archaeology in Los Angeles last month and was shown a complete table full of Viking antiquities, none of which had been recorded in the literature to his knowledge and had all been bought by a local collector and many of them clearly must have come either from the British Isles or from adjacent parts of Scandinavia. Perhaps another example is a rally in Colorado which is being offered to metal detectorists now. You can go along on 9 September and there are 10,000 objects of British origin which have been salted in the land in Pueblo, Colorado, and you can go and detect for them on this particular day. We are beginning to see accumulating evidence of this kind which suggests that there is a huge trade in antiquities which are either illicitly obtained or have been exported from Britain without a licence. I think possibly your Committee might recommend an inquiry to see if this can be quantified in some way.

99  What about maritime sites?

  (Dr Addyman) Again, this is a problem of knowledge. We believe there is a lot of diving going on, in fact we know there is a lot of diving going on, often on wrecks. There is anecdotal evidence that objects are often removed from wrecks. I believe there is an intention this year or next year to declare an amnesty in the hope that divers who have much of this material will actually declare it. I believe the Receiver of Wrecks is currently considering such an amnesty and is discussing it with the Chiefs of Police. That might give us some indication of the extent of loss on maritime sites but there the problem is even worse, of course, because you do not see these people, they are under water when they are doing the damage. On land at least there is a chance you might see them approaching the site. There is a great problem in quantifying this. When we actually find the answers I think we will find that there is more than anybody has estimated.

100  On the legal systems that are in existence, if they are, to prevent looting, Scotland has better ones than our's. Why is their's better than our's?

  (Dr Addyman) I think it is because the medieval laws have evolved in slightly different ways. In Scotland objects found in the ground which have no owner are deemed to belong to the Crown, the concept of bona vacantia, and I am sure Professor Palmer will explain it to us in a little more detail. In practice the result is that every archaeological object found in Scotland has a chance of entering the national or regional collections. It has to be reported to the Remembrancer who refers it to a treasure-trove reviewing committee and objects, whether they be gold, silver, coins or any other materials, come within this, any kind of object, so it covers the whole range of objects. In England and Wales we think of a treasure-trove as gold, silver and coins of the realm and one or two other associated things but in Scotland everything comes under that rule. It is a great system and a lot comes in that way. Even in Scotland they do not know how much is not being reported. I believe the treasure-trove reviewing committee was considering trying to estimate how much was being lost unbeknown to them. It is a good system if it works and generally it does seem to work.

101  Could I hear what Professor Palmer has to say on that?

  (Professor Palmer) I am not a Scottish lawyer.[2] I think it is fair to point out that to an extent the English law has drawn abreast of Scottish law in recent years with the enactment of the Treasure Act 1996 which goes a long way towards safeguarding those valuable finds in the ground which might hitherto have been lost. Although it encompasses, or includes, the old concept of treasure-trove, which was very narrow, it has extended the notion of "treasure", that is objects which are now in Crown ownership. I think it is a good piece of legislation and I think it was based on what was politically viable and acceptable at the time. Nor is it, I may say, the only thing which the United Kingdom has done in recent years. As I am sure you know it has also abolished the doctrine of market overt from 3 January 1995[3] so that one can no longer get a good title simply by buying in good faith in an open and public market. Of course there is the export licensing system as well which, if properly acknowledged by looters, would itself provide a very valuable constraint on the passage of objects abroad. To return to your earlier question, what is the volume or quantity of this sort of pillage, the answer is we simply do not know because (a) there has been no inquiry and (b) there is inadequate legislation. If we are talking about stolen art we have the insurers' figures and we have the police crime figures. If we are talking about things from the ground, the very presence of which we do not know until they go, it is impossible to find out. The only way in which we can even get a picture of this is either to scout the auction houses abroad, to find out what sorts of objects must come from here, or listen to anecdotal evidence, or in some cases look at the litigation. If we look at the litigation we find that far more claims by overseas victims of the wrongful removal of cultural objects succeed in this country than do claims by people in this country or institutes in this country suing abroad. I cannot remember the last time that a United Kingdom entity or individual successfully recovered a looted cultural object abroad in a foreign court. [4]I can remember very clearly the case brought by the Rector of Stowlangtoft in 1987 in the Dutch courts ten years after the panels were looted from his church, which he lost. He lost because the court applied Dutch law and Dutch law said that the buyer got good title. William Winkworth, who we mentioned in our earlier meeting, sued in this country for the recovery of his works of art that had gone abroad to Italy and back again, and he lost too. [5]At least three times in the last decade we have awarded cultural property to overseas claimants[6], quite rightly I may say. There is an imbalance here.

