UKRG Event: Art Crime; Due Diligence

Presentations on due diligence by Professor Janet Ulph, University of Leicester, and James Ratcliffe, Director of Recoveries & General Counsel at the Art Loss Register, were important reminders of the ongoing due diligence work essential to museums and galleries on legal and ethical grounds.

Due Diligence
Professor Janet Ulph, University of Leicester

Due diligence covers both legal and ethical considerations. The museum sector is subject to its different sector guidelines to the art trade, which has ethical codes of conduct moderated by commercial concerns, so the two sectors engage in differentiated due diligence as a result. An example of ‘good’ legal provenance not being enough for museums is the stolen ‘Tiger Yung’, which was sold last year for £410,000. As the item was stolen in the 19th century, the thief’s descendent could claim good title after 6 years (not possible after the Limitation Act 1980) and was subsequently able to sell it legally. Although the object had good legal title, a museum would reject this type of item on ethical grounds.

Many European countries protect purchasers by enabling those that purchase in good faith to acquire legal title, unless it can be proven that they did not buy in good faith. This is much more difficult than the reverse – under UK law, a purchaser has to prove they did buy the item in good faith.

Museums hold a position of trust in the community that must be upheld, so this is key when undertaking due diligence for new acquisitions. The UNESCO Convention 1970 was an early provision that encouraged the museum sector and art trade around the world to create ethical codes of practices. The Collections Trust due diligence checklist is an excellent example of differentiated due diligence, where we are asked to engage with ethical considerations rather than just “box tick.”

The first money-laundering regulation was introduced in 1993 and the most recent in 2017: ‘Money Laundering, Terrorist Financing and Transfer of Funds (Information on the Payer) Regulations.’ From 2020, the 5th EU Anti-Money Laundering Directive will extend the 2017 Regulations to cover:

• Sales of art
• By traders and auction houses
• Involving transactions of 10,000 euros or more (irrespective of payment method)

The directive aims to increase transparency by requiring proof of clients’ identities and for traders to act with enhanced scrutiny. HMRC are the supervising authority for this directive and there will be big risks to traders if they do not comply. Many in the art market are concerned that this will slow sales down, particularly at trade fairs, however it is good news for preventing trafficking of cultural property and should hopefully enable easier provenance checks for museums when acquiring from traders and auction houses after 2020.

Due Diligence
James Ratcliffe, Director of Recoveries & General Counsel at the Art Loss Register

The Art Loss Register (ALR) is a private company, founded in 1990, with the goal of recovering stolen and looted art. There are over 500,000 items subject to a claim on their database, including items that have been stolen, looted, are fakes or subject to civil dispute. Over 400,000 items moving through the international art market are checked against the database every year. The team regularly check catalogues for art fairs, auction houses and one off sales against their database and review provenance in detail.

Due diligence checks by The ALR usually involve two key stages; database checks and provenance checks, except for auction catalogues where only the database check is carried out. The ALR works with international organisations to recover cultural property, including Interpol, the US Department of Justice, Carbinieri, Deutsches Zentrum Kulturgurtverluste, the Antiquarian Booksellers Association and lootedart.com.

Museums regularly carry out due diligence on acquisitions, loans between museums or immunity from seizure and after a claim or issue has emerged; however carrying out checks on gifts, legacies, loans from private individuals / the art market and as part of an ongoing process are not seen as often by The ALR. As per Professor Janet Ulph’s presentation, due diligence varies across sectors; there is some presence in the art trade, however currently they are not always carried out as well as it should be.

Current high risk areas include:

• Nazi looted art, particularly decorative arts (porcelain, silver) and artists such as Klimt, Schiele and Liebermann
• Antiquities described with historic place names, e.g. “South Arabian”, “Western Asiatic” and “Bactrian” 
• Ethnographic material from the colonial era. 

