Treasure Trove Legislation in Ireland and the UK

Treasure trove and other archaeological discoveries: A comparison of Treasure Legislation in the common law jurisdictions of Ireland, and England, Wales and Northern Ireland

“[O]ne of the most important national assets belonging to the people is their heritage and knowledge of its true origins and the buildings and objects which constitute keys to their ancient history.”¹

INTRODUCTION

This essay is concerned with legislation enacted in two different jurisdictions which attempted to better define, update and regularise the common law concept of treasure trove. In the early 1990s, legislation came into force in both Ireland² and the jurisdiction of England, Wales and Northern Ireland³ in response to problematic issues which arose surrounding various archaeological finds and the inadequacy of the then current rules of treasure trove. The idea of treasure trove has had a long and varied history serving different purposes, with changing and ambiguous definitions. Prior to the UK’s 1996 Treasure Act, Norman Palmer, in 1993 described treasure trove as “an archaic concept, rife with anomalies and unanswerable questions.”⁴ As he explained, “it was evolved for a different purpose from that which it now serves, and it serves its present purpose dismally.”⁵ He was equally disparaging of the state of affairs in Ireland⁶ where treasure trove evolved mostly in parallel with Britain, only to diverge after Independence in the early part of the 20th century. The current raison d’être of treasure legislation is to safeguard for the public, finds of national cultural importance.⁷ It does this by defining treasure and thereafter vesting its ownership in the Crown or the State, as the case may be. It is designed to both encourage people to report finds and to dissuade them from secreting them. The two jurisdictions differ in their approaches to this and although the aims are laudable, we will discuss whether or not they have been achieved. In order to asses this, a brief introduction to the history of treasure trove will be necessary to show how unfit for purpose it became and why that was so. It will be useful, and indeed is one of the purposes of this essay, to compare the two pieces of legislation in order to assess their various strengths and weaknesses. These issues are not static however, as treasure finds have in fact increased since the mid-90s.⁸ Furthermore, the criminal courts are no stranger to issues regarding the misappropriation and/or lack of reporting of treasure finds. The acts themselves put criminal offences relating specifically to treasure finds on a statutory footing, separate from more general ones of theft, and this essay includes an examination of these offences. Towards the conclusion, we will discuss what issues have been identified with the workings of the legislation and comment on possible reform, some of which is in fact in motion today.

TREASURE TROVE – A BRIEF HISTORY

Immediately prior to the introduction of any legislation, the three elements necessary for something to be defined as treasure trove were first, that the object or objects found were made substantially of gold and silver. Second, that the objects were concealed by someone who had the intention of returning for them at some stage (known as animus recuperandi)⁹, and third, that there is no known current owner.¹⁰ As ambiguous and problematic a definition as this might seem, it was not always even this clear.

The history of the concept of treasure trove is one of title. To whom does buried treasure belong when there is no known owner? The origin of both the term and the legal concept of treasure trove is that of Roman Law. As Sir George Hill wrote in 1933, “Search for treasure has gone on as long as the practice of hiding it has existed”¹¹ The term ‘treasure trove’ has its origins in the Latin phrase ‘thesaurus inventus’ which simply means found treasure. During the 11th century in Britain with the arrival of the Normans, the phrase turned into ‘tresor trové’ which was eventually anglicised to the current treasure trove.¹²

Although the precise nature of what happened when a treasure was found in Roman times shifted over time, and is in fact not clear prior to certain dates,¹³ by the time of Emperor Hadrian (76AD – 138AD) anyone who found treasure on their own land was entitled to keep it, as long as there was no known owner. If the treasure was found by chance on someone else’s land it was shared between the finder. The owner of the land however was entitled to keep it all if someone else found it on their land while purposefully searching. The only time the state, or the fiscus¹⁴ got a look in, was if the treasure was found on public land. The treasury then got half.¹⁵ As for what constituted treasure, at this time according to Sir George Hill quoting Julius Paulus, it was “an old deposit of money, of which the memory is no longer extant”.¹⁶ Hill went on to explain that the literal translation of the word ‘money’ was incorrect, and that ‘money’ in fact should be interpreted as including other precious things.¹⁷

Even though treasure trove as a concept existed in Roman Law, and indeed even today very often involves finds of Roman antiquities, we are here concerned with its common law origins and evolution. It is interesting to note however that both the Roman and common law origins of treasure trove, whether vesting finds in the finders/landowners or in the state, were mainly concerned with the monetary value of the finds, not with their historic or archaeological value. The Crown originally laid claim to these finds in order to add to its coffers,¹⁸ and it is perhaps because of this, as time and motivations evolved, the definition of what treasure was, became unsuitable.

For a concise overview of the history of the common law concept of treasure trove, it is useful to look at Lord Denning’s musings in Attorney-General of the Duchy of Lancaster v G.E. Overton (Farms) Ltd, in 1982.¹⁹ In a case he seemed to quite enjoy,²⁰ Lord Denning grappled with the definition of what actually constituted treasure, specifically with regard to what it was made of. He does this by tracing back through time the different legal authorities who have written on the subject, weighing different definitions and reaching a conclusion which was the authoritative definition on treasure trove prior to the introduction of the Treasure Act in 1996.

Denning dates treasure trove in English Law to the time of Edward the Confessor viz. A.D. 900.²¹ His exploration of its history was an attempt to reach a conclusion on “what objects are properly the subject of treasure trove.”²² The crux of the matter was whether only items of gold and silver constituted treasure trove and if so, how much gold and/or silver must be contained therein.

