Discuss the operation of the Treasure Act 1996, the necessity to reform the ancient law of treasure trove and the successes/failures to meet the criteria to make it workable.
Discuss the operation of the Treasure Act 1996, the necessity to reform the ancient law of treasure trove and the successes/failures to meet the criteria to make it workable
The Treasure Act of 1996 was brought into force on September 27, 1997 after many years of indecision, uncertainty and academic debate. This Act was designed to update and reinvent the law as regards to treasure trove, itself, as Roger.J.Smith professes was "governed by ancient common law principles"1 until the promulgation of the Treasure Act. The law in this area had reached a stagnant set of circumstances in which it was no longer in touch with modern times, and the passage of time had aided the academic discovery of treasure trove laws' lack of functionality. This discussion will seek to provide a coherent and accessible article documenting the circumstances leading to the change in the law and operation of the old legal principles. It will be necessary to assess the Treasure Act of 1996 and it's inherent differences to the law of treasure trove. Finally, it will be necessary to evaluate the criticisms levelled at the Treasure Act of 1996 and to discuss whether the reform has met its objectives and if not, how it could be implemented and improved.
Until 1996, treasure was very difficult to declare due to rigorous rules governing the declaration of what was, or was not, treasure trove. Michael Bridge asserts that "at common law treasure trove is any money or coin, gold, silver, plate or bullion that has been hidden".2 The laws governing treasure trove were rather cumbersome and it was often difficult to secure a declaration of what could be labelled as treasure trove due to the strict rules by which it was governed. One only needs to observe the old rules concerning treasure trove to discover that the necessity that the treasure trove be hidden in order to be regarded as treasure trove to recognise the difficulties of labelling treasure trove. This requirement, coupled with the fine definition of treasure trove, made it increasingly difficult to declare finds as treasure trove. The stipulation that the treasure trove in question be hidden or concealed is vital as it would provide proof that the treasure was not lost or abandoned, as these two possibilities would, in effect, negate the original owner's intention lose their possessory rights of ownership to the item(s). Michael Bridge states that "the significance of the hiding is that it negatives an intention by the owner to abandon the valuables".3 The most important aspect of the act of hiding the object is, that it shows an intention to conceal the property, with the requisite intention to recover it at a later date, this is known as the requirement of animus recuperandi. Marston and Ross comment that "the definition of objects properly falling within the scope of treasure trove was too limited in scope".4
The original rule of treasure trove required that any property found and defined as treasure trove must be relinquished to the Crown. The rule states that
"a man that hides his treasure in a secret place, evidently does not mean to relinquish his property, but reserves a right to claiming it again, when he sees occasion; and if he dies and the secret also dies with him, the law gives it to the King, in part of his royal revenue".5
A mere suggestion of loss or abandonment would consign a claim for treasure trove to failure as loss and abandonment negate a positive decision to conceal an object and retrieve it at a later, undetermined date; therefore the property has not been left as treasure trove and as such cannot be labelled it. Chitty provides an amplified definition of the theory behind this, he contends that "if the owner, instead of hiding the treasure, casually lost it, or purposely parted with it, in such a manner that it is evident he intended to abandon the property altogether, and did not purpose to resume it on another occasion... the first finder is entitled to the property, as against everyone but the owner, and the King's prerogative does not in this respect obtain".6 This statement clearly exhibits the rationale that belies the purpose of the rule requiring hiding, Chitty further states "that it is the hiding, and not the abandonment, of the property that entitles the King to it"7. Therein lies the inherent problem of treasure trove laws as the condition that something be hidden may lead to much confusion and more often than not, the coroner in charge of the inquest into the find, would have to rely on a jury's verdict to declare something as concealed, lost or abandoned. This problem along with the narrow definition afforded to treasure trove8, left treasure seekers in a most difficult position.9
The old and jaded laws of treasure trove were also being brought into question in 1903 by William Martin, who stated that "for some time past, those to whom the law of treasure trove is of interest have evinced signs of disquietude under its administration and have harboured suspicion that the present (treasure trove law) condition of the law is scarcely adapted to the needs and requirements of the present age...".10 The calls for the re-evaluation of treasure trove law erupted in the early 20th century, William Martin further stated that "the old law should be labelled and relegated to the shelf of bygones".11 Further comments found that people regarded the law of treasure trove as "rather complicated and a hopeless muddle".12 However, these derogatory statements failed to alter the status of the laws of treasure trove. It must be noted that the original guise of the treasure trove laws was supposed to be as a "source of revenue for the Royal Mint"13 (per Finlay CJ). The enrichment of the Crown was paramount to the original purpose of treasure trove, nevertheless the limitations of treasure trove law determined that many objects of historical and cultural significance, were being overlooked and largely unprotected by the law. This also presented the Crown with a large problem, as many of these valuable artefacts were sold abroad and therefore removed from the country of origin; depriving the Kingdom of its rightful national heritage.
