One might say that if the law of Treasure has slumbered throughout most of its long history it has now had a rude awakening. Its obscure origins in Anglo-Norman common law had nothing to do with preserving items of cultural interest and probably everything to do with a source of revenue for the Crown, albeit in the past it must have been a very modest and haphazard privilege. In the nineteenth century one can at least trace a growing awareness that it could play a significant role in preserving objects of interest from the past. Nevertheless, as late as 1981 the Court of Appeal was still wrestling with the issue of how high a content of gold or silver was required to bring coins within the scope of the old law of Treasure Trove. The 1996 Act was the first attempt to offer a detailed statutory definition and, just as importantly, for the first time set out a statutory Code of Practice to guide the practical application of the new law.
One of the far-sighted innovations contained in the 1996 Act was the power under s. 2(1) to allow the relevant Minister to alter the definition of treasure by statutory instrument, so avoiding the cumbersome procedure of passing primary legislation. This power was only ever exercised once before in the Treasure (Designation) Order 2002 which designated as treasure base metal prehistoric objects and any object, other than a coin, which was of prehistoric date and contained any element of gold or silver. In the meantime, the previously rather recondite world of Treasure has undergone a complete transformation with an explosion in the rate of treasure finds brought about almost entirely by the growing number of metal detectorists. For some years there had been a feeling amongst interested parties that a review and overhaul of the operation of the 1996 Act was long overdue. It nevertheless came as a surprise to most people when the Government instituted a review and consultation in 2019. The result has been the Treasure (Designation) (Amendment) Order 2023 (the Order) and the accompanying Treasure Act 1996 Code of Practice (3rd Revision) (the Code). Both were laid before Parliament under the affirmative resolution procedure in February 2023 and are therefore expected to come into force in summer of this year.
What has changed?
The most noticeable and significant change is to the definition of what is designated as treasure. All of the previous category types remain but a completely new significance-based category is added, and a class of objects found on property subject to the jurisdiction of the Church of England is now excluded.
The new and radical change to include a significance-based definition was not trailed in the original 2019 consultation. Whilst it seems surprising to think that it had not been considered before in relation to England, Wales and Northern Ireland (Scotland having its own quite different Treasure law) the idea apparently evolved as the result of the responses to the 2019 consultation and the difficulties in bringing objects within the definition of treasure based only on criteria such as monetary value. An object will satisfy the new criteria if it is metal and, ‘it provides an exceptional insight into an aspect of national or regional history, archaeology or culture’. The criteria then enumerated to help the coroner reach a conclusion on this issue are rarity, the location in which it was found or its connection with a particular person or event, or if the object is found with other objects and provides an insight when taken together with those objects. A further criterion which, rather surprisingly, is not expressly articulated in the Order is that the object is at least 200 years old, which is different to the 300-year requirement in the existing statutory definition for objects. This was made clear in the Parliamentary debates and is also expressly mentioned in paragraph 29 of the Code of Practice.
This is clearly a significant, if not momentous, change to the existing law. Obviously, as is intended, it will significantly broaden the scope of what falls within the definition of treasure. Some assistance in applying this new definition is provided by paragraphs 28-37 of the Code although it might be thought that the high level of generality offers limited help. It is apparently envisaged that some supplemental guidance will be produced before the measure comes into force and this may help to explain the four-month interval between the Order being made and it coming into force so as to allow all parties to familiarise themselves with the new regime.
An obvious anomaly in the new significance-based definition, which was raised in the Parliamentary debates, is the limitation to objects made of metal. This is not, for example, a restriction in the Isle of Man’s Treasure Act 2017 which can embrace stone, ceramic or indeed wooden artefacts. The response by the Government is essentially that the definition under the Order is a prudent first step amidst concerns about capacity and the impact of the change on, for example, planning. Removal of the metal requirement is not therefore ruled out for the future.