The first authority referred to is Henry de Bracton. As Denning succinctly put it: “He lived in the 13th century. He wrote a great law book. It was in Latin. We have not got his original.”²³ Bracton describes treasure as “silver or gold or metal of some other kind…Treasure is any ancient store of money or other metal which has been forgotten so that it no longer has an owner”.²⁴ Denning moves swiftly on through time to “the greatest authority of all”²⁵ Sir Edward Coke. Denning quotes from Coke as saying “Treasure trove is when any gold or silver, in coin, plate or bullyon hath been of ancient time hides, wheresoever it be found, whereof no person can prove any property, it doth belong to the king, or to some lord or other by the kings grant, or prescription.” Coke went on to say “Gold or silver. For if it be of any other metal, it is no treasure; and if it be no treasure, it belongs not to the king, for it must be treasure trove.”²⁶

As Coke said, any object made of gold or silver was treasure trove, but nothing else. Denning then went on to explain the different authority of Sir William Blackstone. Blackstone defined treasure trove as “where any money or coin, gold, silver, plate, or bullion, is found hidden in the earth, or other private place, the owner thereof being unknow”.²⁷ Denning points out that Blackstone brought in the words ‘money and coin’, and he says “presumably he includes money of any metal as being treasure trove. But, so far as I can see, Blackstone’s view did not prevail.”²⁸

After Denning allows these old authors to “rest in their graves”²⁹ he goes on to lament the very few previously decided modern cases on the matter and look at both more modern authorities and the current practice of the Crown. As he states, “The Home Office have stuck firmly to Coke’s view”.³⁰ As he further explains, “If an object is treasure trove it is offered to the British Museum, or some other museum. If they decide to keep it the finder is paid its market value forthwith. If they do not want to keep it, the object is returned to him to do what he likes with it.”³¹ However, he goes on to say that the practice of the Crown has been altered in the 15 or so years prior to the case thereby broadening the definition of what was gold and silver. He explains that this will have to change as “we must say that Bracton and Blackstone were wrong: and that Sir Edward Coke was right. In these courts we must hold that, in order to be treasure trove, the objects must be of gold or silver.”³² He goes on to say that the proportion must be substantial; in fact, 50% or more.

Denning finishes up with a call for change. “It does appear to be very desirable that the law should be amended on some such lines [as a previously failed antiquities bill], but it is for Parliament to do it and not for the courts.”³³ This is exactly the sentiment echoed by the Irish Chief Justice six years later in his judgment in Webb v Ireland³⁴, more on which we shall see below.

This was the state of affairs in Britain prior to any treasure legislation and it serves to show not only the ambiguous history and nature of the common law of treasure trove, but also that there were clear indications of its inadequacy in safeguarding the British nation’s cultural heritage. The Crown was now paying market value for found treasure and could therefore no longer be said to be deriving much financial gain from finds. What it sought now was cultural gain and, as will be discussed, treasure trove was not fit for this purpose at all. One would think in the enacting of legislation these inadequacies would be resolved. One would be mistaken.

THE PROBLEMS THAT LEGISLATION WAS TRYING TO RESOLVE

In order to assess the effectiveness of legislation, we must first look at what issues it was trying to satisfactorily deal with. As explained above, treasure trove had evolved in its purpose without evolving its methods. With the introduction and rise of amateur metal detecting from the 1970s³⁵ finding buried treasure was not only easier than ever before but had become a hobby. The lack of better protections resulted in absurdities as we shall see below but more importantly, did not protect found objects for the benefit of the nation.

When objects were found (as is still the case), they had to be reported to the local coroner who made a decision on whether they constituted treasure trove and thus belonged to the Crown. Two main issues arose given the definition of treasure trove, that severely limited the amount of finds that could be categorised as such. First, the objects had to be substantially made of gold or silver. This could lead to hoards being split, with objects not made of precious metals, although archaeologically valuable, being lost.³⁶ Secondly, there was the requirement that the objects were originally buried with an intention to recover them. As Roger Bland stated just prior to the introduction of the 1996 Treasure Act, “The need to determine the intention of the individual who buried an object several thousands of years ago causes major difficulties today and is in any case a totally irrelevant consideration in deciding whether an object merits legal protection.”³⁷

Bland gives as an example The Middleham Jewel. This pendant was found in 1985 by a metal detectorist in North Yorkshire and was considered a hugely significant find. Enough to be ultimately bought by the Yorkshire Museum for £2.5million. However, the coroner declared that the find was not treasure trove, as it was not deemed to have been buried with an intention to retrieve it later.³⁸ As Bland explains, “single objects, however important they might be, are seldom declared treasure trove because it is generally assumed that they are more likely to have been lost than deliberately buried.”³⁹ It is only because of laws surrounding the export of items such as this that it was able to be purchased on behalf of the British people.⁴⁰

Then there was the Sutton Hoo ship-burial. In the late 1930s, Mrs. Edith Pretty organised a series of excavations on her lands. What was found has been described as “one of the greatest archaeological discoveries of all time”⁴¹ Although the find was replete with precious metals and treasure, a coroner’s inquest held the find not to be treasure trove. This is because it was a burial and objects buried as part of a funeral service are quite obviously not meant to be recovered. The find therefore, one of almost immeasurable value, belonged to the landowner Mrs. Pretty.⁴² She could do what she liked with it. It is only through her good will, and not all through any laws, that she decided to give it to the British Museum. This was a lucky escape and clearly shows how unfit treasure trove was as a concept for safeguarding this find. Finds of this sort cannot arrive out of the ground into a lacuna in the law; they’re too important.

