My Comments on 'Revising the definition of treasure in the Treasure Act 1996 and revising the related codes of practice'

Here are the responses I sent in reply to the 2019 Treasure Act Review consultation document (Revising the definition of treasure in the Treasure Act 1996 and revising the related codes of practice):

Question 1 Do you agree that introducing a time limit for an expression of interest would help to speed up the treasure process?

Is that the most important thing? In the interests of a systematic and balanced approach to protecting the broader archaeological heritage, taking reasoned decisions within national and regional frameworks seems to me more important. It seems to me that 28 days might be too short a time as for example in the case of a museum that gets several ‘offers’ from the FLO at intervals of a few weeks in some seasons (really? Why not at least in association with the Coroner?). Decisions on such purchases may involve convening a board of trustees or governors and it would be more convenient for them to discuss several matters concurrently and not meet every time a detectorist finds something.

Question 2 What do you think would be the impact of asking the coroner to delay an inquest until an expression of interest is made or the 28 day time limit has expired?

Probably none if it is just a rapid rubberstamp process. If, however, the aim of the Inquest is to establish facts about the circumstances of the discovery – for example, when there is a dispute, the delay may make the facts more difficult to discover (especially if the situation then involves a court case Code E/W 50).

Question 3 Do you consider that the requirement for museums to research possible value before expressing an interest would reduce the waste of resources caused to the acquiring museum and to the British Museum, National Museum Northern Ireland and National Museum Wales who administer the treasure process?

I would say if establishing a value by such do-it-yourself means was at all reliable, then why do we need a fixed TVC in the first place? The Treasure reports do not contain sufficient information to assess likely market values accurately. Surely museums would tend to do this before taking a decision, in order to ascertain whether they can raise the funds needed anyway?

 Question 4 Do you consider that this suggestion is sufficient to reduce the waste of resources or do you think that there are other actions that would increase the efficiency of the process?

One approach that would significantly save resources would be to abolish Treasure ransoms (‘rewards’) altogether. If a find is deemed in an inquest to belong to the state, then why should the public foot the bill for getting what belongs to all citizens? In the same way as the detectorist finding a dead body in the woods is obliged to report it to the Coroner, he can neither sell it, or ask for a reward for doing so (what price a dead body?). Artefact hunters and collectors in the UK can have free-of-charge as many collectable non-Treasure items as they can fit in their pockets as it is, let the ‘cost’ of that be that anything that is deemed significant simply has to be surrendered – on pain of penalty if they attempt to hide it. For twenty years, HMG, DCMS, the PAS and various professional archaeological bodies as well as the representative bodies of the artefact hunting (detectorist) community  have repeatedly (ad nauseam) stressed how ‘law abiding’ Britain’s “metal detectorists” are as a group (that only  “small minority” are law breakers). Removing the present Treasure ransom system should be tried as a means of testing how accurate that is as an assessment of the community.

Question 5 What effect would clarifying that the Paragraph 48 - 50 and 39 - 41 process will apply where a museum withdraws interest at any stage in the treasure process have?

Obviously, if 20 years’ practice shows that clarification is necessary, then the text needs clarifying now. As for paragraph 50 of this consultation document, how is it possible that a finder’s title to the object they have submitted to the Treasure process is under question only at its end? Documenting title and the identity of the landowner should be the first step of the process (in line with the recommendation of the 2009 Nighthawking Report, p. 110, points 11.1.10-12   http://paul-barford.blogspot.com/2019/04/eleven-years-of-of-inaction-on-uk-no.html  concerning reducing the handling of illicit antiquities). This should be inserted into this Code.

 Question 6 What do you think the effect would be of having a time limit on the submission of evidence and comments?

It may prevent adequate collation (by, for example the landowner – not as a rule cogniscent with the workings of the antiquities market) of sufficient information to compare with the TVC offer. This would have to be gathered from dealers or other sources and 28 days may for a number of reasons be insufficient in some times of the year. This period should be longer, say 100 days.

 Question 7 What do you think would be the effect of having a general rule that the TVC will only consider a case twice (this can be increased at their discretion)?

Landowners and finders will feel cheated if they feel that their appeal of the fist decision was examined in a biased manner, and restricting the number of times supporting material can be supplied in controversial cases will leave them no redress. Feelings in the detecting forums are already against the TVC, this will only make it worse (see my answer to question 4).

 Question 8 What do you think the effect of screening lower value finds would be?

On the one hand, obviously, if the majority of these valuations is uncontroversial, then there is no pressing reason to submit them to a fuller more time-consuming valuation process. But there is the added problem of the use of archaeologists to value the financial worth of archaeological artefacts, this goes against some current ethical codes, and is not an approach to archaeological evidence that we should be encouraging – particularly within a body (PAS) that has been instituted to instil ‘best practice’, and it should lead by example.   

