House of Commons - Culture, Media and Sport

Select Committee on Culture, Media and Sport Seventh Report

III. DUE DILIGENCE AND DATABASES

30. The code of practice for the control of international trading in works of art to which we have referred was adopted in 1985.[80] Since then, the British art market has taken further steps to strengthen its hand against illegal activity, both domestic and international, within the framework of self-regulation. Some of that work reached fruition early in 1999 with the launch of new Codes of Due Diligence for the art market under the auspices of the Council for the Prevention of Art Theft, an independent charitable body.[81] The Codes have been developed in collaboration with the police, HM Customs and Excise and other Government Departments.[82] The Codes set out the information and undertakings that should be sought from vendors, circumstances that should give rise to suspicion and the actions that should then be taken and other procedures to be followed.[83] The essential aim of the Codes is to establish an audit trail for cultural objects on the market, which makes policing the market much easier.[84]

31. The Codes are voluntary. They have already been adopted by, among others, the British Antique Dealers Association, the Incorporated Society of Valuers and Auctioneers and the Society of Fine Art Auctioneers.[85] Although it was involved in drafting of the Codes, the Antiquities Dealers Association declined to endorse and adopt them, instead adopting what it termed a "variant" of the Council's Codes of Due Diligence.[86] Detective Constable Penny Stevenson of the National Criminal Intelligence Service saw the Codes of the Council for the Prevention of Art Theft as "a very good start" despite their voluntary nature, but considered that the framework for enforcement would be strengthened if there were to be a successful prosecution for handling stolen goods of someone on the grounds that they had not followed the provisions of the appropriate Code of Due Diligence.[87]

32. The Codes represent a general framework, but many participants in the market engage in efforts to prevent the sale of stolen or illegally exported items that go well beyond the terms of the Codes. The detailed internal procedures of two major auction houses, Christie's and Sotheby's, are summarised in written evidence.[88] Those procedures illuminate both the obligations upon individual employees and the role and scope of specialised supervision.

33. The Codes of Due Diligence promoted by the Council for the Prevention of Art Theft demonstrate the British art market's commitment to combatting and confronting illegal activity. They strengthen the audit trail. However, it has been suggested that "it is a weakness of the Codes ... that there is no requirement to record and verify the identity of buyers, so that the trail is lost at point of purchase".[89] Good records of vendors are necessary, but arguably not sufficient. They do not amount to a record of ownership history.

Provenance and confidentiality

34. In discussing the antiquities market, Mr Ede stated that, in the past, the absence of demonstrable provenance "was not regarded as important; it simply was not on the agenda, and it is now".[90] Writing in the context of the art market more generally, Mr Edward Dolman, Chief Executive of Christie's, stated that "provenance has only relatively recently become an important consideration".[91] What is provenance and why does it matter more now than in the past?

35. A narrow dictionary definition of provenance is "the fact of coming from some particular place or quarter". This definition links an object to its time and place of creation. A second definition of provenance in the context of archaeology relates to the location and context of an object's excavation. Such provenance matters to understanding the past: for example, the discovery in southern India in 1945 of pottery created in central Italy in the first century AD provides a clear demonstration of the seminal importance of context. A third definition of provenance characterises it as "the history of ownership of an item". A fourth definition could be the history of possession of an object, since much illicit trade involves a separation of true ownership and possession. Provenance is a multi-layered concept, but in essence it is the history of an object's location and ownership.[92]

36. Provenance is often linked to the market value of an object.[93] As Mr Ede put it, "things with a more interesting provenance are worth more money".[94] Provenance can be a guiding factor in helping to determine the authenticity of an object or the identity of its creator.[95] Most importantly in the context we are considering, provenance can play a vital role in establishing the legitimacy of an object's ownership and transfer.

