CBA's response to The Treasure Act 1996 draft Code of Practice

7 February 1997

The Council for British Archaeology (CBA)is an educational charity which works to promote the study of British archaeology, to provide a forum for archaeological opinion, and to encourage public knowledge of Britain's past. At the time of writing the Council's membership includes some 450 local, regional and national organisations, societies and bodies, and 3,700 individuals.

The Code should as far as possible be user-friendly; the present numbering of the draft may be a little confusing (eg on p.6, where the paragraph numbering in Arabic numerals runs in counterpoint with upper and lower case Roman numerals, with further numbering to cross-reference to the Act. Simplification would be welcome.

A Parts of the Code are necessarily technical, and the successive steps that the Act requires may not be readily understood by all at first reading. Comprehension might be assisted by a graphic representation (eg a diagram or decision tree).

A.1 Although the introduction opens with a reference to the Treasure Act it then goes on, in the present tense, to summarise treasure trove. A clearer distinction between the provisions of treasure trove and the new Treasure Act would be welcome. The distinction might be sharpened by the use of subheadings which differentiate between old and new arrangements.

B.5 It is not clear where the onus lies for establishing the date at which a find is made. A find made after the commencement of the Act, but claimed as earlier (eg to evade the Act's provisions) would be a source of difficulty.

C.8 There may be a case for refining advice on the definition of `any metal token . . . intended for use as or instead of money'. Would this, for example, embrace currency bars?

C.11 We appreciate that the Code cannot, and arguably should not, attempt to define every eventuality, but clarification (either here or elsewhere) of the archaeological sense of `the same place' (l.2) is desirable.

The example of a cemetery might be problematic, since in certain circumstances the provenancing of individual items to specific graves would not be possible without excavation.

D.20 We accept that a commitment has been given to the Church of England, but hope that the Government will reserve its position in the longer term, to ensure that the Church's undertaking goes to substance. Although it is true that the Church has its own legal regime, in a number of respects this is not `analogous to that proposed under the Act'. It has different informing principles, there is considerable inter-diocesan variability in application, and resources to fulfil the intentions claimed for it have not always been sufficient.

E.21 We are aware of some anxiety about the 14 day period allowed for reporting. In our view this is groundless, but it would be wise to make the provisions to accommodate different circumstances (eg the distinction between date of find and date of realisation) even plainer than they are already. Cross-referencing to other parts of the Code which explain how notification can be made with minimum inconvenience by telephone or letter, with advice on how to locate the coroner for the area, would assist this. Consideration could also be given to the prominent display of a central DNH or other telephone number whereby members of the public who are in doubt could obtain procedural advice (cf E.32).

E.25 Although we are glad to see the two articles of the NCMD's Code of Conduct which are cited, the Code does not elsewhere advise detector users to report archaeological finds other than to landowners. An apparent endorsement of the Code in its entirety would thus be inconsistent with the Government's policy on reporting. While we support the voluntary principle, this is in the context of advice that reporting is responsible and desirable. A rewording which simply urges detectorists to abide by the articles cited would address this.

E.29 The phrase `professional help' is likely to introduce unnecessary complications. It might, for instance, appear to preclude the involvement of a perfectly capable local archaeological society. `Appropriate specialist help' or `appropriate archaeological help' would address this.

Locating sources of such help will sometimes be an issue. This may partly be answered by lists of archaeological contractors and consultants who are approved for purposes under PPG16 which are now kept by local planning authorities. Reference to the existence of such lists, and how they may be found, might be appropriate, but we recommend that this point be explored with ALGAO before it is adopted.

Where the help provided is professional, it is a feature of professionalism that it is paid for. It is not clear how funding for the archaeological retrieval of significant finds will be arranged. The Act's aim to encourage reporting might be subverted if a finder or landowner, behaving responsibly by calling in specialist help as the Code recommends, then face a bill for having done so. Payment of archaeological charges out of a subsequent ex gratia award or proceeds of sale would introduce further, potentially unwelcome, complications (cf p.65).

E.30 We commend the spirit of this advice, but `involve' would be a more appropriate word than `participate', which in some circumstances could be over-specific.

E.31 The recommendation that finder-detectorists be `kept fully consulted' could be reworded to better effect, to include explanation of subsequent archaeological action, sharing of new understanding which results from a find, and due acknowledgement (eg in subsequent publication).