The invention of the metal detector led to the revelation that the laws of treasure trove were no longer applicable to modern times for the protection of portable antiquities and artefacts. Metal detectors have encouraged a surge in finds of archaeological objects. These finds are estimated to have reached around 400,000 per year14 by the time that moves towards the creation of the Treasure Act were put into motion, by 1996. According to Alec Samuels, "treasure trove finds numbered approximately 25 per year until the Treasure Act came into force in 1996, and finds are due, according to ...
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The invention of the metal detector led to the revelation that the laws of treasure trove were no longer applicable to modern times for the protection of portable antiquities and artefacts. Metal detectors have encouraged a surge in finds of archaeological objects. These finds are estimated to have reached around 400,000 per year14 by the time that moves towards the creation of the Treasure Act were put into motion, by 1996. According to Alec Samuels, "treasure trove finds numbered approximately 25 per year until the Treasure Act came into force in 1996, and finds are due, according to expectations, to increase to somewhere between 100-200 every year".15 The great concerns regarding the advent of metal detectors, was that more finds were being discovered, but less were being reported and the restrictions were hampering the true number of treasure trove finds. Attempts to reform the law of treasure trove were made in the Treasure Bill of 1994 and preceded by the Antiquities Bills of 1979 and 1981. These attempts at restructuring the law of treasure trove were, however, doomed to failure as they did not achieve enough party support or interest in order to be passed. Andrew Selkirk suggests that the original basis of treasure trove was an act of nationalisation that was never fully complete, and therefore not perfected; he further contends that treasure trove law was a complicated and sophisticated system designed by Victorian lawyers forging a compromise between landowners rights and duties and archaeological interests.16 Selkirk goes on to suggest that the compromise is that archaeological objects are still the property of the landowner, although not in cases where the property was originally lost; if no intention was in place then it cannot be said that the property was hidden and it therefore remains the property of the landowner, albeit if the owner was not known, the property would pass bona vacantia (to the Crown)17.
Under the old treasure trove laws, finders would be paid an ex gratia reward for their find upon reporting it. This sum is generally paid as a goodwill gesture of generosity. The sum will usually be paid by the British Museum or another museum in recognition of the value of the find itself. In cases where the find was not declared, there was no particular criminal offence attached to non-declaration of a find, although cases have arisen in which the Crown has attempted, albeit unsuccessfully, to label non-declaration as a criminal offence. Theoretically, non-declaration would be considered a criminal offence, although the difficulty of proving the requirement of animus revertendi made cases such as R v Hancock18 very complex, as more often than not, an animus revertendi could not be proved and as such, no criminal liability could be imposed. MacMillan asserts that in order to secure a conviction in such a case "the jury had to be sure that the objects in question were treasure trove".19 These aforementioned problems highlight the issues with the law of treasure trove and the need for reform, this came in the form of the Treasure Act 1996.
The Treasure Act was brought into force with the intention to create a more systematic and uncomplicated system of the declaration and registration of treasure trove. Michael Bridge maintained that the Act "recasts and expands the range of the common law of treasure trove".20 Bridge asserts that the Act was more concerned with setting up a more organised, efficient system for the preservation of historical artefacts, it was not intended to be an opportunity for financial gain or personal enterprise21. MacMillan contends that the aims of the Treasure Act 1996 are "a change in the definition of treasure; a simplification of the determination of treasure; and the creation of a new offence for the non-declaration of treasure".22 Smith submits the view that "the modern role of the rules is to ensure that hidden treasure is available to museums, which in effect have the opportunity to buy it from the finder"23. The preamble to the Treasure Act 1996, concludes that the Act
"received all party support- or more accurately all party lack of interest and passed into law with the only real debates being 2 hours and 28 minutes in the House of Commons second reading and a short committee stage".24
This does indicate that the law was reformed without a great deal of interest; therefore one can consider the Act as rather hastily reformed. In effect, it could be demonstrated, that due to such a quick reformation and such little parliamentary debate, the Act could have been riddled with questionable clauses and issues from the offset.
