Following our post earlier this week on the second reading in the House of Commons of the Cultural Property (Armed Conflicts) Bill, we were interested to read an article in The Times the next day by Sir Edward Garnier, QC, MP and former solicitor-general.*

Sir Edward had rehearsed, at some length during the Commons debate, the arguments surrounding the new offence set out in the Bill. The Bill, when enacted, will make it illegal to deal in cultural property unlawfully exported from an occupied territory, “knowing or having reason to suspect” that it has been unlawfully exported. It is this mens rea element which is causing concern, and, as The Times article’s headline would have us believe, ‘threatening London’s world art market’.

The expression “reason to suspect”, Sir Edward contends, is an unusual basis for establishing criminal intent under UK law, and he prefers the more familiar “knows or suspects” or “knows or believes”. The fear is that the ability to convict on the basis of ‘reason to believe’ could result in art dealers unwittingly being caught when they are acquiring, or otherwise dealing in artefacts in good faith. These would be dealers who, because of the circumstances of a prospective deal, have a suspicion about an artefact and thus take a cautious approach, do their diligence which allays any fears, then go ahead with the purchase. The labour MP for Rhondda, Chris Bryant, sought clarification from the Government on the issue, pondering whether there might be an ‘unreasonable reason’ which could land an unsuspecting dealer in hot water.

The Government’s response to the repeated questions from concerned MPs was to provide reassurance that “scrupulous dealers have no reason to fear prosecution or increased business costs under the Bill”. As the Minister pointed out, there is already a legal framework in place to tackle the illicit trade in cultural property including the Dealing in Cultural Objects (Offences) Act 2003, the Theft Act 1968 and the Syria and Iraq sanctions orders.  Indeed, these two sanctions orders are particularly significant in the context of the current debate. The Syria order imposes a similar mens rea burden on defendants, and that for Iraq goes even further, providing that anyone dealing in illegally removed Iraqi cultural property is presumed to be guilty, unless they can show they didn’t know and ‘had no reason to suppose’ that the property had been illegally removed.

We also have to keep in mind, of course, that the Act will apply only to property removed from occupied territories. Granted, it would be helpful if the Government could produce an authoritative list (to be updated as appropriate) as to what it considers occupied territories. This could help significantly to quell apparent fears that the Bill will bring London’s art market to its knees.

As always with the passage of new legislation, particularly that stemming from international instruments enacted over half a century ago, there are complicated issues to address; issues of law, politics and diplomacy to name but a few. It is to be hoped, however, that these do not distract from the task in hand; to enable the UK to play its part in the vital work of protecting the cultural heritage of territories subjected to the privations of occupation.

* Sir Edward Garnier, QC, Cultural property bill threatens London’s world art market The Times, November 3, 2016.