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 | Apr 24, 2024 | Views
Fifty-two years ago today, the UNESCO 1970 Convention on the prevention of illicit trade in cultural property first came into force. Nine days ago, Kenya became the latest country to finally ratify the Convention, adopting it into domestic law. It comes into force there on May 15.
It’s worth remembering that delay: 52 years plus three weeks.
And it’s well worth revisiting the terms of the Convention because so many people these days misinterpret it for their own ends.
As its articles set out, it was designed to protect exceptional objects – national treasures specifically designated as important in published lists by the countries where they originated (Article 1). Today those campaigning against the art market argue that it covers every last commonplace artefact: it doesn’t. What’s more, few if any States Parties have submitted such lists of important works.
States Parties to the Convention make seven pledges under Article 5. These include a further commitment to keeping an updated national inventory of protected property (few, if any do); organising the supervision and protection of archaeological excavations (few do); and ensuring that interested parties such as curators, collectors and the market observe the principles of the Convention (these parties tend to do this themselves).
Article 6 commits States Parties to introducing a system of export licensing that includes the issuance of an export certificate or licence (only some do).
Article 7.b(ii) introduces one of the key elements of the Convention: “The States Parties to this Convention undertake: at the request of the State Party of origin to take appropriate steps to recover and return any such cultural property imported after the entry into force of this Convention in both States concerned, provided, however, that the requesting State shall pay just compensation to an innocent purchaser or to a person who has valid title to that property.” [emphasis added].
The words highlighted here in Article 7.b(ii) are vital. They show that the terms of the Convention only apply to a State Party after it has adopted them into its national legislation either automatically or via ratification. So, in Kenya’s case that is May 15, 2024.
Who signed up to the Convention and when?
The adoption list shows that the first countries to adopt the Convention were Bulgaria, Ecuador and Nigeria, which did so on the first day of enforcement, April 24, 1972.
Apart from Kenya, countries that have ratified or accepted the Convention much more recently include Switzerland (2004), Afghanistan (2005), Germany (2008), The Netherlands (2009), Austria (2015), Ethiopia (2018), Yemen (2019) and Malawi (2022). Many countries in Africa and Asia did not accede to the Convention until the 21st century.
An interesting case in point is Egypt, which did not accept the Convention until July 5, 1983. Up to that time, not only had Egypt overseen a system of licensed dealers selling antiquities for legal export, it even ran a saleroom from the Cairo Museum. The picture here shows a visitor inspecting items for sale there around 1965.
Why is this important? Because under numerous proposals now being made – in particular via Regulation (EC) 2019/880 within the European Union – a widespread attempt is being made to enforce the terms of the Convention on a global basis from April 24, 1972.
This means imposing its rules on States Parties that have not agreed to such a move. In Egypt’s case, it will effectively outlaw any item sold and exported legally from Egypt in the 11-year period between 1972 and 1983 for which documentary proof to the standards demanded today cannot be provided to show that the purchase and export were legal. In reality, that will mean just about everything, because the export licence, which it would be essential to produce today, probably no longer exists and, in the extremely rare cases where it did, it would probably not have sufficient identifiable detail to meet the exacting standards now imposed for import.
It should be remembered that in 1980, for instance, no requirement would have existed to retain an export licence once used – indeed it would have expired. (Even today no requirement subsists to retain such licences once used and expired.) In many, if not most cases, a single export licence would have covered multiple items, and so would not have stayed with any or all of them once the export/import process had been completed. Items then sold on to new owners legally would not have been accompanied by the export licence, and many of these items would have changed hands several times since.
The challenge for the private citizen
How would a current owner supply the required proof under such common circumstances?
The retroactive application of the 1970 UNESCO Convention terms by national law enforcement bodies such as customs would effectively outlaw objects that have been exported and traded since entirely legitimately. Such an imposition would be in direct contravention of human rights conventions (as well as basic principles of international law) to which the countries imposing these new rules are signatories. As a reminder, Article 17.2 of the Universal Declaration of Human Rights states: “No one shall be arbitrarily deprived of his property,” while Article 1 of the Protocol to the European Convention of Human Rights states: “Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.”
‘Arbitrary’ has a meaning that includes “unrestrained and autocratic in the use of authority”, while “general principles of international law” include the concept of innocent until proven guilty.