Prior to the coming into force of the Theft Act 1968, there was a common law crime of fraudulent concealment of treasure trove.⁴³ This was abolished by section 32(1)(b) of the 1968 Act however, and thereafter any find would first have to be deemed treasure trove to be capable of being stolen from the crown. This made it very hard to enforce treasure trove laws.⁴⁴ What’s more in terms of rewards, the landowners were not compensated if the finds were deemed to be treasure (unless of course they found it themselves). They would be however, full owners if the objects were not treasure trove. This is nonsensical. As Roger Bland explained, this led to the absurd situation where a man was fined £100 for trespassing in 1987 when he dug up 88 gold coins on someone else’s land without permission but received £2,000 for their acquisition by the British Museum. The landowner received no compensation.⁴⁵

To further add to these issues the increased popularity of metal detecting led to more and more finds than ever before.⁴⁶ This, along with cases such as the Middleham Jewel, R v Hancock⁴⁷ and Waverley Borough Council v Fletcher⁴⁸ put added pressure on the government of the day to regularise the position. In Waverly, an argument over the ownership of a medieval gold brooch found while metal detecting in a local park did not include any stake by the government at all. The find had already been declared as not treasure trove. In Hancock, Mr. Hancock was convicted of theft when he was found by the police to be in possession of a number of valuable coins excavated from an archaeological site in Wanborough, Surrey. The coins had been declared treasure trove at a coroner’s inquest. This conviction was overturned however due to a misdirection by the trial judge who didn’t account for the different standards of proof required for a declaration of treasure trove as opposed to those required for a criminal conviction. The coroner had only to be satisfied on the balance of probabilities that the items constituted treasure trove, while in a criminal court, a standard of beyond reasonable doubt was needed.⁴⁹

These are some of the problems that surrounded treasure trove as it then was. The legislation that came in in 1996 ostensibly sought to address these issues and we shall see that in some instances it succeeded while in others, it did not.

UK LEGISLATION

The introduction of legislation in Britain was not a simple matter and it had many false starts. As Sir George Hill said in 1936. “The opinions of the old lawyers and decisions in many cases have fixed the definition in its present narrow, illogical, not to say stupid, terms”⁵⁰ and he suggests that any modification should be done gently.⁵¹ This view prevailed for decades. For example, Lord Talbot de Malahide in 1858 introduced a Private Member’s bill with the aim of reforming the law of treasure trove. It was not successful but did establish the custom of paying rewards to finders, which of course increased reports received.⁵² There were a variety of opinions on what should be included in any legislation and attempts by the Council for British Archaeology to introduce legislation in the decades after World War II found different interests at odds.⁵³

For example, a simple Bill introduced in 1981 enjoyed popular support with most save the Government itself. Although open minded, the government had some concerns. The Earl of Avon, on behalf of the government, stated that “this Bill would make a fundamental change in the laws of property and in citizens’ rights of ownership.”⁵⁴ This Bill ultimately failed in the House of Commons.⁵⁵

Ultimately in circumstances of public pressure resulting from cases such as those described above, the Government set up two reviews run by the Department of the Environment. The first was to look at the possibility of setting up a system for reporting finds that did not constitute treasure trove and the second was an examination of the procedures around the payment of rewards.⁵⁶ Over the next few years with the efforts of the Earl of Perth a new Bill was drafted which included the results of consultations with a wide range of interest groups. Having said that however, it went through a number of drafts and changes in order to placate different parties and to limit the need for additional resources.⁵⁷ As Roger Bland put it, “The final version that has emerged is much less ambitious than earlier drafts.”⁵⁸ Lord Pert introduced the Treasure Bill in 1994. Over the next two years it struggled in the House of Commons. Some objected “because metal-detectorists had lobbied them against it [and] one because he felt that it amounted to the nationalisation of objects that were properly the property of landowners”.⁵⁹ However, the Treasure Act 1996 was enacted on the 4th of July that year and came into force the following year.

We will turn now to consider the content of the legislation.

THE TREASURE ACT 1996

As previously mentioned, the legislation taken on its own was not hugely drastic. It did however put on a solid footing the procedures and definitions surrounding finds and can at least be seen as a steppingstone to further protections going forward. It also made some changes that were of significance.

With regard to its aim, the Act simply states that it is “An Act to abolish treasure trove and to make fresh provision in relation to treasure.” Firstly and most importantly is the revised definition of treasure. This legislation was required because of the inadequacies with the protections in place for the safeguarding of finds of historical importance. Treasure is defined in a number of ways in section 1 of the Act. At first instance it is any object other than a coin which is both at least 300 years old and at least 10 percent by weight of precious metal.⁶⁰ This is clearly a lot less of a percentage than Lord Denning had taken treasure trove to be at common law. Secondly, with regard to coins, if at least two are found and at least one is 300 years old or more and 10 percent precious metal, they will be classed as treasure. If ten or more coins are found in the same find one of which is at least 300 years old, the find will be treasure. It is clear that the definition has been substantially widened but it again appears unnecessarily convoluted, bitty and arbitrarily restrictive. The Act also states that treasure includes anything that would have been treasure trove if found before the enactment of section 4.⁶¹

Having said that, the Act does go further and brings within its remit objects that are not made of precious metals. Section 1(1)(d) states that any object that is part of the same find as one coming under the definition of treasure shall be included. This would include earthenware pots and items made of precious stones or glass etc. but only if found with treasure. Finally, the Act sets out in section 2 that the Secretary of State may specifically designate a class of object he considers to be of “outstanding historical, archaeological or cultural importance”.⁶² This must be done by statutory instrument and approved by both Houses of the legislature. It does not therefore seem as broad and strong a power as one might think. It was utilised however in 2002 and expanded the definition of treasure slightly to include Iron Age or earlier finds containing any gold or silver or, any finds of more than one prehistoric object containing merely base metals.⁶³

As with treasure trove, anything that is treasure is vested in the Crown or its franchisee.⁶⁴ The Act also explicitly states that it does not matter where the treasure was found nor the circumstances in which it was left “including being lost or being left with no intention of recovery.”⁶⁵ Again, this is a substantial expansion of the definition, and a welcome one at that.

Section 7 of the Act maintains the jurisdiction of coroners in the decision-making process while section 9 sets out the procedure for these inquests. Section 10 gives the Secretary of State discretionary powers to pay rewards to finders, landowners and occupiers. This is also an expansion of the practice that previously existed in treasure trove. The Secretary must follow the code of practice that section 11 of the Act requires him to prepare.