102  You mean our laws are not as good as those abroad?

  (Professor Palmer) I think part of the trouble is that we are not linked into an international enforcement system. If we are concerned about the problem of outflow, our own domestic legislation can never solve this problem because we can never legislate for what a Dutch or a Swedish or a Swiss court will do. The time must come sooner or later when we must recognise that if we are to adequately protect our own past we need to enter into a field of activity, a consortium or participative agreement, by which overseas countries become obliged to honour our cultural property, as at the moment we largely do theirs. [7]

103  The difference between England and Scotland law is not just that, of course. The other aspects of Scottish law I am not sure are so good at protecting because, as far as I understand it, in England a piece of stolen property remains a piece of stolen property forever basically and is, therefore, reclaimable by the original owner, if it is ever discovered. I am not a Scottish lawyer either, but as far as I understand the law in Scotland once a legitimate purchaser has bought it in good faith it then ceases to be a piece of stolen property and is not, therefore, reclaimable. Does that difference not mean that there could be some transfer between countries where if you sell in Scotland a piece of stolen property or a piece of looted property you have actually got more chance of it then not being traceable?

  (Professor Palmer) I am open to correction on this point and I would bow to superior knowledge.

104  No, I hasten to add.

  (Professor Palmer) Whatever its source. My understanding is that there is not so great a difference between English and Scottish law on these points. The basic principle of English law, which was recognised in the Winkworth case about the stolen Japanese works of art, which incidentally cited a Scottish case[8] as authority for it, is nemo dat quod non habet, if you do not own something you cannot give a good title [to it]. [9]So if you have merely stolen it or not bought it in good faith or whatever then you cannot pass on the title even to a good faith purchaser. One exception to that is that the owner can only get the thing back if he or she sues within the limitation period. Under United Kingdom limitation law, the Limitation Act 1980, the limitation period ceases six years after a good faith purchase. [10]That is what was alleged in the famous Mme de Pre«val case in 1997, although the defence failed there. [11]Those are the problems. Sometimes I think we exaggerate the difference between ourselves and the continental systems. You can get a title by good faith purchase under English law because the limitation period will expire six years after that.

105  Can I ask a question about that to clarify the situation for myself. Listening to your exchanges with Mr Maxton—he is Scottish, you are a lawyer, I am neither Scottish nor a lawyer—am I to take it that the successful action that took place in the United States some time ago whereby the Cypriot Government recovered a stolen antiquity would not have been possible in Scotland, or because it was a civil action would it still have been possible?

  (Professor Palmer) That raises very difficult questions. I cannot say at all with confidence that the result would have been different. What the court in Indiana[12] decided was that the law governing this transaction which had occurred, if you remember, in the freeport zone of Geneva Airport, was not Swiss law, which would normally be the position, but Indiana law as the law having the closest connection with the transaction. So Swiss law did not apply. The court went on to say that even if Swiss law had applied it would require a purchase in good faith, which this was not, some would say patently was not. I am not at all sure that the Scottish court would approach the matter in a different way. I think it might well have applied Swiss law to the transaction rather than Scottish law, because I think what is called the lex situs principle is possibly stronger in this country, that is the principle that the effect of the transaction is governed by the law of the country where the thing is at the time, ie Switzerland. But, having done that, I think the Scottish court would almost inevitably have held, as the Indiana court did, that that would only protect the buyer if there were a purchase in good faith, which here there was not.

106  There are hundreds of scheduled ancient monuments and archaeological sites around the country, those are the scheduled ones. Can we protect them effectively?

  (Dr Addyman) There are thousands, about 20,000 I think now, and there may well be more in due course. Many of them are large, many of them are in the countryside and many of them are not surveyed from one day to another and they are vulnerable. What has been a strength is that people are aware that those sites come under the law and particularly metal detectorists, who adhere to the various codes that metal detecting organisations have laid down, avoid them. There may be detectorists and others who do not care about codes and who attack them illicitly but, once again, we do not know how often this takes place. We do know it does take place and there are documented occurrences at Corbridge and elsewhere, repeated attacks on scheduled sites. Scheduling itself simply identifies the site and sets it within the law, it is not a very effective way of protecting those sites.
  (Mr Morgan Evans) What is interesting at the moment is the way that the Department for Culture, Media and Sport has asked English Heritage to carry out a review of what they mean by the "historic environment". Certainly the conclusion that I have reached as an ex-inspector of ancient monuments before I saw the light, or rather post Sir Jocelyn, is that the Ancient Monuments Act is an anachronistic piece of Victorian legislation. What I think is important is the change in the cultural attitude. When I was young in the 1950s I collected birds eggs and I caught and collected butterflies. This is something that would be totally unacceptable now, quite rightly. One of the things that is interesting to see happening is that through the influence of programmes like Time Team, with its very large audience, people are getting a better appreciation of what their own past actually involves. One looks to that sort of broader cultural change being worked at rather than necessarily always going for the punitive legislation you were talking about earlier on.

