What objection could there be to the Cultural Property (Armed Conflicts) Bill, which has just had its second reading in the Commons?
The bill incorporates into domestic law the offences created by Article 15 of the Second Protocol to the 1954 Hague Convention for the protection of cultural property — works of art, libraries, books and manuscripts, as well as items of archaeological and historical interest — in the event of armed conflict, makes military commanders liable for failing to prevent certain offences such as destroying it, and criminalises dealing in certain cultural property.
The bill’s clause 17(1) makes it an offence to deal in unlawfully exported cultural property that the dealer knows or has reason to suspect has been unlawfully exported. So far, so good: no one can support dealing in unlawfully exported cultural property when you know it has been unlawfully exported. However, the criminal intent required under this provision has caused concern in the London art market, which worries that these three small words — “reason to suspect” — will place an unacceptable and stifling burden on that market and have enormous but unintended consequences.
It would be fairer, more sensible and in line with other criminal statutes to require it to be shown that the dealer “knows or suspects” or “knows or believes” or “dishonestly knows or believes” that the object in question has been unlawfully exported. The expression “reason to suspect”, although not unheard of in statute law, is not usually found in our law as a basis for establishing criminal intent.
To be convicted of handling stolen goods, a defendant has to be shown to have known or believed the goods were stolen. The law is clear and the defendant knows that when he is convicted the jury was sure he knew or believed the goods were stolen. Under this bill as framed, a convicted defendant cannot be sure that his conviction reflects his actual state of knowledge or belief and that he was not convicted simply for lacking curiosity.
Of course, it is not possible to tell how wide the effect would be. The Hague Convention governs cultural property exported from an occupied territory since 1954, although the criminal offences in the bill are not retrospective. The mere making of an unfounded allegation that an item was unlawfully exported from an occupied territory after 1954 may place in the mind of the potential dealer or auctioneer a reason to suspect that it has been unlawfully exported; and although it may later turn out to be untainted, he will not go near it.
The position is exacerbated by the government’s refusal to provide a list of what it considers to be occupied territories, so the art market will have to err on the side of caution and refuse to deal in any objects that might have been lawfully exported from territories that may not come within the terms of the convention.
Unfair convictions aside, this provision will stultify the art market. No sensible dealer or auction house is going to touch an imported cultural object if this bill comes into law for fear of falling foul of the “reason to suspect” wording.
The risk to a dealer’s or auctioneer’s reputation, and the future of his business, let alone his liberty, will mean that legitimate trade will cease — to the detriment of London as the premier world art market; genuine sellers will go to less scrupulous jurisdictions — and the Treasury will miss out on the tax that would have come its way.