37. In Lord Renfrew's view, the propensity of the London antiquities market to deal in objects without documented provenance called into question the legitimacy of much of the trade's activities. He referred to the "shameless sale" of unprovenanced antiquities and argued that "there has to be the presumption that they are likely to be the product of looting". He argued that the common claim that such unprovenanced antiquities came from old collections or attics was "implausible without corroboration".[96]

38. The Antiquities Dealers Association vigorously disputed the notion that unprovenanced antiquities could reasonably be presumed to have been illicitly excavated or illegally exported from their country of origin. In fact, it argued, many objects could legitimately be on the market which had no demonstrable provenance.[97] First, items might have been held in private hands in this country for many years. According to Mr Ede,

"Little old ladies do exist and I have bought objects that have been in this country since 1840 which are not recorded anywhere by any academic, but have been sitting in dusty libraries ever since then".[98]

Second, although objects may have been legally exported from their country of origin in the past, the record of that legal export may have been lost. For example, a single document might have covered an entire shipment, which then was dispersed.[99] Third, records of previous ownership might not have been retained during legitimate trading in the market.[100]

39. The absence, inadequacy or lack of transparency of records of the chain of ownership as objects pass through the market lay at the heart of the concerns of several witnesses about the trade in art and antiquities. According to the Museums Association, "unprovenanced" objects on the market are not always those whose past ownership can no longer be traced: "someone knows where they originated, but isn't saying".[101] The practice of permitting vendor and purchaser anonymity and the absence of any requirements relating to ownership history were seen by the Museums Association as the cause of the intertwining of the licit and illicit markets in antiquities and it considered that there was no good reason why purchasers and vendors were entitled to such confidentiality.[102] Lord Renfrew also saw no merit in the arguments for secrecy.[103] Dr Neil Brodie of the Illicit Antiquities Research Centre of the McDonald Institute for Archaeological Research in Cambridge described the withholding of provenance as "a disreputable practice" that "would not be tolerated in other areas of the retail market", such as the trade in used cars.[104] Major General Conforti considered that the English auction houses "do tend to use the confidentiality clause quite frequently and liberally".[105]

40. Some critics of confidentiality provisions in the art market suggested a solution to the problems by the imposition of a requirement for transparency.[106] The Museums Association argued that those who chose to buy or sell antiquities had no special entitlement to keep their activities confidential and argued that there ought to be a record of ownership, a "log book", accompanying all legitimate sales and purchases.[107] Lord Renfrew also considered that there ought to be an obligation to provide an ownership history for objects above a certain value threshold, such as £2,000 or £3,000.[108]

41. Representatives of the art market argued that there were several legitimate reasons why the identity of those selling cultural property should not be made public. Sotheby's listed three such reasons: first, "it may be uncomfortable for the seller to advertise their identity in public if they are selling out of financial necessity"; second, the seller may want to avoid unwanted solicitation; third, the seller may have concerns about "security from theft".[109] Mr Ede gave a revealing example of such a wish for confidentiality: "I bought something from a very noble owner, perhaps even more noble than Lord Renfrew, and he did not want his wife to know that he was short of money".[110] In addition to the needs of clients, a dealer can also have his own interest in confidentiality, for example where he does not wish his competitors to know about a particular owner with other objects to sell.[111]

42. Several doubts were raised about the practicality of a compulsory record of ownership of cultural property, or "log book". First, any document that is considered crucial to establishing legitimate ownership might be faked.[112] Second, such a "log book" would be extremely difficult to impose on a market that already functions without such a requirement and to educate all sellers or potential sellers on the need to have and retain the relevant documentation.[113] Third, any value threshold would be very difficult to set because the value of an object can alter radically over time as market judgements change; any value threshold for a "log book" would also call into question the methods of regulation for items of less than that value.[114] Finally, in an international market, the utility of a national record of ownership is very much open to question: the continuity of records created under such a national system could not be guaranteed in cases involving an object that could be legitimately traded under other systems in foreign markets.[115]

43. A clear system for recording the ownership history of a cultural object, linked directly to the capacity to conduct a legitimate transaction, would be an extremely important tool in tackling the illicit trade in cultural property and is therefore desirable in principle. However, we have received persuasive evidence that a compulsory "log book" providing such a record would face many difficulties, some of them probably insuperable, and we have concluded reluctantly that such a compulsory "log book" would not represent a practical way forward. However, where organisations feel that they can establish some sort of voluntary "log book" within their own resources, this would be very much welcomed.