Advice for those acquiring cultural property: 

• Insist on provenance – more is always better.
• Agree on a minimum standard and focus on risk areas. 
• Check databases and look for red flags – high risk items, people involved (now and in the past) and the nature of the transaction. 
• Ask vendors questions and record answers for any potential future claims – if you are lied to then the vendor is at fault, but if you do not ask questions then you are at fault! 
• If vendors will not release information, then assess the risk – why is information being withheld? 
• Use the internet to research names - do not accept initials in provenance history, as they cannot be tested. 
• Use LostArt or the Collections Trust website, help to address the gaps in the years 1933-1945. 

It is far better to deal with issues that might arise from provenance checks, than to wrongly acquire an object. If in doubt, do not proceed with the acquisition.

Importantly, due diligence is an ongoing process and should not be a one-off check on acquiring or borrowing an object. Carry out targeted due diligence on risk areas of the collection. Publish provenance research and gaps in provenance online to share any possible concerns. Some museums may be reluctant to do this due to reputational damage and risk, however the reputational impact is usually much greater if provenance issues go unaddressed. If there is concern, then communicating this to possible claimant parties is the best way towards certainty.

Written by Jill McKnight, Exhibitions Officer, Tyne & Wear Archives & Museums

UKRG Art Crime: Crimes against Museums

Crime against Museums: Prevention and detection
A presentation by DC Sophie Hayes and DC Ray Swan

It was fascinating, scary and inspiring in equal measure hearing about the work of the investigating cultural heritage crime. Although the Met Police’s art and antiques unit operate within the London foot print. Their impact and reach is felt far further if a stolen item, forgery or fraud has origins within London.

Collaborative working across not only police forces, museums, galleries, dealers, private
collectors and places that buy and sell antiques is vital in the work that they do.

• Thefts
• Cultural heritage theft
• Forgeries and associated fraud

Some items are more vulnerable to theft and portability of the item is key. The founding of
the unit came about in 1968 due to a high proportion of philatelic collections being
targeted. Stamps are incredibly easy to sell on due to their size and peoples desire to have
rare stamps within collections.

The internet and online market places have enabled stolen items and forgeries to be
passed on more easily.

What can we do to prevent a crime taking place?

It may sound simplistic but keeping up to date records including photographs and film of
item including unique markings and any changes. An item is most vulnerable to theft and
damage when it is being moved between two locations so it important to also document
item movements.

Criminal networks that are involved in heritage theft are often involved in other criminal
activity. These groups are highly organised and may well be involved with forgery and
fraud activity.

Replica items only become illegal when there is an attempt to represent them as original
items. These criminal gangs will then offer the items to private collectors and also to
Museums. This can include planting documents in archives and databases to create a
false provenance for an item and creating realistic documents.

Assume nothing- just because someone looks unassuming and is perfectly charming
doesn’t make them incapable of criminal activity. Believe no one- question everything, if it
doesn’t feel right say no and contact the Police if you suspect criminal activity is taking
place. Check everything and take your time- if you feel pressured to make decision, they
maybe more to it than meets the eye.

Written by Rachel Comnan, Collections Care Officer, Haynes International Motor Museum

UKRG Event: Art Crime; 'Dealing' offences

UKRG Art Crime Conference

Emily Gould, Senior Researcher from the Institute of Art and Law talked about Heritage Crime and the ‘dealing’ offences under UK law during the UKRG Event Stolen Heritage: Art Crime, Restitution and Spoliation on Friday 15th February 2019 at the Museum of London Docklands.

Unfortunately cultural and heritage destruction is an everyday matter; whether it is the looting and destruction of cultural artefacts in the Middle-East, removal of religious statues in India or thieves targeting the local village church in the UK. Luckily some crucial work is being undertaken to prevent these crimes, bring justice to the perpetrators and to encourage the restitution of objects.

Several laws have been enacted since 2002 to protect against illicit traffic in cultural property including the Dealing in Cultural Objects (Offences) Act in 2003, the Iraq (UN sanctions) Order 2003 and the Export Control (Syria Sanctions) Order 2014 to prevent dealing in cultural property illegally removed from those countries and the Cultural Property (Armed Conflicts) Act 2017 against the dealing in cultural property unlawfully exported from an occupied territory.

