Thanks to the rich history of the region, and the soil, there are more archaeological finds in East Anglia than anywhere else in the country[1]. Not being either a farmer or a ‘detectorist’ – someone with a keen eye and plenty of patience (and a metal detector) and the subject of the comedy series Detectorists starring Mackenzie Crook[2] – I hadn’t really considered whether or not it might be a good thing to live close to the world-famous Sutton Hoo excavations[3] and the spot where the Hoxne Hoard was discovered[4]. The verdict may still be out on that question – I will come back to it at various points in this piece.
Like most people I’d heard the expression ‘treasure trove’ but my vocabulary has been out of date for over 20 years, since the Treasure Act 1996 introduced the definition of Treasure and passed me by, unnoticed. Until 1996 the common law of treasure trove was the only legal protection for Portable Antiques[5]. A government research paper[6] describing the background to proposals for the reform of the law referred to the ‘illegal activities of detectorists’ and to hostility towards ‘the hobby of metal detecting’ and summed up the main problems with treasure trove as:
• the exclusion of important finds that may have been lost rather than buried intentionally;
• the requirement that objects were substantially gold or silver; and
• the exclusion of objects not made of precious metal found with items of treasure.
The author of the paper referred to the ignorance of the general public and most law officers of treasure trove requirements and the urgent need for reform of the law. Faced with such compelling arguments Parliament duly reformed the law in the shape of the Treasure Act 1996[7] – but I suspect that most of us live in blissful ignorance of it.
The Treasure Act 1996 fixed some obvious problems with the common law so that, for example, the definition of Treasure includes:
• all coins from the same find provided they are at least 300 years old when found, whatever their metallurgic composition, if there at least 10 coins in the find;
• any object that is at least 10% (by weight of metal) gold or silver that is at least 300 years old; and
• any object, whatever it is made of, that is found in the same place as, or has previously been together with another object that is Treasure; and any object that would previously have been Treasure Trove, but not falling within the new definition of Treasure.
The controversy around metal detecting continues to hit the news[8], and the practical implications for landowners and farm tenants, the archeological community and hobby detectorists are complex.
A detectorist who finds potential Treasure may wait years to learn the outcome of the subsequent legal process – there are various possible outcomes as I will explain. The detectorist has a legal obligation to report finding potential Treasure to the coroner within 14 days and then will probably want to contact their local Portable Antique Scheme (PAS) Finds Liaison Officer who can take delivery of the find. A coroner’s inquest might then be called to determine whether or not the find is Treasure. Museums have the opportunity to acquire Treasure and finds are valued by an independent Treasure Valuation Committee – the valuation process is a fascinating subject in itself and is operated through the British Museum[9]. If a museum acquires the find – which must be at full market value – the reward is usually divided between the detectorist, the landowner and any farm tenant[10]. Detectorists don’t have to report non-Treasure finds but human remains must be reported to the police.
I was interested to read that the British Museum monitors eBay[11] and elsewhere for unreported Treasure and liaises with the police – the illegal trade in unreported Treasure carries a prison sentence of up to three months and/or a fine of up to £5,000.
Landowners and farm tenants have to navigate other implications of the law relating to Treasure, for example:
• it is illegal to use a metal detector or to undertake work on a Scheduled Monument;
• it is illegal to use a metal detector on some Sites of Special Scientific Interest;
• metal detecting may be restricted under agri-environment schemes;
and, in deciding whether or not they want to allow detectorists on the land, the landowner and farmer will consider a number of factors, for example:
• detectorists might try to induce the farmer to deep-plough, which may bring a find closer to the surface, but can damage undisturbed archaeology and other information about the past, as well as bringing up debris – building material for instance – that could interfere with cultivation;
• as detectorists aren’t licensed, proper, expert excavation might be more appropriate;
• nighthawking – which is illegal detectoring – and general trespass will remain a concern, especially where there is the potential for injury or loss of life, for example when a trespasser stumbles upon a farm reservoir or a slurry lagoon (or the pointy end of a piece of farm machinery).
A bit like the unintended consequences of deep-ploughing, Treasure wasn't the original reason for my research, but, now that I am enlightened, it is a subject that will be etched in my memory, and I might lobby for it be included in the Agricultural Law Association’s Agriculture and rural land standard enquiries (standard pre-contract enquiries for the sale and purchase of rural land)[12]. This also reminded me of a bit of work I did many years ago for a client who found ships on standby in ports around the world and chartered them to intrepid maritime treasure-hunters – not a subject I have thought about since moving to the middle of East Anglia (at least not until Brexit’s ‘Ferrygate’).[13]
For those interested in further reading, some of my sources are listed below, as part of my footnotes.
[1] BBC Inside Out which includes fascinating insight from detectorists (including nighthawkers) http://www.bbc.co.uk/insideout...
[2] https://www.imdb.com/title/tt4...
[3] ‘One of the greatest archaeological discoveries of all time’ near Woodbridge in Suffolk https://www.nationaltrust.org....
[4] ‘The largest hoard of late Roman silver and gold discovered in Britain’ https://en.wikipedia.org/wiki/...
[5] Portable Antiquities appears to be freely used but without legal definition so your guess is as good as mine but the Portable Antiquities Scheme has a website https://finds.org.uk/about
[6] Research Paper 96/36 https://researchbriefings.file...
[7] http://www.legislation.gov.uk/...
[8] https://www.edp24.co.uk/news/c... (published March 2017)
[9] https://finds.org.uk/treasure/...
[10] All finds belong to the landowner in the absence of any agreement to the contrary (for example with a detectorist and, if applicable, the farm tenant) (see footnote note 11)
[11] https://finds.org.uk/getinvolv...
[12] https://uk.practicallaw.thomso...
[13] The author is a solicitor in the commercial team at Ward Gethin Archer, in the firm’s Ely office, and the opinions in this piece are his own and not the firm’s.
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