“Finders keepers …” is a familiar playground incantation. But like many such incantations it is not wholly accurate.
This Note, concerning what is called “abandoned” property, is prompted by a new Code of Practice published this month on “Treasure Trove in Scotland” (“the new Code”). “Finders keepers” may generally work in the playground but, as the new Code shows, it does not generally work further afield.
- There is a distinction to be made between “lost” property on the one hand, and “abandoned” property on the other. “Lost” property may be defined as property the ownership of which is temporarily uncertain. “Abandoned” property may be defined as property which has once been owned but the ownership of which has been given up by its owner. “Lost” property, if not claimed, may become “abandoned”. But this Note, focusing as it does on treasure trove, is only concerned with “abandoned” property.
- In principle, all “abandoned” property belongs to the Crown: the general principle being that ownerless property belongs to the Crown. A Latin tag (such tags traditionally beloved by lawyers) sums it up: quod nullius est fit domini regis i.e. “what belongs to no-one becomes the property of the lord King.”
- This right is exercised on behalf of the Crown by the quaintly named “Queen’s and Lord Treasurer’s Remembrancer” (“QLTR”). The right is of particular relevance when it comes to treasure trove being an important sub-set of “abandoned” property. A flavour of how this all works can be gleaned from what was said by the QLTR on the launch of the new Code:
“The Treasure Trove processes play an important role in ensuring that material of historical or cultural significance to Scotland which is discovered, either as a result of a chance find or organised archaeological fieldwork, is retained by Scottish museums for the benefit of all and safeguarded for future generations.”
- Some further background is indicated in the QLTR’s 2013/14 Report on treasure trove:
“In the period covered in this report 825 objects found by members of the public were claimed as Treasure Trove and allocated to museums across Scotland; … In two cases objects were returned to the finder as they attracted no interest from museums…
Finders of objects are routinely given an ex gratia award to recognise their contribution to Scottish heritage and these awards are based on the market value of their find. In the period of this report the total sum paid as ex gratia awards was £50,070 with individual payments ranging from £10 to £5500. In eight cases the finder chose to forego their ex gratia award.
In the same period 22 excavation assemblages were declared by professional archaeologists. Of these four attracted no interest from museums and were returned to the excavator…”
The basic scheme for treasure trove
- Before turning to mention some of the changes introduced by the new Code something is said about the basic scheme for treasure trove.
- The term “portable antiquities” is used extensively in this context. The term is defined in the new Code like this:
“Portable antiquity: This term in Scotland covers any ownerless item (bona vacantia) which is portable, has been humanly manufactured or modified, is of any size, type or material, is not integral to a site or monument, and has been found in Scotland. Normally the human manufacture or modification of the item will have occurred more than 100 years before its discovery.”
The treasure trove system
- Found portable antiquities must be reported to the QLTR through the Treasure Trove Unit (“TTU”). Misappropriation of found portable antiquities is the crime of theft. Failure to report the finding of portable antiquities may provide evidence of misappropriation. Offences are punishable by a fine or a term of imprisonment or both.
- Non-reported portable antiquities have the status of being unclaimed Crown property. They cannot be owned by anyone else if the Crown has not been given the opportunity, by reporting, of exercising its right of ownership.
- Landowners have no property rights to portable antiquities, nor do sponsors of organized archaeological fieldwork have any claim to any finds made on their projects.
The new Code
- The changes in the 2014 Code are evolutionary rather than revolutionary and designed, in particular, to take more account of the chance finder’s position by:
- Promoting of recognition of the finder by encouraging museums to credit the finder in the display of the object.
- Providing a person who has reported a chance find with the likely valuation for the purposes of any ex gratia payment so the finder may get their own valuation for consideration if they wish.
- Seeking the views of the finder as to the allocation of an object where there is competition between museums for its allocation.
Note: This material is for information purposes only and does not constitute any form of advice or recommendation by us. You should not rely upon it in making any decisions or taking or refraining from taking any action. If you would like us to advise you on any of the matters covered in this material, please contact Euan David: email email@example.com