The new Act alters the definition of treasure, this definition provides the certainty that had so long been lacking in the ancient law of treasure trove. This certainty is provided in the form of a statutory code offering succinct and clear meanings for treasure trove. The preamble states that the Act "replaces the ancient treasure trove rules"25, and "relegates seven centuries of tradition to the realm solely of historians".26 Section 1 of the Act declares treasure as
"any object at least 300 years old when found which i) is not a coin but has metallic content of which at least 10 per cent by weight is precious metal".27
This section consigns previous years of uncertainty regarding treasure finds, by accepting a wider ambit of precious metallic substances that can be declared as treasure trove. Section 1 (a) (ii&iii) states that treasure is (i) and
"when found, is one of at least two coins in the same find which are at least 300 years old at that time and have that (requisite 10 per cent) percentage of precious metal; or when found, is one of at least ten coins in the same find which are at least 300 years old at that time".28
This subsection is a way in which one can circumvent the requirement that 10 per cent of the find is comprised of precious metal and therefore recognising hoards of coins which are not of a particular precious metal but may be regarded as treasure trove due to their historical value. Section 3 (3) states that "'Precious metal' means gold or silver". Section 1 (b) declares "any object at least 200 years old when found which belongs to a class designated under section 2(1)29 ". This section delegates the Secretary of State discretion to alter the meaning of treasure. Section 1 (c)30 retains the original meaning or treasure trove, although this is relatively the only remaining remnant of the treasure trove laws pre-reform. The Secretary of State's discretionary power to alter the meaning of treasure opens up the possibility that other objects , as long as they have reached the standards set, may in turn, be given Parliamentary approval and declared as treasure. The Act makes the former provision cited in A-G v Moore31, that treasure is "any gold or silver in coin, plate or bullion... found concealed in a house, or in the earth, or other private place, the owner thereof being unknown", redundant.
The percentage of precious metal required in a potential treasure find has been an issue of much contention. Original parliamentary debates found that 5 per cent precious metal would have been an adequate sum, although ultimately, it was decided that it would be in the interests of the finder if it was 10 per cent, as it would prove too difficult for a finder to apply, and as such, it would not largely alter the amount of finds reportable.32 Jewels and/or other objects discovered as part of a treasure hoard will be regarded as treasure if they were discovered at the same time and the other objects recovered had met the requirements of the definition of treasure. This does, however, pose difficulties in determination, in cases where there is more than one person fulfilling the role of a finder. The standing committee declared that an earlier find or object being part of the same find is an object that is "reasonably associated both in geographic distance and in time with something that is clearly treasure".33
The Act provides more structure and certainty as it eliminates the cumbersome and difficult burden of proof regarding the animus revertendi.34 This is covered in section 4 which states in sub sections 1 (a) and (b) that ownership of treasure found "vests, subject to prior interests and rights (a) in the franchisee, if there is one; (b) otherwise, in the Crown".35 Section 4(4) states that the section applies
"(a)whatever the nature of the place where the treasure was found,(b) and whatever the circumstances in which it was left (including being lost or being left with no intention of recovery)".36
The consequences of this section are far-reaching and affect what can be declared as treasure, as lost and abandoned objects obtained consideration. This also erased the arduous task of proving the condition of the find and the conditions under which it was left, the animus revertendi. Bridge submits that
"the common law requirement that the treasure be hidden, together with the concomitant presumption that treasure trove be hidden, has been dispensed with under the new law".37
Objects not regarded as treasure trove, under the 1996 Act will be termed portable antiquities and it will be up to the finder if he wishes to report the find to the coroner, as it will be a voluntary choice.38
However, it must be stressed that lost property abandoned by a thief in his wake, will in any event, be returned to its true owner. The property will, by default, vest in the Crown, albeit merely for security purposes and to avoid a continuing cycle of theft, for public policy reasons. The Crown's rights will be conditional upon the property rights of the original owner of the stolen property. McEndrick asserts that asserts that
"the Crown's right does not extend to stolen property that is hidden by a thief or simply left behind by him rather than discarded in flight; nor does it apply to goods of a foreign merchant. This ancient right, designed to encourage owners to chase thieves and recapture their property, would now appear to be obsolete".39
Section 6 of the 1996 Act deals with the Crown's entitlement to treasure found by treasure seekers, the Crown takes the property jura regalia (by right). This right is governed by the Heritage Minister, the Crown reserves the right to disclaim its title to the property under section 6 (3). In this situation, the treasure items will, at the minister's discretion, be donated to a museum or returned to the finder or landowner. This clause, according to Alec Samuels is designed "for the Crown to give museums the option to acquire"40 the said treasure. If a museum decides to accept the option to purchase the treasure object, an ex gratia reward will be paid to the finder and/or the landowner at the full market value, conversely, the value of the reward will be determined by the circumstances of the find. This is dealt with under section 10 of the 1996 Act.
