by ADA | Jan 16, 2025 | Views |
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.
by ADA | Jan 4, 2025 | Views |
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.
by ADA | Jun 14, 2024 | News
Leading art market lawyer says new regulation will risk isolating the EU culturally
British trade associations concerned about impending EU legislation that will affect UK exports will brief dealers on the changes at a seminar in London on June 28.
Titled The increasing difficulty in the international movement of ancient coins and objects, the afternoon session is organised by law firm Devonshires, who will host the event at their London offices and online on behalf of the British Numismatic Trade Association and the Antiquities Dealers’ Association.
The session will focus on how to comply with the news EU import licensing regulation (2019/880), which comes fully into force on June 28, 2025, and affects art and objects created and originally discovered outside the EU.
Provenance, due diligence and paperwork are at the heart of concerns as the trade associations argue that the regulation will make it all but impossible to meet its demands.
Of particular concern is the manner in which the regulation reverses the burden of proof for importers to the EU. Instead of the authorities having to show that imported items have been stolen or illegally moved, it will be up to the importers to show that they haven’t.
Martin Wilson, co-chair of the newly formed Art Lawyers’ Association, summed up the challenges in an article published on June 13 titled The New EU Cultural Goods Import Law – Politics over Pragmatism?
Wilson, who is also Chief Legal Officer at Phillips Auctioneers and author of Art Law and the Business of Art, argues that the law is unlikely to prevent the trafficking of cultural property, one of its chief aims: “…the best-case scenario is that trafficking activities will simply be diverted to elsewhere in the world by this law, not stopped,” he writes. Worse, while the legitimate market will face the burden of compliance, traffickers will simply ignore the law, he believes.
“There is a risk that the more difficult it is to import an object legitimately the greater the incentive to resort to smuggling and the greater the rewards for doing so. If that happens trafficking activities will be neither stopped nor diverted – and may even increase,” Wilson warns.
It is also apparent that the EU authorities have significantly underestimated the challenge of establishing an effective electronic registration system for imports – “a mammoth task”, says Wilson – while customs officials are unlikely to have the relevant experience or expertise to deal with applications. The expected clampdown likely to result from this means will mean significant delays, inconsistency in rulings and unjustified refusals, he says.
Wilson concludes: “This complexity and delay – as well as the likely inconsistency of decisions – will likely be a strong disincentive to import art of any kind or origin into the EU. This will lead to fewer imports into the EU of art and fewer EU buyers of art in countries outside the EU. By making it harder to import cultural property, the EU will then risk becoming culturally isolated.”
This is the context in which the June 28 seminar will be conducted.It runs from 3pm to 5.30pm BST, with networking drinks to follow. Those interested in attending in person or remotely can find all the details here.
by ADA | Aug 9, 2023 | News, Views |
The introduction of the new Aboriginal Cultural Heritage Act 2021 in Western Australia on July 1 has proved such a disaster that it has been scrapped after little more than a month.
Announcing the withdrawal, Premier Roger Cook said: “Put simply the laws went too far, were too prescriptive, too complicated and placed unnecessary burdens on everyday Western Australian property owners.”
As the Brisbane Times concluded: “It’s hard to think of a bigger lawmaking failure in recent political history than the WA government’s impending backflip on its Aboriginal Cultural Heritage Act.”
Why is this of interest to the world of antiquities? Because it deals with the same competing priorities that cause friction between commercial and personal interests on the one hand and heritage campaigners on the other, and because it shows what can happen when you tip the balance too far in one direction.
The news that the 2021 Act would be scrapped came after fears that the legislation, which undermined personal property rights for a huge section of business, farming and the public, in favour of the cultural heritage rights of indigenous peoples, might be extended across Australia.
One example of how enforcement of the law had an immediate and stifling impact was the cancellation of civic tree-planting ceremonies after an Aboriginal land corporation demanded $2.5 million to allow them to go ahead.
WA Premier Roger Cook had come under personal attack over the measures, which he refused to delay after complaints that the law was poorly written and its likely impact unclear.
He introduced the Aboriginal Cultural Heritage Act 2021 (ACH Act) after Rio Tinto destroyed sacred rock shelters at Juukan Gorge while searching for iron ore in May 2020, despite being warned of their significance earlier. Rio Tinto later apologised, and the CEO and other senior executives later resigned over the matter.
