Select Committee on Culture, Media and Sport Minutes of Evidence

Examination of Witnesses (Questions 197-199)



Chairman: Thank you very much for coming to see us. We were going to have a sequence of questions starting with spoliation, but in fact Mr Fabricant wishes to follow the theme of our previous questioning and therefore we will disrupt everything we have organised.

Q197  Michael Fabricant: Thank you, Chairman. I thought there would be a little more continuity if we continued on the theme of the illicit art trade, since that is what we have been concentrating on with witnesses in the last series of evidence. Could someone explain to me the role that DCMS plays in its relationship with DTI and, in particular, the Home Office with regard to the prevention of illicit trade in art?  

Dr Gaimster: Good morning. On the question about the relationship between DCMS and DTI and the Home Office in the field of measures against the illicit art market, we are in fairly constant consultation, firstly, with the Home Office, on one of your key recommendations for the development of a due diligence database. That is where we have most contact at the moment because, following the introduction or the work on the new legislation, which did require some consultation, as you can imagine, we have now concentrated very much on the due diligence database work. That has taken a considerable amount of consultation and time. With the DTI, equally, we are now beginning to put more effort into working with them on implementation of the measures that we have already put in place in our policy development stage. We have been developing a four-point programme, if you like, at the moment, over the last two years: one UNESCO; secondly, the new legislation, the new criminal offence; thirdly, the database work; and we are looking also at the export licensing regime, and working with DTI there on exports and so on. So we are moving now from, essentially, very much a policy development stage into looking at and working with those questions of implementation and enforcement which you have already brought up this morning in your questioning.

Q198  Michael Fabricant: I was going to ask if you were there. Clearly you were. If this is an example of joined-up government, it is not a very good example, it seems to me. Back in 2001 the Home Office were offered the provision of a two-year free trial of a database. You have just heard the evidence given a few moments ago—and again last week—that if only there were a database with pictures of art that had been stolen, it would help considerably in preventing the trade in illicit art which seems to flourish in London. Could you just go into a little bit more detail. You have said there has been consultation. What has gone on in practice between 2001 and now? In 2001, the then Head of Violent and Property Crime Section said she would be coming back very shortly with information regarding the provision of a database on the internet. Here we are in 2003, almost 2004, and there has been no delivery. What actually has DCMS been doing to gee-up the Home Office and why have they not been geed-up?  

Dr Gaimster: As I have already explained, we have sat at one time on the working party that was hosted by the Home Office. I think the memorandum that you are expecting from the Home Office will explain the chronology of what has been going on in terms of consultation in the last two or three years. We have sat on that committee. We have also sat on a subsequent group, a working party, following the demise of the initial working group. We have been putting as much pressure as we can across government to try to raise this issue up everybody's agenda because we believe that this is another of the key building blocks in the programme of measures that we want to see being developed across government. I think Professor Palmer will probably say more about how he sees the strategy, but we have been putting as much pressure as we can on both the Home Office and colleagues in law enforcement, who were very sympathetic, I think, mostly, to the issues that we are trying to raise and the policy that we are trying to promote.

Q199  Michael Fabricant: I wonder whether it might be appropriate, then, for me to ask Professor Palmer whether he shares my frustration with the total lack of delivery in this area and whether he still subscribes to the remark that he made back in 2002, when he said in the report that ". . . the field in which progress has been least satisfactory and . . . the reasons for delay are least persuasive" referred to "the accessibility of required information" presumably the database.  

Professor Palmer: That was our view then. That was stated in our 2001 progress report which was published in autumn 2002. It would be an unusual thing if we felt any less anxious about the implementation of this proposal now than we did a year ago. The Illicit Trade Panel is quite certain that this database is crucial in a number of respects to its recommendations generally. It said so in fact in the progress report. It said that, after accession to UNESCO, the two most important things—and they were side by side—were the new criminal offence, which we now have, and the databases—databases because there was an additional one relating to overseas laws as well. Why is it so critical? First of all, how are you going to mount a prosecution under the new criminal offence, which requires the prosecution to prove that someone either knew or believed that an object was tainted (unlawfully removed), if there is not some means of checking that. We see this as an essential building block, an essential cog in the prosecution wheel. But, similarly, of course, there is the question of defence. The Iraq Sanctions Order, the Order in Council made pursuant to the United Nations Security Council resolution in the middle of this year,[1] actually imposes criminal liability on people who deal in or fail to hand to a constable property unlawfully taken from Iraq unless they can show that they did not know or have reason to suppose that it was unlawfully taken from Iraq. How are people going to show that they had no reason to believe it was stolen if they cannot say, "I checked the register and the register said it was not there"—or the red list, or whatever. I think it is an extremely important point, given, particularly, that the burden of proof of the mental element, quite contrary to the Theft Act 1968 and the new criminal offence, under the new Iraq provision is on the defence. You may well say this is a very difficult thing for a defendant to show unless there is some recognised procedure or mechanism by which title can be verified. It is certainly the case that we regard this as important—no less important, if anything more important than it was a year ago. We do recognise of course that steps are being made and we also recognise there have been certain false trails. There was the PITO Report,[2] I think towards the end of 2001, which led nowhere; there was the disbanding of the Committee chaired by Charles Clarke; and there have been other things as well. But we feel, I think, that without a realistic and coherent proposal on which to work now, we cannot get anywhere near developing the back-up mechanisms, the actual nuts and bolts provisions, which would make these various other measures work in practice. When you have a register, you have to decide whether there is a duty to consult it. Do you owe a duty to your buyers? Do you owe a duty to the victims of art theft to consult the register? What happens if you do not? What happens if you consult the register and you find that what you have is stolen? Do you just hand it back or what do you do? Is the register or the database the only means of checking title? Should you be granted immunity if you have checked it and there is nothing there, or should you use other methods as well? At the risk of going on too long, I do want to emphasise that, whatever the cogency of the reasons for the lack of progress, it is a matter of concern to the Illicit Trade Panel, which was reappointed by Alan Howarth, as I am sure you will remember, in order to invigilate the progress of its own reforms. I have written to the Minister I think twice this year about it and I saw the Minister, Baroness Blackstone, last year about it and she did reassure me of the Department of Culture's continued commitment to this. It is, as you know, a matter for the Home Office to take forward as a law enforcement matter.

1   Footnote by witness: The Iraq (United Nations Sanctions) Order 2003, SI 2003/1519, implementing United Nations Security Council Resolution No 1483 (22 May 2003) came into force on 14 June 2003. Para 8 of the Order in Council deals with illegally-removed Iraqi cultural property. Back

2   PITO stands for Police Information Technology Organisation. Back

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