A dispute over a highly attractive marble statue sparked headlines in the national press in early September 2015. It had been seized by Customs officers and kept in the British Museum for safekeeping during the legal proceedings. The District Judge, John Zani, had examined the statue there before coming to a decision that it had been looted from Libya and would be forfeited to the Crown before being returned to the Libyan Government.
As in many other cases involving art and antiquities, much of the judgment was taken up with expert evidence relating to quality and value. A transport document had described the statue as a “marble stone piece for home decoration” from Turkey which was worth only $110,000. However, experts at the British Museum considered that it was a funerary statue from Libya and that it was worth approximately £1,500,000. One interesting point which emerges is the difficulty in determining the value of an antiquity: so much depends upon its provenance, which in turn relies upon providing evidence relating to its creation and subsequent ownership.
An object can be forfeited under the Customs and Excise Management Act 1979 (CEMA) if there is a misdeclaration in a material particular which has been made knowingly or recklessly. Consequently, the extensive discussion by the experts regarding the value and the source of origin was relevant.
But it can be argued that the question of legal title was the key issue. Firstly, the applicant Mr. Al Qassas was required to swear that he believed that he was the owner at the time of the seizure (in accordance with CEMA, Schedule 3) and he failed to do this (see the judgment at paragraph 78). Secondly, regardless of the nature of the goods, any forfeiture must be proportionate in order to satisfy Article 1 of the First Protocol of the European Convention on Human Rights (as implemented into UK law by the Human Rights Act 1998). The judgment acknowledges this issue at paragraphs 30, 74 and 81. It was HMRC’s case that Mr. Al Qasssas did not own the statue because it had been looted from a UNESCO World Heritage site in Libya; if this was accepted, it could not be said to be disproportionate to confiscate the property and return it to the true owner.
In some respects, the judgment is unsatisfying. There is no mention of the 1970 UNESCO Convention and no stirring words, as in the Court of Appeal’s judgment in Government of the Islamic Republic of Iran v The Barakat Galleries Ltd, of “the international acceptance of the desirability of protection of the national heritage.” Instead, what appears to have been pivotal is that Mr. Al Qassas and his witnesses did not appear to give evidence and to make themselves available for cross-examination. As a result, there was insufficient evidence to challenge HMRC’s argument that the State of Libya owned the statue.
The seizure and eventual repatriation of the looted statue is heartening. It demonstrates that enforcement authorities, such as Customs, can play a significant role in combating the illicit trade in cultural property. However, the case also demonstrates how much these authorities depend upon assistance from enforcement agents overseas, experts in museums, and others.
Janet Ulph is Professor of Commercial Law at the University of Leicester