Thus, we have a brief overview of the contents of the Act save for section 8. This section is the one that imposes both duties and potential liabilities on finders. If a person finds something they believe or have reasonable grounds for believing is treasure, they must notify the local coroner within 14 days. Failing to do so is an offence punishable by up to three months imprisonment, a fine, or both. Section 8A which is not yet in force, will impose similar duties and liabilities on those who acquire treasure from another. They must notify the coroner if they believe or have reasonable grounds for believing that the object they have acquired is treasure and that it has not already been notified to the coroner. Section 8 has been remarkably under used however. Usually anyone found to be hiding treasure finds or not reporting them will be prosecuted under the Theft Act 1968. One can infer this is for two main reason. First, all those involved from the Police to the Judges are far more familiar with the Theft Act than the Treasure Act and will therefore opt for said familiarity given the chance. Secondly, potential punishments are much higher under the Theft Act than the Treasure Act.

In conjunction with the introduction of the Treasure Act, the Department of National Heritage published ‘Portable Antiquities’ which was a discussion document relating to archaeological finds which did not fall under treasure trove or the Treasure Act. It was hoped to introduce a scheme whereby finds would be reported and kept note of in order to further archaeological knowledge, even in cases where the Crown had no title rights in the object. Over 13,500 objects were recorded in the first year alone. This was during its pilot period and it eventually expanded the scheme to cover all of England and Wales. The scheme now promotes education about finds and encourages the reporting of them. It is currently run by the British Museum and publishes all its findings online.⁶⁶

The Treasure Act also covers Northern Ireland as previously stated. There are some minor differences however. Northern Ireland has its own act⁶⁷ relating to historic monuments which makes it more difficult to search for archaeological object without permission from the Department of the Environment. It also makes it obligatory to report any archaeological find of importance, whether it is treasure or not. There are also different administrative processes and as a result, Northern Ireland has its own Code of Practice.⁶⁸ Other definitions and penalties however remain the same under the Act.

The Treasure Act therefore utilises both the carrot (monetary rewards) and the stick (offence of failure to notify) as a means to safeguard finds of historical importance. It has expanded the definition of treasure to widen its net and has in parallel released a code of practice and the Portable Antiquities Scheme. This evolution of treasure trove is a move in the right direction, but we shall assess whether it goes far enough.

PROSECUTIONS

In November last year George Powell and Layton Davies received ten years and eight and a half years respectively in jail for theft against the crown. The pair of metal detectorists found a hoard of jewellery, silver ingots and coins in Herefordshire. Commander Supt Sue Thomas said in relation to the case “I hope this trial demonstrates to the metal detecting community we take this sort of crime very seriously. It is a criminal offence to not declare finds of treasure to the local coroner’s office.”⁶⁹ This is of course true, but as previously discussed, the maximum sentence for failure to declare is three months and a fine. If the items are in fact treasure, one is of course committing theft against the true owner viz. the Crown. Powell and Davies were therefore prosecuted under the Theft Act 1968. It could be argued that it is slightly redundant having an offence in the Treasure Act at all when the Theft Act provides a much stronger deterrent. Theft is defined however as a person who “dishonestly appropriates property belonging to another with the intention of permanently depriving the other of it.” (section 1(1)) The Treasure Act could conceivably be useful therefore in a situation where treasure is found with an initial intention to notify the coroner within 14 days, but where this intention changes at a later time. It may be difficult to argue theft, whereas failure to notify requires no mens rea.

Eight or ten years may seem excessive but with treasure finds and their theft, we are talking about irreparable damage being done to the possibility of furtherance of archaeological knowledge. It is not just a theft of something worth between £3 million and £12 million from the crown (which is a pretty substantial amount) but is worse for the fact that it is a theft against all people as ultimate owners of treasure and a theft of potential historical knowledge that warrants such strict punishment. These men were metal detectorists; they knew what they were doing and what their duties were.

Kate Harding became the first person to be prosecuted under the Treasure Act in 2010. After repeated reminders she failed to report a piedfort that she found in her garden. During her prosecution, her story changed to one in which her mother had found the ‘coin’⁷⁰ years earlier (before the Treasure Act came into force). This version of events was the one the media reported and when she was found guilty, the public was very much on her side. A barrister in fact contacted her and told her she would have a strong case if she had it reopened. This barrister was going off the media accounts of the find and not Ms. Harding’s original tale. She however did apply to have the case reopened and the CPS decided it was not in the public interest to go through it all again. Regardless, the piedfort was declared treasure by the local coroner and given to the British Museum.⁷¹

It is not the purpose of this essay to laboriously trawl through any and all treasure finds and any associated court cases, but rather to show the powers and limits of the Treasure Act as it now stands. We will be assisted in this matter by casting our gaze across the Irish Sea to assess how things are done there.

THE IRISH QUESTION

Although not necessary to chart the history or the differences in the development of the legal systems in Ireland and England and Wales, it would be helpful to isolate at least the idea of treasure trove. However, Ireland’s long, complex and fractious relationship with its nearest island neighbour makes even this hard to pin down. Sir George Hill states that “early Irish law appears to contain nothing concerning treasure trove.”⁷² He is here referring to Brehon Law which was a complex and humane ancient law of Ireland far pre-dating the common law.⁷³ However, over the centuries, Brehon Law ran somewhat in parallel with English law while ultimately, with Oliver Cromwell’s invasion of the country, it was completely usurped by the common law.

Hill in fact states that there was no modification in Ireland of treasure trove as between Poyning’s Act in 1495 and the creation of the Free State of Ireland in 1922. “Until that event, the following description applied to all Ireland. Treasure trove was the property of the Crown in right of its prerogative.”⁷⁴ Sir George Hill was not a lawyer and I don’t wish to hold him to a reading of the historical legal position of treasure trove in Ireland. Suffice it to say that when the Common Law took root in Ireland, treasure trove was there with it and at the very least, we can say that after the Act of Union in 1800 and up until the creation of the Free State of Ireland it existed and was the same in terms of definition if not in terms of procedures.⁷⁵

What then can be said about the state of the matter after Irish independence? Again, at the risk of getting bogged down in history it is sufficient to take as a starting point the enactment of the Free State Constitution in 1922 (followed by the 1937 Constitution). In this Constitution the country of Ireland was declared and the people themselves proclaimed sovereign. All ties to the Crown were severed and the State, as a representative of the people took over any remaining duties or benefits that had previously belonged to the Crown. Although Ireland retained the common law system, all courts were to be Irish with the British courts thereafter to be of persuasive authority only.⁷⁶ It was assumed that along with most laws things like treasure trove carried over into the new regime without alteration but as we shall see this was not always the case.

