Assiduous followers of the media, and possibly even those with no interest at all, may have noticed that Her Majesty’s Government has in recent months been slightly preoccupied with European legal perspectives. It therefore came as a welcome surprise that in February 2019 the Department for Digital, Culture, Media and Sport (DCMS) announced a long-awaited public consultation on revising the definition of treasure in the Treasure Act 1996 and revising the related codes of practice. The Institute of Art and Law has responded to the invitation to comment and broadly welcomes the proposals.
The avowed aim of the consultation is to improve the whole treasure process so that it is more efficient, that it is focused on the aim of preserving significant finds for public collections, and that it is more rational and easier to understand. At first sight this may seem a rather obvious and modest proposal but, given the long history of the law of treasure, it marks a significant development in official thinking. The origins of Treasure Trove probably have nothing to do with preserving the cultural heritage and everything to do with being an obscure source of revenue for the Crown. Only towards the end of the nineteenth century was there a growing realisation that the law provided a mechanism, albeit somewhat haphazard in its operation, for preserving objects of archaeological or historical importance. The 1996 Act, although a great improvement on the prior law, is firmly rooted in the past. Whilst it significantly widened the definition of treasure, and lies behind the highly successful Portable Antiquities Scheme, it still allows precious objects to slip through the net. There remains a mismatch between the legal definition of treasure and what an historian, archaeologist and perhaps a growing number of the public would regard as a treasure worthy of state protection. The DCMS proposals do not suggest a radical departure from the tenor of the 1996 Act but rather seek, in an incremental way, to expand the definition in certain discrete areas. The convenient mechanism for doing so is the power under section 2 of the Act to alter the general definition to add specific classes of objects. In relation to the Codes of Practice, part of the background is no doubt the dramatic increase in the work of Coroners in processing finds of treasure. In 1997 there were 79 case of treasure; by 2017 there were 1,267, an increase of some 1,500%. The regime laid down by these statutory codes of practice is therefore a key to the efficient operation of the treasure process. What follows discusses some of what might be regarded as the more important proposals.
One obvious concern of the DCMS is to reduce wasteful hearings. For example, a sensible proposal to avoid unnecessary inquests is to require an expression of interest in an object by a museum before an inquest takes place. If an object is likely to be disclaimed by the Crown in any event, and probably returned to the finder or landowner, there is no point in going to the trouble and expense of an inquest. It follows from this that it would seem reasonable to encourage museums to carry out some research on valuation in advance of expressing an interest although it should be borne in mind that small museums in particular may have limited access to valuation expertise, which can itself be contentious. There is also scope for setting stricter time limits on matters such as the need for claimants for a reward to supply bank details or, where a beneficiary of a reward cannot be identified, returning the money after a fixed period to a museum who has paid the valuation of an object. One significant proposal, however, is to require Finds Liaison Officers (FLOs) to produce a report on treasure cases within three months. Treasure cases are by their very nature unpredictable, can require extensive investigation and have to be dealt with in addition to the FLO’s other duties. Some flexibility in any time limit would seem desirable and in some cases necessary.
One interesting proposal to modify the definition of treasure is to abandon the 300 year rule, where it applies, and replace it by a static date of 1714. Although in the short term this seems unlikely to make much difference, the attractions of this proposal are less clear. The fear that a growing number of lower value items generated by the industrial revolution may in future clog the treasure process does not appear to be based in much hard evidence. It may also be that, taking a long-term view, in the future the ageing products of the industrial revolution will be looked at differently and accorded more cultural value. In addition, although the Waverley criteria for deferring export might help to manage the risk of leaving objects dated post 1714 unprotected, reliance on section 1(1)(c) of the Act is more problematic. At the very least, if reliance is to be placed on the old law of Treasure Trove as a backstop it would be desirable to clarify by statute the minimum required percentage of noble metal and perhaps create a rebuttable presumption in favour of the animus revertendi, as we suggested in our response to the consultation.
A number of other proposals for widening the definition of treasure are welcome. One is to have a value-based definition of, say, £10,000, to ensure that an object such as the Crosby Garrett helmet would be caught despite its lack of gold or silver content. The inescapable problem of having such a limit is of course that some objects of great historical interest, but of little or uncertain intrinsic monetary value, might be lost. An example might be something like the Vindolanda tablets. The only solution would seem to be a wholly new departure in defining treasure, as is illustrated by the Scottish model, but it seems unlikely that such a dramatic proposal would currently find favour. Further sensible proposals include bringing even single gold coins dated between A.D. 43 and 1344 within the definition and creating a new category of base metal articles of Roman date buried together. Given the high percentage of Romano-British finds made by metal detectorists this would be a useful and significant extension.
The consultation does not appear to hold out much promise of bringing into force all the provisions of the Coroners and Justice Act 2009 which relate to treasure. An exception, however, is the proposal to bring into force section 8A and the related extension to the normal time limit for bringing summary proceedings in such a case. This would surely cost nothing and eliminate a lacuna in the current law.
There are a number of suggestions for the future form of the treasure process, of which the proposal to strengthen educational outreach is unambiguously welcome. More problematic is the tentative suggestion that all archaeological objects should become the property of the Crown. Whilst this has some attraction it also has drawbacks. The success of the portable antiquities scheme and the operation of the law of treasure vitally depends on the goodwill of metal detectorists and landowners in particular. Such a proposal may alienate the former and reduce the enthusiasm for responsibly conducted metal detecting of the latter. Similarly, a proposal to allow archaeological digging by permit only, whilst having merit, on balance would be difficult to enforce and again risk sapping goodwill and cooperation, particularly from metal detectorists. Digging on scheduled monuments, or as a trespasser, is already subject to legal restriction. There is additionally a power under section 33 of the Ancient Monuments and Archaeological Areas Act 1979 to designate an area as of archaeological importance of which perhaps fuller use might be made. One of the consequences of such designation is that by virtue of section 42(1)(b) of the Act the mere use, without more, of a metal detector in such an area constitutes an offence. In addition, many important objects have been made as chance finds in ploughed fields, such objects otherwise likely to be dispersed or destroyed. Indeed it might be thought that industrial agriculture does more damage to archaeological remains than properly conducted metal detecting.
In conclusion the proposed changes to the definition of treasure and the related codes of practice are, with small reservations, eminently positive and helpful. The fact that they are incremental to the present regime may disappoint those who would have preferred a wholesale overhaul of the definition of treasure but may improve the chances that these proposals will be adopted and supported by those whose cooperation is essential for the successful operation of the treasure process in the future.
Images: Crosby Garrett Helmet ©Portable Antiquities Scheme, CC-BY 2.0; Vindolanda Tablets ©Michel wal, CC-BY 2.0;