The current role of the police service

44. The principle of confidentiality that governs much of the activity of the legitimate trade in cultural property relates only to the public and commercial aspects of the trade. When the trade in cultural property becomes the subject of a criminal investigation or certain court proceedings, information on ownership and transactions must be fully disclosed to the investigating authorities, usually the police. In combatting the illicit trade with its significant criminal dimension, the role of the police is crucial, but some evidence suggests that police work in this field is restricted.

45. In the United Kingdom, unlike in many European countries, there is no national police squad designated specifically to tackle cultural property offences.[116] As part of the process through which Codes of Due Diligence were developed, all police forces in England and Wales have appointed "due diligence officers" to liaise with the art trade.[117] However, according to the Art Loss Register, the number of police officers specialising in art and antiques has fallen because offences in this field are not accorded a priority in terms of key performance indicators.[118] The Council for the Prevention of Art Theft also believed that the majority of police forces were not giving "due diligence officers" the time, resources and training necessary to enable them to carry out their function effectively.[119]

46. For historical reasons and because London is the centre of the British art market, the main burden of policing in this area falls on the Metropolitan Police Service. There has been a squad in the Metropolitan Police Service particularly concerned with cultural property offences since 1968, although the resources devoted to this field have varied considerably over time.[120] The current Arts and Antiques Squad was characterised by Detective Chief Superintendent Coles as "extremely conscientious", "extremely dedicated", but "extremely small".[121] Whereas the staff of the squad can be counted on the fingers of one hand, the number of officers in the Protection of National Heritage Command of the Italian Carabinieri is 200 and rising.[122]

47. Major General Conforti confirmed that there was an "excellent relationship" between New Scotland Yard and the Italian Carabinieri.[123] Nevertheless, it became evident during our inquiry that there are significant limitations on the effectiveness of the British policing response to the illicit trade in cultural property. The first is the shortage of sufficient numbers of qualified personnel. The second is that the focus of the Metropolitan Police Service remains around items which are defined as stolen within the British criminal law.[124] The police have powers to respond to offences committed overseas that equate to theft, but some of the trading activities that other countries wish to see pursued in this country do not involve theft as defined in British law.[125] Evidence can be collected in certain circumstances for use in criminal proceedings abroad, but the use of search and seizure powers is circumscribed by current British definitions of offences.[126] Later in this Report we examine possible changes to the criminal law in this country relating to the illicit trade in cultural property. We now turn to a third limitation on the effectiveness of enforcement—the limitation of recorded information on stolen or illegally traded cultural property.

Databases

48. There were wide divergences in the evidence we received about a number of the possible measures to be taken to combat the illicit trade. There was, however, a near consensus on the need for strengthened and improved databases.

49. Several private databases have been developed in recent years to assist those concerned to retrieve stolen cultural property, those within the trade seeking to perform due diligence checks and enforcement agencies. TRACE is one such organisation that collects information on stolen cultural property on its "Invaluable" database, searches the database against data provided by auction houses and publicises details and images of stolen and recovered property.[127] TRACE is working to provide law enforcement agencies with online access to the stolen property database through the use of the Internet.[128] Another organisation, called Salvo, has run a special theft database for items stolen from old buildings and gardens since 1992 and states that it has strong support from dealers in architectural and garden antiques.[129] A third organisation, the Art Loss Register, has a database for searching for stolen or looted items of which there are, on the database, in excess of 100,000 uniquely described objects and many others that are not unique, but which may have been stolen or looted at the same time and may be recovered through proof of association. The extension of the use of the Internet is expected to lead to an increase in the number of searches of the Art Loss Register per year from 280,000 to more than 1 million.[130]