One consequence of allowing what is inevitably a subjective element to enter the evaluation of whether an item now comes within the scope of significance-based criteria is an uncertain expansion in the material potentially within its scope. What the Government envisage, as was stressed in the Parliamentary debates, is that the bar for what fulfils the criteria is set deliberately high. The level is said to be similar to that which would apply under the Waverley criteria governing the grant of an export licence, with an expectation that the level of objects meeting the strict criteria would be within the range of 100-140 per year. The added complication, however, is that failure to report a find of treasure within 14 days remains a criminal offence. More in the future may therefore turn on whether a person, ‘believes or has reasonable grounds for believing’ an object is treasure. The Code of Practice (paragraph 14) explicitly mentions that objects found, for example, in archaeological excavations, ‘may only be recognised as potentially significant during post-excavation processes’. The result is nevertheless that greater uncertainty might now attach to whether there is a duty to report by the finder, and a coroner has an additional burden in determining whether an object provides ‘exceptional insight’.
The deletion from the definition of treasure of objects found, for example, in Church of England graveyards is less controversial. This is essentially a tidying up exercise which was promised as far back as the passing of the Treasure Act 1996. That Act’s abolition of the common law requirement of an animus revertendi, an intention to recover the object deposited, meant that items associated with graves could now fall within the ambit of the Act. This overlapped with legislation of the Church of England which, as the established church, has its own legislation and caselaw to govern the situation. The Order’s abolition of this overlap removes a potential for conflict but does not appear to prejudice the safeguarding of culturally significant material. The Church of England will still follow a process similar in its safeguards to secular finds including, for example, the involvement of the Portable Antiquities Scheme. In relation to other denominations the 1996 Act will apply.
Less eye-catching but still important are the changes made to make the whole Treasure process more efficient and better understood. In this respect the revised Code of Practice is essential and helpful.
A particularly helpful flowchart following paragraph 15 of the Code summarises the key steps in the Treasure process and the new time limits associated with each stage. All of these reforms were fully trailed in the 2019 consultation and come as no surprise. For example, and some of these reforms one suspects merely reflect current informal practice, no coroner’s inquest need take place if no museum has expressed an interest in acquiring a piece or if the finder/landowner has signalled that they disclaim any reward or claim to the item. A museum now has 28 days to express an interest in acquiring a find, although this time limit may be extended in individual cases at the discretion of the Treasure Registries.
What happens next?
The Parliamentary debates on the Order and the Code, although comparatively brief, were well-informed and there was unanimity expressed on the desirability of both measures. Clearly what has driven the urgent need for further reform is the growing numbers of metal detectorists who account for the overwhelming majority of treasure finds. In the course of the Parliamentary debates the number of active detectorists was cited as being in the region of 20-40,000 although one might think the variation in the figures simply underlines the fact that accurate figures are impossible to ascertain. Clearly it is now more than ever a popular pastime with a significant impact.
The consequence of the new significance-based definition is that items such as the Crosby-Garrett helmet would, if found when the Order is in force, now be designated as treasure despite it being constructed from base metal. Another example would be the slightly less well-known Birrus Britannicus figure made of copper alloy now residing in Chelmsford Museum, after strenuous efforts had been made to rescue it from sale and export. However, objects such as the Vindolanda Tablets, wood inscribed with revealing messages from the environs of Hadrian’s Wall, would still fall outside the definition of treasure because of the lack of a metal content. The find of a single coin will still generally not qualify as treasure but a particularly rare coin might now do so. The new definition surely makes even more desirable the measure enacted in the Coroners and Justice Act 2009, but not yet brought into force, of having a specialist Coroner for Treasure to whom treasure cases would be directed. An evaluation under the significance-based category will require even more expertise than before and would seem to be the obvious, perhaps the only, way to secure consistency and the anticipated level of 100-140 cases per year.
At the core of the Treasure issue might be thought to be the problem that the current law has not yet fully shaken off the limitations of its historical origins in using treasure in the colloquial sense of objects of monetary value connected with precious metal. That does not fit easily with the avowed aim stated in the opening lines of the new Code of Practice that, ‘The primary aim of the Treasure Act 1996… is to ensure that important and significant finds are preserved in museum collections for public benefit’. The new Order and accompanying Code do, however, at last take a significant step towards that goal and bring the realistic hope that, in due course, further progress towards a definition that more fully reflects that aim is possible.
Crosby Garrett Helmet: Portable Antiquities Scheme via Wikimedia Commons, CC 2.0;
Vindolanda Tablets: British Museum via Wikimedia Commons, CC 3.0.