Cultural Property (Armed Conflicts) Bill [Lords]

John Bercow Excerpts

2nd reading: House of Commons & Programme motion: House of Commons
Monday 31st October 2016 Commons Chamber

[Sir Edward Garnier]

One often sees the type currently drafted into clause 17 when a defendant has to rebut a presumption—the possession of certain items in sexual offences or drugs offences. It is also to be found under certain rarely used disclosure offences, such as under section 119 of the Companies Act 2006—something that we speak about so frequently in the clubs and bars of Market Harborough. As regards the substantive criminal law and the making of a substantive criminal offence, my hon. Friend is right to say that this is a rare and wholly unusual distinction, and I quietly urge the Government to think again.

As drafted, this provision abandons the principle that it is the defendant’s state of mind that must be “criminal”, whether defined in terms of belief or even suspicion, for an objective test: whether he had reason to suspect. What may arise from an offence defined in that way can be quickly described. The defendant may be offered property which, because of the circumstances, he may have reason to suspect may be prohibited. Just because he wishes to proceed with caution, and to avoid committing a criminal offence, after sensible inquiry and investigation he may in good faith decide that his suspicions have been allayed and proceed to deal in the property. For a defendant acting in good faith to be convicted of an offence of dishonesty is a novel proposition. It may be suggested that the offence is not intending to apply to such an individual, but only to the individual who, notwithstanding any investigations he may make, turns a blind eye to reasonable grounds for suspicion, but that is not what the clause says. The offence can and should be defined in terms of the defendant’s belief or suspicion, and currently it is not.

Surely the question to ask is whether the defendant did or did not believe, or did or did not suspect. The more powerful the evidence that he had reason to suspect, the more likely it is that the jury would conclude that he did indeed believe or suspect, and that the offence is proved. In short, where the defendant did indeed have “reason to suspect”, that would provide the evidence to establish that he did indeed believe or suspect that he was dealing in prohibited property. That however goes to the evidence available to prove guilt; it should not define the offence.

It would be unusual for an offence of dishonesty to be created that did not focus on the defendant’s personal state of mind. It would also be unusual to create two offences in a single provision which make provision for separate and distinctive forms of criminal intent: knowledge, which is entirely subjective; and reason to suspect, which is not. Any summing up in an indictment which alleges the two offences as alternatives would not be straightforward. Worse still, it would be unwise, and it would make for significant complexity in any trial for two statutes with the same objective—the protection of the cultural heritage of every nation—not to define criminal intent in exactly the same way.

Section 1 of the Dealing in Cultural Objects (Offences) Act 2003 states—

[Mr Speaker]

Order. I do apologise to the right hon. and learned Gentleman, but when he leant down like that, I thought it was because he was approaching his peroration. That may have been a triumph of optimism over experience.

[Tim Loughton]

Ungallant.

[Sir Edward Garnier]

Ms Bell, I think, has spoken on my behalf. I was just advising you, Mr Speaker, about section 1 of the 2003 Act, which I know you want to hear about.

[Mr Speaker]

Indeed.

[Sir Edward Garnier]

At least I am right about that. [Laughter.] It states:

“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.”

This Bill says that it is

“an offence for a person to deal in unlawfully exported cultural property, knowing or having reason to suspect that it has been unlawfully exported.”

For the reasons that I have been briefly explaining, I suspect that the 2003 Act provides the better wording. The provision in this Bill is not following well-established principles relating to the prosecution of offences of dishonesty. I am concerned that the Bill, which is concerned with the same issues, fails properly to take into account that set of principles. As drafted, it may result in the prosecution and conviction for an offence of dishonesty of a defendant who has, or may have, acted in good faith.

It is one thing for a defendant to be convicted of handling stolen goods where they have been shown to have known or believed the goods were stolen—the law is clear and the defendant knows when he is convicted that the jury was sure he knew or believed the goods were stolen—but under this Bill, as currently framed, a convicted defendant cannot be sure that his conviction reflects his actual state of knowledge or belief and that he was not convicted simply for lacking curiosity. Absence of curiosity may be regrettable and sometimes stupid or negligent, but it should not lead to a conviction, with all the reputational damage that flows from it.

