REVIEW OF TREASURE TROVE ARRANGEMENTS IN SCOTLAND
DESCRIPTION OF THE SYSTEM
2.1 The system of Treasure Trove/ bona vacantia in Scotland is described in information leaflets issued by the Scottish Executive Education Department in 1999 on TT Procedures, Allocation Criteria and Process 7 and Guidelines for Fieldworkers8 and in a small number of published articles and papers 9. In this chapter I shall attempt to add some detail to the descriptions in the booklets, to assist understanding of the way the system currently operates, and the chapter will also briefly outline the roles of key players.
2.2 The current arrangements rest essentially on common law and long-established custom and practice. Unlike in other neighbouring jurisdictions 10 the system is not governed by statute. The Crown's right to treasure trove/ bona vacantia (ownerless goods) was clarified in the leading Scottish case of the St Ninian's Isle Treasure in 1963 11. The law in Scotland covers both "treasure" (narrowly-defined) and the wider category of bona vacantia, and what is called the Treasure Trove system in Scotland in fact deals with the full range of portable antiquities.
2.3 The operation of the system is supported by the common law criminal law of Scotland, including the law of theft. There is, for example, no statutory reporting requirement or related offence provision and no statutory period for reporting.
2.4 It is however relevant to mention that there is statutory provision in Scotland in the Civic Government (Scotland) Act 1982 12 which imposes a duty on a finder of lost or abandoned property to report the find or deliver the property to the police (or other specified persons). It is an offence to fail to comply.
2.5 There have been no cases in recent years on any aspect of the operation of the Treasure Trove system. There is, therefore, no authority on issues such, for example, as the application of the provisions of the Civic Government (Scotland) Act to finds of archaeological objects.
2.6 Policy responsibility for the system lies with Scottish Ministers. It is exercised by the Minister for Tourism, Culture and Sport through the Tourism, Culture and Sport Group of the Scottish Executive Education Department. The "scheme", however, is run by the Queen's and Lord Treasurer's Remembrancer (Q<R), as noted below.
2.7 In 1994 formal responsibility for the administration of Treasure Trove in Scotland was transferred to the Secretary of State for Scotland and the Scottish Office from HM Treasury, which had held this responsibility since the Treaty of Union in 1707. Responsibility was then devolved to Scottish Ministers and the Scottish Executive on Devolution in 1999 13.
2.8 The role of the Minister comprises policy oversight of the Treasure Trove procedures, and responsibility for making appointments to the Treasure Trove Advisory Panel. The Department is also responsible for funding administrative support for the Panel.
2.9 There is no recent published statement of Scottish Executive policy on Treasure Trove. However, the following statement - "It is important to emphasise that the allocation system is designed to ensure that objects claimed as Treasure Trove remain in the public domain and are preserved in perpetuity in publicly accessible collections" - in the introduction to the SEED information booklet on Procedures and Allocation 14 remains consistent with the current policy approach of the Department.
2.10 The policy of the Crown (as represented by the Q<R) has continued to follow the approach that has operated for nearly two hundred years of using the Treasure Trove system to safeguard Scotland's heritage of portable antiquities and archaeological objects by preserving claimed objects in the public domain and placing them in suitable institutions, for the benefit of the Scottish public.
Operation of the System
2.11 The system operates primarily through the Queen's and Lord Treasurer's Remembrancer (Q<R) (in the person of the Crown Agent for Scotland), the Treasure Trove Advisory Panel (TTAP) and the relevant support units - namely the Crown Office Ultimus Haeres Unit and the TTAP Secretariat.
2.12 The Q<R is the Crown office-holder responsible for claiming objects for the Crown under the law of Treasure Trove and bona vacantia. The role of the Q<R also includes deciding on the allocation of objects to museums and the payment of rewards to finders. In carrying out his responsibilities the Q<R is assisted and advised by a solicitor in the Crown Office and an independent advisory panel.
2.13 The TTAP is the independent panel that advises the Q<R. It was first established in 1969, by administrative action of the Chancellor of the Exchequer and the Secretary of State for Scotland. At the time of the transfer of ministerial and departmental responsibility for Treasure Trove in 1994 changes were made in the size and composition of the Panel. These changes followed representations from and consultation with museum and archaeological interests. As has been noted, the members are now appointed by Scottish Ministers - in practice the Minister for Tourism, Culture and Sport. This is done after consultation with appropriate bodies. The work of the Panel is unpaid, only expenses being reimbursed. The present independent Chair is a medieval historian and there are three representatives of the Scottish local museum community and one member representing the NMS.
2.14 There is no full and definitive statement of the precise remit of the Panel in the 1999 SEED booklets. However, the Fieldworkers booklet 15 describes the establishment of the Panel in 1969 "to advise the Q<R on valuations and allocation". The Allocation booklet 16 states that "the role of the Panel - as an advisory panel with requisite specialist knowledge - is to consider each case individually, applying the allocation criteria fairly".
2.15 As mentioned above, the work of the Crown Agent as Q<R is supported by a Unit in the Crown Office (the headquarters of the Crown Office and Procurator Fiscal Service). This small Unit deals with all the functions of the Q<R and is funded out of ultimus haeres receipts.