Footnote 7 would benefit from rewording. As the parent sentence correctly recognises, circumstances do arise when it would be proper to suspend detecting; a distinction exists between those occasions where such exclusion would be unreasonable, and those others where refusal of access is a necessary responsible step.

E.32-4 A list of registered museums/archaeological organisations which are capable of receiving reported finds should be available at one or several points within the process, and at least to coroners and their officers. Given their place as a point of contact, coroners should also be in a position to refer finders to sources of archaeological help (eg in cases where a find is still in the ground (E.29), an aspect which may influence an ex gratia award). The nature of the help required will vary from case to case, and it would often be outside the competence of a coroner to advise on this; at the same time, a coroner should be in a position to assist a finder, not least to minimise inconvenience.

These paragraphs raise broader questions of how coroners should best be advised of their duties and archaeological responsibilities under the Act (for example, how such advice should be communicated, what it should contain, and how it may best be kept updated) and how they will interact with other bodies in the process. These may not be matters for the Code, but the issues involved will have to be addressed if the Code and the Act are to function effectively.

E.33 A photograph taken at the time and point of delivery is always helpful, not least as a record of condition.

E.35 The involvement of responsible dealers can bring the advantages that the Code describes. However, the second sentence could be read as an endorsement of all dealers, since its praise for those who have behaved responsibly is unqualified by any reference to others who have not. We recognise that considerations of tact would preclude that, but at the same time we are not convinced that observance of the recommendations of dealers' professional organisations has been universal. Withdrawal of the second and third sentences of this paragraph would not alter its aim or spirit, but would modify the impression of exaggerated flattery that it gives at present.

E.37 The statement in (b)(ii) enhances the coroner's liability beyond that which would be owed at common law, and by which the coroner would be answerable only for those incidents of loss or destruction which he cannot prove occurred without negligence on his part.

F.40 Valuation will sometimes affect a decision to disclaim, and as things stand provision for it (other than on an informal basis) is not available sufficiently early in the sequence (cf para G.46).

F.41 ` . . . shall be returned by the coroner to the person entitled to them.' It may not always be clear who this person is, and as we understand it it is not within the coroner's power to make a legal determination of title. This may also arise in relation to the resolution of a dispute between parties. Rewording to clarify the limits of the coroner's role would be advisable.

G.45, 49 Notification of the find to the local SMR and museum should occur as early as possible in the process, since information held by them may be of material assistance in helping to ascertain the significance of a find and its provenance. A coroner may, for example, be assisted by evidence concerning other finds from the same area which have been made in the past, or of an associated site which may be invisible on the ground but is known from aerial reconnaissance or fieldwalking.

H.51 `National', `regional' and `local' importance are undefined, perhaps necessarily; however, as the draft already accepts, there will be occasions when a find of national importance is acquired by the local museum, and vice versa (51 (1)). There are also cases where it would be appropriate for a find of national importance to be acquired by a local or regional museum - for example where it would be added to an existing collection of cognate material which would invest it with greater educational significance, or because of its resonance for the local/regional community. As things stand, however, adjudication rests with the national museum, which may not always be best placed to make an uncoloured judgement. We would thus like to see a mechanism for impartial assessment between multiple interests.

In the last sentence of 51(2) `another registered museum' is to be preferred to `designated'.

In 51(5) there is a presumption in favour of retention with the rest of the archive.

J.68 The issue of abatement (and other matters) will sometimes require detailed archaeological knowledge (eg of taphonomy, principles of stratification). Membership of the Treasure Valuation Committee should reflect that need.

J.59 The draft appears to be implying that an aspect of the rights of a landowner might be informally reassigned. This strikes us as dubious, and we ask that it be re-examined.

J.62 Under (ii), unless or until the Government's intention to repeal Part 2 of the 1979 Act is put into effect, unauthorised use of a metal detector is also an offence within an Area of Archaeological Importance.

J.65 Deletion of `professional' would extend this principle to all archaeologists, not simply those who earn their living within the discipline.

The position of the owner of land upon which an archaeological excavation takes place is not mentioned. All of an award could be paid to the landowner, although this could introduce tension with the restated presumption in 51(5) that a treasure find from an excavation should be retained with the rest of the assemblage.

Richard Morris, on behalf of the CBA's Working Group on Portable Antiquities

12 February 1997

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