REVIEW OF TREASURE TROVE ARRANGEMENTS IN SCOTLAND
COMPARATIVE FINDINGS: OTHER JURISDICTIONS
5.1 In recent years there have been important developments in the area of Treasure Trove and portable antiquities in all our neighbouring jurisdictions in the UK and Ireland. I thought it important to obtain information about these to assess their possible relevance for our system.
5.2 I was greatly assisted by meetings and discussions with key people in the system in England - at the Department for Culture, Media and Sport (DCMS) and the British Museum (BM). I also had the useful experience of meeting the Treasure Valuation Committee and observing one of its sessions. I am grateful for the cordial welcome I received, and for the willingness of all those I met to explain and discuss the system frankly and patiently. Key points that I took from my consultation and examination of relevant material are noted below.
5.3 The Treasure Act 1996 replaced the previous common law of treasure trove, clarifying the law and defining what is treasure. In terms of the Act found treasure vests (generally) in the Crown. 27 The definition of treasure has been slightly extended recently as a result of the Treasure (Designation) Order 2002, which came into force on 1 January 2003. This followed recommendations in a review of the operation of the Act. 28 The Treasure Act was considered by all consultees to have been a success and the Code of Practice produced in terms of a requirement of the Act 29 is universally regarded as an invaluable feature of the new system. It had been fully endorsed by interested parties, including the National Council for Metal Detecting (NCMD). Those consulted emphasised the value of a full consultation process in relation to changes to the system in England and Wales.
5.4 Attention was drawn in the meetings to other positive features of the system, such as the fact that a government department has responsibility for the system and the willingness of the department to ensure an effective and sympathetic public interface by receiving and dealing with inquiries from the public. Good relations with key stakeholders and the use of their journals/magazines to disseminate information and guidance were also deemed positive. Efforts had been made to address problem areas - for example the DCMS organised training seminars for coroners and museum curators before the Act came into effect and has held follow-up seminars for coroners since. The Department has also supported a seminar to try to improve reporting by archaeologists and it holds regular meetings with the NCMD.
5.5 The Treasure Act has lead to a substantial increase in cases of reported treasure. 30 Greater clarity of definition has been very helpful. A further slight increase in reporting is expected following the extended definition of treasure in the 2002 Order. The Act created a statutory reporting duty, within a set time and with an offence sanction. This is seen as a key feature of the new system. To date there have been no prosecutions for non-reporting. The Act requires reporting of finds to the local coroner. Arrangements have been made to make it as easy as possible for finders to fulfil their legal obligations under the Act.
5.6 Over 95% of reported finds are made by metal detector users. Good relations have been established with this group, and the President of the NCMD has been made a member of the Treasure Valuation Committee. The NCMD's Code of Conduct for members is included in the Treasure Act Code of Practice as an Appendix. 31
5.7 It is still the case that only a small proportion of finds are treasure and the Portable Antiquities Scheme has been set up to try to ensure at least the recording of archaeological artefacts that have been found but are not treasure.
5.8 It is the coroner who declares finds to be treasure - after a formal inquest. A local "Finds Liaison Officer" (employed under the Portable Antiquities Scheme), or a local "reporting centre" (local museum or archaeological service) is involved in receiving the find and informing the BM. The coroner normally only holds an inquest to determine if the find is treasure after being advised that a museum wishes to acquire the object - in which case a report on the find is provided by the BM (or local museum). Otherwise the find is disclaimed (on behalf of the Secretary of State) before any inquest is held. It appears that a fairly high proportion of finds are not claimed 32 - one reason being lack of resources to fund rewards.
5.9 From my consultations the coroner's involvement in the process is seen as valuable, in part because of his perceived independence and also because inquests are useful in establishing important material facts relating to the find, such as the identity of the landowner. It appears that the coroner's role in the Treasure process is included in the current review of the coroner system.
