Why we must learn the lessons of the UK Post Office scandal when it comes to Cultural Property

Why we must learn the lessons of the UK Post Office scandal when it comes to Cultural Property

Impending enforcement of a new EU law that is not fit for purpose risks creating serious human rights breaches

The UK Post Office scandal has been a landmark of injustice that has outraged the public and politicians alike. Sub-postmasters were convicted of theft and even jailed – and one even committed suicide – when the real problem was the faulty Horizon computer system. For years the Post Office pursued the innocent while burying evidence of the true cause.

As victims have fought back, one of the aspects that has arisen time and again was the fact that the Post Office and its lawyers demanded that sub postmasters prove their innocence by demonstrating that the Horizon system had a problem. As The Law Society Gazette summed it up in the case of Lee Castleton from 2006, “the Post Office’s strategy was to put the burden on Castleton to prove that the Horizon IT system was not working properly – effectively reversing the burden of proof”.

Richard Moorhead, Professor of Law and Professional Ethics at the University of Exeter and Honorary Professor of Law at UCL, is a consulting expert on the scandal and has written extensively about it.

He concluded: “Our analysis of Lee Castleton’s case shows how misaligned the desire to win and justice can become. The problems are particularly acute when one side is unrepresented. There is a question here whether the lawyers were overly influenced by a legitimate, if opportunistic, strategy. The courts need to think long and hard about allowing artful legal argument to shift evidential burdens onto those least able to prove their case.”

As Doughty Street Chambers reported: “In Hamilton & Others, Tim Moloney KC and Kate O’Raghallaigh were appointed lead advocates by the Court of Appeal and represented 29 of the 39 appellants for whom the Court found that the investigative and disclosure failings of Post Office Limited were “so egregious as to make the prosecution of any of the ‘Horizon cases’ an affront to the conscience of the court” and that, in their conduct of the prosecutions, the Post Office “reversed the burden of proof”.”

Reversal of the burden of proof an aggravating factor

Clearly, the Post Office’s tendency to reverse the burden of proof to cover its tracks and shift the blame to sub-postmasters was a very serious aggravating factor in the scandal.

When ITV screened Mr Bates vs the Post Office, a drama series based on the scandal, it became the most celebrated show of the year and transformed the debate at the highest level, most specifically because of the reversal of the burden of proof aspect that led to such injustice. After more than a decade of fighting to clear their names and get recompense, it was this that finally galvanised the authorities and led to a public inquiry.

So, when is it reasonable to reverse the burden of proof under the law?

Being found in possession of a deadly weapon such as a knife now comes with a presumption of intent to use it under English law – an understandable development.

In 2021, the Council of Europe’s Warsaw anti-money laundering and counter-terrorism financing convention committee called on its States Parties to effectively apply the reversal of the burden of proof regarding the lawful origin of alleged proceeds or other property liable to confiscation in serious offences.

The 2021 report of the Conference of the Parties looked at the 2005 Council of Europe’s Convention on Laundering, Search, Seizure and Confiscation of the Proceeds from Crime and on the Financing of Terrorism. It evaluated the extent to which 34 States Parties have legislative or other measures in place for the burden of proof to be reversed, a possibility provided for in Article 3 (4) of the Convention.

That stipulates that “Each Party shall adopt such legislative or other measures as may be necessary to require that, in respect of a serious offence as defined by national law, an offender demonstrates the origin of alleged proceeds or other property liable to confiscation to the extent that such a requirement is consistent with the principles of its domestic law”.

The key words here are “in respect of a serious offence as defined by national law” – in other words, where a serious offence has been identified as having taken place.

Mission creep: from serious offence to casual risk prevention

The problem the art market faces in dealing with regulation and the authorities now is mission creep. Application of the reversal of the burden of proof has moved far beyond the test of whether a serious offence has occurred and into the realm of what is effectively casual risk prevention.

It is now becoming the norm to apply the reversal of the burden of proof for provenance within the international art market and for those importing their possessions, even where no evidence at all exists of a risk of money laundering or terrorism financing.

As with the sub-postmasters, it is not possible to provide evidence that either does not exist, or that you cannot gain access to, to prove your innocence – in which case you are assumed to be guilty. Just as the courts were scandalised by this attitude and approach in the Post Office scandal, so should they be in the treatment of the art market and private citizens with regards to their property.

The imposition of the ‘reversal’ standard across the board on a huge range of imports under EU Reg 2019/880 relating to cultural goods is utterly disproportionate, proportionality being the international legal test for whether such measures are reasonable, as well as a prerequisite of the European Commission President’s official policy on lawmaking.

A key pledge on page 7 of the EC President’s new political guidelines reinforces this concept: “Future legislation must also be simplified and designed with small businesses in mind and in a spirit of subsidiarity.”

Wise words that fly in the face of what is actually happening.

Violation of the presumption of innocence

Let’s not forget that the European Commission’s own research, in the form of two studies commissioned to show, among other things, the level of terrorism financing across all its member states, found no evidence at all. So no evidence, and yet the enforcement of the ‘reversal’ policy as though evidence had been found.