50. Those databases are used by the art market for due diligence checks, the use of which has almost certainly improved the effectiveness of recovery of stolen property and reduced the trade in identified stolen property by organisations using them.[131] However, there are still weaknesses. There is no legal obligation on any participant in the market to use such databases or any clear sanction for failure to do so.[132] There are variations in the use of such databases within the market. For example, Sotheby's consults the Art Loss Register for lots with a low pre-sale estimate of £500, but certain antiquities dealers search only for items with a value of more than £10,000 because it is considered that items below this value are less likely to be individually identified.[133] Another weakness is that the databases concentrate on stolen property; databases for illegally exported material are at a much earlier stage of development and illegally excavated material is, by definition, unlikely to be identified in such databases.[134] Finally, the multiplicity of databases presents a problem for those seeking to perform due diligence and search comprehensively for stolen and illicitly exported cultural property.[135]

51. Similar problems affect police records of stolen cultural property. The Police National Computer has an existing stolen property database, which is accessible online by all United Kingdom police forces, but it is used only for stolen property with a unique identifier or serial number and is not considered appropriate for works of art or other cultural property by the Home Office.[136] Accordingly, police records of stolen cultural property are held locally, leading to a "fractured system" in which there is no certainty that property found in one part of the country will be checked against records of such property stolen elsewhere.[137] Detective Chief Superintendent Coles considered the first priority for effective action to be the development of a national database of stolen art and antiques where all checks for due diligence could be undertaken.[138] He envisaged such a database being sponsored and funded by the Home Office and run by one of the national police agencies, such as the National Criminal Intelligence Service.[139]

52. The Art Loss Register also advocated the establishment of a comprehensive national database.[140] Mr Julian Radcliffe OBE, Chairman of the Art Loss Register, appeared to envisage that that could most easily be achieved through a private operation, with police information on stolen objects being provided to a private operator.[141] Detective Chief Superintendent Coles expressed doubts about the extent to which police purposes and the commercial aims of an organisation such as the Art Loss Register could be combined. The Art Loss Register said that they would welcome a closer relationship with the police.[142] Detective Chief Superintendent Coles indicated that he would prefer a database to be within a police organisation, but stated that "there may be opportunities to bring in the commercial sector to assist in the administration of that system".[143] The Home Office has stated that it will consult the Association of Chief Police Officers about development of the police relationship with the Art Loss Register.[144]

53. Any national development in this field must be designed to complement international developments. The British Art Market Federation saw the development of "a technologically sophisticated private or governmental international database for stolen art" as the most important practical step which could be taken to combat the illicit trade.[145] That view was endorsed by the Antiquities Dealers Association.[146] The Art Loss Register was not alone in considering that any such international database could be developed as a private operation.[147] Major General Conforti strongly supported an international database as "the most effective tool" to fight the illicit trade, although he appeared to envisage such a database arising from the transfer of information between police databases.[148]

54. Mr Hill of the British Art Market Federation argued that there is now a "brilliant chance" for a joint initiative between the public and private sectors to establish a cultural property database, reflecting the interests of enforcement agencies, insurers and the art trade.[149] We agree. There is a shared interest in the objective of a comprehensive national database with a capacity for integration in a wider international initiative. There are differences of emphasis about how best to meet this objective. In these circumstances, it is essential for the Home Office to take the lead. We recommend that the Home Office make a public commitment in the course of this year to establishing a national database of stolen cultural property and cultural property exported against the laws of the countries concerned under national police control. The Home Office should also seek to take forward detailed discussions with the police service, the insurance industry, the art market and private database operators about the development of an open system which can meet the needs and draw upon the skills and funds of the private sector. Finally, the Home Office should liaise closely with other countries to ensure that any national development is compatible with the wider international development of a database of stolen and illegally exported cultural property.

80 Evidence, p 164. Back

81 Evidence, pp 372-373. Back

82 Evidence, p 373. Back

83 Evidence, pp 375-376. Back

84 Q 489. Back

85 Evidence, p 373. Back

86 Evidence, pp 345, 58. Back

87 Q 494. Back

88 Evidence, pp 162-163, 166-167. Back

89 Stealing History, p 51. Back

90 Q 160. Back

91 Evidence, p 163. Back