Select Committee on Culture, Media and Sport Appendices to the Minutes of Evidence


Memorandum submitted by TRACE

Mr Richard Ellis, Managing Director, "TRACE".

  1989—February 1999, Founder member and officer I/c The Art and Antiques Unit, Metropolitan Police, New Scotland Yard.

  Experienced investigator of the Illicit Trade in Cultural Property and of the International Art and Antiques Market over a 10 year period. Conducted investigations in many European countries, Egypt, China and the USA. In addition undertook numerous investigations in the UK in response to requests made by other countries through Interpol, and was responsible for the seizure and return of cultural property through the existing legal process.

  A speaker at many international conferences and seminars on the subject of the Illicit Trade from the perspective of Law Enforcement, and a member of the Executive Committee of the Council For The Prevention of Art Theft. Instigator of the Codes of Due Diligence launched by the Home Office in 1999.

  February 1999—February 2000, General Manager of Christie's Fine Art Security Services.

  1 March 2000 appointed Managing Director of TRACE.


  1.1  TRACE and its parent company THESAURUS have now become INVALUABLE. Invaluable provides an indispensable service to the victims of crime, the police and the Art and Antiques industry through its unique database and magazine. Working with the international law enforcement community we are able to circulate details of stolen art, antiques and cultural property, and to continuously search for it against the data provided by over 700 auction houses. Together with our extensive web site, we are the most complete providers of Due Diligence service for the loser, law enforcement, collector and trade.

  1.2  With "Due Diligence" playing a more significant role on the trading of cultural objects, it must not be forgotten that there is a requirement for the loser of such property to complete their Due Diligence, by placing the information relating to the stolen property into the public domain. The reporting to a Law Enforcement Agency that the property has been stolen places an obligation on that agency to circulate the details of that property to those most likely to come into contact with it. A failure to complete this circulation will result in a failure to recover the goods in the event of a dealer/collector having purchased them, after completing a reasonable process of due diligence.

  1.3  As TRACE, we already work in partnership with many Law Enforcement Agencies, with Interpol, and directly with the victims of crime, receiving information concerning stolen property, which is placed into the TRACE database. This information is searched daily against the catalogues of 648 auction rooms based in the UK, America, and Europe. These are scanned onto the system and searched electronically, enabling us to identify the stolen property at the point at which it is offered for sale in the art market.

  1.4  We also publish a magazine, which features crime prevention articles, together with details and images of stolen, and recovered property. "Invaluable" magazine, (incorporating TRACE), is circulated to auction rooms, dealers, law enforcement, and other interested parties. At the present time 21,000 copies of Invaluable are circulated.

  1.5  In addition, the Invaluable website ( provides a further opportunity to circulate stolen property, and is the major Internet source of information concerning the art market. The rapid growth in the use of this particular area of technology is recognised as providing the most effective means to aid the control of the illicit trade in the future.

  1.6  At the present time, we are working to provide Law Enforcement Agencies with "online" access to the stolen database through the use of the Internet. This will provide police in the United Kingdom with a low cost Nationwide Database and also create a truly international database for stolen works of art, antiques and cultural property.

  1.7  In an attempt to further assist countries who suffer from the loss of objects of cultural heritage, and law enforcement agencies, it is intended to develop a new website within the Thesaurus domain. This site will provide information on the laws governing the removal, import and export of a countries national heritage, provide examples of such items, and give "Help Line" numbers for further information. Customs Officers and Police in any country would be able to access this information 24 hours a day, to determine what lawful action they may take to recover cultural property. At the present time, there is a complete lack of such information available to customs and police, who are left to decide on a course of action, which, if incorrect, could result in serious consequences for the individual and the service concerned.

  1.8  Details of objects actually stolen, and searched for will be placed onto the Invaluable Stolen Property database, and be published in the magazine, as at present. The combination of these two mediums restricts the market place into which stolen and illicitly obtained objects can be sold. At the same time, by publishing details of the objects in this way, the requirements of due diligence are being met on behalf of the losers, and claims of due diligence checks having been made by suspected dealers or collectors can be verified.

  1.9  The establishment of a "One Stop" information website will provide another point of reference in the process of due diligence for the loser countries, dealers and collectors alike. It will serve as a preventative measure in the trafficking of cultural property, and heighten the public awareness in respect of cultural property crimes.


  2.1  The impact of this illicit trade on countries is significant, both in the damage and loss to their national heritage, and to their economy. I have personally witnessed the destruction of previously conserved tombs in Egypt, destroyed by criminals in order to supply the market with "new" pieces. The similar destruction of sites both known and unknown is a recurring feature for many countries, including the UK, robbing the archaeologists and scientists of artefacts, and the tourist industry of potential revenue. For many countries, the criminal destruction of these sites in addition to those destroyed by modern development, accelerating the overall loss of their cultural past to a dangerous degree.

  2.2  The illicit trade in cultural objects has now reached a level of criminality, which is highly disturbing. There are clear links to organised crime, and to some extent, there is evidence that the smuggling operations are conducted by those also involved in the trafficking of drugs.