2.16 The TTAP is supported by the TTAP Secretariat, which is located in the NMS and served by staff seconded full-time or part-time from the Museum. The small Secretariat is funded by the SEED, through the NMS. TTAP members' expenses are, however, paid by the Crown Office Unit, which also contributes financially to communication and other equipment for the Secretariat.
Others involved in the System
2.17 Finders of archaeological objects that qualify to be considered for claiming by the Crown as TT/ bona vacantia fall into three principal groups - metal detector users, archaeologists involved in excavations, and chance finders. Discovery by metal detection has accounted for around 50% of claimed finds in most recent years. Appendix C shows a breakdown of method of discovery of TT cases for the period 1997-2002.
2.18 The NMS provides expertise in the identification and valuation of finds. Historically the National Museum also provided the only or principal home for finds and for conservation, research, public access and display.
2.19 In more recent times local/regional museums have had an increasingly important role in receiving and displaying claimed finds and they may also play a part in the operation of the system in other ways, for example in receiving reports and the deposit of finds. 17
2.20 The Scottish Museums Council (SMC) operates and maintains the registration system for museums in Scotland and more directly assists in the operation of the TT system by providing the use of its bulletin, Tak tent, for intimation of claimed finds and other relevant information.
2.21 The Finds Disposal Panel (FDP) deals with finds from government-sponsored fieldwork - excavations sponsored by Historic Scotland (HS). Its chair is a senior member of staff of Historic Scotland and the other members are one representative each of the NMS and the SMC and one independent advisor appointed by Historic Scotland. All material from Historic Scotland-sponsored fieldwork must first be considered for claiming as TT on behalf of the Q<R. If the Crown decides not to claim, ownership passes to Scottish Ministers and the FDP then advises Scottish Ministers on its allocation. (The senior official who acts for Ministers in this regard is the Chief Inspector of Ancient Monuments.)
2.22 In the course of the Review meetings have been held with those currently involved in the operation and administration of the system and the following description of current procedures is based on the information from those meetings.
2.23 The central unit for dealing with reports of finds is the TTAP Secretariat. The relevant guidance booklet - Guidance for Fieldworkers - lists the Crown Office, the local police or Procurator Fiscal, as recipients of find reports, but reports are now seldom if ever made to these bodies. Some reports are made to a local museum or archaeologist, but most reports now are made directly to the Secretariat. When a find is reported to the Secretariat, by the finder or a local museum, arrangements are usually made for the object to be sent to the Secretariat. When received by the Secretariat the find is assessed for any urgent conservation treatment. A receipt is sent to the finder along with details of the TT procedures and a photocopy of the relevant OS map with a request to the finder to mark the findspot. If a standard report form has not already been submitted by the finder one is sent out by the Secretariat for completion. The object is identified and dated, either by the Secretariat staff or NMS curators. A report is sent to the finder and external specialists are notified if the object is believed to be of particular importance or relevance to their research.
2.24 Following consideration by the Secretariat staff and appropriate consultation with relevant specialists, if the object is of archaeological/historical significance and interest a recommendation is made to the Crown Office Unit that it should be claimed as TT. The Secretariat's knowledge of previous relevant finds from the area, recognition of the importance of particular 'hotspot' sites, knowledge of relevant current research, and ability to contextualise finds are crucial considerations in recommending an object for TT claiming.
2.25 On receipt of the standard TT claim notification form the CO Unit routinely accepts the recommendation and issues standard letters to the finder and the Secretariat formally advising them on behalf of the Q<R that the Crown's right to claim has been exercised. The Q<R is directly consulted only in exceptional cases, as the longstanding practice is that the expertise of the Secretariat (and any other specialists consulted) is accepted as justifying routine acceptance of recommendations. In reality the claim is a conditional one, as it is contingent on an appropriate museum seeking allocation of the object and being able to pay the reward - yet to be determined at this stage. Also - a claim may be queried by the TTAP when it comes to deal with the case at its next meeting. In practice this has not happened, the Panel's view having accorded with that of the Secretariat.
2.26 Once the object is claimed it is digitally photographed by the Secretariat and copies of the photographs are sent to the finder.
2.27 If after appropriate consideration and consultation the Secretariat concludes that the object does not merit claiming the Secretariat has authority delegated by the Q<R to disclaim the object, which is then returned to the finder with a certificate of disclaimer.
2.28 Figures for finds claimed and not claimed are shown in Appendix D.
2.29 In the context of claiming and disclaiming it is relevant to mention also at this point that there has been and continues to be a practice on the part of local museums, when consulted by finders, to carry out an initial process of screening finds and assessing their significance for TT claiming. This results in some finds of objects not being reported to the TTAP Secretariat because of the local curator's or archaeologist's assessment of the lack of importance of the object.
2.30 Reference has also been made above to the FDP. The current practice is that finds reported to the TTAP Secretariat from HS-sponsored excavations are routinely disclaimed by the Secretariat and returned to the FDP for disposal by that body. However, chance finds or finds of special value or importance from HS sites may be claimed and the TTAP continues to deal with a significant number of finds and assemblages from non-HS excavations 18.
