WHEN CULTURAL PROPERTY IS JUST PROPERTY: How English Law Approaches Damage to Movable versus Immovable Cultural Property† Morwenna R. Blewett* “You are too easily surprised” said Mr Towington. “Many words have no legal meaning. Others have a legal meaning very unlike their ordinary meaning. For example, the word ‘daffy-down-dilly’. It is criminal libel to call a lawyer a daffy-down-dilly…..I advise you to never do such a thing.”1 Dorothy L. Sayers, Unnatural Death, ch.14 This article examines how purposeful damage to cultural property is dealt with by the law of England and Wales. It identiies and investigates, primarily, the main differences in the legal deinitions of property, cultural property, the historic environment and damage as they span different legal mechanisms. Damage to cultural property and the ordinary property of the everyday, both movable and immovable, is usually dealt with under the Criminal Damage Act 1971 (CDA). There is, however, other heritagefocused legislation that is used to prosecute damage to narrower categories of immovable cultural property. This article will also ask whether reform is desirable to harmonise the differences between these legal approaches so that movable cultural property is not left out in the legislative cold, and might for the irst time, be able to join its immovable ‘cousin’ in being considered heritage in a legal sense. Important steps towards a wider legal recognition of the harm caused by damage to cultural property – both immovable and movable – are already in evidence, not least in the form of the recent Deinitive Guideline for Theft Offences2 published by the Sentencing Council. The terms cultural heritage, cultural property, cultural material and objects, will be used interchangeably throughout this article. 1 2 For a legal deinition of ‘daffy-down-dilly’ see Mark Humphries, ‘Legal Ethics, Past and Present, Part Two’ (Nov. 2009) The Law Society Gazette . <www.lawgazette.co.uk/analysis/legal-ethicspast-and-present-part-two/53308.fullarticle> Accessed 3 Nov. 2015. Also, see House of Lords Debate, henceforth ‘HL Deb’ 22 Aug. 1843, Vol 71, cols. 987-95. Also, Glanville Williams, Learning the Law, (1st edn., 1945). Thomson, Sweet & Maxwell, New Delhi, 2009, p. 24. See the article by Emily Gould at p. 291 of this issue. † This is an edited version of a dissertation submitted for the LLB (Hons) degree conferred by University of Northumbria Law School. Thanks to Collections Registrars, Naomi Lewis and Claire Hallinan at the National Gallery, for lending me vital materials from their library. * Paintings conservator at the National Gallery, London. 301 Vol. XX, Issue 4 Art Antiquity and Law December 2015 Introduction The Origins of the Preservation Movement It is necessary to halt the hammer that mutilates the face of the country. A single law would sufice; it is only necessary that it be made. Whatever the rights of the property may be, the destruction of a historic and monumental ediice cannot be permitted to these ignoble speculators.3 Victor Hugo, the French writer and political campaigner, suggests in a pamphlet of 1825 that, despite rights of ownership, there exists a category of property which should be immune from the vagaries of its possessor.4 Here, he refers to immovable property of cultural signiicance, in this case, buildings, monuments and ruins. Hugo goes on to acknowledge in a further essay of 1834, that even though the rights of ‘utility’ are clearly bound to the owner, these rights should not enable the owner to become an agent of destruction or alteration, in turn depriving others of the universal cultural value of the property and its context.5 When it comes to the potentially destructive whim of the owner, Hugo argues that individual proprietorial rights should concede to those of wider society. He identiies a potential beneit to society if a protected historic example can be preserved for as long as possible, so that many generations can take advantage of its ‘beauty’. He uses the term ‘beauty’ as we might use the more modern terms ‘cultural meaning’ or ‘historic authenticity’, as well as evoking its usual aesthetic meaning. 6 Hugo’s sustained proposals for heritage legislation were made in consequence of his awareness of the increasing destruction of medieval buildings in early nineteenth century France. Since the mid-sixteenth century, France had suffered three signiicant bouts of widespread damage to buildings and monuments dating from the Middle Ages. Firstly, religious wars raged from 1562 until almost the beginning of the seventeenth century, causing major damage. Secondly, the French Revolution, starting in 1789, ensured the continued destruction of immovable and movable cultural property alike. Thirdly, by the early nineteenth century, La Bande Noire, the speculative, ruthless, asset-stripping syndicates of building companies, completed the total erasure of already severely damaged, immovable cultural property.7 These syndicates also bought undamaged examples of châteaux, abbeys and other buildings, razing them along with numerous structures ruined in the tumult of the previous three centuries. They sold off the reclaimed materials to the building trade and segmented land into smaller plots to achieve maximum proit through further sales.8 3 4 5 6 7 8 Victor Hugo, Guerre aux Démolisseurs (1825) Jean Massin (ed.) Oeuvres Complètes, (Paris, Le Club Francaise du Livre, 1967) 160-62 ; (trans) Joseph Sax, ‘Is Anyone Minding Stonehenge? The Origins of Cultural Property Legislation in England’ [1990], vol. 78, California Law Review, 1560. Ibid. Victor Hugo, Guerre aux Démolisseurs (1834), Jean Massin (ed) Oeuvres Complètes, (Paris, Le Club Francaise du Livre, 1967) 171-72. Ibid. Brenda Deen Schildgen, Heritage or Heresy (New York, Palgrave and Macmillan, 2008) 122. Ibid., 123. 302 Damage to Movable versus Immovable Cultural Property The Birth of Heritage Legislation in the United Kingdom The early nineteenth-century campaign in France for the better legal protection of immovable cultural property was mirrored by a similar gathering of momentum in late nineteenth century Britain. Places of cultural signiicance in Britain were rapidly being destroyed by the building of the railways and housing, casual acts of vandalism by the general public, and even by the actions of archaeologists working on prehistoric sites.9 By 1872, Sir John Lubbock, a politician, gentleman naturalist and archaeologist, and leading exponent of the nineteenth century preservation movement, was intervening with his private funds to buy private land. This land incorporated ancient monuments and his intention was to protect them from being cleared for housing.10 In 1877, the Society for the Protection of Ancient Buildings was founded by the Arts and Crafts designer William Morris to prevent the destruction of historic buildings.11 Lubbock began campaigning in Parliament for legislation to protect monuments from damage and destruction. This was effective, resulting in a legislative turning point under the Liberal government of William Gladstone with the introduction of the Ancient Monuments Protection Act 1882; an Act which has been the subject of much amendment, but the deining elements of which are given expression in the Ancient Monuments and Archaeological Areas Act 1979, which is still in force today.12 Hugo’s early nineteenth century fantasy of a single French law to protect immovable cultural heritage from careless or purposeful damage, and Lubbock’s energetic lobbying for similar legislation in Britain, serves as a good starting point to consider wilful damage to other types of tangible cultural property. Such property would include those materials which no longer have an existing historic context, are not designed with a particular historic setting in mind, or were never integrated into such an environment but are still incontestably of huge cultural signiicance. Movable objects, like paintings on supports such as panel or canvas, ine porcelain or tapestries, can be physically damaged or destroyed just as readily as immovable works, but they fall outside the in situ, immovable examples that concerned Hugo and Lubbock. In fact, one of the main angles of resistance in the nineteenth century to Lubbock’s proposals was built upon fear that they might extend to portable cultural property and interfere further with private property rights in general.13 The Act already represented the irst piece of legislation in English law that made cultural property protection a legal duty of the government, and in this way allowed 9 10 11 12 13 John Schoield, John Carman, Paul Belford, Archaeological Practice in Great Britain: A Heritage Handbook (New York, Springer, 2011) 28. Horace Hutchinson, The Life of Sir John Lubbock (Cambridge, Cambridge University Press, 1914, reprinted 2014) 131-32. Oscar Lovell Triggs, The Arts and Craft Movement (New York, Parkstone International, 2009) 166. Ancient Monuments Protection Act 1882; Ancient Monuments and Archaeological Areas Act 1979 House of Commons Debate, henceforth ‘HC Deb’ 19 Feb. 1878, vol. 237, cols. 1983-84; see also HC Deb, 15 March 1877, vol. 232, col. 1550, Statement of Mr B.B.H. Rodwell, “There could not be a shadow of a doubt that this was a distinct interference never before attempted with the rights or enjoyment of private property”. 303 Vol. XX, Issue 4 Art Antiquity and Law December 2015 the State to control some private cultural property.14 Other objections to the perceived encroachment on property rights took the form of prophesising further cultural property legislation which, in fact, would come into force in the next century. For example, the Attorney General Sir John Holker, expressed concerns about the limits of State control of privately-owned movable cultural property like easel paintings and sculpture, saying: And why should they stop there?...If the owner of the “Three Marys” or Gainsborough’s “Blue Boy” proposed to send it out of the country, were they to prevent him on the ground that the matter was one of national concern?15 This closely resembles the function of the modern day Reviewing Committee on the Export of Works of Art and Objects of Cultural Interest (also known as the Waverley Committee). This Committee was established in 1952 speciically to prevent privatelyowned works of national importance from being lost to overseas buyers when a UK museum or gallery could be given the chance to raise the funds and purchase the items in question. In contrast to the nineteenth-century focus on the immovable however, these items would be classed as portable or movable in comparison to buildings, monuments and ruins. This category of object closely relects most cultural property currently held in public museums and private collections in the United Kingdom. As an example, it could include eighteenth-century canvas paintings depicting, say, Venetian canal scenes.16 While undoubtedly qualifying as an item of cultural importance, and thus cultural property, such works would not have been designed to be permanently ixed in a particular place in perpetuity. These paintings were intended to be portable; either to move between different, but commonly-owned, residences by their possessor, or to have been collected in the context of the aristocratic Grand Tour, when the work’s inal destination would not have been envisaged at the time of its creation. This class of movable cultural property might also include contemporary artwork (i.e. the art of today, produced by artists who are living, or have lived in the twenty-irst century) which, although designed for a unique setting, might be linked to an environment yet to be considered historic. Take for example, the sculpture entitled Cock and Bull consisting of a cockerel atop a bull, preserved in formaldehyde in a glass tank, specially commissioned from the contemporary artist Damian Hirst, to serve as the centrepiece of the steak and chicken restaurant, ‘Tramshed’, in East London.17 Whatever one might think about whether this example qualiies as cultural property, or even ‘art’, its place in a newly renovated commercial space, albeit one crafted from a disused tram shed dating from the early twentieth century, does not attach it to an environment to which it has a strong historic connection. Such a connection may have developed in 200 years’ time or less, however, and in this sense, what is portable now, and for want of a better term, 14 15 16 17 Joseph Sax, ‘Is Anyone Minding Stonehenge? The Origins and Cultural Property Protection in England’ California Law Review, (1990), vol. 78, 1549. Ibid., 1551. For example, Francesco Guardi (1712-1793) The Doge’s Palace and Molo, 1770. Oil on canvas, NG2099, Room 39 as of 6 Feb. 2015, National Gallery. Damien Hirst, (1965-) Cock and Bull, 2012. Glass, painted stainless steel, silicone, bull, cockerel and formaldehyde solution, Tramshed, Mark Hix. 304 Damage to Movable versus Immovable Cultural Property ‘locus-independent’, with the passage of time, might be perceived to be more closely identiied with the once-modern space it was designed for. We might consider this to have already happened in the case of Barbara Hepworth’s 1963 sculpture, Winged Figure, commissioned by John Lewis in 1961, to be mounted on the south-east side of the John Lewis department store on Oxford Street in London.18 It has been estimated that it is seen by about 200 million people a year.19 Another example of a site-speciic artwork might be Draped Seated Woman by Henry Moore, which was sold at cost price in 1962 to the then London County Council by the artist, who waived consultation and transport fees to have it put up on Stepney’s Stifford Estate.20 Moore was motivated to see the work sited on a housing estate in London’s East End. He had intended the artwork to stay on display in the borough as a publicly owned work.21 The proposed sale of the work in 2012 attracted controversy and the title to the work has also been disputed in the last few years.22 In the context of English law, this paper will argue that movable cultural items, whether they be contemporary works of art or by Old Masters, are not recognised as ‘cultural’ objects in the same way as those considered immovable, i.e. integrated or connected to an historic setting. For example, laws such as the Ancient Monuments and Archaeological Areas Act 1979, the Planning (listed Buildings and Conservation Areas) Act 1990, Protection of Wrecks Act 1973 and Protection of Military Remains Act 1986 all recognise the cultural value and cultural context of the sites and ediices they protect. They exist to prevent various types of removal, damage and physical change that can be wrought to the object and its setting. The recognition of the cultural worth of these objects and their settings is a central objective of these legal instruments. It will be argued that legislation used to address damage to movable heritage objects does not recognise ‘cultural’ value in tandem with economic worth. In fact, until