5.10 The Code of Practice states - "The current practice is that objects that are declared treasure are offered in the first instance by the Secretary of State to the national museum and that if the national museum does not wish to acquire the objects it offers them to other museums." 33 However, both BM and DCMS consultees stated that, notwithstanding the terms of the Code, the operation of the system in recent times has not in practice involved a pre-emptive role for the BM. The relevant statement has, nonetheless, been retained in the very recently revised edition of the Code and it does appear that the right of pre-emption may still be used at times, for example when a new category of artefact comes to light. 34
5.11 The current policy is to promote local acquisition and the BM supports that. The BM only acquires on the basis of "national importance". It was considered difficult to define this in precise terms, because the importance of such factors as location and type of object can vary in significance over time. There was also a suggestion that "national importance" may often in BM practice actually equate to international importance. There do not appear to have been contested allocations to the BM - perhaps not surprisingly given the terms of the Code. But there have been a few recent contests between local museums. Such disputes, if they cannot be resolved between the parties, may ultimately have to be decided by the Secretary of State - although that situation does not yet seem to have occurred.
5.12 Any find that a museum wishes to acquire must be valued by the Treasure Valuation Committee, which consists of independent experts appointed by the Secretary of State. The Committee's role was specifically agreed by Ministers, and Nolan procedures now apply to appointment of members.
5.13 The Committee uses a panel of suitable experts (dealers etc.) to provide provisional valuations. Reportedly the use of experts in the trade has not resulted in any significant inflation of values, although there have been instances of wide ranges of values and discrepancies between different members of the panel. (There were examples in the cases for consideration at the meeting I attended.) The Committee tries to take a principled approach to its task - based on the Code - and appears keen to give interested parties an opportunity to contribute, for example in relation to challenging valuations. Other players in the system were positive about the existence and operation of the Committee. There was general support for an independent body of this kind with this role.
5.14 It appears to be unusual for finders to forego the payment of a reward. The position may be complicated by the entitlement of landowners to a share of a reward, but there was a suggestion that more might be done to encourage foregoing of rewards. There is recognition of finders in the description of individual finds in the Annual Report, and this is seen to be desirable. Finders may also be mentioned in BM descriptions of the circumstances of finds in displays.
5.15 The Portable Antiquities Annual Report 2000-2001 concludes with a paragraph which comments on how the operation of the Portable Antiquities Scheme may benefit the operation of the Treasure Act arrangements. The report states:
"A national network of Finds Liaison Officers in England and Wales will be of great benefit to the efficiency and smooth running of the Treasure Act, helping the Government meet its obligations under the Valetta and UNESCO Conventions to which the United Kingdom has recently acceded. The Finds Liaison Officers are best placed to advise finders of reporting procedures for treasure items in their area, and will be able to help finders report and courier objects of potential value." 35
5.16 The report noted the higher increase in treasure cases reported in areas covered by Finds Liaison Officers (FLOs) than elsewhere and the acquisition of objects by museums for public benefit. Consultees in this Review confirmed that the Scheme and the FLOs appointed to implement it had indeed delivered benefits to the operation of the Treasure Act.
5.17 All those consulted also agreed that the Scheme has been an undoubted success in improving knowledge and recording of finds of archaeological objects. Some of these then find their way to museums, although many others may help to support an active market in archaeological finds.
5.18 The administration of the Treasure Act system in England is somewhat fragmented, with coroners, local bodies (Finds Liaison Officers and museums etc), the British Museum, the Department for Culture, Media and Sport, and the Treasure Valuation Committee (and its advisers) involved in the process. There are process targets under the Code, but also the potential for delay at various points as a case proceeds. No figures appear to be available yet as regards achievement of the targets. Interestingly, there were no serious criticisms voiced about the involvement of several different people or organisations in the process. On the contrary there was support for the role of the different players. Two particular features that appear to make a very positive contribution to the operation of the system are the new Finds Liaison Officers, operating at a local level but part of a national scheme, and the new post of Treasure Registrar at the BM, providing a central point of contact and administration. There is, however, an issue about the present and future level of business and the adequacy of resources to cope with it. The impression gained was that the DCMS and the BM are stretched to deal with the current workload. 36
5.19 The information obtained at meetings in London about the operation of the Treasure Act and the Portable Antiquities Scheme was usefully supplemented by information about experience in Wales. This was provided at meetings at the National Museums and Galleries of Wales (NMGW) in Cardiff with the senior staff involved in the Treasure Act process and the Finds Coordinator for Wales (Portable Antiquities Scheme). I greatly appreciated their warm welcome and openness in discussing the system.