Ireland has long had legislation relating to finds of archaeological interest. “In the Republic of Ireland, since 1930, the National Monuments Act has regulated, by licence, the excavation, export and conservation of all archaeological objects. It also requires that all finds of archaeological objects, casual or otherwise, be reported to the National Museum of Ireland.”⁷⁷ What is important about this Act for our purposes is the definition of ‘Archaeological Object’ which survives mostly intact today in Ireland’s equivalent Treasure Legislation (actually an amendment of this 1930 act) and the fact that within that definition, treasure trove is explicitly excluded. The state maintained that it had a right to treasure trove and did not waive this right. This is because although the 1930 Act sets out duties for finders of archaeological objects and imposes punishments for non-reporting of finds, it does not vest ownership of these finds in the State. Clearly the ‘powers that be’ wanted to make it clear that they were not removing treasure trove from the common law of Ireland. Unfortunately for them, the assumption that treasure trove would simply continue on as is, in the face of such fundamental constitutional change in the country turned out to be misguided.

In Byrne v Ireland in 1972,⁷⁸ the Irish Supreme Court held that the Crown’s prerogatives were inconsistent with the Free State Constitution and the Constitution that succeeded it. Specifically, Byrne abolished State immunity from tortious liability. This is important because of course, treasure trove is first and foremost a prerogative of the crown. Whether it even existed in modern Ireland at all would be thrashed out in Webb v Ireland in 1988.

WEBB V IRELAND

In 1980, Michael Webb and his son Michael, discovered a hoard of objects while using metal detectors in Co. Tipperary. This was a hugely significant find of early Christian metalwork and is now known as the Derrynaflan Hoard. The Webbs duly reported the find and were ultimately offered what they considered to be a paltry award as compared to the value of the pieces.⁷⁹ They refused and attempted to assert ownership rights over the find with the State in opposition arguing that treasure trove vested the find in the nation. The Webbs won in the High Court, but it is the decision of the appeal in the Supreme Court that concerns us and which elucidated the state of treasure trove in Ireland at that time.

Chief Justice Finlay held that any royal prerogatives in existence before the Free State Constitution of 1922, were no longer extant. This was based on authority of Byrne v Ireland which was mentioned above. This of course meant that treasure trove as a prerogative did not exist. However, in a wonderful use of legal gymnastics, Finlay CJ found that “the prerogative of treasure trove known to the common law should be upheld not as a right derived from the Crown but rather as an inherent attribute of the sovereignty of the State which was recognised and declared by Article 11 of the 1922 Constitution.”⁸⁰ With one hand the Chief Justice took away treasure trove and with the other he brought it back. The Webbs were ultimately given a fair reward for their find, and the State was declared owner of the hoard. Walsh J and McCarthy J ultimately agreed with the ruling but with slightly differing reasoning. It is not necessary however to delve into these intricacies of the case.

Interestingly Finlay CJ made comments echoing those of Lord Denning when he said “the circumstances of this case may be thought to point to the necessity for such [treasure] legislation. The right to treasure trove…is but an outmoded remnant of the mediaeval prerogatives which were vested at common law in the monarch.”⁸¹ Indeed that call to action was answered by legislation enacted in 1994.

THE IRISH LEGISLATION

As mentioned above, Ireland already had legislation relating to archaeological finds in the National Monuments Act 1930. As was the case in Britain, there was concern about the rise in metal detecting, so this legislation was updated with the National Monuments (Amendment) Act 1987. This piece of legislation would have been in the pipeline before the Webb case however and as such, did not make any reference to treasure trove. It did however strictly control the use of metal detecting devices and require finders of archaeological items to report their finds within 4 days.⁸² It was the National Monuments (Amendment) Act, 1994 that finally made the position of treasure trove and the finds of archaeological items in Ireland clear.

The 1994 Act is self-described as “an act to make further provision for the protection and preservation of archaeological objects [and] to define archaeological objects to include treasure trove”.⁸³ Section 14 of the 1994 Act amends the principal Act by removing the exclusion of treasure trove from the definition of ‘archaeological object’. Treasure trove therefore now fell under the general term of ‘archaeological object’. Furthermore, section 2 of the 1994 Act vested ownership in the State of any archaeological object found. That left the definition of ‘archaeological object’ as follows:

“any chattel whether in a manufactured or partly manufactured or an unmanufactured state which by reason of the archaeological interest attaching thereto or of its association with any Irish historical event or person has a value substantially greater than its intrinsic (including artistic) value, and the said expression includes ancient human, animal or plant remains.”⁸⁴

There is no mention of what material the find must be made of or in what percentage. There is also no mention of how old it should be or where or if it was buried. Clearly this definition (which has been around since 1930) is far broader than the equivalent one that came into force in the UK just two years later. In other areas the Act is quite similar to UK legislation. Rewards may be given to the finders, the landowners and the occupiers but this is at the discretion of the Director of the National Museum of Ireland in consultation with Minister for Finance. Any find must be reported within four days and a failure to do so constitutes an offence. The penalties however are much stricter than those in the UK.⁸⁵

One major difference with the Irish situation, is that there is no equivalent to the Portable Antiquities Scheme. So, while the definition of what belongs to the State is far broader than that in the UK, public education and ease of information. However, there is obligatory reporting under the law for a much broader range of objects. This is tempered however by the fact that it is far more difficult in Ireland to get a license to use a metal detector, and consequently, there are not as many finds as there are in the UK. Eamonn Kelly describes the 1930 Act together with its amendments as providing museums with “the muscle to defeat the archaeological looters, and to stem the wholesale loss of our past into private collections.”⁸⁶

It would appear that there is some happy medium out there which could take elements from both jurisdictions to better serve the purpose of finding and protecting objects of archaeological import. Although beyond the scope of this essay, there are also lessons to be learned from other jurisdictions. For instance, in Scotland, with the common law notion of ‘bonna vacantia’, the definition of what archaeological finds belong to the Crown is extremely broad.⁸⁷ The Isle of Man has also recently broadened its own definition substantially.⁸⁸ We shall see that this view is shared and the debate is ongoing.

