The Dealing in Cultural Objects (Offences) Act 2003 and the boxed commentary

The presentation of the text of the Dealing in Cultural Objects (Offences) Act 2003 follows the same pattern as the presentation of the judgment in Henthorn v Fraser (pp. 130–139), with the text itself being punctuated with text boxes containing our commentary.

Dealing in Cultural Objects (Offences) Act 2003

2003 Chapter 27

CONTENTS

Section

1 Offence of dealing in tainted cultural objects

2 Meaning of “tainted cultural object”

3 Meaning of “deals in”

4 Customs and Excise prosecutions

5 Offences by bodies corporate

6 Short title, commencement and extent

An Act to provide for an offence of acquiring, disposing of, importing or exporting tainted cultural objects, or agreeing or arranging to do so; and for connected purposes.

This is the long title. It can be used to resolve ambiguities within the text of the Act. But if the meaning of the text of the Act is clear, that meaning must prevail over the long title: see R v Galvin [1987] 2 All ER 851.

[30th October 2003]

This is the date on which the Act received the Royal Assent, which means the date on which it was passed.

BE IT ENACTED by the Queen’s most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows:-

This is the standard enacting formula.

1 Offence of dealing in tainted cultural objects

(1) A person is guilty of an offence if he dishonestly deals in a cultural object that is tainted, knowing or believing that the object is tainted.

The Act does not define dishonesty but the meaning of this word for the purposes of other offences involving dishonesty would probably be held to be so strongly persuasive as to be practically binding. The Act does, however, go on to define certain other key words.

(2) It is immaterial whether he knows or believes that the object is a cultural object.

(3) A person guilty of the offence is liable-

(a) on conviction on indictment, to imprisonment for a term not exceeding seven years or a fine (or both),

(b) on summary conviction, to imprisonment for a term not exceeding six months or a fine not exceeding the statutory maximum (or both).

Conviction on indictment means conviction at the Crown Court. Summary conviction means conviction by a magistrates’ court. The statutory maximum fine on summary conviction is £5000: see the Magistrates’ Courts Act 1980.

2 Meaning of “tainted cultural object”

(1) “Cultural object” means an object of historical, architectural or archaeological interest.

Because the phrase cultural object and the word tainted have no obvious meanings, this section defines them for the purposes of this Act. As far as the words which are not defined are concerned, the court will have to fall back on the basic proposition that the meaning of an ordinary word of the English language is a question of fact: see Brutus v Cozens [1973] AC 854. The advocates may base their arguments on the meanings that certain words have in the context of other statutes, such as the meaning of building in the context of some environmental protection legislation. However, it is important never to lose sight of the proposition that the meaning of a word for the purpose of one statute will be no more than persuasive as to its meaning in the context of another statute: see Carter v Bradbeer [1975] 1 WLR 1204.

(2) A cultural object is tainted if, after the commencement of this Act-

The commencement of an Act is the date on which it comes into force. This may be – but hardly ever is – the date of the Royal Assent. For the commencement of this Act, see s. 6.

(a) a person removes the object in a case falling within subsection (4) or he excavates the object, and

(b) the removal or excavation constitutes an offence.

(3) It is immaterial whether-

(a) the removal or excavation was done in the United Kingdom or elsewhere,

(b) the offence is committed under the law of a part of the United Kingdom or under the law of any other country or territory.

(4) An object is removed in a case falling within this subsection if-

(a) it is removed from a building or structure of historical, architectural or archaeological interest where the object has at any time formed part of the building or structure, or

(b) it is removed from a monument of such interest.

(5) “Monument” means-

(a) any work, cave or excavation,

(b) any site comprising the remains of any building or structure or of any work, cave or excavation,

(c) any site comprising, or comprising the remains of, any vehicle, vessel, aircraft or other movable structure, or part of any such thing.

(6) “Remains” includes any trace or sign of the previous existence of the thing in question.

(7) It is immaterial whether-

(a) a building, structure or work is above or below the surface of the land,

(b) a site is above or below water.

