Finding, Reporting and being Rewarded for Archaeological Treasures in Scotland

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I am grateful to Andrew Nicholson (HER Officer, Dumfries and Galloway Council) for clarifying (pers. comm.) an issue for me, and with his permission I'd like to share it (slightly edited) with my readers.

There are some very distinct differences in the legal positions either side of the border. In Scotland, the legal position is that all found archaeological material treated as Treasure Trove found belongs to the Crown, the landowner has no ownership rights, so if an award is paid out, the full sum goes to the finder and is not normally split with the landowner. The ‘reward’ is for declaring the material. Some detectorists do have verbal 50/50 agreements with farmers whose land they’re on, but that’s between them rather than a legal position. There are notes in the guidance which even point out that a delay in declaring one' finds can have an effect on any reward:

Ex gratia payment "This is an award made at the discretion of the QLTR to the finder(s) of a chance find. The payment takes into account the circumstances of discovery, the treatment of the object by the finder, the nature of the item(s) and any delays in reporting.” 

“Finders have no ownership rights to found objects unless and until the Crown determines, after they have been reported, not to claim, or subsequently to disclaim. Landowners have no property rights to portable antiquities, nor do sponsors of organized archaeological fieldwork have any claim to any finds made on their projects. Finders must ensure they have any appropriate permission to search land for portable antiquities.” 

 Note the item about sponsors of excavations – it means we won’t have a situation like the one in England where the sponsoring company of a development archaeology project wanted to sell the finds to help recoup their costs. It’s all in the guidance, which is at http://www.scotland.gov.uk/Publications/2008/12/04114930/31 Oh, and ignorance of the guidance is, of course, no defence in law

From an archaeological point of view, the law in Scotland is preferable to that south of the border. In Scotland, a single bronze Roman cavalry parade helmet *would* have been Treasure Trove, and lithics, pottery assemblages and everything else are covered too. Note also that the valuation can be affected by how the finder treats the object, as well as the time they take to notify.

The guidance also includes a few other comments worth noting:

Found items from anywhere in Scotland (on land, in buildings, from inland waters, from within harbours, and from the coast and other tidal waterways down to mean low tidal water level) which are not otherwise owned and for which there is not a demonstrable heir (bona vacantia) are the property of the Crown at Scots common law.

Found portable antiquities must be reported to the Crown by the finder through the Treasure Trove Unit or an appropriate intermediary (e.g. a museum). Misappropriation of found portable antiquities is the crime of theft and dishonest dealing in such items is the crime of reset, or receiving stolen property. [...] Failure to report the finding of portable antiquities or the removal of found portable antiquities from Scotland (including to elsewhere in the United Kingdom) may provide evidence of misappropriation. [...] Non-reported portable antiquities have the status of being unclaimed Crown property. They cannot be owned by anyone else if the Crown has not been given the opportunity, by reporting, of exercising its right of ownership. [...] There is no time limit with respect to nonreporting of items which thus remain the property of the Crown in perpetuity.

Hoard (or cache) Two or more items in association which are judged to have been deliberately deposited together.

Again, note only two or more associated items, so two flint arrowheads would count.

Portable antiquity This term in Scotland covers any ownerless item (bona vacantia) which is portable, has been humanly manufactured or modified, is of any size, type or material, is not integral to a site or monument, and has been found in Scotland.
Finders are required, within one month of its initial discovery, to report anything believed to be a portable antiquity (see section 2.5 above for the legal position). A delay in the reporting of portable antiquities may have a negative impact on any potential ex gratia payment.

Participants in metal-detecting rallies or similar events have an individual responsibility to report their finds, and organizers of such rallies and events should remind participants of this fact.

The finder should provide as accurate a location as possible for the findspot. Wilful misreporting of a findspot or the circumstances of finding is an offence.

The finder must take care not to damage a portable antiquity in any way. Objects must not be improperly cleaned, repaired, or marked.

 Sometimes it will be in the best interests of a portable antiquity to leave it where it has been found for investigation by an archaeologist. For example, removing organic items from peat can easily damage them and disturbing an object which is part of a hoard can destroy valuable information. Such discoveries should be notified immediately to the TTU, to a Local Authority archaeologist, to Historic Scotland, or to a museum. Such notification will in no way prejudice the reporter’s position as the original finder for Treasure Trove purposes; indeed, such responsible actions are likely to be reflected favourably in SAFAP’s determination of ex gratia payments.

So basically everything is done to encourage finders to report finds.

Mr Nicholson also pointed out that this by no means refers just to artefact hunters with metal detectors.  In the case of the items from Dumfries and Galloway illustrated in the guidance – a Neolithic axe TT.74/07, a Bronze Age spearhead TT.62 07, Bronze Age sword TT.33 07 and an Iron Age harness mount TT.105 06, none were found by a detectorist. "Instead one dog-walker, one gold-panner and two ploughmen got the honours. Not that the detectorists don’t find anything of value, but the single most valuable item we’ve had through in the last decade was a late medieval gold ring with inset stones [it could be identified because a number of sitters for portraits by Holbein wore similar ones], and the guys who found it had been into the HER to get maps and check that there was nothing known in the field before they went detecting".