 Question 9 Do you think that there are any disadvantages to only allowing six months for bank details to be submitted?

No.

Question 10 In those circumstances, would it be appropriate for any reward that cannot be paid to the desired recipient because they have not provided bank details to be returned to the acquiring museum?

This depends on how the money was raised. If the money came from the museum’s own purchase budget, yes. In other situations, it should be returned to the funding body that supplied the money. If it was raised by public fundraising in order to purchase a specific items for a collection, surely it should go back to the original individual donors unless they specifically signed a waiver specifying otherwise.

 Question 11 Do you see any disadvantages in the suggestion that in circumstances where a landowner and/or occupier cannot be identified, the reward money payable to them would be retained for 12 months and then returned to the museum?

Such a situation can only arise if the title of the parties involved has not been established before the process begins. This should not be allowed to occur (see my answer to question 5), if the submitter cannot show title from the outset, the find and reward should be forfeit. The Treasure process should on no account be based on a laissez faire approach.

 Question 12 In those circumstances, would it be appropriate for any reward that cannot be paid to the desired recipient because they cannot be identified to be returned to the acquiring museum?

As my answer to 10, if the finder cannot identify the landowner, they should lose their share too.

 Question 13 Do you consider that the proposed definitions of archaeologist and archaeological excavation or investigation are accurate?

Neither are accurate and it seems to me neither suit the purpose explained above. All participants taking part in any kind of archaeological work where ‘Treasure’ might be found should sign a waiver to Treasure rewards before they set foot on the site. Instead of the TVC, let the arbiter be the CIfA. For more see here: http://paul-barford.blogspot.com/2019/04/mega-bonkers-from-bloomsbury.html

 Question 14 Do you see any disadvantages in having these definitions in the Code?

Yes, they are bad definitions and do not fit the situation on most excavations of Treasure findspots (Staffordshire Hoard and Lenborough hoard for example)

Question 15 Do you think that these times would improve the rate at which treasure cases are resolved?

Rather than the rush to resolve them as quickly as possible, the onus should be on the quality of the decisions made.

 Question 16 Can you see any disadvantages to a requirement for acquiring museums to explain delays in payments?

Not really, all sides in these procedures should keep the other parties informed about what is going on, for example the procedure could be archived online, allowing all parties to access up to date information on progress through a public record (in keeping with the TA’s requirement for the publication of reports on the process).

 Question 17 Do you think that changing to a static date is a good idea?

Yes, and should have been instituted earlier

Question 18 Do you think 1714 is an appropriate date?

Possibly 1700 would be better, meaning there would be less dithering over non-coin artefacts dated generally to ‘18^th/19th century’, having the entire eighteenth century excluded would be neater.

Question 19 What view do you have of the proposed value based definition and what impact would it have?

In terms of ‘Treasure’, this is probably a good move, and it would allow items that are of a relatively high market value to be claimed as Treasure. What would need to be modified however, would be that (in analogy to prehistoric bronze hoards) the sum could also apply to associated groups of finds of other materials the preservation of which in such a form is in the national interest but that individually would not reach such a sum, such as for example nested groups of pottery vessels (like the ‘gutter finds’ of Wroxeter) where the individual vessels would be worth less than that nominal sum.

Question 20 Do you think that there is any more appropriate way to ensure that important finds which do not currently fall within the definition of treasure are retained?

There should be another option for allowing preservation in public collections on the basis of archaeological (or other) criteria, rather than just market value. Items or groups of items that are recognized by a museum or archaeological body as potentially of national significance or of important display value but which cannot be obtained by a museum by other means could be submitted to a Treasure commission within a designated body (such as the present Treasure Unit) that – by means of an established procedure and according to established criteria - designate the item as Treasure and on archaeological criteria draft an individual order for signature by the Secretary of State, without having to submit it to Parliament (art 2 of the TA would need rewriting to allow this). In this manner items that do not have much market value as collectables, but are important for other means can be protected by this process.   

Question 21 What view do you have of the proposed designation for single gold coins and what impact would it have?

Yes, this would be a good idea. The aim however should not be just to secure finds for display, but also to be kept on a public collection where they will be available for numismatic research as well.  In that case, however, why not extend it to silver coins? Maybe not for such a long time span, say pre-Roman issues up to 1066, to exclude the commoner hammered coins. If the process of screening (question 8) is adopted, the single finds of silver and gold can be sorted into those that will be worth acquisition and those not fairly easily before they enter the Treasure process.

Question 22 Would AD 43 to 1344 be the most appropriate dates for defining single gold coins as treasure?