THE CALL FOR REFORM

In February 2019, the Department for Digital, Culture, Media and Sport published a document seeking public consultation on proposed changes to the Treasure Act.⁸⁹ As outlined in this essay, the government agrees that “the operation of the Act over the last 21 years has raised issues, such as limitations with the current treasure definitions.”⁹⁰ In particular they refer to the Crosby Garrett Helmet. This was an ancient Roman helmet found in 2010 which was ultimately sold by Christie’s for £2.3million.⁹¹ As it was a single find made of bronze however, it did not fall under the Act.⁹²

The consultation document sets out their main aims. These are centred around improving the speed and efficiency of the process in order to make better use of resources, and to expand the definition of treasure to “focus the process on significant archaeological, cultural and historical finds.”⁹³ The consultation paper points out that the somewhat arbitrarily chosen period of 300 years may become problematic as time moves on. “The Industrial Revolution and consequential mass production began in Britain in the 18th century. Consequently an increasing number of lower value mass produced finds will be defined as treasure under the 300 year rule”.⁹⁴ They suggest a static date of 1714 (which may also seem slightly arbitrary but is at least consistent). They further suggest changes such as that items over 200 years old but with a value of £10,000 or more should be captured by the Act.

The paper further looks to both Scotland and Northern Ireland for future reform. They suggest “[an] introduction of a process similar to that in Scotland, whereby all archaeological objects become the property of the Crown…[and] the introduction of a regulation as in Northern Ireland where archaeological digging of any sort (both by professional archaeologists and others) is only allowed by permit.”⁹⁵ These are bold moves with the stated aim to “have a treasure process that supports the intention of the act and encourages positive behaviour.”⁹⁶ These are welcome suggestions but they are as of yet only that, suggestions. It remains to be seen what the response to the public consultation will be and whether any action will be undertaken.

CONCLUSION

As I have attempted to outline in this essay, the story of treasure trove from antiquity to its current form in UK legislation is a messy one. I would argue that it is needlessly so, at least in this modern era. The legislation of both Ireland and the UK each have positive aspects often in different areas. Looking through history with a broad angled lens together with hindsight, the current calls for change as seen in the public consultation document seem almost inevitable. Treasure trove was used as an attempt to better protect Britain’s cultural heritage because it was thought the only thing available. This is why it struggled to expand in definition when it found a new legislative home. However, in Ireland it can be seen that the world does not collapse if definitions are broadened and it can be very limiting to entrench oneself in common law definitions when, with the introduction of legislation there exists an opportunity for alteration, expansion or even deletion of age old rules. The current move for reform is a welcome one as it must always be borne in mind what the purpose of all of this is. That is, for our shared benefit and the furtherance of collective knowledge. It is high time that legislation caught up with this worthy goal.