  2.3  A further negative impact resulting from this trade and the sale of looted or stolen works is on the art market itself. There is a belief held in many quarters that the auction houses and dealers are willing to trade in these artefacts from which they make substantial profits, whilst turning a blind eye to their origins. It is further perceived that the British establishment encourages this trade, at the expense of the loser countries national heritage. In part, this is due to the differing legal processes involved but also to the vibrant international market conducted through London.


  3.1  At the present time the methods of countering the illicit trade are limited, and the powers used are contained in our existing domestic law. The role of Customs and Excise is also limited, because it is not an offence to import into the United Kingdom, property illegally exported from another. For countries such as Italy, which have very restrictive laws governing the export of cultural property, this provides a constant bone of contention, as they are unable to recover objects which they consider to have been stolen from their national patrimony.

  3.2  Customs and Excise are not empowered to seize stolen property, this being the role of the police. Cultural objects can thus be declared to customs at the point of entry and, provided the correct paperwork is completed and the revenue paid, the importation is both permitted and legal, notwithstanding that the objects are stolen.

  3.3  Stolen objects present further legal complications and should be considered in two groups. (a) Objects stolen from known collections or sites, and (b) Objects stolen from unknown excavations, which belong to the state by what the trade refers to as "Nationalisation Laws"—where a country declares that all antiquities still in the ground are the property of the state.

  3.4  By Sec 24 of the Theft Act 1968, goods stolen other than in England and Wales, shall be construed as being stolen property providing that the taking of the property amounted to a theft in the country in which it was taken. Police have the power under the Police and Criminal Evidence Act 1984 to seize stolen property and to retain it as evidence or to prevent its disposal or destruction.

  3.5  For objects as at (a) above, stolen from known collections or sites, the police have the power to seize and retain them, once evidence has been obtained from the loser country that the property is indeed stolen.

  3.6  For the objects at (b) above, stolen from unknown sites, proof of their theft from the loser country is usually impossible to obtain and the UK police are unable to assist in their recovery.

  3.7  Although the provisions of Sec 24 of the Theft Act 1968 ensure that the property remains "stolen property", it is often impossible to bring any criminal prosecution against those in possession of the items. Whilst the offence of Dishonest Handling under Sec 22 of the Theft Act 1968 may be considered, if the person in possession of the property took possession of it beyond the jurisdiction of the United Kingdom, the offence under English law is deemed to be complete in that jurisdiction.

  3.8  In these instances, the loser state is forced to resort to civil litigation in order to recover its stolen property. The police service, as holders of the property, are then involved in the proceedings at a cost in terms of both time and resources. In recent instances, objects seized in police operations have been returned to China, (6,000 objects), Egypt and Turkey.

  3.9  In the case of the Chinese objects, no prosecution could be brought in the UK due to jurisdictional problems, the suspects having taken possession of them in Hong Kong, knowing them to be stolen goods. The Chinese Government declined to litigate as this was seen as placing themselves on the same level as those they regarded as criminals. Their Lawyers, (Freshfields), claimed Sovereign State Immunity, forcing those from whom the antiquities had been seized to negotiate.

  3.10  Whilst a successful return of the bulk of objects seized was achieved, the cost to the police service for the safe storage of the property was high.

  3.11  The Egyptian case received extensive media coverage and was successful on a number of counts. The UK police were able to work closely with the museum community both in England and Egypt, and with the Antiquities Police in Egypt, through close diplomatic co-operation via the Egyptian Embassy in London.

  3.12  Through such close co-operation, convictions were obtained against the primary UK organiser in this country, and against a further 11 people in Egypt. The remarks of the Trial Judge at Knightsbridge Crown Court were upheld by the Appeal Court Judges, who stated that there had to be a "deterrent element" in the sentence passed, (six years imprisonment), in order to reflect the serious nature of the offence and the importance attached to it by the UK courts.

  3.13  The case is a good illustration of how the criminal process can provide a deterrent to those who are engaged in the illicit traffic of cultural property. It is emphasised that it is only through use of the criminal process, difficult and complex as it is, that some kind of a deterrent effect can be achieved against the criminals involved in this trade. Whilst the UNESCO Agreement, UNIDROIT and The European Directive on the Return of Cultural Property, provide a mechanism for the return of the property, none of them have any bearing on the criminals, or provide any means to bring them before a court.

  3.14  When action was taken against the criminals, as in the Egyptian case, the adverse publicity, and threat of further police action, affected the illicit trade at least temporarily. The climate that resulted in the London antiquities market, together with the bad publicity generated by the television programme alleging that Sotheby's had for a number of years assisted in the illicit traffic, caused that company to close down its London based antiquities sales, and move them to New York.

  3.15  The enactment of Part 1 of the 1993 Criminal Justice Act, enabling the police to seek a prosecution for a conspiracy to commit offences abroad, is a useful addition to the legislation available to the police, but there remains a strong argument for the introduction of a new offence of Dishonesty Possessing Objects of Cultural Heritage within the Jurisdiction of the United Kingdom Courts. At the time of the introduction of The Theft Act of 1968, it was recognised that there had to be a special section, (Sec 11), covering the removal of objects from public exhibitions, where there was no intent to permanently deprive the owner of the property. There is now a need for the creation of this new section, in order to prevent the British Art Market being used as a clearing-house for other countries' stolen property.