The 1996 Act imposes an obligation upon the finder to notify the coroner of the said find within a statutory 14-day period. Catharine MacMillan contends that
"the finder of an object which he believes, or has reasonable grounds for believing, is treasure, must notify the relevant coroner before the end of the notice period."41
MacMillan states that it is the Secretary of State's duty to determine if a reward will be payable by the museum before its transfer.42 MacMillan further asserts
"if a reward is payable he (Secretary of State) must determine: (1) The treasure's market value; (2) the amount of the reward, which is not to exceed the treasure's market value; (3) to whom the reward is payable; and (4) if it is payable to more than one person, how it is to be allocated amongst these persons."43
The Code of Practice that governs the Treasure Act 1996 states that "the statutory duty to report finds rests upon the finder and not the landowner, but landowners will be keen to ensure that effective agreements are reached with treasure seekers".44 The Code of Practice is governed by section 11 of the Act and will set out all principles for the rules of finding and the declaration of treasure.
If the finder does not report the find straight away , he/she is obliged to report the discovery at any moment he or she has reasonable grounds for considering the find treasure, forgetfulness and lack of knowledge will constitute a valid defence, however, this does pose a problem as it can create situations in which one can be presumed to have forgotten or misinterpreted their find and, in turn, profited from their dishonesty. A failure to acknowledge the rules on finding is now punishable by criminal liability under section 8 (3)(a,b,c). The level of this punishment varies, although conviction will lead to a custodial sentence of up to three months and/or a fine of a maximum £5,000. This criminal charge has been criticised as being too lenient and possibly giving a false impression to those who deliberately seek to mistle authority and profit the nation's loss and their own wrongdoing.
The Treasure Act did not, however, come without its shortcomings. MacMillan opines that the Act "is unlikely to provide sufficient protection for portable antiquities".45 Marston and Ross assert that the Act "does not free the law from all doubts and uncertainties"46 and poses the question of a need for the "Secretary of State to consider the powers to extend and narrow the classes of treasure in the light of developments".47 Marston and Ross further criticise the Act, by contending that, although it has done much to afford better protection of portable antiquities, "the overall picture remains one of piecemeal protection dependent upon narrow definitions redolent of a bygone age".48 The Act is criticised for its lack of an overall change and approach to the law of treasure, and there are further stipulations that should be adopted, to provide the Act with "appropriate measures providing for a broader spectrum of objects".49 MacMillan states that the lack of a wider ambit for what can be classed as treasure is lacking from the Act and questions whether there will be any advantage for treasure seekers to comply with the Act.50 The Treasure Act has been left with a great problem of conflict of interests for treasure seekers, as it questions the individual's interests "in preserving or selling objects for personal benefit and the interest of society in preserving objects for public benefit."51
The Treasure Act has given a much needed statutory platform to the complex business of treasure trove and the safeguarding of national heritage, dissolving the ambiguities that riddled the ancient law of treasure trove. However, statutory alterations will be needed in order to provide the Act with a wider ambit of objects to be declared as treasure as the nation's heritage will ultimately become part of another nation's heritage or remain hidden among the relics of time.