107  With archaeological sites in particular, particularly those that are tucked away and are small, they are not awfully important, is there a dichotomy between telling people about them, that they are there, having a sign on the road saying "go up that hill and you will come to a site" and there will be a plan which tells you this is an archaeological site and gives you some indication of what it is about, and the fact that you are then telling everybody that is an archaeological site and they look around, they cannot see anybody for miles, and the danger is they then starting scraping around to see if they can find something? Is there a dichotomy there and what should we do about it?

  (Dr Addyman) Certainly there is a problem. The 20,000 scheduled archaeological sites are simply a small proportion of the number that exist and in our sites and monuments records around the country there are far more than there are on the public record, the locations of a huge number of areas where archaeology is important. I think many archaeologists these days almost think of it in the countryside as a continuum, there is archaeological evidence over much of the landscape. We have addressed this issue but what do you do? Do you keep knowledge of these places secret and, if so, therefore what use is it? Or do you make it public, in which case it is in danger? It is a real issue and in the last few days I have seen reference to a website which is offering those who wish to know about them the locations not just of 20,000 archaeological sites in Britain but 100,000. One wonders why people need this knowledge. I think they only need it because they are interested in metal detecting on those sites. It is a very worrying problem and I do not know the answer, you cannot win either way.

108  What I am thinking about is a very pleasant walk and it gives a purpose to the walk, if you like. Rather than just walking up into the hills and walking back down again you walk up to this particular site, you then lean back and look at it, that is interesting, you look at the circle because it is Pictish remains or something, it is quite old. There are not any valuable remains there but the site itself would be valuable in terms of what it would give in terms of knowledge. It gives a point to a walk. If that information was not there then, to be honest, nobody would ever go up that hill.

  (Dr Addyman) Absolutely. So how do we solve it?

109  I do not know.

  (Dr Addyman) The purpose of archaeology is to benefit the nation by telling it about its past, to add to enjoyment, to add to education, to add to tourism, all those good things. For that you have got to have the knowledge freely available. I think what we are suggesting in the concept that Mr Morgan Evans made is that we need to work on changing the climate of opinion that it is simply unacceptable to go digging into these things. I think you would find in Denmark, for example, that much more of the population is aware that you simply do not dig into ancient monuments and that essentially the business of having private collections of antiquities is something which could be questionable.

110  What is an archaeological site at the end of the day?

  (Dr Addyman) It is a site where there is material evidence of human activity in the past.

111  From my bedroom window at home I used to be able to look at Ravenscraig steelworks but it has gone now. Is that not an archaeological site?

  (Dr Addyman) Absolutely.

112  What are we doing to preserve it?

  (Dr Addyman) Archaeology begins yesterday really.

113  That is right, but we cannot preserve all of these sites, or can we? Should we? Every steel work that has been pulled down in the past is an archaeological site, should we not therefore say that we preserve part of one of them and wreck the rest?

  (Dr Addyman) Lord Renfrew has already answered that, I think, by saying that we do have a very fine system in Britain for dealing with sites that are threatened where part of the heritage is to be swept away, by recording, by selective examination, sometimes by preservation if they are important and we feel that they are going to be of benefit in the future. We have a very reasonable way of solving that particular dilemma.
  (Mr Morgan Evans) We do not try to preserve all coal mines. In South Wales there is Big Pit, Blaenavon, which is preserved to give people some idea, and it can only be some idea, of what it was like to go down underground.

114  That is exactly my point, that you preserve one.

  (Dr Addyman) I must not let my Welsh colleague get away with this, there is one in Yorkshire as well.

115  We preserve one but we do not preserve all. There is a great danger with early remains that we attempt to preserve all of them at whatever cost.

  (Mr Morgan Evans) To be fair to them, English Heritage does have policies on this. For example, if you take one of the earliest types of monument, Neolithic longbarrows, of which there are about 400 left in this country, those which are rare and special and early they attempt to preserve. When you get to more common sites, of which there are thousands, then you do not, you take a selection for various reasons and you try to introduce, as they do with their programme, a selective policy of preserving the best representative and other things that come within the criteria. If you try to preserve all of the past you deny change.

116  And you deny the future.

  (Mr Morgan Evans) And you deny humanity.

117  You have to move on otherwise the entire surface of the world will be preserved derelict sites.

  (Dr Addyman) I do not think anybody would want that.