  4.1  The Return of Cultural Objects Regulations 1994, implements in English Law the European Directive on the return of cultural objects. Its effect is to place all disputed claims before the High Court, once again ensuring that there is no deterrent effect to be gained through the criminal law.

  4.2  The law is little used, although it is difficult to understand why. One possible reason may lie in the tight definitions laid down as to what objects constitute a "Cultural Object", and the need for countries to have listed such objects. A second reason for the legislation not being made use of rests with the requirement to litigate at considerable cost. It still remains a cheaper, and quicker option, to pursue a claim through the criminal code, relying on the police to seize the property and obtain a "Disclaimer" from the person in possession of it.

  4.3  Countries such as Italy argue that a court order made by an examining magistrate for the return of cultural property is binding, even when the property has moved beyond the jurisdiction of their courts. They do not consider that they should have to litigate in order to achieve the return of property already ordered by their own judiciary.

  4.4  One aspect that this legislation has introduced to English Law is the possibility for a "Good Faith" purchaser to obtain compensation from the requesting state. This has a significant bearing on the conduct of the trade, and raises the aspect of "Due Diligence". The requirement placed on the person in possession of the property to be able to satisfy the court of their Good Faith at the time of their acquisition has major implications for the trade.

  4.5  Unless the possessor can show that reasonable due diligence was undertaken, good faith cannot be proved. In such circumstances, the limitation period will not apply, and no compensation order will be made in the event that the court orders the return of the property to the claiming state. (Adrian Allan Ltd v de Preval and Cobert Finance S A v Federal Republic of Germany).

  4.6  This aspect of the European Directive is similar to Section 4 of the UNIDROIT Convention, which if ratified would have even bigger implications for the trade, enabling more such cases to be brought by non EU countries.

  4.7  These implications played a major part in the legitimate trade bodies working with The Council For The Prevention of Art Theft in drawing up Codes of Due Diligence for dealers and auctioneers. It is worth noting, however, that although the Antiquities Dealers Association were involved throughout in the drafting of the codes, their membership declined to endorse and adopt them.

  4.8  Whilst the question of the ratification of the UNIDROIT Convention remains, further European Legislation seems unlikely. A review of the existing categories and financial thresholds may result in a greater use of the present Regulations.


  5.1  The United Kingdom has been much criticised at International Conferences for not having signed the UNESCO Convention, making it appear harder for countries to seek the return of their stolen cultural property. The public statements made with regard to its unlikely implementation, and also that of the UNIDROIT Convention, have served only to harden the belief that the UK has no interest in protecting other countries' national heritage.

  5.2  However unfounded these perceptions may be, they have been encountered at many levels including Government, Law Enforcement and Academia, generating resentment and ill-feeling against the UK as a whole.

  5.3  There is now a strong argument for the UK to implement the UNESCO Agreement and to ratify UNIDROIT. One of the major objections to doing so has historically been the damage it would cause to the British Art Market and the effect that it would have upon museum collections.

  5.4  The greatest damage to our domestic art market will continue to be caused by the introduction of European Taxes. Of the other major art market countries, both France and the USA have implemented the UNESCO Agreement, whilst at the same time increasing their market turnover. Neither country has suffered an "emptying" of their museum collections, and both have benefited in terms of the esteem in which loser countries hold them.

  5.5  The UNIDROIT Convention includes those elements already contained in the European Directive, with the added benefit of creating a "cut off" time period beyond which claims for the return of property would not be valid. (Article 3).

  5.6  The model implemented by the USA has clearly protected its market and museum interests, whilst responding to particular international requests for assistance with the introduction of legislation banning the importation into the US of specific categories of artefacts.

  5.7  The UK is clearly out of step with world thinking at the present time, but I believe the introduction of at least the UNESCO Agreement in the manner in which it was implemented by the USA would help the UK to regain its position as a respected and responsible major player in the international art market.

  5.8  An added benefit to the implementation of the agreement would be in the increased opportunities to recover artefacts stolen from our own national heritage.


  A better control of the illicit trade in cultural property would be achieved by:

  6.1  Ensuring details of the stolen objects are entered onto the Invaluable stolen property database, and actively searched for against the details of auctions and dealers stock.

  6.2  Develop an exchange of information on the laws controlling the theft and illicit traffic in objects of cultural heritage, through the use of the Invaluable website, and magazine.

  6.3  A review of the United Kingdom's laws to enhance the ability of law enforcement and customs, to police the illicit trade within the UK, and by creating a deterrent effect on those engaged in this trade.

  6.4  A review of the UNESCO and UNIDROIT agreements, leading to their adoption within the UK laws, creating an internationally accepted civil law remedy for the return of cultural property whilst compensating the genuine good faith purchaser.

  6.5  The development of "Best Practice" within the licit trade through a greater use of the codes of due diligence, and a review of other measures including the registration of dealers and the feasibility of "passports" for classes of objects.

  6.6  The establishment of an International Review Committee to look at the specific case of looted Second World War art.

April 2000

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