Examination of Witnesses (Questions 97
THURSDAY 13 APRIL 2000
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
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
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. 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. At
least three times in the last decade we have awarded cultural
property to overseas claimants,
quite rightly I may say. There is an imbalance here.
102 You mean our laws are not as good as those
(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.
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
as authority for it, is nemo dat quod non habet, if you
do not own something you cannot give a good title [to it]. 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.
is what was alleged in the famous Mme de Pre«val case in
1997, although the defence failed there. 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
Maxtonhe is Scottish, you are a lawyer, I am neither Scottish
nor a lawyeram 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
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
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
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
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
(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
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
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
(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.
2 Note by Witness: A good modern account of
the Scottish law in this area is to be found in the article by
Professor David Carey Miller and Ms Alison Sheridan, `Treasure
Trove in Scots Law', in (1996) 1 Art Antiquity and Law
393. This article discusses, among other matters, the critical
case of the St Ninian's Isle Treasure, Lord Advocate v University
of Aberdeen 1963 S.C. 533, where a collection of discovered
Pictish antiquities including bowls, silver brooches and a porpoise
bone was held to belong to the Crown. The basic principle of Scottish
law, quod nullius est fit domini regis (all previously
owned but currently unowned chattels vest in the Crown) is undoubtedly
more general in scope, and covers a broader spectrum of objects,
than the English common law prerogative of treasure trove and
the modern statutory definition of treasure. Back
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
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
Note by Witness: Winkworth v Christie, Manson &
Woods Ltd.  Ch 496. Back
Note by Witness: Bumper Development Corporation Ltd.
v Commissioner of Police of the Metropolis  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
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
Note by Witness: Todd v Armour (1882) 9 R. (Ct
of Sess.) 901, 33 Digest (Repl.) 492, 72. Back
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
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
Note by Witness: de Pre«val v Adrian Allen Ltd.
(1997) unrep. 24 January, Arden J. Back
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