© Ronan Bergin 2019

¹ Michael TS Webb and Michael O’Connell Webb v Ireland and The Attorney General (Webb v Ireland) [1988] IR 353 [383] (Finlay CJ)
² Sometimes referred to as The Republic of Ireland.
³ Although Northern Ireland is a separate jurisdiction it is, albeit with some slight differences, covered by the Treasure Act 1996 and will therefore be treated as being included with the jurisdiction of England and Wales for the purposes of this essay
⁴ Norman E Palmer, ‘Treasure Trove and Title to Discovered Antiquities’ (1993) 2 IJCP 275, 275
⁵ ibid 275
⁶ ibid 276
⁷ Roger Bland, ‘Rescuing Our Neglected Heritage: The Evolution of the Government’s Policy on Portable Antiquities in England and Wales’ (2005) 14(4) No. 56 Cultural Trends 257, 257
⁸ ibid 262-263
⁹ Palmer (n 4) 280
¹⁰ ibid 277
¹¹ Sir George Hill Treasure-trove: the law and practice of antiquity (London: H. Milford 1933) 4
¹² Ben Zimmer, ‘Treasure Trove’ The New York Times Magazine (New York 7 January 2011) <www.nytimes.com/2011/01/09/magazine/09FOB-onlanguage-t.html> accessed 01 January 2020
¹³ Hill (n 11)
¹⁴ The Roman Treasury
¹⁵ George Mousourakis Fundamentals of Roman Private Law (Heidelberg: Springer 2012) 139-140
¹⁶ Hill (n 11) 8
¹⁷ ibid 18 Sir George Hill Treasure trove in law and practice: from the earliest time to the present day (Oxford: The Clarendon Press 1936) 202 19 [1982] Ch. 277
²⁰ ibid 287 Lord Denning describes the two or three days at trial as “fascinating”
²¹ ibid 285
²² ibid 285
²³ ibid 287
²⁴ Henry de Bracton On the laws and customs of England / Translated, with revisions and notes, by Samuel E. Thorne Volume Two (Cambridge: In association with the Seldon Society [by] the Belknap Press of Harvard University Press 1968) 338
²⁵ Overton (Farms) Ltd. (n 19) 287
²⁶ ibid 288 Lord Denning quoting Sir Edward Coke Co. Inst., Pt. III (1817 ed.) 132
²⁷ Sir William Blackstone Commentaries on the laws of England Volume 1 (Oxford: Oxford University Press 2016) 190
²⁸ Overton (Farms) Ltd. (n 19) 289
²⁹ ibid 289
³⁰ ibid 290
³¹ ibid 291
³² ibid 291
³³ ibid 293
³⁴ (n 1)
³⁵ Jane Fiddick The Treasure Bill 1995/96 [Bill 21] Research Paper 96/36 (London: House of Commons Library 1996) 24 quoting the Federation of Independent Detectorists, in their response to the Treasure Bill introduced by Lord Perth in 1993/94
³⁶ Roger Bland, ‘Treasure Trove and the Case for Reform’ (1996) 1 Art Antiquity & L 11, 11
³⁷ ibid 11
³⁸ ibid 16
³⁹ ibid 16
⁴⁰ See the Waverly Criteria as used by The Reviewing Committee on the Export of Works of Art and Objects of Cultural Interest
⁴¹ Sue Brunning, ‘Eighty years (and more) of Sutton Hoo’ (The British Museum Blog 24 July 2019) <https://blog.britishmuseum.org/eighty-years-and-more-of-sutton-hoo/> accessed 01 January 2020
⁴² Bland (n 36) 16
⁴³ Alan Ward, ‘Treasure Trove and the Law of Theft’ (1992) 1 IJCP 195, 196
⁴⁴ Bland (n 36) 18
⁴⁵ ibid 14
⁴⁶ ibid 20
⁴⁷ [1990] 3 All ER 183, CA
⁴⁸ [1996] QB 334
⁴⁹ Bland (n 36) 18
⁵⁰ Hill (n 18) 293
⁵¹ ibid 294
⁵² Bland (n 36) 13, 20
⁵³ ibid 20
⁵⁴ ‘House of Lords Debates’, (HL Deb 08 February 1982 vol 427 cc16-33) 32, <https://api.parliament.uk/historic-hansard/lords/1982/feb/08/antiquities-bill-hl> accessed 02 January 2020
⁵⁵ Bland (n 36) 21
⁵⁶ ibid 21
⁵⁷ ibid 22
⁵⁸ ibid 22
⁵⁹ Bland (n 36) 24
⁶⁰ Defined in s. 3(3) of the Treasure Act 1996 as ‘gold or silver’
⁶¹ ibid section 1(1)(c)
⁶² ibid section 2(1) 63 Treasure (Designation) Order 2002, SI 2002 No. 2666
⁶⁴ Treasure Act (n 60) s. 4(1)
⁶⁵ ibid section 4(4)
⁶⁶ Portable Antiquities Scheme, ‘About the Scheme’ <https://finds.org.uk/about> accessed 07 January 2020
⁶⁷ Historic Monuments and Archaeological Objects (NI) Order 1995
⁶⁸ Department for Digital, Culture, Media & Sport, ‘Revising the definition of treasure in the Treasure Act 1996 and revising the related codes of practice’ <https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/775560/Revising_the_definition_of_treasure_in_the_Treasure_Act_1996_and_revising_the_related_codes_of_practice.pdf> accessed 02 January 2020, 12
⁶⁹ Steven Morris, ‘Detectorists jailed for stealing £12m Viking Hoard of gold and silver’ The Guardian (London 22 November 2019) <https://www.theguardian.com/uk-news/2019/nov/22/detectorists-jailed-for-stealing-12m-viking-hoard-of-gold-and-silver> accessed 07 January 2020
⁷⁰ A piedfort is different from a coin which is important because single coin finds are not covered by the Treasure Act
⁷¹ Carolyn Shelbourn, ‘A Tale of Two Prosecutions: Prosecuting Heritage Crime in England and the United States, a Cautionary Tale’ (2014) 19 Art Antiquity & L 253, 254-258
⁷² Hill (n 18) 263
⁷³ Encyclopaedia Britannica, ‘Brehon Laws: Ancient Irish Laws’ < www.britannica.com/topic/Brehon-laws> accessed 07 January 2020
⁷⁴ Hill (n 18) 264
⁷⁵ ibid 264
⁷⁶ Patrick Fitzgerald, ‘The Status of British Law in Independent Ireland: a Guide for Post-Brexit Britain?’ (2017) 20, Issue 1 Irish Journal of European Law 24, 32
⁷⁷ Eamonn P Kelly, ‘Protecting Ireland’s Archaeological Heritage’ (1994) 3 IJCP 213, 213
⁷⁸ [1972] IR 241
⁷⁹ Suzie Thomas, ‘Derrynaflan Hoard’ (Trafficking Culture last modified 14 August 2013) <https://traffickingculture.org/encyclopedia/case-studies/derrynaflan-hoard/> accessed 02 January 2020
⁸⁰ Webb (n 1) 383
⁸¹ ibid 386
⁸² S. 15 National Monuments (Amendment) Act 1987
⁸³ National Monuments (Amendment) Act 1994, Preamble
⁸⁴ ibid s. 14
⁸⁵ S. 13 of the 1994 Act provides for terms of up to 5 years in prison on conviction on indictment together with a hefty fine.
⁸⁶ Eamonn P Kelly, ‘Defeating the Archaeological Looters’ (1995) British Archaeology 4, 8
⁸⁷ D L Carey Miller and Alison Sheridan, ‘Treasure Trove in Scots Law’ (1996) 1 Art Antiquity & L 393, 396
⁸⁸ The Treasure Act, 2017 Isle of Man gives the Manx Museum and National Trust the power to decide on the importance of finds and thus declare them treasure
⁸⁹ Revising the definition of treasure (n 68)
⁹⁰ ibid 4
⁹¹ ‘Crosby Garrett Helmet found in Britain sells for £2.3m’ The Telegraph (London 7 October 2010) <https://www.telegraph.co.uk/news/8048670/Crosby-Garrett-Helmet-found-in-Britain-sells-for-2.3m.html> accessed 07 January 2020
⁹² Revising the definition of treasure (n 68) 4
⁹³ ibid 5
⁹⁴ ibid 27
⁹⁵ ibid 40-41
⁹⁶ ibid 40