It is not easy to prosecute dealers of stolen properties. When the due diligence is tampered with or incomplete it is difficult to prove the objects origin, also the dealer can only be prosecuted when it can be proven he is fully aware that the object was indeed unlawfully removed and with this knowledge did not hand the object in to the authorities. Under the Dealing in Cultural Objects Act, only one person has been convicted; Chris Cooper was sentenced to a prison sentence following a looting spree in churches in Herefordshire. Later this year he will be charged again and we await the verdict with eager interest in the hope more prosecutions will follow.

Since 2017 the Cultural Property (Armed Conflicts) Act has come into force. This Act enables the UK to ratify the 1954 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict and creates a new offence of dealing in cultural property unlawfully exported from an occupied territory. While no immediate result is expected in the form of prosecutions; it is a strong reminder that those dealing in the art trade have a strong responsibility to check the provenance and challenge any doubt. The difficulty with the existing legislation is that it has a legal complexity and it is difficult to prove the source of stolen artefacts; we need to create more awareness and knowledge of the new legislation and perhaps even change the way we use the existing legislative tools.

During the second part, Alex Herman talked about the difficulty surrounding the restitution of colonial artefacts in museums. This discussion was raised after the French president Emmanuel Macron held a speech in 2017 in Burkina Faso stating that he wanted all the conditions for the temporary or permanent restitution of African Heritage to Africa be met in 5 years.

This speech led to the commissioning of the Sarr Savoy Report by Macron in 2018 by Felwine Sarr and Benedicte Savoy and released in November of that year. This report, published in French and (a strange translation of) English was mainly written from a post-colonial view. The criteria they noted for ‘restitutability’ (yes this is not an English word) was firstly a Swift Restitution, which meant the objects had to be taken through military aggression, acquired through military or administrative agents or acquired on ethnographic missions (pre-1960) or loaned from African Museums and never returned.

Secondly, further research is required for items that came to museums after 1960 by gift or donation but reason to believe they were in Africa before that date. If the date is unclear it depends on how strong the interest of the requesting nation is.

And thirdly, items that were to be retained for the French collections were subject to a free, fair and documented transaction, purchased with due diligence on the art market after 1970 UNESCO Convention or gifted by foreign state of head.

But, how does this work in practice and is it legal? According to the French law the inalienability of public collections is safeguarded and items can’t just simply be returned. There are estimated over 90,000 items of African Heritage in French Collections.

Working with difficult heritage laws is an issue for several European countries and a loophole had to be found. An Italian institution had the same problem when returning the Venus of Cyrene to Libya; an international agreement eventually provided for this.

More problems have arisen than are being solved by the report; there is quite often no provenance documentation and a ‘free, fair and documented’ transaction seems difficult to prove. Also the work will be returned to the African states, not the local community or individuals. And for the law to change a broader political scope is needed. But Macron has promised to return the Benin Bronzes and also the Cultural Minister of Senegal is looking for a solution for over 10.000 objects which he wants to request. The French came up with a solution to circumvent their law to give items on a renewable 5 year loan that in theory would be indefinitely.

The French Museums are not pleased with the report but have been quiet due to the sensitivity of the subject. They are concerned about the scope of the report; which could have a serious impact on the French Museums. And how will this impact other nations? Macron only mentioned African Heritage, but what about Oceania’s heritage? There is still a lot to be done and long term solutions to be found.