5.20 For purposes of the application and operation of the Treasure Act in Wales, the relevant national museum is the National Museum of Wales. In Wales, as in England, the Treasure Act is considered to be a success. The example was given of how the new definition of treasure had facilitated the acquisition by the National Museum of an important find that would not previously have fallen within the definition of treasure. The inclusion of an independent official or body at stages of the process is seen as valuable.
5.21 There has been a substantial increase in the number of reported finds since the new system came into operation, although the overall number remains relatively low 37. The great majority of finds come from metal detectorists. Few items have been reported from excavations, but few large-scale investigations are undertaken in Wales by archaeologists. There are some fieldwalkers who occasionally make finds. There have been no prosecutions for offences under the Act, and no abatement of rewards involving cases in Wales. There is a single Finds Coordinator, Portable Antiquities Scheme, who covers the whole of Wales, but a number of museums and archaeological units act as reporting centres to facilitate convenient reporting for finders. A number of treasure items, often not recognised as such by finders, have been reported through the Scheme. A few finders approach the coroner directly to report their finds. Reports and the artefacts are submitted to the NMGW, where a senior member of staff coordinates processing and monitors progress - in effect operating as a 'Treasure Registrar' for Wales.
5.22 Specialist reports for coroners are all prepared by the National Museum, through the appropriate specialist Curator. The independent role of the coroner is considered to be important, although there may sometimes be delays at this stage.
5.23 In Wales proportionately more treasure finds are regarded as being of "national importance" and therefore acquired by the NMGW in accordance with the practice stated in the Code, than is the case for the British Museum in England. One reason is that the collections in Wales are not so well developed as in the BM. The Treasure Act has benefited the national collections, as regards first refusal of treasure finds. Expertise is largely concentrated in the NMGW, which is a centre for scholarship and research. For purposes of acquisition, "national significance" is understood in broad terms.
5.24 There are many local, registered museums in Wales and some have benefited from the system and acquired treasure. It is expected that more finds will go to local museums in future, once the NMGW has a more representative collection. However, local museums only serve particular areas and some findspots are not covered by museums. There are pressures for local allocation. People want finds to remain local. Since Devolution Members of the Welsh Assembly are keen to look after their communities and therefore may want to keep things within the locality. But the availability of resources to fund acquisitions may be a problem for local museums. Pilot arrangements have been introduced for partnership between the National Museum and local museums, involving "sharing treasures", through loans from the national to the locals. It is intended to develop this to support the social inclusion agenda.
5.25 There is no mechanism for resolving any contest or dispute over allocation. Whilst have not been any disputes, consideration is being given to setting up a panel, possibly similar to the TTAP, to resolve any that may arise.
5.26 Finds go through the valuation process in London with the Treasure Valuation Committee. The objects are sent to the BM. NMGW staff are able to comment on the Valuation Committee's consideration at various stages, although Curators rarely attend valuation meetings. The transfer of responsibility for valuation to the Committee from the Museum staff is seen as a positive improvement in the process. Rewards for finds acquired by the National Museum are funded from the NMGW purchasing grant, but it has also sometimes been necessary to seek external funding. Finders are acknowledged in displays, if they wish. This is considered positive public relations - a way of "recognising responsible behaviour".
5.27 As in England, this scheme is seen as a success. It has created good and proactive relationships with metal detector clubs and proved beneficial to the identification and reporting of treasure.