2.31 Claimed objects are advertised by the TTAP Secretariat in the SMC bulletin, Tak tent, and museums are invited to submit bids for allocation. Dates of forthcoming TTAP meetings and application deadlines are also intimated. All museums that might potentially seek allocation of a find are sent full details of the find, including valuation.
2.32 The TTAP meets three times a year and considers applications for allocation. Detailed information about each object is provided to the Panel by the Secretariat and this is also copied to the Q<R.
2.33 The procedure and criteria for allocation are set out in detail in the SEED Allocation information booklet. 19 These will be considered in more detail in later chapters, but it is worth noting a number of pertinent aspects of the process at this point.
2.34 Firstly, in the great majority of cases the find is sought by only one museum. A contest for allocation is very much the exception. In recent years most finds have been sought by and allocated to local museums. In the 39 cases dealt with by the TTAP between 1997 and 2002 where there was a contest between a local museum and the NMS the find was allocated to the NMS in 23 cases. Of these, however, there were 15 cases assigned to the NMS on the basis of not splitting site assemblages (criterion 2.2 of the allocation criteria in the 1999 information booklet). In cases of "high quality" objects (as assessed by the TTAP Secretariat) the NMS application was successful in 5 of 10 cases. A substantial number of "high quality" objects were also allocated to local museums in the period, without any application for allocation by the NMS. Details of allocations are shown in Appendix E.
2.35 In contested allocations the relevant museums are advised of counter applications. It would seem that the hope expressed in the 1999 booklet 20 that such notification will result in an agreement, following discussion between the museums, that only one institution will pursue an application has generally not been fulfilled. However, there has been at least one instance of a joint ownership agreement to resolve a contest and the recent drafting of a protocol and a concordat, respectively, in two areas of the country to try to avoid competing applications is an encouraging development.
2.36 It is probably worth remarking that experience suggests that the quality of applications varies considerably between museums. The quality of presentation of argument in support of an application is likely to have a bearing on the outcome of a contested allocation.
2.37 As regards the relationship between the Secretariat and the Panel, the Secretariat does not make any recommendation to the Panel as to the allocation of an object in any case considered by the Panel. The Secretariat services the TTAP meetings and is present to take minutes but the Secretary does not participate in the Panel's discussion of allocation - other than in a formal or information-providing capacity. If there is consideration of the contested allocation to the NMS of an object the NMS representative leaves the meeting. The same procedure is followed in the case of a contested allocation involving another Panel member's museum. This can result in the removal of two of the members from consideration of some cases - where the "bidding" museums are the NMS and the museum of one of the other members.
2.38 In contested cases it is the current practice of the Panel to advise the museums concerned of the Panel's proposed recommendation to the Q<R concerning allocation and to offer 14 days for comment. Receipt of comments in response to such notification can lead to further consideration of the allocation at the next TTAP meeting, with consequent further delay in the process. Occasionally reconsideration, taking account of further information or representations, may result in a different recommendation from that originally proposed. The appeal procedure set out in the 1999 booklet has seldom been used, and is concerned in any case with review of the regularity of the process.
Valuation and Reward
2.39 The letter from the CO Unit informing the finder that the find is claimed as TT also advises that the TTAP will attempt to identify the market value of the object (for the purpose of recommending a reward). It invites the finder to provide any information or suggestions regarding the value of the object that the finder wishes the Panel to consider.
2.40 Valuation of TT finds is largely carried out by the TTAP Secretariat. The process includes consulting auction house and dealers' catalogues, antiquity dealers' websites, metal detectorists' magazines. The TT Administrator in the Secretariat also visits auctions, fairs, and dealers' shops to keep information current. Specialists may be consulted in some cases. For example, all coins are valued by the relevant NMS curator. Interested museums are advised of valuations. Finders are not. Valuations suggested by the TTAP Secretariat are supported by reference in the TTAP meeting papers to the sources of information on which they are based. The Secretariat's suggested valuations are normally accepted by the TTAP as the basis for their recommendation for a reward. Occasionally the Panel may request further information and/or recommend a slightly different figure for the reward. The Q<R almost always accepts the Panel's recommendation about the amount of the reward.
2.41 The initial CO letter to the finder also offers the finder the opportunity to forego a reward. That option has only been included in the initial letter fairly recently. It was previously in the letter sent at a later stage in the process. In a small number of cases the finder has decided to forego the reward. (There have been 15 such cases since 1994.) Otherwise the CO Unit advises the finder of the amount of the reward (and the destination of the find) after the Q<R has received and accepted the Panel recommendation.
2.42 In recent years the Panel has occasionally recommended non-payment or abatement of a reward, in circumstances set out in the 1999 Fieldworkers booklet 21, and the Q<R has accepted such recommendations.
2.43 Because of government accounting rules payment of the reward to the finder cannot be made until the CO has received payment from the relevant museum.
2.44 There is no overall time target for the operation of the system and few targets for stages of the process. The time taken to deal with a case varies, depending on various factors, including the timing of TTAP meetings, and can take a year or more. The average time is difficult to assess but is estimated to be about 9 months.