recently, there has been little recognition of the cultural value of movable objects at all within the English legal system.23 In contrast to the legislative means used to address instances of 18 19 20 21 22 23 Barbara Hepworth, (1903–1975), Winged Figure, 1963, aluminium, John Lewis Department Store. Estimated by the Hepworth Wakeield, Unknown Author, ‘John Lewis, Oxford Street and the Hepworth Wakeield Celebrate 50 Years of Winged Victory’ (The Hepworth Wakeield, not dated, <www.hepworthwakeield.org/news/john-lewis-oxford-street-and-the-hepworthwakeield-celebrate-50-years-of-winged-igure/>, accessed 10 Feb. 2015. Henry Moore (1898-1986), Draped Seated Woman, 1957, Bronze. Tower Hamlets Council. Unknown Author, ‘Tower Hamlets to Sell Moore Sculpture’, (Henry Moore Foundation, 15 Nov, 2012), <www.henry-moore.org/hmf/press/press-releases/henry-moore/past-pressreleases/tower-hamlets-to-sell-moore-sculpture>, accessed 12 Feb. 2015. Mark Brown, ‘New Twist in Row over Ownership of Henry Moore’s ‘Old Flo’’, Guardian, (London, 19 Dec. 2012) <www.theguardian.com/artanddesign/2012/dec/19/row-henrymoore-old-lo>, accessed 3 Jan. 2015; Geraldine Kendall, ‘ ‘Old Flo’ to be sold at the earliest opportunity’, The Museum Association’s Museum Journal, (London, 30 Oct., 2013), <www. museumsassociation.org/museums-journal/news/30102013-old-lo-to-be-sold-earliestopportunity> accessed 4 April 2015. The legal dispute surrounding the ownership of ‘Old Flo’ will be the subject of a case note in the next issue of Art Antiquity and Law. Further recognition has taken place recently in the Sentencing Council’s new Deinitive Guideline for Theft Offences, published Oct. 2015, in force from Feb. 2016: see the article by 305 Vol. XX, Issue 4 Art Antiquity and Law December 2015 damage to historic objects in situ, movable cultural property is treated by the law simply as ‘property’ and liability for damage to it is established in the same way as it would be for any other property. Damage to movable items of heritage property is generally addressed by mechanisms found in criminal law and tort law (speciically wrongful interference with chattels). These same measures also cover damage to any other property, whether it be a smashed shop window, a police van daubed with grafiti or a damaged shipment of microwave ovens. It is the aim of this paper to explore systematically the legal context of movable cultural property subject to wilful or negligent damage. This will be approached by looking speciically at deinitions of damage, as well as other terms, and comparing how each relevant legal mechanism operates with regard to damage to movable and immovable property respectively. Along with other examples, some of the fairly recent instances of vandalism against paintings at the National Gallery, Tate and Westminster Abbey will be examined.24 Legal approaches to mounting an action or punishing a perpetrator for damage to movable cultural property will be compared with the legal measures designed to protect tangible immovable cultural property associated with a historic setting. The observations already set out above will be explored through a systematic assessment and discussion of legislation, case law and current legal and philosophical scholarship, in order, ultimately, to answer the questions: Does English law address physical harm to movable works of art differently from the way in which it approaches damage to immovable, or hitherto immovable, cultural property? Does it matter? International attempts to reduce damage to cultural property in the context of armed conlict or terrorism will not be discussed (although these are certainly topical given the recent industrial scale of destruction wrought to the ancient cities of Hatra, Nimrud and Palmyra by the self-titled ‘Islamic State’).25 Such discussion would require detailed 24 25 Emily Gould at p. 291 of this issue. For example, a man, unidentiied by the national press, damaged two works by Nicholas Poussin at the National Gallery on 16 July 2011. Cherry Wilson, ‘Man held after Poussin painting is vandalised at National Gallery’, Guardian, (London, 17 July 2011), <www.theguardian.com/ uk/2011/jul/17/poussin-attack-national-gallery> accessed 10 Feb. 2015. Woldzimierz Umaniec damaged Mark Rothko’s Black on Maroon at Tate Modern on 7 Oct. 2012. Unknown Author, ‘Mark Rothko Tate Modern painting damage man jailed’, (BBC News, 13 Dec. 2012), <www. bbc.co.uk/news/uk-england-london-20444436> accessed 14 Feb. 2015. Timothy Haries damaged a portrait of the Queen by Ralph Heimans on 13 June 2013. Unknown Author, ‘Fathers4Justice’s Tim Haries in court on charge of defacing Queen portrait’, (Hufington Post, 14 June 2013) <www.hufingtonpost.co.uk/2013/06/14/fathers4justice-tim-haries queen_n_3441137.html>accessed 12 Feb., 2015. Paul Manning damaged John Constable’s The Hay Wain at the National Gallery on 28 June 2013. Unknown Author, ‘Constable’s The Hay Wain attacked at the National Gallery’, (BBC News, 28 June, 2013), <www.bbc.co.uk/news/ uk-england-london-23099594>accessed 14 Feb. 2015. Kareem Shaheen, ‘Outcry over Isis destruction of ancient Assyrian site of Nimrud’, Guardian, 6 March 2015 <www.theguardian.com/world/2015/mar/06/isis-destroys-ancient-assyrian-siteof-nimrud>accessed 5 April 2015; Kareem Shaheen, ‘Isis video conirms destruction at Unesco world heritage site in Hatra’, Guardian, 5 April 2015, <www.theguardian.com/world/2015/ apr/05/isis-video-conirms-destruction-at-unesco-world-heritage-site-on-hatra> accessed 5 April 2015. Stuart Jefferies, ‘Isis’s destruction of Palmyra: ‘The heart has been ripped out of the city’. Guardian, 2 Sept. 2015, <www.theguardian.com/world/2015/sep/02/isis-destructionof-palmyra-syria-heart-been-ripped-out-of-the-city>accessed 1 Nov. 2015. 306 Damage to Movable versus Immovable Cultural Property consideration of domestic and international laws and treaties signed and ratiied by the States involved as well as an exploration of the erga omnes obligations (and associated agreements and sanctions) which often operate on the recognition of cultural property as ‘global public goods’.26 This could form a separate paper in its own right and falls outside the scope of this article. These agreements and treaties will be consulted only to draw upon the legal deinitions they offer such as ‘cultural property’ and ‘damage’ where instructive in the current context. Outline of the Article The irst section of this article will explore generic and legal and deinitions of ‘property’. The following two sections will address ‘cultural property’ and the ‘historic environment’ in a similar way, examining case law and legal scholarship. The fourth and ifth sections will investigate deinitions of the term ‘damage’ in the context of criminal and tort law, looking at the eficacy and policy behind the CDA as well as various measures relating to the tort of wrongful inference with chattels. The sixth section will examine legislation covering immovable cultural property. The development of the terms ‘damage’, and ‘interference’ in legal nomenclature and function will be charted and cross-legislation relationships will be identiied and evaluated. The inal section will look at recent motives and proposals to reform cultural heritage legislation and how this might change the landscape regarding damage to both movable and immovable cultural heritage. It will examine the very recent changes to sentencing guidelines which, for the irst time, acknowledge the impact of some heritage crimes and will consider whether legislation which acknowledges the ‘cultural’ value of movable cultural property (as currently exists for immovable cultural heritage) is desirable. Section I. What is Property? The Concise Oxford English Dictionary deines property as “a thing or things belonging to someone”. The deinition goes on to indicate that this includes movable and immovable items such as objects, buildings and land as well as intangible things including stocks or shares, copyright and trademarks.27 In English law, categories of property primarily draw a distinction between immovable things such as land and buildings, and portable, and to some degree, intangible objects. The reason for this is that the laws relating to land, or realty, and those relating to personal property, or personalty, have evolved quite differently. After the Norman Conquest all land was tenured through a feudal system by the Crown 26 27 This term relates to a range of other terms, one of which is ‘common heritage of humanity’ which appears in various UN treaties. The idea of global public goods can be seen as an extension of Lubbock and Hugo’s advocacy of the universal value of cultural property. The concept of global public goods has been explored by numerous academics including: Thomas Faunce, ‘Global Public Goods’, in Ruth Chadwick, (ed.), Encyclopedia of Applied Ethics, (2nd edn, Vol. 2, San Diego, Elsevier Academic Press 2012), 523. Judy Pearsall, (ed.), Concise Oxford English Dictionary (Oxford, Oxford University Press, 1999) 1146. 307 Vol. XX, Issue 4 Art Antiquity and Law December 2015 (employing a process of subinfeudation).28 This involved tenants granting to other parties further tenancies of various different types.29 This feudal system is not relected in the law governing personalty (often referred to as chattels personal) which is divided into choses in possession (which are movable), concrete or corporeal items and choses in action. Choses in action cover various types of intangible or incorporeal property, for example shares, debts and intellectual property.30 The Limitations of the Term ‘Property’ and the Cultural Significance of some Property Movable cultural property would be considered personalty and choses in possession. Much of the deliberate damage sustained by this category of property is dealt with under the CDA. This Act treats all affected objects simply as property and makes no special mention of cultural property. The deinition supplied by the Act covers property of a tangible nature, whether real or personal, including money and “wild creatures which have been tamed or are ordinarily kept in captivity”.31 A vandalised painting by Titian therefore, occupies the same property category, for the purposes of this legislation, as the smashed window of a caravan or a deliberately blocked toilet. The only difference between them, as acknowledged by the law, and thus the way they are to be treated, focuses on the cost of returning each thing to its original pre-damaged condition or replacing it completely. Neither of these two remedial approaches may be possible in the case of the Titian. It is unique in its cultural value, and therefore perhaps one could say in its chief utility or function and so therefore irreplaceable. Subject to the type of damage it sustained, it also might never be completely returned materially to its pre-damaged condition. In the case of the caravan and the toilet, however, neither of which are likely to be unique, their complete replacement or repair are inarguably easily achieved.32 This concept, while eminently suited to dealing with ubiquitous items such as car parts and plumbing hardware, might not so easily be applied to making good damage to, or replacing rare and precious items of cultural property. The limitations of this legislation when it comes to recognising the value of cultural property, however, have not escaped judicial comment. Lord Justice Royce made several remarks concerning the damage sustained to a contemporary portrait of Queen Elizabeth II, in R v Haries.33 Although the CDA, under which Haries had originally been convicted, makes no provision for the handling of property of cultural importance or scarcity, Royce L.J. emphasised in his sentencing comments, albeit obiter dicta rather 28 29 30 31 32 33 Mick Woodley, Osborn’s Concise Law Dictionary (London, Sweet and Maxwell, 2009) 183. Kevin Gray and Susan Francis Gray, Land Law (Oxford, Oxford University Press, 2011) 20. Michael Bridge, Personal Property Law (Oxford, Oxford University Press, 2002) 4. Criminal Damage Act 1971, s.10, sub-s.1(a) The value of the replacement and repair has a bearing on the mode of trial. If under £5000 it usually would serve to deprive the defendant of a right of trial on indictment at a Crown Court. Crown Prosecution Service (Criminal Damage, 7 March, 2011) <www.cps.gov.uk/legal/a_to_c/ criminal_damage/> accessed 6 April 2015. Southwark Crown Court, ‘R v Tim Haries: Sentencing remarks of His Honour Judge Alistair McCreath’ (Courts and Tribunals Judiciary, 5 Feb. 2014) <www.judiciary.gov.uk/wp-content/ uploads/JCO/Documents/Judgments/sentencing-remarks-hhj-mccreath-r-v-haries.df>accessed 20 Feb. 2015. 308 Damage to Movable versus Immovable Cultural Property than ratio decidendi, the speciic effects of damage to items of cultural, rather than ordinary property. He said the act of vandalism: was committed, as the applicant well knew, in front of an audience of the public who were likely to be distressed by witnessing such vandalism to a work of art.34 He also pointed out that: the opportunity of the public to have close access to works of art is greatly valued and it would be a sad day when such works can only be viewed from behind barriers or at a distance.35 Finally, Royce L.J. noted that the subject matter and symbolism of the painting was also of signiicance in considering the gravity of the offence when he said: “for many members of the wider public the attack on a portrait of the Queen would be particularly upsetting”.36 We see judicial recognition of these wider societal effects of damage to cultural property in other criminal damage proceedings which almost, but not quite, acknowledge such effects as being an aggravating factor.37 This section has explored the legal character of property. It has shown that the use of legislation such as the CDA can be limited or ill-itting when applied to cultural property if we accept that this type of property does not resemble ordinary, more ubiquitous property which only has a replacement or repair value. Some judges have acknowledged this obiter dicta. Section II. What is Cultural Property? This section will look at legislation and other commentary which provides explicit deinitions of cultural property. As we have seen in the previous section, legal deinitions of property do not usually contain any special mention of the cultural aspect, or cultural value, of that property. We will consider the nature of cultural property according to criminal damage case law, as well as other domestic and selected international deinitions. The problem of determining the scope of cultural property and its relative and changing ‘value’ will also be examined. In numerous scholarly works, the term ‘cultural property’ is frequently used interchangeably with the term ‘cultural heritage’.38 The generic understanding of the term ‘cultural property’ is fairly broad. It was noted by Eric Posner, Professor of Law at 34 35 36 37 38 Ibid., para. 1.7. Ibid. Ibid., para. 1.5. For example, comments in R v. Harasyn aka Harrisyn [2014] EWCA Crim. 151. [8]. Turner J. outlined the effects on the community after the destruction of a replica iron-age hut and education centre. Barbara Hoffmann, ‘Exploring and Establishing Links for a Balanced Art and Cultural Heritage Policy’ in Barbara Hoffmann (ed.), Art and Cultural Heritage: Law, Policy and Practice (Cambridge, Cambridge University Press, 2009) 1-18; Lyndel Prott, Patrick O’Keefe, Law and Cultural Heritage: Volume 3, Movement (London, Butterworths, 1989) 653. 