Examination of Witnesses (Questions 197-199)
PROFESSOR NORMAN
PALMER, DR
DAVID GAIMSTER
AND MR
JAMES DOWLING
4 NOVEMBER 2003
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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