BIBLIOGRAPHY
* Bridge, M , Personal Property Law, (3rd ed.), Oxford University Press, 2002
* Gleeson, S, Personal Property Law, 1997, Sweet and Maxwell
* MacMillan, C, NLJ, September 20, 1996, Butterworth and Co. Publishers, Vol 146 No 6760 p1346-1348
* Marston, J & Ross, L - 'Treasure and Portable Antiquities in the 1990's still chained to the Ghosts of the Past' - (1997) 61 Conv July/Aug.
* Marston, J & Ross, L, 'The Treasure Act 1996; Code of Practice and Home Office Circular on Treasure Inquests, (1998) 62 Conv 252
* McEndrick, E, Palmer, N, Interests in Goods, (2nd ed.), 1998, LLP
* Samuels, A, 'The Treasure Act 1996', (1997) SJ 36, 890, 893
* Selkirk, A; Treasure Trove, www.hilites.org.uk/cia/reports/treasure.htm 02/04/2004
* Slapper, G, 'Whose Treasure Now?', January 7, 1997, Copyright 1997, Times Newspapers Limited, The Times
* Smith, R.J. - Property Law (4th ed), Longman, 2003
* Treasure Act 1996 c.24
p63, Smith, R.J. - Property Law (4th ed).
2 p25, Bridge, M - Personal Property Law.
3 Ibid.
4 Marston, J & Ross, L - Treasure and Portable Antiquities in the 1990's still chained to the Ghosts of the Past - (1997) 61 Conv July/Aug.
5 p 53, Gleeson, S - Personal Property Law.
6 p29, LQR, Vol 20, (1904), Treasure Trove and the British Museum, William Martin (Chitty on Prerogatives, 152).
7 Ibid.
8 "treasure trove is any money or coin, gold, silver, plate or bullion", op cit 2.
9 Cases such as A-G v Moore (1983) 1 Ch 676 and A-G v Trustees of British Museum (1903) 2 Ch 598, make it very clear that treasure trove required that the objects satisfied a precious metal test, that the objects be hidden and that the owner be unknown.
0 p27, LQR, Vol 20, (1904), Treasure Trove and the British Museum, William Martin.
1 Ibid.
2 Museums Committee, 1898, Minutes of Evidence, (18, 9).
3 Webb V Ireland (1988) Ir 353, (Irish Sct), 381-2.
4 The Department of National Heritage, Portable Antiquities: A discussion document (Feb 1996), p3.
5p 840, Samuels, A, Solicitor's Journal, 26th September, 1997.
6 Selkirk, A; www.hilites.org.uk/cia/reports/treasure.htm - Treasure Trove.
7 Ibid.
8 (1990) " QB 242.
9 NLJ, September 20, 1996 - Burying Treasure Trove.
20op cit. n2 at 26
21 op cit. n2 at 26.
22 op cit. n19.
23 op cit. n1 at 63.
24 Treasure Act, 1996, preamble intro, general quote.
25 Ibid.
26 Ibid.
27 Treasure Act 1996, s1 (a)(i).
28 Treasure Act 1996, s1 (a)(ii)(iii).
29 "The Secretary of State may by order, for the purposes of section 1(1)(b), designate any class of object which he considers to be of outstanding historical, archaeological or cultural importance".
30 "any object which would have been treasure trove if found before the commencement of section 4".
31 (1983)1 Ch 676, 683.
32 op cit. n24.
33 The Minister of State, Department of National Heritage, Iain Sproat, Parliamentary Debates, House of Commons, Treasure Bill, Standing Committee, 17 April, 1996 Col 12.
34 op cit. n19 at 1347.
35 Treasure Act 1996 s4(1)(a)(b).
36 Ibid.
37 op cit. n2 at 26
38 Slapper, Dr. Gary, Whose Treasure Now?, The Times, Jan 7, 1997,
39 p209, McEndrick, E, Interests in Goods, (2nd ed.), 1998.
40 op cit. n15 at 840.
41 op cit. n19 at 1347.
42 Ibid.
43 Ibid.
44 John Marston & Lynne Ross, The Treasure Act 1996: Code of Practice and Home Office Circular on Treasure Inquests.
45 op cit. n19 at 1348.
46 op cit. n44 at 286.
47 Ibid.
48 Ibid.
49 Ibid.
50 op vit. n19 at 1348.
51 Ibid.
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