309 Vol. XX, Issue 4 Art Antiquity and Law December 2015 the University of Chicago, that non-legal deinitions ‘are vague and shifting’.39 Posner himself describes cultural property as ‘property that has some special relationship with a particular culture or nation state’.40 He also notes that cultural property is to be found both in situ and as part of a historical site, as well as being portable.41 The overlying deinition, for Posner, however, of both movable and immovable cultural property, is that these materials must “provide insight into earlier civilisations”, or that they “are produced by members of a culture’ or ‘are thought to embody or represent that culture in a distinctive way”.42 In the Encyclopaedia of Forms and Precedents (the legal resource for deinition) it is acknowledged that there is no universally accepted deinition of cultural object, but that: loans of these objects can involve any tangible movable object of aesthetic, historical, architectural or archaeological interest. Characteristic examples are paintings, sculpture, manuscripts, photographs, costume, furniture, decorative art, coins, and antiquarian artefacts in general. Fossils, geological samples, animal and other natural remains are also included.43 Historic England, the public body which oversees the nation’s historic environment, deines cultural property as: inherited assets which people identify and value as a relection and expression of their evolving knowledge, beliefs and traditions, and of their understanding of the beliefs and traditions of others.44 The Association of Chief Police Oficers states that cultural property may be deined as: valued assets that have been passed down from previous generations or items of current cultural signiicance, some of which may be intangible but much of which is ‘material’ and touchable such as historic sites and ruins, shipwrecks, buildings, parks and gardens and objects such as paintings, jewellery, literature, sculpture and ceramics.45 39 40 41 42 43 44 45 Eric Posner, ‘International Protection of Cultural Property: Some Sceptical Observations’ (2006) Public Law and Legal Theory Working Paper No. 141, 1. Ibid. Ibid. Ibid. Encyclopaedia of Forms and Precedents, Bailment, Vol 3(1) (B) Commentary, ‘J: Museum Bailments: Loans and Bailments of other Cultural Objects’, (a) General, 91 Subject matter and scope, 3325 <www.lexisnexis.com/uk/legal/results/enhdocview.do?> accessed, 10 Feb. 2015. English Heritage, ‘Conservation Principles: Policies and Guidance for the Sustainable Management of the Historic Environment’ ( English Heritage, 2008) 19. <https://content. historicengland.org.uk/images-books/publications/conservation-principles-sustainablemanagement-historic-environment/conservationprinciplespoliciesguidanceapr08web.pdf/> accessed 19 Nov. 2014. As of 1 April 2015. English Heritage split into two organisations. The charity arm will continue to be known as English Heritage and a public body will be known as Historic England. The Association of Chief Police Oficers led Heritage and Cultural Property Crime Working Group, ‘Heritage and Property Crime National Policing Strategic Assessment’ (ACPO, 2013) 12, <www.museumsassociation.org/download?id=1038797>accessed 12 Oct. 2014. 310 Damage to Movable versus Immovable Cultural Property Both of these deinitions are in step with one another and wide-ranging. They include intangible property and historic sites, and are without limitations as to the age of the property concerned. Definitions of Cultural Property in English and European law English law is helpful in providing a deinition of ‘cultural property’ in the Dealing in Cultural Objects (Offences) Act 2003. Here it means ‘an object of historical, architectural or archaeological interest’.46 The Act covers the traficking of such goods and their illegal excavation. The Explanatory Notes for the Act expand upon this, and point out that it is a wide deinition covering, but not limited to a diversity of objects ranging from ornamental objects, portable artefacts of various materials such as precious or base metal, ceramic, glass, stone or organic material. Historic sites and their contents are also included such as the remains of buildings, earthworks and forts, ield systems and battleields. Materials of a submerged or subterranean nature are also covered.47 In Government of the Islamic Republic of Iran v. The Barakat Galleries Limited, ‘the Objects’ (falling within Section 2 of the Act) were antiquities.48 Here, the Government of Iran alleged that eighteen carved chlorite jars, bowls and cups dating from the period 3000 BC to 2000 BC originated from unlicensed, and therefore unlawful, excavations in the Jiroft region of Iran.49 A further guidance publication for this piece of legislation, however, makes it explicit that ‘cultural objects’ mentioned in the Act do ‘not include items of purely artistic interest’ and underlines that the Act is concerned ‘with objects which had formed part of a building, or are removed from a monument, or excavated contrary to heritage legislation’.50 This suggests that without a historic setting, or without the threat of illegal transfer or excavation, portable ‘cultural objects’, i.e. those objects that may have come to be housed in a museum, country house, modern gallery or auction house, would not be covered by such legislation. For example, Old Master paintings housed in museums or modern sculpture kept in private spaces would not be covered. The interpretation of cultural property in the Act is limited to those items likely to be the subject of illegal excavation abroad and further dealing. These items are most likely to be antiquities, as in the case of Iran v. The Bakarat Galleries Limited, cited above. It is signiicant that the property must have been detached from a previous environment. Eighteenth-century paintings or other ‘stand-alone’ cultural works are unlikely to be covered. The deinition of cultural property is linked entirely to the objectives of the legislation and the types of objects most affected by the offence. Another deinition of cultural property appears in the Protection of Cultural Objects on Loan (Publication Provision of Information) Regulations 2008, which operate in 46 47 48 49 50 Dealing in Cultural Objects (Offences) Act 2003, s. 2(1) Department for Culture Media and Sport, ‘Explanatory Notes to the Act’, ss. 17-20 <www.old. culture.gov.uk/images/publications/ExNotesDealinginCulturalObjectsActdraft.pdf> accessed 13 Dec. 2014. Dealing in Cultural Objects (Offences) Act 2003, s. 2(1); [2007] EWCA Civ 1374 [2007] EWCA Civ 1374, [4] Lord Phillips. Department for Culture, Media and Sport, ‘Dealing in Tainted Cultural Objects (Guidance on the Dealing in Cultural Objects (Offences) Act 2003)’, 4. <http://obs-trafic.museum/sites/ default/iles/ressources/iles/DCMS_Dealing_Tainted_Cult_Objects.pdf>accessed 4 Jan. 2015. 311 Vol. XX, Issue 4 Art Antiquity and Law December 2015 conjunction with the Tribunals, Courts and Enforcement Act 2007 and cover cultural items entering the UK jurisdiction.51 While not describing what qualiies as a cultural object deinitively, this statutory instrument does offer some guidance on general cultural object types based on how they are made or constructed. The Regulations require that the type of object is deined.52 Examples given include movable items such as paintings, sculpture and drawings. They also require a description of the material from which the objects are created (except in the case of archaeological or paleontological material). This suggests that objects previously attached to a historic environment would be included.53 Another deinition of cultural property is offered by European Directive 2014/60/EU dealing with the return of cultural objects unlawfully removed from the territory of a Member State.54 The new provisions of the Directive, which is a recast of Directive 93/7/ EEC, apply from 19th December 2015. Although the list of cultural materials is extremely broad in terms of age and type, of the fourteen categories, ten determine eligibility by reference to inancial value.55 Case law at the European level has provided deinitions of terms such as a ‘collection’ of cultural objects. In the case of Collector Guns GmbH & Co. KG v. Hauptzollamt Koblenz56 the European Court of Justice determined that a ‘collection’ be deined as “rare, not used for its original function, [was] the subject of special transactions outside normal trade and [is] of high value.”57 Such a deinition, with its reference to monetary values and the absence of any acknowledgement of cultural worth, seems more in line, conceptually, with an assessment of the value of ordinary property (by necessity, economic in nature), than a consideration of the worth of cultural objects. Does Cultural Property Definition Appear in Criminal Damage Case Law? In criminal damage case law, deinitions of cultural property are dificult to ind, as is much recorded comment on the cultural nature of the property subject to damage, since the few cases which have been tried have taken place in the lower courts of ‘no record’. However, there is still some material to draw upon. As we have seen in the previous section, in the case of R v. Haries the judge emphasised the value of cultural property to the public and the particular distress that this sort of damage can cause. In R v. Hakimzadeh, judicial efforts were also made to state what cultural property is not, and how it differs from other property.58 Here, a defendant convicted of the theft and 51 52 53 54 55 56 57 58 Protection of Cultural Objects on Loan (Publication and Provision of Information) Regulations 2008. Ibid., s. 3 (b)(i). Ibid., s. 3(b)(vi). European Directive 2014/60/EU 1095 Introduction: Meaning of ‘Cultural Object’. Return of Cultural Objects Unlawfully Removed from Member States. European Directive 2014/60/EU 1095. Of sections (1-14), only (1), (2) (8) and (11) do not use inancial value as a deining factor. 252/84 Collector Guns GmbH & Co. KG v Hauptzollamt Koblenz [1985] ECR 3387. Ibid., paras 15-19. [2009] Crim. L.R. 676, [2009] EWCA Crim. 959, [2010] 1 Cr. App. Rep. (S) 10, [2010] 1 Cr. 312 Damage to Movable versus Immovable Cultural Property damage to books had stolen Persian antiquarian bindings from the ifteenth and sixteenth centuries held at the Bodleian and British Libraries, cutting out some pages from certain rare volumes with a scalpel. Blake J. said: this kind of offending, where cultural property is concerned, is very different from offending where the seriousness can only be gained by the value in the open market of items which can readily be replaced and purchased, whether they may be goods in a supermarket, or ordinary books which are still in print and available, and it is simply the replacement value of items lost. Cultural property cannot be valued in the same way as cash or readily replicable items, and the gravamen is the damage to rare items of historical, intellectual and cultural importance, and that is why, in our judgment, a signiicant element of deterrence is always necessary to deter others from such crimes which diminish the intellectual and cultural heritage of the nation.59 Here, for Blake J., at least, cultural property has a value beyond the economic, and is something rare and of importance to the nation. International and Domestic Definitions of Cultural Property International legal instruments specifying what constitutes cultural property provide deinitions as wide-ranging as some of the non-legal deinitions discussed above. For example, after the catastrophic destruction of cultural property during the Second World War, the Convention for the Protection of Cultural Property in the Event of Armed Conlict was adopted at The Hague in 1954.60 Though still unratiied by the United Kingdom, the Convention deines cultural property as “movable and immovable property of great importance to the cultural heritage of every people”.61 This includes monuments, architecture, archaeological sites, works of art, manuscripts, books and other objects of artistic, historical or archaeological signiicance.62 In 1972, the United Nations Educational, Scientiic and Cultural Organization, (UNESCO), adopted the Convention Concerning the Protection of the World Cultural and Natural Heritage. Article 1 of the Convention deines cultural heritage as being divided into three categories: ‘groups of buildings’, ‘sites’ and ‘monuments’. The mostly ‘immovable’ heritage categories (‘groups of buildings’ and ‘sites’) contain further 59 60 61 62 App. Rep. (S) 10 [8] Ibid., [13]. UNESCO, ‘Convention for the Protection of Cultural Property in the Event of Armed Conlict with Regulations for the Execution of the Convention 1954’ (adopted 14 May 1954, entered into force 23 March 1956) No.3511. (The draft Cultural Property (Armed Conlicts) Bill contained provisions to enable the UK to ratify the 1954 Hague Convention. Department for Culture, Media and Sport, ‘Government Response to the Culture, Media and Sport Committee Reports on the Draft Heritage Protection Bill and Draft Cultural Property (Armed Conlicts) Bill’ Presented to Parliament by the Secretary of State for Culture, Media and Sport by Command of Her Majesty, Oct. 2008, 5, <www.gov.uk/government/uploads/system/uploads/attachment_ data/ile/243360/7472.pdf> accessed 2 Jan. 2015). Ibid. Ibid., Art. 1. 