What happens if you unwittingly buy a looted artefact? - Boodle Hatfield

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07 Aug 2017

What happens if you unwittingly buy a looted artefact?

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Is it possible to buy a looted artefact unwittingly?

Coins, jewellery, mosaics, glassware, vases, figurines, and other artefacts are reportedly being excavated and smuggled out of Iraq and Syria on an ‘industrial’ scale, to be sold online or in Western dealerships.

Innocent buyers may unwittingly purchase these items online or in dealerships, where they may be displayed amongst legitimate items. Convincing descriptions may be constructed about the style or origins of the items, together with vague but plausible explanations about their provenance. This is not to imply wrongdoing on behalf of the dealers, who may themselves have been convinced by a fabricated account.

What should a collector do if they suspect they own a looted item?

If a buyer is concerned that he may have acquired a looted item, there are various lists he can check. The International Council of Museums has created a ‘red list’ of cultural artefacts most at risk of theft, which includes separate lists for Iraq and Syria, as well as other countries. Interpol, the FBI, and private organisations such as The Art Loss RegisterArt Recovery International and Art Claim also maintain databases of looted and stolen art. However these lists are not definitive and may not be up to date with items recently looted, especially given the reported scale on which it is happening.

What are the legal implications for the buyer?

If it does transpire that an item is looted, there are legal implications for the buyer under both criminal and civil law.

What are the implications under criminal law?

In terms of the criminal law, there are potential implications under three different pieces of legislation:

  • Under the Dealing in Cultural Objects (Offences) Act 2003, a person is guilty of an offence if he dishonestly deals in a cultural object that is tainted, knowing or believing that the object is tainted. This makes it an offence to acquire an object of historical, architectural or archaeological interest where its removal or excavation constitutes an offence.
  • Under the Theft Act 1968, it is an offence to handle stolen goods (including goods stolen from abroad), which means if knowing or believing goods to be stolen he dishonestly receives the goods, or dishonestly receives the goods, or dishonestly undertakes or assists in their retention, removal, disposal or realisation by or for the benefit of another person, or if he arranges to do so.
  • Under the Proceeds of Crime Act 2002 it is an offence to enter into or become concerned in an arrangement which he knows or suspects facilitates (by whatever means) the acquisition, retention, use or control of criminal property by or on behalf of another person. It is also an offence to acquire criminal property, use criminal property, or possess criminal property.

The first two offences share a requirement for ‘dishonesty’, which is judged according to both objective and subjective standards. So if the buyer’s acquisition of the item was not dishonest according to the ordinary standards of reasonable and honest people, and/or the buyer did not realise that reasonable and honest people would regard what he did as dishonest, then the buyer will not be guilty of these offences.

A recent article reported that Scotland Yard’s specialist Art and Antiques Unit currently has three live investigations into stolen antiquities from Syria and that in two of these cases, restrictions have been placed on the items in question. There have been no arrests to date.

And civil law?

There are also implications for the buyer under civil law. The buyer may be liable for conversion, which is a type of wrongful interference. Conversion occurs when a person interferes with the personal property of another, so as to amount (in the eyes of the law) to appropriating the property for himself. If the buyer acquires an item that was taken by somebody not entitled to do so, then he could be liable for conversion. The owner of the item could bring a claim for damages or restitution (to recover the item).

In 2007, the Government of Iran issued Court proceedings to recover 18 carved chlorite bowls, jars, and cups which were almost 5,000 years old, and which had been removed from Iran following unlicenced and unlawful excavations. Iran claimed that the items formed part of its national heritage. The defendant was Barakat gallery, an international art dealer based in London, which traded in ancient art and antiquities from around the world, who claimed to have purchased the items in Europe under laws which gave it good title. Preliminary issues were tried as to whether Iran had sufficient ownership in the items in the jurisdiction to be entitled to pursue its claim to recover the items. Reversing the first instance decision, the Court of Appeal held that the English Court should recognise Iran’s entitlement to recover the items, which was based on Iranian national law. The Court recognised that there was international recognition that states should assist one another to prevent the unlawful removal of cultural objects.

However, over time a bona fide purchaser of looted or stolen goods can acquire good title. If the buyer purchased the item in good faith from a previous bona fide purchaser and more than six years has passed since the seller’s purchase then he will acquire good title to the item.

Should the seller be reported? Can the buyer get his money back?

If the buyer discovers he has unwittingly purchased a looted item, his first step should be to notify the seller. If the buyer bought the item from a dealer then there may be a sale contract, or terms and conditions, which may make provisions to cover the scenario and allow him to return and refund the item. Alternatively, as a matter of goodwill, the dealer may agree to refund the item and take the matter up with the person from whom he acquired it. If the buyer acquired the item online, then the website should provide a procedure for items to be returned.

If the seller is unwilling to refund the item, for higher value items the buyer may consider seeking legal advice, as he may have a claim against the seller if the latter has not carried out satisfactory due diligence to verify the origins and provenance of the item. However, for lower value items, the buyer may have to suffer the loss of his investment on the item, which will be unsaleable.

The buyer may also consider notifying the police, UNESCO, or the International Council of Museums.

How can one prevent this from happening again?

Buyers should take steps before acquiring any item which could potentially have been looted, or which could originate from high-risk areas. The higher the value of the item, the more rigorous a buyer should be. A secure and fully documented provenance and full explanation about the origins of the item is absolutely critical and buyers should not accept vague explanations or undocumented accounts. A lack of paperwork, particularly for high value items, should ring alarm bells.

This article originally appeared on Apollo Magazine Blog in August 2015 and was written by Becky Shaw, Becky is a solicitor in our Arts litigation team at Boodle Hatfield.

Read our dedicated art Law blog, Art Law and More for more art news and legal views from the team of art law experts at Boodle Hatfield.

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