Redefining the meaning of Cultural Heritage
Section 18 of the original 1972 Aboriginal Heritage Act, which held sway until now, provided for land owners to proceed with activities that might be severely damaging to cultural heritage interests if granted permission by the government after a review.
The new act redefined the meaning of Aboriginal cultural heritage so that it was no longer limited to places and objects but also included cultural landscapes and intangible elements, although what they might be was uncertain.
It also replaced Section 18 with far tighter restrictions on property over 1,100 sqm, with permissions to be sought via Local Cultural Aboriginal Heritage Services (LCAHS), bodies that have yet to be fully established.
Effectively the Act gave Aboriginal bodies a direct and greater say – tantamount to a veto – over what landowners could do with their land through the oversight of a new Aboriginal Cultural Heritage Council (ACHC) to whom the LCAHS report.
The type of work covered could be as simple as putting up a new fence or updating irrigation works, as well as more complex projects.
Successful applications by landowners would be issued with an ACH permit, while those of greatest concern winning that approval also had to provide a management plan before going ahead.
Even when they had complied fully with all this at their own expense, landowners risked seeing their plans cast aside if new information arose concerning heritage aspects of the site.
New law “suffocates” private property rights
Those opposed to the early introduction of the law said its statutory guidelines, published at the end of May, were not clear.
Sky News political commentator Caroline Di Russo argued the new law was much worse, saying it “suffocates” private property rights of landowners, and adding that it is “the most disproportionate and overblown response imaginable”.
Red tape and ambiguity would plague farmers and industry as they tried to comply under the threat of prosecution and even jail, Russo said. Even where permission was eventually granted, it was unclear how long the drawn-out process would take.
Despite the extended definition of Aboriginal cultural heritage, Western Australia’s planning chief, Anthony Kannis, who had ultimate responsibility for overseeing the changes, was unable to define what would be covered when asked about this in a question-and-answer session with ABC News, saying “…if there is any doubt whatsoever about the advice you’re getting, there are opportunities to consult with us as a department and raise questions with us”.
One farmer whose family had farmed land in the region for over 50 years had deliberately preserved 1,000 hectares of forest country for decades, only to be told by Mr Kannis that a decision to clear it using fire in keeping with Aboriginal tradition was a possibility if the ACH ruled in its favour. “This is about giving Aboriginal people a say, and that shouldn’t be lost in all this discussion,” he countered.
In what the Financial Review dismissed as “farcical scenes”, at a forum hosted by the Association of Mining and Exploration Companies, “one mining executive asked government officials whether planting a tree near the Swan River in Perth would require a site inspection by traditional owners and the preparation of a heritage management plan.
“The officials replied it would depend on the size of the tree.”
The estimated cost of consulting what Mr Kannis described as “knowledge holders” ranged between AUS$80 and AUS$280 per hour (≠ £42/$55) (≠ £140/$150).
However, as the Financial Review also noted, “Junior exploration companies complained of being charged upwards of $200,000 for heritage surveys in the lead up to the new laws coming into force and said the rollout had been shambolic.”
Penalties for those in breach of the law included fines that started at AUS$20,000 for moving or selling ACH objects. An individual seriously harming ACH could be fined AUS$1m, while a corporation could be fined AUS$10m, with both also risking jail terms.
Concern led to scrapping of fines for initial period
Such was the concern over this amid confusion over how the law would be interpreted that Mr Cook scrapped fines for the first 12 months of enforcement while the legislation bedded down.
The WA government dismissed calls for a review, even after a petition launched by the Pastoralists and Graziers Association demanding a six-month delay raised 27,000 signatures.
Mr Cook ruled out any delay to the new regulations, despite the widespread concern, saying: “The laws are about a simpler, fairer, like-for-like transition of the current laws already in place.”
However, reality soon struck, with the impact on mining interests, as well as farming, seen as devastating. Support for the government plummeted.
Meanwhile, having secured a cultural hegemony via the new law, Aboriginal Heritage groups are now furious at the WA government change of heart.