313 Vol. XX, Issue 4 Art Antiquity and Law December 2015 restrictive deinitions which are too lengthy to list here.63 The category of ‘monuments’ features movable and immovable cultural heritage. This group is comprised of: ‘architectural works, works of monumental sculpture and painting, elements or structures of an archaeological nature, inscriptions, cave dwellings and combinations of features, which are of outstanding universal value from the point of view of history, art or science’.64 UNESCO uses a second category for deining natural heritage but makes it explicit that the man-made and natural environments can exist together as cultural heritage.65 Just like the non-legal deinitions offered by heritage organisations and law enforcements representatives, the Convention deliberately uses wide deinitions, some of which ‘hybridise’ the man-made and natural, for example natural caves used as prehistoric dwellings with cave paintings, partially landscaped gardens and historically managed forests. Problems with Defining Cultural Property It would not be unreasonable to propose that all the deinitions mentioned above can validly co-exist alongside each other as they are broad enough not to be contradictory. Common to all of them is the recognition of a worth other than monetary value. Some legal scholars such as Richard Blum, however, have highlighted the dificulty with rendering these broad deinitions useable in a legal context.66 He has pointed out that the absence of precise and exclusive terms would hamper the legal protection of cultural property: by allowing almost anything, however badly and widely produced to be called ‘art’ or ‘heritage’ [resulting in] broad, bad and noisy advocacy [driving] out adequate protection for the good.67 Before addressing the question of legal application, James Young, a philosophy professor, explored the dificulties encountered in deciding what qualiies as art or heritage, or neither, and the relationship between this decision and the legal context. He argued that even if deciding in the afirmative as to qualiication as art or heritage, it does not necessarily follow that the piece in question would be worthy of legal protection. This would depend on the criteria being used and whether it was considered that the two aspects of qualiication as art or heritage, and the need to protect from damage or destruction, were mutually exclusive or, in fact, linked.68 63 64 65 66 67 68 UNESCO, ‘Convention Concerning the Protection of World Cultural and Natural Heritage’ (adopted 23 Nov. 1972), pt 1, Art 1. Ibid. Ibid., pt 1, art 2. Richard Blum, ‘Art and Cultural Heritage Loss: A Worthy Priority for International Prevention and Enforcement’ (1995) vol. 3, Journal of Financial Crimes, 149. Ibid., 151. James Young, ‘Destroying Works of Art’ (1989) vol. 47, The Journal of Aesthetics and Art Criticism, 371. 314 Damage to Movable versus Immovable Cultural Property Young uses a series of real-life examples of various paintings in storage at a museum. One has some artistic merit but is out of favour in terms of taste. The museum, which seeks to utilise extra storage space, therefore attempts to sell the work but no one buys it. It displays it in a cafeteria but diners ask for it to be removed as its subject matter is off-putting. The museum attempts to give it away but then no one will take it. Eventually it is put in a skip. The work has some artistic value and age: it had formerly made it into the collection of a public museum. It had been considered worthy of preservation in the past, as heritage or art, and whilst still art, was no longer deemed suficiently culturally signiicant to continue to receive protection. But could it regain this in future? Is this a basis on which we could reliably make decisions about vast quantities of cultural material which perhaps needs protecting? Is the type of ownership signiicant? Is it easier to determine that publically (as opposed to privately) owned art is worthy of protection as cultural property? In the United Kingdom, disposal of works of art by museums under certain circumstances is regulated by the Museum and Galleries Act 1992. The relevant circumstances vary from institution to institution, with the decision usually vesting in its Trustees.69 The physical alteration of works of art is also regulated. The Copyright Designs and Patents Act 1988 sets out an artist’s moral rights, regardless of the ownership of the cultural object. These rights operate during the lifetime of the artist and for 70 years after his or her death, although this does not cover complete destruction.70 The most famous example of a work considered of high cultural and artistic value being destroyed during the artist’s lifetime was the deliberate destruction of a portrait by Graham Sutherland of Winston Churchill by his wife, Clementine. The portrait was disliked by Churchill and his wife despite praise from curators and critics. Sutherland described and the act of destruction as ‘an act of vandalism’.71 Lady Churchill had also completely destroyed other portraits of her husband she disliked, allegedly in a boiler room at Chartwell.72 While these broader questions about disposal and retention are outside the scope of this essay, the categorisation of what constitutes cultural property is important. In short, at present, there is no commonly accepted objective way to assess items of movable property to establish whether they are of particular cultural worth or to determine 69 70 71 72 For example, the National Portrait Gallery can, as laid down in the Museums and Galleries Act 1992, dispose of an object, by way of sale, exchange or gift: - where the object is transferred to another national museum or institution listed in Schedule 5 Part 1 of the Act where the object is a duplicate of another object which they own. - where the identiication of a portrait formerly accepted by the Gallery has been discredited. - where the object has become useless by reason of damage, physical deterioration, or infestation by destructive organisms (the means of disposal can include destruction). (Museum and Galleries Act 1992, s. 4(5)). The moral rights provisions (Section IV) of the Copyright Designs and Patents Act 1988 give artists for their lifetimes and for 70 years after death the right to object to ‘derogatory treatment’ of their works which damage honour, integrity and reputation. This might include any unauthorised addition or amendment to, deletion from, or alteration of, their works. It does not include the right to prevent complete destruction of works. Copyright Designs and Patents Act 1988, s. 80 (1-4). Joseph Sax, Playing Darts with a Rembrandt: Public and Private Rights in Cultural Treasure, (University of Michigan Press, 2001) 37-39. Ibid. 315 Vol. XX, Issue 4 Art Antiquity and Law December 2015 the strength or longevity of that categorisation. This is in sharp contrast to the system of scheduling for immovable cultural material which will be discussed later in this section.73 Posner even suggests that in fact, clear conlicts can arise between the appraisal of a cultural item’s aesthetic value, versus the symbolism of the object itself. He suggests that this makes protection either dificult, unwise or even unethical in some contexts. Posner uses the example of Polish and Hungarian citizens being legally prevented from tearing down aesthetically valued or historically noteworthy contemporary statues of Stalin, or Iraqi citizens from doing the same with those of Saddam Hussein. Here, he argues that protecting an object from damage because of visual or socio-historical qualities alone could be problematic if it is done at the expense of allowing the will of the people to prevail, subsequently stiling a legitimate and a materially symbolic rejection of reviled igures or oppressive regimes.74 This section has established that against a background of broad international legal deinitions of cultural property and non-legal attempts to describe the term more generally, English law offers us two deinitions of cultural material. One comes from the Protection of Cultural Objects on Loan (Publication Provision of Information) Regulations 2008, which includes movable and immovable materials, and the other, from the Dealing in Cultural Objects (Offences) Act 2003, which excludes movable cultural property ‘of purely artistic interest’. There is inconsistency in the deinitions of movable cultural property employed by these two pieces of legislation. We do not see the same lack of consistency affecting immovable cultural property, whose deinition is harmonised across the two legislative instruments. Preserving the historic context of an immovable or movable object is a key objective of the legislation discussed above. This will be further explored in the next section when the legal context of the historic environment is considered. Section III. The Legal Character and Definition of the Historic Environment This section looks at the historic setting of some in situ cultural property and its legal character, examining the deinitions of the historic environment within heritage–focussed legislation. This legislation has cultural, rather than economic value at heart. A further discussion of the deinitions of damage in these provisions will take place in section IV. What is the Historic Environment? In England and Wales, there are several strands of legislation to protect cultural property still attached to, or otherwise physically associated with, a historic setting. For example, the Ancient Monuments and Archaeological Areas Act 1979, the Planning (listed Buildings and Conservation Areas) Act 1990, the Protection of Wrecks Act 1973 and 73 74 Nout van Woudenberg, State Immunity and Cultural Objects on Loan (Netherlands, Global Hotei and Martinius Nijhoff, 2012) 9-11. Posner, 8. This interesting problem deserves a wider discussion than is possible in the current article. A very recent example of precisely this issue arose in the protests surrounding the bronze statue of Cecil Rhodes in South Africa; Agence France Presse, ‘Cheers and Protests as University of Cape Town removes Cecil Rhodes Statue’ Guardian 9 April 2015, <www. theguardian.com/world/2015/apr/09/university-cape-town-removes-statue-cecil-rhodescelebration-afrikaner-protest> accessed 12 April 2015. 316 Damage to Movable versus Immovable Cultural Property the Treasure Act 1996 all prevent various types of removal, damage and physical change of or to cultural property in situ, as it is recognised by these Acts. There will be further discussion of this legislation in section VI. The provisions in this legislation protect the historic context, which, whether the cultural material or property is physically attached to it or not, is frequently seen as central to the value of the cultural property on, or within it. For example, the Ancient Monuments and Archaeological Areas Act 1979 covers speciically designated sites and their associated objects in England and Wales.75 It also outlaws the removal of objects from sites of historic signiicance already protected by the State.76 In a similar way, sites of wrecked vessels and objects within them, or formerly within them, are protected under the Protection of Wrecks Act 1973.77 The recognition that ‘cultural’ and ‘historic’ value is worth protecting is inherent in the philosophy behind such location-speciic legislation. How is the Historic Environment Identified in Legislation? The recording and designating of these historic environments is achieved by the identiication and designation of listed buildings, scheduled monuments and other protected sites. The Department for Culture, Media and Sport (DCMS) has ultimate responsibility for this activity and fulils its duties in this regard through Historic England (formerly English Heritage), which works with local councils to determine and maintain a register of the historic sites. Historic England uses the following non-legal deinition of the historic environment: All aspects of the environment resulting from the interaction between people and places through time, including all surviving physical remains of past human activity, whether visible, buried or submerged, and landscaped and planted or managed lora.78 This particular deinition of the term ‘historic environment’ does not appear to be precisely relected in the range of legislation concerning the concept mentioned above. This is attributable to the evolution, from the nineteenth century onwards, of locationspeciic environmental heritage legislation structured around recognising historic sites and their contents, and following a procedure ultimately classing them together as ‘scheduled monuments’. 79 This classiication removes the need to determine whether an historic environment exists as this is implied by virtue of the classiication itself. The irst of a succession of Ancient Monuments Acts, starting in 1882, incorporated a list of fewer than one hundred, mainly prehistoric, monuments in Great Britain and Ireland.80 The legislation also allowed for an Inspector of Ancient Monuments to oversee and 75 76 77 78 79 80 The Treasure Act 1996, s. 1(1), (2). Ibid. Protection of Wrecks Act 1973, s. 1(1)-(3). Department for Communities and Local Government, ‘National Planning Policy Framework’, Annex 2: Glossary, (2012), 52; English Heritage,‘Conservation Principles’, (English Heritage, 2008),71. At irst only prehistoric monuments could be scheduled using the Ancient Monuments Protection Act 1882. See HC Deb 12 Aug. 1913 vol. 56 cc2459-60. Ancient Monuments Protection Act 1882. 317 Vol. XX, Issue 4 Art Antiquity and Law December 2015 provide advice on their protection and care. This was not initially popular and, at irst, no further owners came forward to place their ‘monuments’ under the Act. It was not until 1883 that Kit’s Coty House, the remains of two megalithic ‘dolmen’ burial chambers became the irst monument to be taken into custodianship.81 A few more sites were to join Kit’s Coty House but as the arrangement was voluntary and owner-motivated, many more important sites continued to be damaged and destroyed. The Act was a signiicant step in placing some pre-historic sites under the protection of the State, and despite its limitations, further debates and campaigning gave rise to the revised Ancient Monuments Act of 1900 and further revisions in 1910.82 The 1913 Ancient Monuments Consolidation and Amendment Act repealed the previous Acts and governed ancient monument protection until 1979 when the Ancient Monuments and Archaeological Areas Act 1979 was enacted. The 1913 Act introduced new powers which the 1979 Act upholds.83 In the 1913 Act, a compulsory ‘preservation order’84 could be made when a monument or building of suficient “historic, architectural, traditional, artistic, or archaeological interest” was put at risk by the owner, i.e., those monuments or buildings “in danger of destruction or damage from neglect or injudicious treatment, … [whose] preservation … is of national importance”.85 In the 1913 Act, the term ‘owner’ was not deined as such, but the concept was described quite broadly as a “person deriving title under, from or through any owner”.86 The ‘scheduling’ of archaeological sites was also introduced.87 This involved compiling a list, or schedule, of these sites which were determined to be of ‘national importance’. Once on the list and the owner notiied, damage to the site was criminalised. Scheduling is a cross-legislation legal mechanism for protecting historically signiicant monuments and their immediate settings including in situ archaeological material in England and Wales. This measure closely represents the type of legal solution Victor Hugo envisaged in 1825.88 His aim of preserving the sites and thus their cultural value, and preventing the actions of a destructive owner is enshrined in the concept of scheduling. Today, Historic England proposes monuments and archaeological remains to be protected, in some cases receiving suggestions from the public through local authorities. Proposed sites are then conirmed or rejected by the Secretary of State. Scheduled monuments can be of any age, ranging, as they do, from prehistoric burial mounds to Second World War fortiications. This signiicantly expands the types of private property which can be put under State control. While the historic environment of cultural property is deined somewhat differently in legislation dealing with different settings, e.g. part of a building or underground, the mechanism of scheduling underlines the overall importance of the historic environment 81 82 83 84 85 86 87 88 Kit’s Coty House, the remains of two megalithic ‘dolmen’ burial chambers, Kent, England. Ancient Monuments Protection Act 1900; Ancient Monuments Protection Act 1910. Ancient Monuments Consolidation and Amendment Act 1913. HL Deb 10 Feb. 1914, vol. 15, col. 52. HL Deb 28 May 1913, vol. 14, cols. 431 (1-3). HC Deb 12 Aug. 1913, vol. 56, col. 2462. Ancient Monuments and Archaeological Areas Act 1979, s. 1(1-11). Massin, 160-62. 