(8) This section has effect for the purposes of section 1.

3 Meaning of “deals in”

(1) A person deals in an object if (and only if) he-

In everyday English, the phrase deals in indicates commercial transactions. This section extends the meaning of the phrase beyond buying and selling, and (perhaps surprisingly) includes the giving and receiving of gifts.

(a) acquires, disposes of, imports or exports it,

(b) agrees with another to do an act mentioned in paragraph (a), or

(c) makes arrangements under which another person does such an act or under which another person agrees with a third person to do such an act.

(2) “Acquires” means buys, hires, borrows or accepts.

(3) “Disposes of” means sells, lets on hire, lends or gives.

(4) In relation to agreeing or arranging to do an act, it is immaterial whether the act is agreed or arranged to take place in the United Kingdom or elsewhere.

(5) This section has effect for the purposes of section 1.

4 Customs and Excise prosecutions

(1) Proceedings for an offence relating to the dealing in a tainted cultural object may be instituted by order of the Commissioners of Customs and Excise if it appears to them that the offence has involved the importation or exportation of such an object.

(2) An offence relates to the dealing in a tainted cultural object if it is-

(a) an offence under section 1, or

(b) an offence of inciting the commission of, or attempting or conspiring to commit, such an offence.

(3) Proceedings for an offence which are instituted under subsection (1) are to be commenced in the name of an officer, but may be continued by another officer.

(4) Where the Commissioners of Customs and Excise investigate, or propose to investigate, any matter with a view to determining-

(a) whether there are grounds for believing that a person has committed an offence which relates to the dealing in a tainted cultural object and which involves the importation or exportation of such an object, or

(b) whether a person should be prosecuted for such an offence, the matter is to be treated as an assigned matter within the meaning of the Customs and Excise Management Act 1979 (c. 2).

(5) Nothing in this section affects any powers of any person (including any officer) apart from this section.

(6) “Officer” means a person commissioned by the Commissioners of Customs and Excise under section 6(3) of the Customs and Excise Management Act 1979.

After this Act was passed, the Commissioners for Revenue and Customs Act 2005 merged the functions of the Commissioners of Customs and Excise with those of the Commissioners of Inland Revenue to create the Commissioners for Her Majesty’s Revenue and Customs (or HMRC as they are commonly known). The 2005 Act also created the office of the Director of Customs and Excise Prosecutions. Although the original text of the 2003 Act is reproduced here, Schedule 4 to the 2005 Act enacts a number of technical amendments to this text (along with the texts of many other statutes) to refl ect the scheme which it introduces.

5 Offences by bodies corporate

(1) If an offence under section 1 committed by a body corporate is proved-

(a) to have been committed with the consent or connivance of an officer, or

(b) to be attributable to any neglect on his part, he (as well as the body corporate) is guilty of the offence and liable to be proceeded against and punished accordingly.

(2) “Officer”, in relation to a body corporate, means-

(a) a director, manager, secretary or other similar officer of the body,

(b) a person purporting to act in any such capacity.

(3) If the affairs of a body corporate are managed by its members, subsection

(1) applies in relation to the acts and defaults of a member in connection with his functions of management as if he were a director of the body.

Bodies corporate are organisations such as companies, local authorities, professional bodies and learned societies. Subsection (3) is most likely to be relevant to some learned societies.

6 Short title, commencement and extent

(1) This Act may be cited as the Dealing in Cultural Objects (Offences) Act 2003.

(2) This Act comes into force at the end of the period of two months beginning with the day on which it is passed.

(3) This Act does not extend to Scotland.

The short title of an Act is a useful label by which it can be known. However, it should be regarded as no more than an approximate guide to the contents of the Act, because it may be too short to be entirely accurate: Re Boaler [1915] KB 21. Acts of Parliament may or may not become law in Scotland. This one does not extend to Scotland because its subject matter lies within the scope of the powers which have been devolved to the Scottish Parliament.