BIBLIOGRAPHY

Legislation
Ireland

• Poynings’ Act 1495 • Constitution of the Irish Free State (Saorstát Eireann) Act, 1922 • National Monuments Act, 1930 • Constitution of Ireland, 1937 • National Monuments (Amendment) Act, 1987 • National Monuments (Amendment) Act, 1994 UK
• Theft Act 1968
• Historic Monuments and Archaeological Objects (NI) Order 1995 • Treasure Act 1996 • Treasure (Designation) Order 2002 SI 2002 No. 2666

Isle of Man

• Treasure Act 2017
  Case Law • Byrne v Ireland [1972] IR 241 • Attorney-General of the Duchy of Lancaster v G.E. Overton (Farms) Ltd [1982] Ch. 277 • Michael TS Webb and Michael O’Connell Webb v Ireland and The Attorney General (Webb v Ireland) [1988] IR 353
• R v Hancock [1990] 3 All ER 183, CA
• Waverley Borough Council v Fletcher [1996] QB 334

Journal Articles

• Bland, R, ‘Treasure Trove and the Case for Reform’ (1996) 1 Art Antiquity & L 11
• Bland, R, ‘The Treasure Act and Portable Antiquities Scheme: A Progress Report’ (1999) 4 Art Antiquity & L 191
• Bland, R, ‘Rescuing Our Neglected Heritage: The Evolution of the Government’s Policy on Portable Antiquities in England and Wales’ (2005) 14(4) No. 56 Cultural Trends 257
• Fitzgerald, P, ‘The Status of British Law in Independent Ireland: a Guide for Post-Brexit Britain?’ (2017) 20 Issue 1, 24
• Kelly, E P, ‘Protecting Ireland’s Archaeological Heritage’ (1994) 3 IJCP 213
• Kelly, E P, ‘Defeating the Archaeological Looters’ (1995) British Archaeology 4, 8
• Miller, D L C and Sheridan, A, ‘Treasure Trove in Scots Law’ (1996) 1 Art Antiquity & L 393
• Palmer, N, ‘Treasure Trove and Title to Discovered Antiquities’ (1993) 2 IJCP 275
• Palmer, N, ‘Title to Antiquarian Finds: Perpetuating the Impenetrable ‘ (1996) 1 Art Antiquity & L 157
• Shelbourn, C, ‘A Tale of Two Prosecutions: Prosecuting Heritage Crime in England and the United States, a Cautionary Tale’ (2014) 19 Art Antiquity & L 253
• Ward, A, ‘Treasure Trove and the Law of Theft’ (1992) 1 IJCP 195
• Ward, B, ‘Treasure, Treasure-trove and the Nation’s Heritage: Whose Past is it Anyway: York, 23-25 April 1993’ (1994) 3 IJCP 177

Books

• Blackstone, Sir. W, Commentaries on the laws of England Volume 1 (Oxford: Oxford University Press 2016) •
• De Bracton, H, On the laws and customs of England / Translated, with revisions and notes, by Samuel E. Thorne Volume Two (Cambridge: In association with the Seldon Society [by] the Belknap Press of Harvard University Press 1968)
• Fiddick, J, The Treasure Bill 1995/96 [Bill 21] Research Paper 96/36 (London: House of Commons Library 1996)
• Hill, Sir G, Treasure-trove: the law and practice of antiquity (London: H. Milford 1933)
• Hill, Sir G, Treasure trove in law and practice: from the earliest time to the present day (Oxford: The Clarendon Press 1936)
• Mousourakis, G, Fundamentals of Roman Private Law (Heidelberg: Springer 2012)

 

Websites

• Brunning, S, ‘Eighty years (and more) of Sutton Hoo’ (The British Museum Blog 24 July 2019) <https://blog.britishmuseum.org/eighty-years-and-more-of-sutton-hoo/> accessed 01 January 2020
• ‘Crosby Garrett Helmet found in Britain sells for £2.3m’ The Telegraph (London 7 October 2010) <https://www.telegraph.co.uk/news/8048670/Crosby-Garrett-Helmet-found-in-Britain-sells-for-2.3m.html> accessed 07 January 2020
• Department for Digital, Culture, Media & Sport, ‘Revising the definition of treasure in the Treasure Act 1996 and revising the related codes of practice’ <https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/775560/Revising_the_definition_of_treasure_in_the_Treasure_Act_1996_and_revising_the_related_codes_of_practice.pdf> accessed 02 January 2020
• Department for Digital, Culture, Media & Sport, ‘The Treasure Act 1996 Code of Practice (2nd Revision)’ <https://assets.publishing.service.gov.uk/government/uploads/system/uploads/atta chment_data/file/77532/TreasureAct1996CodeofPractice2ndRevision.pdf> accessed 08 January 2020
• Encyclopaedia Britannica, ‘Brehon Laws: Ancient Irish Laws’ <www.britannica.com/topic/Brehon-laws> accessed 07 January 2020
•  ‘House of Lords Debates’, (HL Deb 08 February 1982 vol 427 cc16-33) 32, < https://api.parliament.uk/historic-hansard/lords/1982/feb/08/antiquities-bill-hl> accessed 02 January 2020
• Morris, S, ‘Detectorists jailed for stealing £12m Viking Hoard of gold and silver’ The Guardian (London 22 November 2019) <https://www.theguardian.com/uk-news/2019/nov/22/detectorists-jailed-for-stealing-12m-viking-hoard-of-gold-and-silver> accessed 07 January 2020
• Portable Antiquities Scheme, ‘About the Scheme’ <https://finds.org.uk/about> accessed 07 January 2020
• Thomas, S, ‘Derrynaflan Hoard’ (Trafficking Culture last modified 14 August 2013) <https://traffickingculture.org/encyclopedia/case-studies/derrynaflan-hoard/> accessed 02 January 2020
• Zimmer, B, ‘Treasure Trove’ The New York Times Magazine (New York 7 January 2011) <www.nytimes.com/2011/01/09/magazine/09FOB-onlanguage-t.html> accessed 01 January 2020