318 Damage to Movable versus Immovable Cultural Property of cultural materials in situ and the need to protect them for future generation regardless of ownership (i.e. State or private).89 In these Acts, and particularly through scheduling, monetary value, rights of utility or other property rights are subordinate to the public cultural value of the heritage material concerned. In this way, the cultural importance of immovable property (and some of its potentially movable components) continues to be clearly recognised and is at the crux of existing legislation. This is largely the legacy of the energetic nineteenth century preservation movement which catalysed the enactment of legislation focussed purely on protecting immovable cultural materials. Subsequent legislation was harmonised by the use of scheduling which, in effect, registered (and thus protected) the historic setting of a site. This crosslegislation legal mechanism for protecting historically signiicant monuments and their immediate settings uniies a range of legislation affecting immovable objects. Other legislation has since been drafted to protect in situ contexts which does not rely on scheduling but employs broad but well-deined and non-contradictory deinitions of the historic environment. This, and other deinitions will receive further attention below. Section IV. Definitions of Damage: Legislation Covering Movable Cultural Property This section examines methods of gaining redress for damage to movable cultural property. It looks at how damage to cultural heritage has been dealt with by the criminal law and through civil actions. Precisely what is meant by ‘damage’ is key to unpicking the differences between the approaches of these two arms of the law. What is Damage? A generic, non-legal deinition of the term damage can apply to permanent and temporary changes in the state, or function of something. These material changes might have been brought about by intentional, negligent or accidental acts. The Oxford English Dictionary deines damage as ‘a physical harm impairing the value, usefulness or normal function of something’, these effects being ‘unwelcome or detrimental’.90 The CDA 1971 is used to address most damage to portable works of art but it can also be used to prosecute acts of damage to items of immovable cultural heritage.91 Examples of members of the public intentionally damaging works of art in museums in the United Kingdom involve prosecution under this legislation.92 There are three defences to being charged under the CDA, including that the change to appearance or function of the property caused by the accused is not damage.93 It may be proved that the accused may have committed the 89 90 91 92 93 Ancient Monuments and Archaeological Areas Act 1979, s. 1(1-11). Pearsall, above, note 27, at 361. Criminal Damage Act 1971. For example, the previously mentioned instances of damage to work at the National Gallery, Tate and Westminster Abbey, see above, note 24. In fact, criminal damage accounts for 17% of recorded crime in England and Wales but has been decreasing since 2006. Ofice for National Statistics, ‘Statistical Bulletin: Crime in England and Wales, year ending March 2014’,(Ofice for National Statistics, 17 July, 2015),<www.ons.gov.uk/ons/rel/crime-stats/crime-statistics/ period-ending-march-2014/stb-crime-stats.html>accessed 6 April 2015. Other defences include: Belief in the owner’s consent to damage property. Criminal Damage 319 Vol. XX, Issue 4 Art Antiquity and Law December 2015 actus reus that brought about the change, but it has been argued that the resulting change in state of the thing affected was not ‘damage’ according to tests set out by the appellate courts.94 This is very signiicant considering the impact of different types of damage that can be sustained to different types of property, of which cultural property is one. This will be discussed in more detail in the next section. In section 1 (1) of the CDA, a person who, without lawful excuse ‘destroys or damages’ any property belonging to another is guilty of an offence. Within the Act no deinition of damage is offered. In the Act, according to Loveless, while destruction is more easily narrowed down, damage can be in many forms and is more dificult to determine qualitatively and quantitatively.95 This lack of deinition was deliberate and met the objectives of the drafting committee who wanted to replace the Malicious Damage Act 1861, which dealt with numerous offences of malicious damage including industrial sabotage.96 The Law Commission sought to simplify the range of these offences and draft new legislation relating to ‘damage to tangible property in the widest sense’ and to leave issues of context and motivation to be considered at sentencing.97 We see this occurring in cases of damage to cultural property, as has been discussed in the cases mentioned in section 1. This will be discussed further in the following sections. Damage: Permanence and the Impairment of Usefulness In A (a juvenile), the defendant spat on a policeman’s waterproof raincoat.98 This was found not to be damage. The spittle could easily be wiped off the waterproof surface of the coat and left no permanent damage. It was held that the defendant’s spittle did not constitute unlawful damage to property. It would have been different if the material was not waterproof or had left a stain, thus requiring dry cleaning and immediately incurring a cost to the victim.99 Here, the courts established that temporary damage that left no trace cannot be considered damage under the Act. In the case of R v. Fiak, no lasting damage to the direct object was caused by the behaviour of the defendant, but signiicantly, a temporary but indirect impairment of the usefulness of a blanket and some police cells occurred.100 The temporary nature of the damage in Fiak was still found to be damage, reinforcing that property may be found to be damaged, though not permanently so, if it resulted in impairment and incurred a cost to make good. Judge J. cited the authority of Auld J. when he stated that damage could be widely interpreted to ‘include not only 94 95 96 97 98 99 100 Act 1971, s. 5(2)(a); Damage sustained in defence of one’s own property, s. 5(2)(b). For example, R v. Fiak [2005] EWCA Crim 2381. Janet Loveless, Criminal Law: Texts, Cases and Materials (Oxford University Press, Oxford, 2014) 668. Law Commission, Working Paper, No. 23, April 1969. Law Commission, Malicious Damage to Property, 1969. A (a juvenile)v. R (1978) CLR 689. Loveless, above, note 95, at 668. R v. Fiak [2005] EWCA Crim. 2381, [20]. A conclusion that the blanket and loor were not damaged, even though the damage was remediable, “would have been incomprehensible”. The prosecution did not contest that the blanket was not soiled but the defence pointed out the temporary nature of the damage. i.e. the clean water simply being on a waterproof loor, resembling the facts of A (a juvenile). 320 Damage to Movable versus Immovable Cultural Property permanent or temporary physical harm but also permanent or temporary impairment of value or usefulness’.101 The issue of the permanence of damage was also raised in Hardman v. cc Avon & Somerset.102 Similarly, in Roe v. Kingerlee the appellant smeared mud over the wall of a police cell and was convicted by the magistrates of criminal damage which cost £7.00 to rectify.103 He appealed stating that no permanent damage had occurred but his conviction was upheld as his actions amounted to damage despite the temporary nature and low cost to make good. It is clear, then, that both temporary and permanent damage to cultural property would be covered by the CDA. So too, would the temporary impairment of the usefulness of the object. It seems that this might potentially include the ability to view it properly if it is obscured somehow. This could mean that writing on the modern glass in front of a painting, or winding and tying ropes around a sculpture, which although not permanently damaging, and not complicated to reverse, could perhaps qualify as impairment and therefore damage under the Act. The Nature of the Article and Defendant’s Opinion of The Damage Other principles have been developed by the courts and have expanded and contracted the deinition of damage according to the magnitude or speciic effect of the damage on the type of item sustaining it. This has obvious signiicance for material damage to fragile cultural property, in contrast to other more robust items where the preservation of aesthetics are less crucial to function. For example, a scratch on a blacksmith’s anvil versus a scratch on a Donald Judd sculpture of polished steel has less aesthetic and economic signiicance, and in the former case, might prompt a defendant to argue that his or her actions do not constitute damage. In the case of some vandals of art, it has been argued that their additions are perhaps ‘improvements’ or have in fact become part of the object itself.104 This aspect of the offence has been explored by legal scholars such as Ian Edwards.105 The case of Seray101 102 103 104 105 Morphitis v. Salmon [1989] 154 J.P. 365. Shortly after this case, in 1991, Lord Lane C.J. analysed R v. Whitely and restated Auld J.’s judgment: “any alteration to the physical nature of the property concerned may amount to damage within the meaning of the section. Whether it does so or not will depend on the effect that the alteration has had upon the legitimate operator (who for convenience may be referred to as the owner) where…the interference…amounts to an impairment of the value or usefulness of the property to the owner, then necessary damage is established.” In Hardman v. Chief Constable of Avon and Somerset Constabulary, where a specially formulated, water-soluble paint was used to grafiti a pavement temporarily, and then be washed away by rain and pedestrian trafic, was still held to be criminal damage. This took into consideration the cost and time incurred by the council, who had not waited for rain and footfall to remove the paint, but had contracted specialist cleaners to remove the paint with high pressure water jets, at once incurring cost. Here, the defence used A (a juvenile) to suggest that following this case the appellant caused no damage to the pavement in the meaning of the Act, but this was to disregard the cost and time incurred by the council in removing it. Roe v. Kingerlee [1986] Crim. L.R. 735 DC. Helen Scott, ‘Iconoclasm as Art: Creative Gestures and Criminal Acts in Museums and Galleries’ in Jennifer Walden (ed.), Art and Destruction (Cambridge Scholars Publishing) 88. Ian Edwards, ‘Banksy’s Grafiti: a Not-So-Simple Case of Criminal Damage?’ [2009] Journal 321 Vol. XX, Issue 4 Art Antiquity and Law December 2015 Wurie v. DPP, however, makes it clear that the defendant’s opinion of whether what he did was damage or not is irrelevant if damage has been found to be caused; his original intention was immaterial.106 It was also held that an earlier case of Fancy was wrongly decided in this respect, concluding as it did that a defendant’s act in painting over National Front slogans on a wall with white paint did not constitute damage. Now, it would be considered damage.107 The role of the magnitude or type of damage in determining what constitutes damage was discussed in Salmon v. Morphitis.108 Here, it was held that a scratch on a scaffolding pole did not amount to damage. Loveless notes that the scratch is incidental to the scaffolding pole’s appearance and function and that many scaffolding poles have scratches. An identical scratch to a painting or sculpture, however, would severely affect the appearance of it, and thus its function.109 Consequently, this would constitute damage. Therefore the courts have concluded that not only is importance attached to the gravity of the damage sustained (either temporary or permanent), but that the type of property sustaining a particular type of damage is also signiicant and will be treated on its own merits. In a case involving cultural property, the magnitude and legacy of damage was noted. In 2003, in sentencing Paul Kelleher, who had used a cricket bat and gallery stanchion post to decapitate a statute of Margaret Thatcher, Bathurst-Norman J. spoke about the effect of the damage to the statue. He stated that even though the work of art could be repaired for £10,000, “it would seem it would never be quite the same again.”110 Clearly, even though damage had most certainly been found here, and even though that damage could be repaired, because of the nature of the object it was recognised that the physical change to it would always be manifest. The damage could not be totally repaired without trace and thus the object could not be completely returned to its pre-damaged state. Section V. Definitions of Damage to Goods in Chattel Torts: Trespass and Negligence Damage to cultural property might not always stem from criminal acts but could instead be caused by a tortfeasor who, intentionally or negligently interferes with another’s goods or ‘chattels’, as they are usually termed. A ‘chattel personal’ is a tangible, movable or immovable article of property.111 If a party can be shown to owe a duty of care which has subsequently been breached, and damage or loss has occurred, then they can ind themselves liable to a civil action in tort. This section will explore these tortious cases and their deinitions of damage. The common law, like the CDA, does not speciically distinguish between cultural 106 107 108 109 110 111 of Criminal Law, 2-17. Seray-Wurie v. DPP [2012] EWHC 208. Fancy [1980] Crim LR 171. See above, note 101. Loveless, above, note 95, at 668. ‘Thatcher statue attacker jailed’ (BBC, 20 Feb. 2003)<www.news.bbc.co.uk/1/hi/uk/2779597. stm> accessed 12 Jan. 2015 Woodley, 82. A chattel can also be livestock and other managed animals, but not completely wild ones; Encyclopaedia of Forms and Precedents, Agriculture, Vol 2(2) (A) 1561. <www. lexisnexis.com/uk/legal/results/enhdocview.do?> accessed 10 Feb. 2015. 