5.28 I am grateful for the assistance of staff in the Environment and Heritage Service of the Department of the Environment for Northern Ireland, who kindly provided information and advice.
5.29 The Treasure Act 1996 applies to Northern Ireland, but its operation is influenced by Northern Irish legislation and there is a separate Code of Practice to take account of local circumstances. The Department of the Environment for Northern Ireland plays a part in the process. The national museum for purposes of reporting and acquisition is the Ulster Museum in Belfast.
5.30 In addition to the reporting requirement in the 1996 Act, the Historic Monuments and Archaeological Objects (Northern Ireland) Order 1995, requires that all potential archaeological objects (of which treasure items are a subset) must be reported and, if required, surrendered to a 'relevant authority' (the police, the Department of the Environment or the Ulster Museum).
5.31 The Department of the Environment operates as the Treasure Registrar for Northern Ireland. The number of objects falling to be dealt with as treasure in Northern Ireland is small. 38
5.32 Metal-detecting and archaeological activity in Northern Ireland are subject to restriction and control. The 1995 Order prohibits any archaeological excavation (and any search for archaeological objects) without a licence from the Department of the Environment and both the unlicensed use and possession of metal detectors on protected monuments are prohibited. However, there are apparently persisting problems with the activities of some metal detectorists. A licence for archaeological excavation requires the investigator to declare excavated finds in a similar way to chance finds, usually after full post-excavation recording. Two of the most significant treasure finds in recent years have come from Environment and Heritage Service excavations.
5.33 Delays apparently occur from time to time at the coroner's inquest stage of the procedure, although such inquests are usually straightforward. It has been suggested that changing the system to authorise a single specialist coroner to hold treasure inquests for the whole of Northern Ireland might make the process speedier and more efficient.
5.34 As noted, the Ulster Museum is the relevant national museum to which treasure is offered in terms of the Code. The museum takes all such finds, but may enter into long-term loan agreements with registered local museums.
5.35 Treasure finds from Northern Ireland are valued by the Treasure Valuation Committee in London. The Ulster Museum may require to seek financial support from outside funds or the Department, in order to pay rewards.
5.36 The Portable Antiquities Reporting Scheme has not been extended to Northern Ireland as the law there already requires mandatory reporting of all finds. The 1995 Order allows the Ulster Museum to keep objects for three months to examine and record them and to carry out tests or treatment. Objects may be acquired by the museum by purchase or donation or otherwise must be returned to the finder or owner.
REPUBLIC OF IRELAND
5.37 I was fortunate to have the opportunity of a meeting with the Keeper of Irish Antiquities at the National Museum of Ireland in Dublin. His assistance is much appreciated.
5.38 Under the Irish National Monuments legislation (particularly the National Monuments (Amendment) Act 1994), there is a comprehensive State entitlement to archaeological objects in the Republic of Ireland. The legislation contains a wide definition of "archaeological object". 39
Finding and Reporting
5.39 I was informed that serious problems with treasure-hunting in the 1980s led to firm action by criminal prosecution and civil action 40 and then the imposition of a tighter statutory regime in the 1994 Act. This included the statutory reporting requirement being strengthened. Unlicensed possession and purchase of archaeological objects were made offences and metal detecting was generally made illegal. Metal detecting activities now seem to be very limited and do not account for any significant number of finds. Almost all finds now appear to come from licensed excavations - with 2,000 such excavations being licensed last year. Overall the current picture is of tightly controlled arrangements within a framework of licensing and consents. As regards reporting, the time for reporting has been shortened and reports must be submitted to the NMI or "designated" (local/regional) museums, of which there are currently 10 or 11, with another 7 in the process of becoming designated.
