Sunday 24 March 2013

Focus on UK Artefact Hunting: Detecting Law Becomes More Complicated, Once Again the Glasgow Fourth

Yesterday there a three-way tweet got a bit confusing with one person asking three of us a reasonable question and answers getting crossed. Thankfully Sam Hardy has rephrased it all as a blog post: ('If landowners waive right to be informed about finds by metal detectorists, is it an unreasonable contract?', Conflict Archaeology March 25, 2013). For a summary of the exchange and what the question was, I refer interested readers there. I was puzzled by the suggestion in the Tweetery that non-reporting of non-Treasure artefacts was in some way not in accord with the law. Sam now clarifies what was meant, and its an interesting issue.  

Sam points out that the current official definition of responsible detecting is that before carting them off one reports all finds to the landowner  (they belong to them anyway) and also to the Portable Antiquities Scheme, so elements of the common archaeological heritage can be recorded for public benefit. Sam's point was that any reasonable detecting contract would require reporting in order that the landowner can benefit from any financial consequences of passing the artefacts to another party (whether by sale, or the use of photographic rights or whatever). This then raises an interesting potential legal issue not unconnected with the recent 'Glasgow Fourth' discussion:
the UK’s Unfair Contract Terms Act (1977) states that ‘the right to transfer ownership of the goods, or give possession… cannot… be excluded or restricted by reference to any such term except in so far as the term satisfies the requirement of reasonableness’. So, one person cannot take ownership of another person’s goods through the use of an unreasonable contract. [...] a contract can only be reasonable if all of the parties to the contract made a free, informed choice to agree to the contract. [...] a detecting contract that did not require reporting would (probably) not be reasonable. Is it reasonable for a landowner to ill-informedly waive their (commercial) property rights? Is it unethical, but nonetheless legal, “good business” for a metal detectorist to operate under a contract not to report finds to the landowner (and PAS)? Or is it unreasonable for a metal detectorist to more or less actively trick a landowner into waiving their rights? If a contract not-to-report were an unreasonable contract, then it would be an invalid contract. In that case, the unreported metal detecting would be not only unethical but illegal.
While I am not so sure about the final development of the argument, it is an interesting concept. It seems to me that through the fog of the antiquities discussion one key element is emerging, that title to possession of artefacts surely requires a document transferring that title from one to the other, whether it is from the state-as-owner/guardian-of-the-heritage of one kind of regulation system, or the landowner
-as-owner/guardian-of-the-heritage of the British and US systems. In other words a kind of a documentation of 'partage'.  In both systems, without a formal agreement about access to the archaeological heritage in the ground and the disposal of the material remains taken from it, there can be no legal ownership of antiquities in either type of system. So instead of focussing solely on export licences and import restrictions, surely the discussion on the (UNESCO 1970 Convention's) "illicit transfer of ownership of cultural property" in the case of dugup antiquities should include the issue of possession (or non-possession) of documents vesting ownership at source.  That also would largely resolve at one fell swoop the problem of fakes surfacing "from nowhere" on the market. 

And if a UK farmer waives the rights to be shown each and every find, is the contract between him and the finder an 'ureasonable' one, and in the event of any dispute would be considered void in a court of law, thus rendering any items appropriated by a third party under its terms illicit?  This is what Suzie Thomas was getting at in her attempted fourth definition of illicit artefact hunting in the UK a few weeks ago. Obviously there are issues here to be explored further. Maybe the PAS would like to get some of their legal experts on the problem too.

Thanks Sam, for clarifying, interesting point.


Anonymous said...

Cheers. I fear landowners might be told that their ignorance is their own fault (in the same way that it isn't illegal to exploit a customer's ignorance or other circumstances by charging them more than your competitors). But I think it's enough of a grey area that I'd be interested to see a lawyer tear the argument to humiliating shreds.

Anonymous said...

I agree, it seems unlikely that a contract in which one party is not making an informed choice can be legal, especially if the other party is deliberately withholding crucial information.

It's very clear that the NCMD and other contracts don't set it out clearly for the farmer that non-treasure items can be very valuable. The 50% reward in the case of treasure bedazzles and diverts from the vastly more numerous and sometimes far more valuable treasure items yet some contracts provide for ALL non-treasure items to go to the finder.

I did suggest that PAS should look into the legality of the contract in the case of the Crosby Garrett helmet. I wonder if they did? Had they done so, and it transpired the helmet belonged to the farmer alone I wonder if it would now be in a museum?

Legal or not, contracts are potentially licenses to bamboozle - yet the Code recommends (to detectorists alone) they should be signed and PAS recommends that to landowners as well.

Farmer Brown, who campaigns for owners rights alone, says poppycock. The only basis on which people should access a farmers land he says is on the basis everything is his and everything must be brought to him for a decision on what happens to it. No contract needed because that's already the law!

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