322 Damage to Movable versus Immovable Cultural Property property and other property. Nonetheless, the cultural signiicance of this type of property and the implications of damage to it have been addressed by the courts in both systems to some degree. The courts’ concern in tort cases, however, has been to determine magnitude of damage and impairment of function, rather than to consider cultural value alone, as further discussed below. In both systems, loss in economic value, and costs incurred by rectifying the damage are central tenets in deciding damage. The deinitions of damage within the case law covering the torts of most relevance here (trespass and negligence) will be discussed in the following section. Trespass and Damage: Intentional Interferences with Chattels The deinition of trespass does not include damage but instead requires ‘interference’. Some cases of interference with chattels have involved them being physically damaged, but not all. Historically, minor and more serious ‘interferences’ have been the subject of trespass litigation and have all involved the direct physical contact with the claimant’s chattel by the defendant. From the eighteenth century until the mid-twentieth century, cases focused on the directness of this contact with the claimant’s chattel by the actions of the defendant as an important and restrictive component of trespass. These cases have involved scratching coachwork, beating a horse, shooting a pigeon, knocking into a carriage and overturning it.112 When physical directness was essential for successful actions, there was no need to establish the intention of the defendant, so no distinction was made between the intentional and the unintentional. The development of the modern tort of trespass has rendered directness obsolete and subsequently the tort divides itself between intentional acts and unintentional (but negligent) ones. This approach had emerged partially in the eighteenth century with cases like Ogle v. Barnes, but was then rejected in other cases like Covell v. Laming.113 It was reafirmed in Williams v. Holland and then echoed in the more recent case of Letang v. Cooper, in which the defendant, in his Rolls Royce, ran over the legs of the sunbathing claimant.114 The approach was conirmed in this case by Lord Denning, who stated that two causes of action exist; the intentional and the unintentional, and that trespass may be used only in cases where intentional interference is alleged. An action in negligence must be used where unintentional acts are argued.115 Now, without the need for directness, immediate physical damage or contact with the chattel can, but does not have to take place within the act of interference. Case law has also established that the meaning of ‘intentional’ is linked only to the intention to interfere with the chattel and does not imply an intention to cause harm to the owner/ claimant. For example, in Kirk v. Gregory it was suficient that the defendants intended to move some jewellery to render them liable.116 112 113 114 115 116 Fouldes v. Willoughby [1841] 151 ER 1153; Slater v. Swann [1730] 93 E.R. 906; Leame v. Bray [1803] 3 East 593, 102 E.R. 724. Covell v. Laming [1808] 170 E.R. 1034. Williams v Holland [1833] 10 Bing. 112, 131 ER 568; Letang v. Cooper [1965] 1 Q.B. 232 (C.A.). Letang v. Cooper above, note 114 at 239. Kirk, Executor, & C., v. Gregory and Wife [1876] 1. Ex. D. 55. 323 Vol. XX, Issue 4 Art Antiquity and Law December 2015 Negligence and Damage: Unintentional Interference with Chattels The tort of negligence covers interference with a chattel which may involve physical damage, but does not have to. It must involve loss or harm but this can occur through deprivation, or other non-deprivation-based interferences, which also culminate in some kind of harm.117 This is borne out by the decision in British Celanese.118 Just as the judiciary has slowly evolved the deinition of damage in criminal damage cases, so too have they in tort law. Here, similarly, deinitions of damage have grappled with similar themes of physical change, permanence and the impairment of usefulness and loss of value. Douglas notes, in a case not involving cultural property, that physical change incurring expense determines magnitude of damage. He makes the point that in Home Ofice v. Dorset Yacht Co Ltd, where boys from a care home took a boat and crashed it into another vessel,119 it was simply stated that the collision has caused in excess of £1,000 to repair. He attributes this to: a core understanding of what damage means. It is generally taken to mean physical change in the sense that a defendant has caused a chattel’s physical shape or structure to change….Further, it is often implied in this understanding of damage that the physical change must have made the owner worse off.120 As with the criminal law, the law of tort does not speciically distinguish between property and cultural property. Nonetheless, just like criminal damage cases that involve cultural property, there has been mention of factors that seem unique to damaging this class of property in tort judgements.121 In tort however, in contrast to criminal damage proceedings, this has not been done to emphasise cultural value alone, but more as a route to determining magnitude of damage and impairment of function.122 Further inessing of the deinition of damage in negligence occurred in Hunter v. London Docklands Development Corporation.123 Here, the claimants argued that excessive dust on their curtains and carpets constituted damage, as it impaired their ability to use the curtains and step on their carpets without having them cleaned. His Honour Judge Richard Havery Q.C. stated: In my judgment, the meaning of ‘damage’ as adopted by the Court of Appeal Criminal Division in R v. Henderson & Battley applies to the law of negligence; accordingly the deposition of dust on land in suficient 117 118 119 120 121 122 123 Stansbie v. Troman [1948] 2 K.B. 48 (C.A.); British Celanese Ltd v. AH (Capacitors) Ltd [1969] 1 W.L.R. 959 (Q.B.). Ibid. Home Ofice v. Dorset Yacht Co Ltd, [1969] 2 All E.R. 564. Simon Douglas, Liability for the Wrongful Interferences with Chattels, (Hart Publishing, 2011), 146. Quorum A/S v. Schramm [2002] 2 All E.R. 147. For example, comments made about cultural value in Quorum A/S v. Schramm [2002] 2 All ER 147 at [108] in contrast to those made R. v. Hakimzadeh [2009] EWCA Crim. 959. Also, see note 58. Hunter and Others v. London Docklands Development Corporation [1997] 2 All E.R. 426. H.H. Judge Richard Havery Q.C. 42 CONLR 53, 20 Oct., 9 Nov. 1994: 324 Damage to Movable versus Immovable Cultural Property quantities to impair the usefulness of that land constitutes damage. I test that proposition by reference to the pleaded facts. Suppose the clothes or soft furnishings mentioned in the particulars were, for some reason, incapable of being cleaned. It may be that they would have to be thrown away. Their usefulness would certainly have been permanently impaired. In my judgment, that would constitute damage in the ordinary, natural meaning of the word. I can see no reason why, if the articles are capable of being cleaned, they should not be described as having suffered injury impairing their usefulness.36 This mirrors the arguments for what constitutes damage previously highlighted in section IV dealing with criminal damage actions such as Fiak.124 Here, impairment occurred but it was temporary, and in Salmon v. Morphitis, physical damage had occurred, but the condition it gave rise to was not seen by the court as an impairment of function.125 Like Auld J. and Walters J. before him, in the latter cases, Pill L.J., focused on the dual deinition of damage as physical change and reduction in value or usefulness. In Hunter v. Docklands, he said that both physical change and impairment were important.126 Cultural Property and Damage in Tort There are few cases involving cultural property under tort actions for negligence, but one in particular is of signiicance. This case echoes the theme of irreversible damage to a special category of property discussed above in the Kelleher case.127 In this case, which involved cultural property, the veriication of damage where physical change is not observable, was brought to the court’s attention. This also, in turn, brings concepts of physical change and use closer together. This is because the prime function of art or cultural property is mostly bound up with the way it looks to its viewer. Its use is how it appears. Without its aesthetic quality it has no function and therefore no ‘use’. Usually, they are not mutually exclusive, as we have seen in Salmon v. Morphitis for example.128 In Quorum A/S v. Schramm (No. 2) a pastel on paper by Edgar Degas, La Danse Grecque, had been damaged and but was insured against ‘direct’ damage.129 The work of art had been stored in a warehouse strong room. The warehouse was subject to a ire, but the strong room, whilst experiencing high temperatures, was isolated from the ire’s progress through the rest of the building. When the strong room was opened, the works of art were removed. Very high levels of humidity were also present in the strong room after the ire, presumably due to ireighting measures using water. Mould growth in the strong room occurred during these periods of elevated humidity.130 The changes in humidity resulted in the original wooden backing over which paper had been adhered by the artist, to 124 125 126 127 128 129 130 Fiak, above, note 100. Salmon, above, note 101. Douglas, above, note 120, at 147 and Hunter v. Others v. Canary Wharf Ltd; Hunter and Others v. London Docklands Development Corporation Pill L.J. 47 CONLR 136 at 161I R v. Kelleher [2003] C.A. See above note 110. See above, note. 101. Quorum A/S v Schramm (No. 2) [2002] 2 All E.R. (Comm) 179. Ibid. 325 Vol. XX, Issue 4 Art Antiquity and Law December 2015 become deformed and severely buckled, causing the paper support of the pastel to tear in places. Mould grew on the reverse of the wooden backing board. Here, the manifestations of physical change were clearly satisied and it was agreed that damage had been caused. This damage was both a physical change and an impairment of the object’s utility; its use being to optically experience it, to view it as it would have been intended. It would have been impossible to do this without conservation and restoration work being undertaken. Through the examinations of experts, it was also proposed that a non-visual change had occurred. It was suggested that exposing the pastel medium itself to heat had resulted in a non-visible alteration of the pigment and the binding medium which may have led to “loss of shine or brilliance” and a degree of binding media embrittlement which may have resulted in long term loss of cohesion in the pastel media, leading to adhesion problems in the future.131 This was held to be damage even though it could not be seen and its ultimate deleterious effect was not fully evident at the point of litigation. The acceptance of an unseen level of physical change (some of the consequences of which were evident) as damage, is mirrored in a criminal damage case R v. Whitely where a computer hacker deleted some iles which had the effect of shutting down a IT system.132 Here, the damage was to hard discs, which involved altering the magnetisation of particles inside the equipment, and, although the damage could not be seen, physical change had taken place. Douglas notes the similarities in the court’s approaches to criminal damage and damage to chattels actionable under tort, when it comes to deining the complex nature of damage. He says it can be summarised by the cases of Hunter, Quorum and Whitely, about which he comments: Molecular changes, rearrangement of particles and a mixture of substances are obviously not the only ways property can undergo a physical change, but they illustrate how the courts have approached the damage requirement.133 Underlying all these cases however, is the principle that regardless of the mode of physical change, to establish that it has taken place after the defendant’s acts, the object’s state must be compared to its condition before any contact took place. This does not seem particularly complex but is the overarching test for determining both criminal damagebased physical change or tort-based damage for cultural property and any other form of property. In some cases, as in Quorum, and, similarly in criminal cases like Kelleher, the issue of irreparable damage has forced the courts to consider the special nature of cultural property in this regard, even though there is no speciic legal basis for this in the case of movable cultural heritage at present. Section VI. Definitions of Damage in Legislation Dealing with Immovable Cultural Property This section examines deinitions of damage in the context of dedicated heritage legislation covering immovable cultural property in a historic setting (some with movable components). These immovable cultural heritage assets include world heritage 131 132 133 Ibid. R v. Whitely [1991] Crim. L.R. 436. Douglas, above, note 120, at p. 148. 326 Damage to Movable versus Immovable Cultural Property sites, scheduled monuments, listed buildings, registered battleields, protected military remains of aircraft and other vessels, and protected wreck sites. As previously mentioned, various statutes apply protection to some of these assets, such as the Town and Country Planning Act 1990, Ancient Monuments and Archaeological Areas Act 1979, Planning Act 1990, Protection of Military Remains Act 1986, Protection of Wrecks Act 1973 and Merchant Shipping Act 1995. Damage to those assets which are not subject to listing, scheduling or registering, could be prosecuted under the CDA. The Protection of Wrecks, Military Remains and Merchant Shipping Deinitions of damage within this heritage-focused legislation echoes both the use of the term ‘damage’ in cases under the CDA and of the term ‘interference’ in civil actions. In the Protection of Wrecks Act 1973, for example, historic wrecks in UK territorial waters can be protected by designation under this Act, the Ancient Monuments and Archaeological Areas Act 1979 and the Protection of Military Remains Act 1986. There are currently 47 protected wreck sites in England (62 in the United Kingdom as a whole).134 A restricted area around the site of a vessel, lying on, or in the seabed in UK territorial waters can be protected from unauthorised interference on account of the historical, archaeological or artistic importance of the vessel or its contents. If the wreck is so designated, it becomes a criminal offence to interact, in certain ways, with the designated area without a licence granted by the Secretary of State. It is not permitted to: Tamper with, damage or remove any part of a vessel lying wrecked on or in the seabed or any object formerly contained in such a vessel. Carry out diving or salvage operations directed to the exploration of any wreck or to removing objects from it or from the seabed, or use equipment constructed or adapted for any purpose of diving or salvage operations. Deposit anything including anchors and ishing gear which, if it were to fall on the site, would obliterate, obstruct access to, or damage any part of the site.135 Here, it is clear that ‘damage’ is quite broadly determined and covers the type of intervention which adversely alters the wreck, its contents or its environment. As Sarah Dromgoole has pointed out, there have been very few prosecutions under the Protection of Wrecks Act 1973.136 Once again, the prosecutions that have taken place have been conducted by the Magistrates’ courts and therefore it is dificult to comment on the nuances with which the term damage has been challenged and discussed. In a recent case involving the interference with a non-designated wreck however, two individuals, Edward Huzzey and David Knight, were prosecuted under the Merchant Shipping Act 134 135 136 A map of protected wreck sites published by Historic England, (Protected Wreck Sites, n.d.) <www.english-heritage.org.uk/404.aspx?aspxerrorpath=/discover/maritime/map/English Heritage/>accessed 5 March, 2015. Protection of Wrecks Act 1973, s. 1(3). Sarah Dromgoole, ‘Land and Underwater Cultural Heritage’, 123, in Neil Brodie and Kathryn Walker Tubb (eds), Illicit Antiquities: The Theft of Culture and the Extinction of Archaeology (Routledge, London, 2002). 