No, the pre-Roman (‘Celtic’) issues should also be included.
I am not clear why the upper limit is 1344. Gold coins of the period 1066 and <1344 20d="" a="" are="" date="" edward="" from="" henry="" iii="" issue="" of="" restricted="" surely="" those="" to="">1344), and odd Byzantine and Islamic gold coins of this period found in England and Wales. The reasons for extending the timespan to 1344 to capture examples of one English issue are unclear to me (surely if one was found by a detectorist, a museum could purchase it from the market at the same real market value anyway). What effect on the information values about the Western European usage of Byzantine and Islamic (or other) would there be of establishing an arbitrary cutoff date of 1344?

 Question 23 What do you think the impact would be of widening the definition of treasure to include objects any part of which is base metal, which form part of a group of articles of Roman date intentionally buried together?

This would allow the capture of base metal (iron and copper or lead alloy) hoard items that are currently slipping through the Treasure process, obviously a very important aim. I am less sure how one can determine “intentionally” buried, if objects have been recovered from a plough scattered site, or hoiked blindly out of one or more narrow metal detector holes. By what criterion will this have to be documented to qualify? Surely the process should be more inclusive than exclusive (hoards not wanted can be screened out).
How would ‘Roman’ be defined? Some British hoards could contain Roman metal vessels but actually have been deposited before or after the actual Roman period. How do you define the (beginning or) end of the Roman period in the far west and north  of the country?Why actually can this not also cover Early Medieval and Medieval non-coin hoards too? They also are archaeologically important.

 Question 24 What do you think the effect would be of limiting objects that fall under the Care of Cathedrals Measure 2011 and the Faculty Jurisdiction to one legal system?

Consistency. In other cases, so-called Treasure is Treasure, no matter who owns the land. Here a separate category (‘Church Treasure”?) is being created solely on the grounds of modern land tenancy by a single institution. Presumably, this separate designation does not apply to objects from under or around places of worship of other denominations, which may prove divisive. In cases where the decision is taken by the Church authorities to sell, rather than donate, objects to a museum, it would be beneficial to have them go through the TVC in the same way as other Treasure finds. 

 Question 25 Do you consider that the Care of Cathedrals Measure 2011 and the Faculty Jurisdiction are sufficient to protect finds which fall under those systems?

In them, all the finds resulting from a work project are treated as a group, rather than by a Treasure Act that divides some off from the majority. From the point of view of archiving and curating archaeological material, an effective holistic approach is surely the target to be aimed for.

 Question 26 What effect do you think giving coroners the power not to conduct an inquest into treasure would have?

The inquest and its documentation of the circumstances of finding of the object are a record of the ‘grounding’ of the artefacts and the generation of the beginning of a collecting history, important both for the documentation of material that enters a museum, but also those that enter the antiquities market. If these measures could be applied or not arbitrarily, two different categories of portable antiquities would emerge in place of a single one that has documentation all the relevant processes have been followed – and therefore set the standard of best practice. This division would be the result of an arbitrary decision by the Coroner.

 Question 27 What effect do you think the extension of the duty to report a possible treasure find to a person who acquires a find would have?

Chaos. This – as written – is totally unworkable. First of all, it needs to be stated whether these provisions only refer to objects sold (how?) in England and Wales or refers to objects of types most likely to have been from the British Isles on foreign markets when they first surfaced.
“Following commencement of section 30 of the 2009 Act, there will be a presumption under section 30(8), in the absence of evidence to the contrary, that the find was made in England and Wales after the commencement of the Treasure Act”. It is not clear which finds will be thus presumed. If they are on sale in Northern Ireland, Scotland or the Channel Islands too? This is surely inconsistent with paragraph 132 of the consultation document.
(130) “[...] This would make any person notifying the coroner of a possible treasure find under section 8A eligible for a reward. The aim is that this would act as an additional incentive for buyers to report possible treasure objects”. So a buyer who won something in an auction will get their money back – but lose the object? The text of this provision suggests that its authors do not know antiquities collectors very well. What is the market value of an item that an eBay bidder manages to win for $40 but analogous items in the same condition normally fetch $400?How can objects be suspected of falling into any definition of Treasure that involves items being found together (or in a closed context) when the items will reach the market – and thus buyer after being split up?Will an object be ‘presumed’ to be from England in Wales, if the online seller says it was found metal detecting in Flanders? Objects can easily be laundered by saying it came from somewhere outside the UK. Many ancient artefacts are not tied to one region of Europe, and coins travelled widely.
Finally, if artefacts are being sold on the market with no paperwork, a buyer reporting a possible undeclared Treasure find that they have acquired from a dealer that has no papers for it may end up wasting time by reporting an items that had been previously disclaimed. The same object may turn up time and time again as it changes hands.

 Question 28 Do you have any other comments on these proposals to commence these elements of the 2009 Act?

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Question 29 What effect do you think extending the lengthening of time for bringing proceedings for prosecution would have?

This is still too short a time for illicit items held in secret by collectors or dealers to surface. But there is no harm I can see in prolonging it anyway.

I have put my answer to Questions 30 to 32 in a separate post.