In all, this was a textbook case in how not to address the valid concerns of indigenous groups as they fight to protect their culture. The WA government under Roger Cook dismissed the equally valid concerns of ordinary people in protecting fundamental human rights relating to property. In turn, this infringement blighted the economy in such a way that much of it risked grinding to a halt in weeks if not days. And that would have driven a deeper wedge between the competing interests of landowners and indigenous groups.
Add to all this the predictable risk of abuse of power by heritage groups handed almost unlimited say in what landowners could do, and the government had prepared the ground for toxic levels of corruption when it came to consultancy fees.
Now Mr Cook is being forced to re-adopt the 1972 law that he had argued was problematic. Having overseen this catastrophic and avoidable policy change, his credibility in seeking to resolve the issue any time soon is in tatters, and he will be doubtless focused now on shoring up support.
His arrogance in dismissing the loud and valid concerns of farmers and others as he declared the new law “simpler, fairer, like-for-like” won’t be forgotten any time soon.
WA disaster an object lesson for law makers
The WA disaster is an object lesson for law makers across the globe when it comes to balancing commercial and private interests with the demands of heritage groups. Effective policy means a nuanced approach that takes both into account, not throwing one side to the wolves in the hope of ingratiating yourself with the other.
Failure to strike this balance despite being obliged to do so by a clear policy directive does not augur well for the European Union’s import licensing regulation (2019/880) for cultural property, due to be enforced from June 2025. The damage to the international art market, including that of the EU itself, as well as the infringement of ordinary people’s rights, is likely to be widespread if that goes ahead – and Brussels has been alerted to this this often, but continues to ignore the warnings.
Too often laws are ushered through with barely a nod at genuine scrutiny of the concerns of all stakeholders. As the Brisbane Times concluded about the WA affair: “Had there been a robust parliamentary debate the practical issues that eventually emerged may have been ironed out before the laws came into effect on July 1.”
The European Commission would do well to look closely at what has just happened in Western Australia.
by ADA | Jun 19, 2023 | News |
When the new import licensing regulation for cultural goods (2019/880) comes into force in the EU on June 28, 2025, what goods will be affected from the world of art and antiques?
According to the law, relevant items – all of which must have originated from outside the EU – will be split into two types: those that need a full import licence, and those that can be brought in on the basis of an importer statement.
What those items are is set out in a series of three tables in the Annex to the legislation, Parts A, B and C.
Any attempt to import an item covered by Part A will be prohibited if it is deemed to have been exported illegally from its country of origin, whenever that was.
Items included under Part B are more than 250 years old and seen as being at greater risk of looting and trafficking than those covered by Part C, and so are subject to tighter rules – in other words these are the pieces that need an import licence rather than an importer statement, and no minimum value threshold applies. This means that unless customs tell the importer otherwise, a licence will be required for every individual item, even where they might be identical, low-priced pieces imported together in large groups.
It should be remembered that being issued with an import licence conveys no ownership rights or proof of the item being legitimately acquired.
Applicants for a licence will have to demonstrate that the item in question was exported from the country where it was created or discovered in accordance with the laws and regulations of that country at the time (whenever that was – and it could be centuries ago).
Essential licences and certificates
If that country issued export licences or certificates at the time, the applicant must provide the relevant original licence or certificate (even though there has never been any requirement to keep them once used). Otherwise, they must show that no such laws and regulations existed at the time.
Because many of these items will have left those countries decades or more beforehand, that proof may no longer survive, if it was ever there in the first place. So, the law provides a third way of qualifying for a licence: evidence that the item in question has been exported in accordance with the laws and regulations of the last country where it was located for an unbroken period of more than five years.
There are further conditions to this option. Assuming you can prove that the item has spent an unbroken period of more than five years in a single country, you must also show that it wasn’t there for temporary use, or was just there in transit, for re-export or transhipment. You must also show that it was exported from the country where it was created or discovered before 24 April 1972 – when the 1970 UNESCO Convention on trafficking of cultural goods first came into effect.
One cause for customs rejecting the application will be if it has “reasonable grounds” to believe that the item’s original export from the source country was illicit. But the regulation does not say what “reasonable grounds” means in this context.
Items covered by Part C needing an importer statement are all individually valued at €18,000 or more per item and are more than 200 years old.
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