327 Vol. XX, Issue 4 Art Antiquity and Law December 2015 1995. The pair used explosives and cutting equipment to plunder nine wrecks over a thirteen-year period, removing items worth more than £250,000. Items ranged from cannons and ceramics to metal ittings.137 According to a newspaper report, District Judge Anthony Calloway said: This is an unusual case and I’m told there has not been a signiicant matter like this before. But this is a matter that has to be considered on an industrial scale.138 The Merchant Shipping Act 1995 has a narrower range of deined, prohibited activities which amount to damage in the usual sense of the word, involving components being forcibly separated from other parts of the wreck. This seems to correspond to legal concepts of both damage and interference developed under tort and criminal law. In the Act, physical change is described, but signiicantly, the word ‘damage’ is not used. Section 246 (entitled ‘Interfering with a Wrecked Vessel or Wreck’) states at subsection (3), that: a person commits an offence if: (c) he defaces or obliterates any mark on a vessel; or (d) he wrongfully carries away or removes— (i) any part of any vessel stranded or in danger of being stranded, or otherwise in distress, on or near any coast or tidal water; (ii) any part of the cargo or equipment of any such vessel; or (iii) any wreck.139 Even though the wreck in question was not designated, so not covered by the Protection of Wrecks Act 1973, the Merchant Shipping Act requires all items removed from wrecks to be reported to the relevant authority within 28 days of their removal (whether the wreck is designated or not).140 As Huzzey and Knight had waited nearly thirteen years, in the case of some material, they were clearly in breach of section (d), speciically (iii), but also given their industrial and damaging methods of using explosives and cutting equipment, their offences would also include those under section (c), i.e. defacing and obliterating parts of the wreck. Here, the Merchant Shipping Act ills an important gap left between the legislation covering designated wrecks and simple criminal damage. Where there is no designation, the immovable item of cultural property is covered by this Act before the CDA would need to be used. As the Merchant Shipping Act has a narrower set of well-deined descriptions of damage and interference tailored to a wreck’s physical parameters, it seems that the speciicity of this legislation could enhance its effectiveness, although since so few cases that have been brought under it, this is yet to be tested. This crime has a low detection rate and so very few examples of recorded cases are available. 137 138 139 140 Steven Morris, ‘Divers ordered to pay £60,000 for plundering artefacts from wrecks’, Guardian 2 July 2014, <www.theguardian.com/uk-news/2014/jul/02/divers-pay-60000-plunder-artefactswrecks-fail-declare-haul> accessed 13 March 2015. Ibid. Merchant Shipping Act 1995. Protection of Wrecks Act 1973, s. 1(3). and the process of reporting of wreck in Part IX, Merchant Shipping Act. 1995. 328 Damage to Movable versus Immovable Cultural Property The Protection of Military Remains Act 1986 provides protection for the wreckage of military aircraft and certain wrecks. The Act deines ‘remains’ quite broadly. Remains include an aircraft or vessel which has crashed, sunk or been stranded. This includes any part of it, its cargo, munitions, apparel or personal effects which were on board. It also includes any human remains associated with the aircraft or vessel. These sites can be designated as a controlled site, or protected place, where access may be permitted, but any operations which may disturb the site are illegal unless licensed by the Ministry of Defence. In English territorial waters there are currently six controlled sites and 450 protected places. Section 2 of the Protection of Military Remains Act 1986 states that: (2) A person contravenes this subsection in relation to any remains— (a) if he tampers with, damages, moves, removes or unearths the remains; (b) if he enters any hatch or other opening in any of the remains which enclose any part of the interior of an aircraft or vessel; or (c) if he causes or permits any other person to do anything falling within paragraph (a) or (b) above.141 As with the Protection of Wrecks Act, there is little recorded litigation that offers much of a discussion or evidence of any evolution of deinitions of damage. In actions like R v. (Fogg and Another) v. Secretary of State for Defence, claimants have attempted to utilise the protective function of the Act against damage.142 Here, the claimants were the daughters of Petty Oficer James Varndell, RN, who was serving as a gunner on board the armed merchant vessel the Storaa, lost his life when she was sunk. His daughters were concerned that diving was being carried out on the wreck, which was in shallow waters, and, being anxious that the wreck be respected as a war grave, sought to protect their father’s remains by asking the Defence Secretary to designate the wreck under the 1986 Act. This was refused by the Secretary of State for Defence. In an appeal against this decision, Newman J. undertook a review of similar cases. This case hinged on whether the vessel could be determined as being in military service or not, and thus being capable of being protected by designation, if lives had been lost during that type of use. It was carrying a cargo of pig iron and concrete but also tank panels and tracks. The Judge found that the vessel was capable of being protected by designation, saying that the “aim and object of the Act [was to accord] respect for the dead and [protection of] the sanctity of human remains”.143 The paucity of cases involving damage to wrecks seems partially to stem from the dificulties associated with their detection. Certainly, however, in comparison to legislation used to address damage to movable cultural property, the nature of damage, interference, or tampering is fairly well deined. 141 142 143 Protection of Military Remains Act 1986. R (on application of Fogg) v Secretary of State for Defence [2005] EWHC 28888. Keith Michel, ‘War, Piracy, and Terror- The High Seas in the 21st Century’, p. 5. Nova Scotia Barristers’ Society, <www.nsbs.org/archives/CPD/80547.pdf> accessed 12 Dec. 2015. 329 Vol. XX, Issue 4 Art Antiquity and Law December 2015 Ancient Monuments and Archaeological Areas Unlike the Merchant Shipping Act, but like the Protection of Military Remains Act and Protection of Wrecks Act, the Ancient Monuments and Archaeological Areas Act 1979 (AMAAA) covers only sites that have already been determined to be eligible for protection from unauthorised intervention (i.e. through designation, as described in section 3 of the Act, set out below). Section 1 describes the conditions that indicate when an offence has taken place. The term damage is used, as is the term ‘reckless’ in relation to damage being caused, which has parallels with section 1(2)(a) of the CDA. In accordance with the AMAAA: (1) A person who without lawful excuse destroys or damages any protected monument— (a) knowing that it is a protected monument; and (b) intending to destroy or damage the monument or being reckless as to whether the monument would be destroyed or damaged; shall be guilty of an offence. (2) This section applies to anything done by or under the authority of the owner of the monument, other than an act for the execution of excepted works, as it applies to anything done by any other person. In this subsection “excepted works” means works for which scheduled monument consent has been given under this Act (including any consent granted by order under section 3). (3) In this section “protected monument” means any scheduled monument and any monument under the ownership or guardianship of the Secretary of State or a local authority by virtue of this Act.144 The issue of intentional damage, or recklessness, has arisen in several cases brought under the AMAAA. This point was discussed in R v. JO Sims. In this case, a fruit importer’s warehouse which extended into a town square had been designated a scheduled area. This was because the area contained the remains of the medieval Town Palace of the Bishops of Winchester dating from the early twelfth century. The ancient structure was visible in some places externally, and more of it lay beneath a modern building. After a period of dereliction the warehouse was redeveloped as ofice space. During the clearing and rebuilding process, damage was done to some of the remains of the Palace and also to the remains of a pavement dating from Roman times. An inspection after some of the works had been completed revealed that stone and chalk walls from the Palace had been damaged, as had the Roman tessellated loor, although in different building campaigns. The owners knew that the whole area was a scheduled monument and pleaded guilty to causing or permitting works resulting in damage to a scheduled monument under section 2 (1) of the AMAAA.145 The prosecution argued that the owners had known of the scheduling, and that the company had been negligent. The defence argued that despite this, it was done inadvertently and there were some mitigating factors, like the previous 144 145 Ancient Monuments Act, s. 28(1-3). Ancient Monuments Act, s. 2. 330 Damage to Movable versus Immovable Cultural Property concern and care the company owner took regarding other preservation matters, their expression of regret regarding what had happened at the warehouse, and the fact that the scheduling had been extended but the company’s agents had not informed them.146 It was the opinion of the judge that even though the defendants knew about the site’s scheduled status, the damage had taken place. In the original hearing however, the judge made no statement regarding wilful or negligent damage in relation to the factual basis underlying the sentence he imposed. Accordingly, mitigation as to the accidental nature of the damage was pleaded and the defendant appealed the amount of the ine as excessive. Shelbourn has criticised this aspect of the AMAAA, and explained that the beneit of using the CDA instead is that proof that the accused knew of the scheduled status of the site, necessary to gain a conviction for damage under the AMAAA is not required.147 The coverage of the AMAAA is also one of its weaknesses. It covers only archaeological sites and then only scheduled ones. Out of approximately one million of these sites, only half would be eligible and then only 20,000 have been designated. Shelbourn has also argued that the sentencing and ining of individuals and companies for convictions under the Act is low and not a deterrent to causing future damage.148 As in JO Sims discussed above, this seems noteworthy. Here, the ine was dramatically reduced from £75,000 to £15,000.149 Similarly, in the case of R v. Seymour, a reduction took place.150 Section VII. Is Cultural Property Legislation Reform Necessary? This section considers the need for reform to the current raft of cultural heritage legislation. The focus is on areas where legislation governing damage to movable property could be brought into line with that governing immovable cultural property, in terms of recognition of cultural value. What sets damage to cultural property apart from damage to normal property is its consequences; its irrevocability in some cases, and its potential to deprive future generations of knowledge and enjoyment. It is argued that this aspect should perhaps be given more recognition in legislation, and that this could potentially be fairly simply achieved, in the case of public collections, at least, as explored below. Why Definitions of Damage Offered by Current Legislation are IllSuited to Cultural Property As previous sections have outlined, there is a philosophical discrepancy between provisions for dealing with damage to movable cultural property compared to the legal 146 147 148 149 150 R v. JO Sims Ltd [1993] Env. L.R. 323. Carolyn Shelbourn, ‘“Time Crime”: Looting of Archaeological Resources and the Criminal Law in England and the United States’ (2008) Crim. L.R. 206. Ibid., 207. R v. JO Sims Ltd [1993] Env L.R. 323. R v. Seymour [1987] 9 Cr. App. R. (S.) 395. 