By retroactively outlawing legitimate activity and doing so in a way that an individual cannot demonstrate their innocence, the authorities effectively breach the human rights conventions, yet this is what is proposed.
It should also be remembered that the articles of the UNESCO Convention were drawn up specifically to prevent such an imbalance of interests, as noted by one of its architects Mark B. Feldman in his 2023 book Footnotes to History.
Under Article 7.b(ii) of the Convention, in Kenya’s case, its terms should only apply from May 15, 2024, not 52 years ago.
As we celebrate the 52nd birthday of the UNESCO Convention on the means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property, it is timely to remind those who support its aims that they should follow its terms and not abuse it for their own undemocratic ends.
by ADA | Mar 15, 2024 | Views |
Published last year and highlighted in a recent talk is the fascinating book by Mark B. Feldman, Footnotes to History: Law and Diplomacy.
Feldman has been engaged in U.S. foreign relations law and transnational litigation since 1965, including 16 years at the U.S. Department of State, where he played a pivotal role in developing the concept of the bilateral treaty and the 1970 UNESCO illicit cultural property Convention.
More than 50 years on from his work on the UNESCO Convention, he shares his thoughts on its origins and objectives, as well as what he thinks now.
When the idea of the convention arose, Feldman noted how museums, collectors and dealers feared that a clampdown via UNESCO “would lead to demands for the repatriation of the great collections of ancient art in the United States and Europe”.
He clearly saw his role as balancing interests, describing how he brought together stakeholders across the American art world – archaeologists, art museums, antiquities dealers, and attorneys – later co-authoring a report, which addressed a bilateral treaty with Mexico; an Act of Congress prohibiting the import of Pre-Columbian sculptures from Latin America without the permission of the country of origin; and a multilateral UNESCO Convention based on the principle of non-retroactivity with import controls on archaeological materials threatened by pillage.
Original objectives of the Convention lost over time
Feldman was precise and targeted in his approach. On the pre-Columbian Act of Congress, he writes: “It was the first step by any art importing country to address illicit trade in stolen cultural property, but the reciprocal obligations ‘to recover and return’ were limited to pre-Columbian and colonial objects ‘of outstanding importance’ [and official archives] that had become government property in the other country.”
The bilateral treaty with Mexico was “in practice” a one-off, and has been superseded by “more aggressive actions by U.S. agencies”.
He is enlightening on just how ambitious original plans for the UNESCO Convention were, explaining that the Secretariat “proposed a comprehensive scheme, brutal but coherent, that would have required all parties to refuse import of any cultural property, broadly defined, not accompanied by an export certificate from the country of origin”.
Needless to say, art rich countries blocked measures that they considered would destroy the international art market.
The United States continued to take the lead, drafting a compromise convention.
“The most fundamental points were two: first the convention would not be retroactive – acquisition guidelines would be forward looking – and two, import controls would be limited to cultural property stolen from museums and to specific categories of archaeological interest threatened by pillage to be determined by agreement among the countries concerned.”
Even at that point, however, the antiquities trade was alert to potential abuses. Feldman describes how dealers were “always doubtful about the convention” and “opposed import controls because they feared the State Department would use that authority as a bargaining chip for diplomatic purposes unrelated to protecting the cultural heritage…”. Prescient indeed.
How the concept of bilateral treaties backfired
The U.S. market was also concerned that as it abided by the terms of the convention, others would not, putting it at a competitive disadvantage, leading to Feldman proposing that the State Department “make bilateral agreements for import controls with countries damaged by pillage of their cultural heritage”.
Next came the establishment of the Cultural Property Advisory Committee (CPAC). The idea was for it to be a bulwark in defence of the art market, but, as history, has shown, if anything its role has been the opposite.
“Over the years the State Department has negotiated dozens of bilateral agreements and there have been numerous complaints that State has abused the process for diplomatic reasons as the dealers originally feared,” Feldman accurately observes, as he acknowledges that times have changed, and the behaviour of the trade and wider market “has got a great deal better.”
He also considers that current U.S. policy on cultural heritage protection in relation to foreign patrimony is out of step and “contrary to the U.S. position negotiated in UNESCO in 1970 and adopted by Congress in 1983.”
Many in the market hope that the State Department will take as much notice of what Feldman has to say today on these matters as it did in the late 1960s.
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