As the UK Appeal Court noted in the Supreme Court of Canada, Dickson CJC said that “[i]f an accused is required to prove some fact on the balance of probabilities to avoid conviction, the provision violates the presumption of innocence because it permits a conviction in spite of a reasonable doubt in the mind of the trier of fact as to the guilt of the accused.[60]

That level of proof will soon be applied to importers of cultural property to the EU. Without any evidence showing that terrorism financing, which initially prompted this law, is a problem, the application of such a standard when no offence – serious or otherwise – has been identified appears disproportionate. As such, it is in breach of Article 1, Protocol 1 of the European Convention of Human Rights, which stipulates that individuals should be able to enjoy possession of their private property without arbitrary interference.

If evidence of terrorism financing had been clear, then raising the breach of 2019/880 rules to the level of serious crime might be justified on the understanding that serious crime is largely defined by the severity of harm caused by the offence. Without that evidence, however, reversing the burden of proof risks becoming a violation of human rights, just as it was in the cases related to the Post Office scandal.

Photo caption, above: ITV’s Mr Bates vs the Post Office, the drama series that transformed the debate on the Post Office scandal. The scandal’s reversal of the burden of proof aspect outraged the public and politicians.

How the Windrush scandal helps shine a light on rights violations in the art market

How the Windrush scandal helps shine a light on rights violations in the art market

Alerting the public to existential threats posed to much of the art market by draconian regulations is a difficult task. Unless your audience has a stake in the game, it can be difficult to hold their attention or gain their sympathy.

Surely this is just another example of the market pleading for special treatment, critics will say.

So, getting the message across can depend on making a connection with something that resonates far more closely with the public’s conscience.

This is where the Windrush scandal comes in.

Its origins date to 1948, just after the Second World War, when the British Nationality Act granted British subjects from the Colonies the right to come to the UK and settle. Many came from Jamaica and other parts of the Caribbean, and what became known as the Windrush generation acquired its name from the Empire Windrush, one of the first ships to transport them across the Atlantic to Britain’s shores.

Up to 1970 around 500,000 people arrived in Britain under the scheme, encouraged to make the journey by successive governments in an effort to help rebuild the country post-war.

Having a legal right to come to the UK, they neither needed nor were given any documents upon entry, nor following changes in immigration laws in the early 1970s.

When former colonies established their independence, new legislation limited the rights of their citizens to emigrate to the UK. Those who had arrived before 1973 had an automatic right to remain permanently unless they left the UK for more than two years.

Enshrining rights in legislation

Again, because the right was automatic, many people who qualified were never given, nor asked to provide, documentary evidence of their right to remain. Those rights were further enshrined by the Immigration and Asylum Act 1999, which protected long-standing residents of the UK from Commonwealth countries from enforced removal.

The Home Office deemed such people adequately protected when immigration legislation was updated in 2014, and so the provision was not included. By then, however, the UK was already operating a hostile environment policy to discourage immigration and to make it easier to expel illegal immigrants.

As policy tightened, ID checks and other measures such as the continuing provision of services made it necessary for individuals to prove that they had legal residence.

When the scandal eventually broke in 2018, thanks to legal action by the Equality and Human Rights Commission (EHRC), it became clear that people had been wrongly detained, denied legal rights, and threatened with deportation, because they could not prove their status; 83 cases of wrongful deportation were identified. Others lost their jobs and homes or had their passports confiscated and were denied health care or benefits to which they were entitled.

The Home Secretary, Amber Rudd, resigned over the scandal.

The ensuing independent inquiry, Windrush Lessons Learned Review, reported back in early 2020, ruling that the Home Office had shown “ignorance and thoughtlessness” and that what had happened had been “foreseeable and avoidable”. It further found that immigration regulations were tightened “with complete disregard for the Windrush generation” and that officials had made “irrational” demands for multiple documents to establish residency rights.

“Ignorance and thoughtlessness”; “foreseeable and avoidable”; “complete disregard”; “irrational”.

Essentially, the innocent fell victim to a cruel and excessive policy because of the retroactive application of modern standards: although when they came to Britain documentary evidence of their residency rights was seen as unnecessary and so not issued, they were being forced to provide it decades later or suffer the consequences.

The demand to supply non-existent documentation

This is what was meant as “irrational”; how can you supply evidence that never existed? How can the authorities demand it when they know it never existed?

Not just “irrational”, the policy was also tyrannical, undemocratic, and a breach of human rights. No wonder politicians expressed their shame and resigned; no wonder the public and human rights bodies were outraged.

And yet, this is far from an isolated incident.

At the heart of almost every debate between the art market and the authorities, regarding cultural property, is the matter of provenance. Vanishingly few artworks and artefacts have a complete documented history dating back to their creation or discovery. In many cases this is because where such documentation once existed, it has been lost or destroyed over time. In many other cases it never existed because it was not required at the time of original sale or export.

Nonetheless, those who challenge the market – from governments and NGOs to law enforcement and advocacy bodies – demand that such documentation must be provided now if these items are to be allowed to circulate freely in the international market. Failure to provide this non-existent paperwork to meet a modern standard that was not in place before very often results in these items being deemed illicit and so seized.

Far from being ashamed, embarrassed and outraged at this treatment of businesses and individuals, those championing such policies continue to press for more restrictions.

If you agree that the victims of the Windrush scandal were ill-treated and were subject to a serious infringement of their human rights by being subjected to such unreasonable demands, then the violation of rights meted out to market professionals and private individuals alike on the same score should concern you deeply.