331 Vol. XX, Issue 4 Art Antiquity and Law December 2015 avenues for addressing damage to immovable property. This largely results from the CDA’s approach to property as an economic entity and a utility, and not as a cultural asset. The main stumbling block lies in the deinitions of damage, property type and cultural value. As explained above, the subsequent interpretation and development of the deinitions of damage by the courts has achieved the Law Commission’s objectives of making the CDA useful for prosecuting both temporary and permanent damage which can be proven to impair usefulness or incur a cost to rectify. It does not, however, include bearing witness to the wider societal effects of damage, nor does it speciically focus on punishing the perpetrator for diminishing the cultural value of an object through damage. Criminal damage proceedings have touched upon the theme of cultural worth in sentencing comments as explored in previous sections.151 The true market value of cultural property is rarely even a consideration by those damaging it, most of whom are carrying it out during the course of metal theft. For example, a bronze sundial worth £500,000 was stolen from the Henry Moore foundation to be melted down for the scrap value of £46.152 Carolyn Shelbourn argues that there is a knock-on effect to cultural property damage where, say, lead theft can result in consequential damage to a church’s interior and contents through further theft and water ingress if a congregation cannot fund immediate remedial measures.153 Harmonisation Recently, a reconsideration of the objectives of protecting cultural property has been gaining momentum. A report of 2012 authored by two UK universities and a preservation body on behalf of the then English Heritage, commented on the need for reform, saying: the most fundamental question is whether ‘heritage crime’ should be speciically recognised in law, rather than be covered either directly or in part by a large number of separate strands of legislation.154 This is potentially easily achievable for the class of movable cultural property held in public collections which at present can only be dealt with using the CDA. Many of these objects are already subject to other legislation, particularly the Museums and Galleries Act 1992. Through this Act they could be invested with scheduled or designated status which could be achieved through the amendment of this Act and without the expense of evaluating each object to determine if it qualiies as cultural property worthy of protection. Automatic designation could take place of all publically owned, fully accessioned works of art, without the need for individual assessment. Other collections in public museums which are not accessioned could be excluded, for example, study collections or institutional history 151 152 153 154 See pp. 302-303 above. ‘Henry Moore Sundial theft pair jailed’ (BBC News, 4 Dec. 2012) <www.bbc.co.uk/news/ukengland-beds-bucks-herts-20591757> accessed 17 March 2015) Carolyn Shelbourn, ‘Tackling Heritage Crime’ in Louise Grove and Suzie Thomas (eds.), Heritage Crime (Palgrave Macmillan, 2014) 191. David Bradley, Jane Bradley, Mike Coombes, Louise Grove, Suzie Thomas, Chris Young, The extent of crime and anti-social behaviour facing designated heritage assets: inal report’ 28 (Newcastle University and the Centre for Urban and Regional Development, 2012)<www.ncl. ac.uk/curds/publications/documents/RR2013-07.pdf> accessed 2 Jan. 2015. 332 Damage to Movable versus Immovable Cultural Property collections if deemed at a lower risk because of more limited periods of public display. Obviously, this method would not be applicable to works held in private collections, but could potentially be extended to them temporarily while on loan to a public institution. This could be done quite seamlessly through loan agreements and this status of designation could be lifted on their return from loan. It is when they are displayed in public that they are more likely to be exposed to the risk of criminal damage. This proposed measure would at once bring the protection of portable cultural property more into line with the policy governing other heritage-focused legislation. It would acknowledge cultural worth in addition to property value, and underline consequences to the cultural health of the nation in the event of the object’s damage or loss. This measure may not have an obvious aspect of deterrence attached to it, but perhaps the opportunity could be taken to publicise this legal change widely, thereby creating greater public awareness of cultural value and the importance of its preservation. This alone may possibly generate some deterrence effect. Awareness and Heritage Crime Impact Statements It could be argued that this end of achieving public awareness and deterrence is already being met to some extent through two measures, rendering further legal reform unnecessary: irstly, the fairly recent introduction of ‘heritage crime impact statements’ (HCIS);155 and secondly, the introduction of new guidelines for sentencing theft offenders who damage heritage assets. Shelbourn has noted that these statements can provide an important insight into the impact of the damage on the object and on the wider community. They can be used by decision-makers during the process of evaluating whether to charge, and also during sentencing.156 In some ways, they simply back up observations we have seen being made by courts about the nature of damage to cultural property but with the addition of third party evidence of the consequences. The use of the statement offers an opportunity for the community, heritage professionals and other agencies to outline the effects of damage in a very precise and resounding manner, having an immediate effect on sentencing. The cumulative educational effect of the statement may help to craft the court’s approach to similar crimes. It has been reported that the statements have had a signiicant effect on penalties for vandalism. An example of the use of these statements has resulted in a judge remarking that, because he was made aware of the importance of a medieval tower in York, the damage caused by the offender could be met only with a custodial sentence. District judge Roger Elsey told Adam Blythe: Given the worldwide signiicance of the historic sites you damaged with grafiti, I am satisied the offences were so serious only a custodial sentence is appropriate.157 155 156 157 Alliance to reduce Crime against Heritage, ‘Heritage Crime Impact Statements’ (English Heritage, 9 May 2013) <https://content.historicengland.org.uk/images-books/publications/ heritage-crime- impact-statements/hc-impact-statements.pdf/> accessed 11 Nov. 2015. Shelbourn, above, note 147 at 199. Megi Rychlikova, ‘Adam Blythe Jailed for Clifford Tower Grafiti’ (York Press, York, 21 May 333 Vol. XX, Issue 4 Art Antiquity and Law December 2015 This measure provides an important addition to CDA proceedings concerning cultural property as it embraces the recognition of cultural value. It also appears to stiffen sentences and, in turn, perhaps provides deterrence in this respect. It could be argued then, that this may be an adequate approach that would negate the need for the fullscale, cross-legislation reform to bring movable and immovable property legislation in line with one another. An overarching policy acknowledging cultural harm might be unnecessary if it can be satisied by the function of the heritage crime impact statement. Recognition of a Wider Class of Cultural Property? The Role of New Sentencing Guidelines Recent sentencing reform, the details of which were oficially published on 6th October 2015 and which comes into force in February 2016, relects an evolution in the recognition of the serious impact of damage to cultural property. The Guidelines set out for the irst time that where a theft offence involves damage to ‘heritage assets’, it should be treated more seriously by the sentencing court. 158 Relevant offences include damage to war memorials when thieves steal metal plaques from them, or even theft of objects from an historic shipwreck. The recognition of the damage caused by such offences is aligned with the rationale behind the victim impact statement aiming to ensure a more comprehensive assessment of the impact of the relevant offence. The Guidelines also have the potential to broaden the courts’ interpretation of cultural property to encompass the movable as well as the immovable in this context, since they do not speciically deine the ‘heritage assets’ to which they apply. They may therefore be applied to classes of cultural property that would formerly have been considered simply on the strengths of the impact of the damage on their economic worth or cost to make good and not cultural value. This is a signiicant step forward. Historic England explains in its ‘Guidance to Sentencers’ that it: may be appropriate for the sentencer to recognise the historical and cultural importance of the damaged property as an aggravating feature of the offence.159 It also notes that, prior to the entry into force of the new Guidelines “the true impact to a heritage asset is not always recognised in the sentencing guidelines which by necessity focus upon inancial loss or gain.”160 As outlined above this has been a particular problem when damage is irreversible. It is important to note however, that the Guidelines relate solely to theft offences, so acts 158 159 160 2011) <www.yorkpress.co.uk/news/9041289.Clifford___s_Tower_grafiti_vandal_jailed/> accessed 7 Feb. 2015. The Sentencing Council, ‘Theft Offences: Deinitive Guide’ <www.sentencingcouncil.org. uk/wp- content/uploads/SC-Theft-Offences-Deinitive-Guideline-content_FINAL-web_.pdf> accessed 2 Nov. 2015. Historic England-Heritage Crime Programme, ‘Heritage Crime: Guidance for Sentencers’ <//content.historicengland.org.uk/images-books/publications/heritage-crime-guidancesentencers/heritage-crime-sentencing.pdf/> accessed 28 Oct. 2015, p. 6. Ibid., p. 7. 334 Damage to Movable versus Immovable Cultural Property of criminal damage alone are not speciically addressed. For the Guidelines to apply, the damage must accompany theft or must occur in the subsequent handling of stolen goods (or relate to the offence of ‘going equipped’ to steal).161 These Guidelines would not be applicable in cases where a defendant was found guilty of criminal damage in isolation to theft or handling offences. This sort of recognition at sentencing would logically also be appropriate for the punishment of acts of criminal damage to cultural property that, as we have seen, have previously been highlighted only in the course of an individual judge’s deliberations and may or may not feature in a judgment, and certainly not as a matter of course in sentencing. This acknowledgment of harm to cultural property linked to theft relates to the high frequency of thefts and handling offences that reach court and the high level of metal theft from heritage and non-heritage sites alike.162 The Guidelines seem especially salient in their ability to highlight the ongoing harmful consequences for community morale when, for example, theft of lead from church roofs causes further damage to the fabric of a building. While the value of items stolen remains an important factor in sentencing these offences, the Guidelines will bring a clear focus on the wider impact of thefts and their related damage. This was underlined by Mark Harrison, National Policing and Crime Adviser for Historic England who said: The value of England’s heritage can’t be judged in pounds and pence. The impact of theft on our historic sites and buildings has far-reaching consequences over and above the inancial cost of what has been stolen.163 Conclusion This article has attempted to shine a light on the different approaches English law takes to dealing with damage to movable and immovable cultural property. It is clear that over time English law has developed logical deinitions of property according to the historical separation of categories of personalty and realty. Sections I and II explored in-depth considerations of what qualiies as property and how it differs from cultural property, both outside legal deinition, and within English law. Explorations of deinitions of cultural property across various legislative provisions have shown that they are inconsistent, problematic and at odds with normative deinitions. Inconsistencies can been identiied more sharply in the class of movable cultural property across some Acts, whose provisions present more continuity of deinition in the case of immovable cultural property. An examination of deinitions of damage has also been central to the arguments set 161 162 163 The Sentencing Council, ‘Theft Offences: Deinitive Guide’ <www.sentencingcouncil.org. uk/wp-content/uploads/SC-Theft-Offences-Deinitive-Guideline-content_FINAL-web_.pdf> accessed 2 Nov. 2015. P.5 and p.17. HR Director, ‘Theft offences, new sentencing guidelines announced’ 5 Oct. 2015. <www. thehrdirector.com/business-news/hr_in_business/theft-offences-new-sentencing-guidelinesannounced/> accessed 4 Nov. 2015. Institute of Historic Buildings Conservation, ‘IHBC welcomes recognition of ‘Heritage Crime’ in new Sentencing Council ‘theft guidelines’, 9 Oct. 2015. <www.ihbconline.co.uk/ newsachive/?p=11256> accessed 4 Nov. 2015. 335 Vol. XX, Issue 4 Art Antiquity and Law December 2015 forth in this paper, particularly under the CDA, the Act most commonly used in dealing with damage to publicly-displayed, movable property. As far as damage is concerned, movable property has altogether fared rather less well in terms of being included in heritage legislation provision, than immovable property. The use of the CDA as a tool to address damage to portable heritage represents a rather blunt and ill-itting one, focusing as it does not on any diminution or loss of the cultural import of an object, but instead inding damage through only impairment of function and economic loss, as it would for ordinary property. As I have shown, judicial comments made obiter dicta during proceedings and sentencing demonstrate however, that judges are not insensible to this and qualifying remarks have been made to outline that damage to cultural property is a different sort of offence to damaging ordinary property. It has been recognised that its effects cannot always be ameliorated and can echo down the generations. This recognition has now been formalised in the new sentencing Guidelines which, whilst they cover only a narrow category of theft offences, do potentially encompass a wider class of cultural material than existing heritage provisions. It is predicted that it is only a matter of time before criminal damage without an accompanying theft offence might also come under these Guidelines. Exploring indings of damage in civil law actions has also informed the discussion about how courts approach movable cultural property. Like the CDA, civil law cultural property cases have also pushed the boundaries of what damage might mean in the courts. These cases have moved discussions beyond the appraisal of physical damage or loss of function. Here, once again, the fragility and subtle change of appearance, as well as unseen inherent damage that can never be reversed, has been considered by the court. This is not to say that the civil actions and the CDA do not offer a robust avenue for prosecution, or bringing actions, but they do not relect the same philosophical stand point, or have the same objective as the speciic legislation used to deal with damaged immovable cultural property. Among other solutions and reforms, section VII has suggested how these two separate strands might be brought together to emphasise the importance of cultural heritage. English law presents legislation recognising the cultural value of immovable cultural property, but does not include measures which adequately address damage to the movable. Given the recent lurry of legal journal publications, as well as government and heritage body-commissioned research, it will be interesting to observe how heritage legislation develops with possible expansions over the next few years. There might yet be, as Victor Hugo envisaged, a step towards “a single law [that] would sufice” or, at least, a harmonised legal approach to addressing damage to both movable and immovable cultural property. 336