Beyond that, I urge the Government to consider what effect this provision will have on the art market here in London. As was said by my hon. Friend the Member for Newark, who speaks with the advantage of being not only a lawyer, but a former director of Christie’s, this will have a stifling effect. It may be that there will not be many convictions or many arrests, but the mere threat of the reputational damage caused by this possibility is enough to put the mockers on this valuable and entirely legitimate aspect of the London art market. The art market will go elsewhere and the crooks will get away with it. If we want to catch the bad boys, and if we want to inhibit this wrong and immoral market, why not stick to the 2003 wording or something similar to it, rather than allowing this Bill to contain an error of principle which could confound the interests of all of us who wish to see the destruction and the dealing in cultural objects that have been stolen brought to an end?

Cultural Property (Armed Conflicts) Bill [Lords]

John Bercow Excerpts

3rd reading: House of Commons
Monday 20th February 2017 Commons Chamber

[Kevin Brennan (Cardiff West) (Lab)]

I beg to move amendment 4, page 2, line 6, at end insert

“, which includes a digital attack if the cultural property in question is in digital form.”

This amendment would make explicit that an offence is committed if the act committed under paragraphs (a) to (e) of paragraph 1 of Article 15 of the Second Protocol is a digital attack, where the cultural property in question is in digital form.

[Mr Speaker]

With this it will be convenient to discuss the following:

Amendment 5, page 2, line 17, at end insert

“, or

(c) a foreign national serving under the military command of the UK Armed Forces.”

This amendment would ensure that an offence is committed if an act described in paragraph 1(d) or (e) of Article 15 of the Second Protocol is committed by any foreign national serving under the military command of the UK Armed Forces.

Amendment 1, in clause 17, page 8, line 12, leave out

“or having reason to suspect”.

Amendment 2, page 8, line 12, leave out “having reason to suspect” and insert “believing”.

Amendment 3, page 8, line 12, leave out “having reason to suspect” and insert “suspecting”.

[Kevin Brennan]

The amendment seeks to probe the Government’s thinking on whether digital attacks on cultural property would be considered as damaging cultural property under the Bill. I say in passing that we very much support the Bill, having first introduced it ourselves, but sadly we ran out of time in the Parliament prior to 2010. The Bill will bring into domestic law the offence created by article 15 of the second protocol to the 1954 Hague convention, so it is not before time. I am glad that there is House-wide support for the Bill, but we want to probe a few more points during the remaining stages, to make sure that the Government’s position is clear and on the record before it is sent for Royal Assent.

During previous debates, both here and in the other place, there have been many discussions about the digital reach of the Bill. Given that the original convention was written in 1954, with a subsequent protocol, that was obviously long before issues of digital property would have been actively considered. We welcome the numerous assurances provided by the Government, including by the Minister in Committee, that cultural property in digital form could be protected. If it is true that digital property is protected under the Bill, it would be natural that digital attacks on that property are also covered. The purpose of the amendment is to get the Government to confirm whether that is the case.

It would not be reasonable to recognise digital cultural property but not digital attacks on such property. Given that the Bill involves creating criminal offences, it is important that the Government put their thinking on the record. Their response to an amendment discussed in Committee highlights the need for clarity. We debated whether the cultural emblem of the blue shield, which the Bill introduces from the convention and which marks a protected item, could be shown in digital form. The Minister said:

“For modern, born-digital material, such as films and music, in practice we would expect the emblem to be displayed on the physical object on which the material is stored or on the building in which the physical storage object is kept, rather than being displayed digitally. That would help to ensure that the emblem is readily visible. That is not to say that it cannot also be depicted in digital form.”––[Official Report, Cultural Property (Armed Conflicts) [Lords] Public Bill Committee, 15 November 2016; c. 9.]

That could be interpreted as assuming that cultural property, even that which is digital, would be attacked only in a physical sense—in other words, that any attacker would be in close physical proximity to the item and able to see the blue shield on its casing. In reality, however, digital content is more likely to be attacked by way of hacking, in which case the question of how the blue shield could flag up digital cultural property to a potential attacker is relevant. Somebody hacking into a database of some sort will not see the shield on the hard drive’s casing.