118  I am interested in the reference you made to the Time Team and their programme. It is a bit like telling the public that you can be an instant archaeologist in the same way that you can become an instant gardener, an instant home decorator. It has been a very popular programme. I am concerned that the public is being encouraged to look at their landscape and dig it up and take away bits because nowhere, and I have watched several programmes, when they find something do they say "and now, with this piece of pottery, with this tile or medieval pottery", except when it is human remains, what they will do with it, whether they are going to put it back and cover it, or offer it up to the Crown as part of the Treasure Act. So the public are left with the feeling "I can dig up my back garden, I will find some things of value, very nice, very interesting, they will tell me a bit about who lived here 100 years ago and I can keep those things". What can we do to inform the public that you cannot dig up a piece of ground and hold what is there for yourself? My second point is you talked about metal detectorists where they go out for the day and up and down beaches and up and down ploughed fields. There are some in the association who no doubt behave very responsibly but there are thousands who go away for a weekend and they do not and they do not know about the Treasure Act and they do not know about the Portable Antiquities Scheme. What can you do, what can we do, to inform the public and make them aware that you cannot just dig it up and take it away?

  (Mr Morgan Evans) You can make sure archaeology is on the national curriculum, which is a good start.

119  It is a bit stuffed already, the national curriculum.

  (Mr Morgan Evans) Yes, and it varies, but at least you accept it is a legitimate part of a child's education. I say again, I am no huge defender of Time Team but their young person's club, the young archaeologist's club, is really doing quite well and that sort of activity is building. I suppose with something like Time Team the dramatic thing is the excavation but, to be honest, in the end scratch any archaeologist and you will probably find the thrill of discovery is still the thing that they really enjoy. Within Time Team they talk about the geophysical side, the air photographs, the use of land form. The excavations are put in context. They look at buildings, they do the dendrochronology, they are trying to show the range of scientific techniques that have been brought to bear. I have only become aware of this recently, that their outreach audience is 20 million, that is one in three of the British population.

3   Note by Witness: Sale of Goods (Amendment) Act 1994. The market overt rule did not in any event apply in Scotland: Sale of Goods Act 1979 section 22(2) (since repealed). Back

4   Note by Witness: This statement refers to civil actions brought under private law. Note, however, that an Irish court, in proceedings akin to those under the Police (Property) Act 1897 in England, is reported to have ordered the delivery to the late Alan Clark MP of a Jack Yeats painting which had been stolen from the London flat of Lady Nolwen Clark then allegedly bought in market overt at Bermondsey Market and later offered for sale in Dublin: see N.E. Palmer, The Recovery of Stolen Art (Kluwer Law International and Institute of Art and Law, 1998) p. 53. Back

5   Note by Witness: Winkworth v Christie, Manson & Woods Ltd. [1980] Ch 496. Back

6   Note by Witness: Bumper Development Corporation Ltd. v Commissioner of Police of the Metropolis [1991] 4 All E.R. 638; de Pre«val v Adrian Allen Ltd. (1997) unrep. 24 January, Arden J; City of Gotha and Federal Republic of Germany v Cobert Finance SA (1998) Queen's Bench, 9 September, Moses J. Back

7   Note by Witness: The United Kingdom is party to one such instrument, applicable solely within the European Community: see the European Council Directive on the Return of Cultural Objects Unlawfully Removed from the Territory of a Member State No. 93/EEC (O.J. No. L/74/74, 27 March 1993) enacted into United Kingdom law by The Return of Cultural Objects Regulations 1994, S.I. No. 501 of 1994. But the procedures are elaborate and it is believed that no claim has ever been brought within any country of the European Union for the return of a cultural object under these provisions. Back

8   Note by Witness: Todd v Armour (1882) 9 R. (Ct of Sess.) 901, 33 Digest (Repl.) 492, 72. Back

9   Note by Witness: This principle is embodied in section 21(1) of the Sale of Goods Act 1979, which applies to Scotland as well as England. For exceptions to the principle, see ibid., sections 23 to 25 and the Factors Act 1889 section 2. Back

10   Note by Witness: Limitation Act 1980 sections 3(1), (2), 4(1), and (2). After expiry of the limitation period the original owner's title is extinguished: ibid. section 3(2). Back

11   Note by Witness: de Pre«val v Adrian Allen Ltd. (1997) unrep. 24 January, Arden J. Back

12   Note by Witness: Autocephalous Greek Orthodox Church v Goldberg 771 F. Supp. 1374 (5 D. Ind. 1989); upheld on appeal 917 F. 2d 278 (7th Cir. 1990). Back