Claiming and Allocation
5.40 It is the NMI that identifies finds, as the source of expertise in Ireland. Artefacts are physically delivered for examination. There is a power to waive or disclaim the State's right to ownership, but this seems to be used rarely, if at all. The policy seems to be to acquire all excavated material. Finds may be, and some are in practice allocated to the designated local museums, although most seem to be retained by the NMI. There is reportedly little tension between the designated museums and the NMI. This is explained in large part by the history of the setting up of designated museum arrangements. This was strongly promoted by the NMI, which has had an active and leading role in the development of designated museums, including the actual process. Another factor is said to be the policy of the NMI in relation to local access to archaeological objects through loans to designated museums. There is an active loans policy. Such loans often require that stringent security standards are met by the local museums and it was suggested that realisation of the cost of such arrangements on a permanent basis has affected the attitude of museums to seeking permanent allocation of valuable objects. Also, local museums cannot afford to pay large rewards for big finds. A further factor which helps to ensure good relations is the existence of a Liaison Group of the Curators of the National and local museums. There has, apparently, never been a dispute about allocation. If there were to be it would ultimately be decided by the Minister, if it could not be settled amicably.
Valuation and Reward
5.41 Rewards are only paid for chance finds, not excavation finds. Substantial sums may be paid and there is apparently a general policy of avoiding disputes with finders - in order to encourage reporting. The State pays - from the relevant part of the NMI budget and the Heritage Fund. (Payment is made by the Director of the NMI, with Ministerial consent). Full market value is paid up to a certain level and above that there is a sliding scale, which moderates the amount. Dissatisfied finders may have recourse to the courts to challenge the amount of the reward through judicial review.
SUMMARY OF POINTS OF RELEVANCE FROM THE OTHER JURISDICTIONS
5.42 In all our neighbouring countries of the UK and Ireland there have been significant changes in the past 10 years in the arrangements relating to Treasure Trove and portable antiquities. Important new legislation has been introduced to govern these arrangements.
5.43 The right of the Crown/State to ownership of found portable objects of archaeological or antiquarian value has been affirmed and clarified in all our neighbouring countries in these islands, and procedures and processes to support that right have been strengthened by law.
5.44 The range and definition of such objects that belong to the Crown/State varies from the comprehensive (in Ireland) to the comparatively narrow (in England, Wales and Northern Ireland).
5.45 Even where the scope of the ownership of the Crown is narrow, arrangements have been made (by law or administrative system) to ensure improved recording of information about a wide range of found objects. This may also improve opportunities for retention of such objects in publicly accessible collections.
5.46 Statutory find reporting requirements have been imposed in all the countries, with offence sanctions.
5.47 There is a striking contrast between the approach of the systems in Great Britain and those in the island of Ireland to the activities of an actually or potentially significant group of finders - namely, metal detectorists. The recent changes in England and Wales have sought to encourage responsible behaviour by this group and have achieved improved relations with them and between them and other important players, such as museums and archaeologists, to the benefit of the system.
5.48 The need to try to ensure that it is as easy as possible for finders to fulfil their legal obligation to report finds has been recognised and attempts made to provide appropriate arrangements. These arrangements involve a formal role for some local museums, and increasingly in England and in Wales new local or regional officials (Finds Liaison Officers and a Finds Coordinator).
5.49 In the other UK jurisdictions an independent Crown officer (the coroner) has the responsibility for determining whether finds are treasure.
5.50 The role of an independent body in the valuation process in the other UK countries is regarded as an important and beneficial aspect of the system.
5.51 Payment of financial rewards to finders is common to all systems, the amount being generally market value - although there is provision in Ireland for moderating particularly high values. Other forms of recognition are in use, including reference in museum displays and in the annual report.
5.52 In all the other jurisdictions the national museum plays a leading role in the system and has a priority right to acquire finds.
5.53 Local interest in treasure finds is recognised - by promoting local acquisition (in England) or by loans for local display.
5.54 There is fragmentation of the administration of the system in varying degrees in the other countries, but no obvious criticism of the involvement of different people or bodies at different stages. Central registration of finds is a common and valuable feature. The appointment of Finds Liaison Officers, operating at a local level but part of a national scheme, is widely regarded as a valuable development that is beneficial to the operation of the treasure system in England and Wales.