Written by Wietske McMahon, Assistant Registrar (Exhibitions), National Galleries of Scotland

UKRG Event: Art Crime, Spoliation Advisory Panel (SAP)

Being a new member to UKRG I was excited to be offered a bursary to attend my first conference and even more thrilled that it was on the “seedy” world of Art Crime. I went in envisaging horror stories of shoot-outs in galleries, footage of car chases as criminals fled with a Picasso hanging out the back of their boot and some juicy gossip on auction houses and their dodgy dealings. What I came out with was a much greater understanding of what as Museum professionals we should be looking out for as the first warning signs of objects breaching cultural property laws within our collections and what we as registrars should be doing to ensure our due diligence and provenance procedures are followed effectively when acquiring, loaning and displaying objects.

The work of the Spoliation Advisory Panel (SAP) was mostly new to me and I found the information provided, case studies and work that they do both fascinating and invaluable when applying to the roles and responsibilities I carry out in my position as Loans and Touring Assistant at Glasgow Museums.

The SAP were set up in 2000 by DCMS and are a panel who look to assess the moral strength of a range of differing claims from people who have been victims of spoliation and have as a result lost property during the Nazi era. The history of how the SAP was formed is an interesting timeline and materialises from flaws in the 1943 ‘Inter-Allied declaration against acts of dispossession committed in Territories under Enemy Occupation and Control’ to the 1998 Washington Conference Principles where discussions took place to look at the fairness of spoliation cases and the voluntary return of stolen property to the original owners.

The SAP claims process sets requirements in order to qualify. These include:

• The claimant or claimant’s heir must have lost possession of the property between 1^st January 1933 and end of December 1945.
• The property in question must be in a National Museum within the UK

The claims are judged by the SAP by two terms of reference:

• Legal Title
• Moral Strength

What I found most interesting about the panel was the diversity of the people on it. People of Jewish heritage acting as representatives for their community, museum directors, art dealers, moral theologians and lawyers all make up the broad panel allowing claims to be assessed as fairly as possible and covering all aspects of a claim and its intricacies. There is no established rationale and each claim is reviewed on an individual basis.

Since 2009 the recommendations made by the SAP have all been for restitution to a claimant when there is a strong moral claim and the panel has always recommended restitution when it’s been actively sought by the claimants themselves. This was highlighted through some insightful examples of the SAP in practice and really got to the heart of what the panel does. The successful restitution of the Beneventan Missal from the British Library and Constable’s ‘beaching a boat, Brighton’ from Tate demonstrates the still prevalent impact of spoliation from the Nazi era and how as museums we have a moral obligation to ensure we are as confident as we can be about the provenance and history of an object before it enters our collections. On the contrary it was interesting to learn in greater detail about the claim of Renoir’s ‘The Coast of Cagnes’ at Bristol Museums being rejected due to insufficient moral strength related to the history of the painting and its owners.

At the centre of the SAP’s work lies the moral strength of each individual claim and having learnt more about the processes they carry out I feel enthused to continue to develop my knowledge on spoliation and on how we as an industry work together to combat illicit trade.

Written by Becky Storr, Loans and Touring Assistant at Glasgow Museums.

ERC2018 - Registration in Post-Quake Christchurch

ERC 2018 – We’re in This Together: Registration in Post-Quake Christchurch

 

Discussing emergency planning with colleagues is a difficult, fascinating and an almost impossibly challenging task. Just how do you plan for the scenarios you can’t really visualise and never ever want to take place? Hearing what Gina Irish from Christchurch Art Gallery in New Zealand had to say from the perspective of someone who had actually been through it was one of the easiest choices I made at ERC. However for me it wasn’t just professional interest. I grew up down the coast from Christchurch and I have family and friends who live there and experienced the quake and lived through its aftermath of liquefaction, no power, sewage or water systems, aftershocks and finally the ongoing battles to get insurance payments on damaged homes years after the quake. This one was always going to be personal.

 

It was therefore reassuring to hear Gina speak about the quake not just as a practical challenge, or series of challenges, but also of the personal impact for her, her colleagues and the wider community. While most of us will not face a disaster at work which means we are also worrying about family, friends and our homes, all of us care about the places where we work and the collections we look after. The personal impact of loss of these, or threat of loss, should not be ignored. It can have a real impact on how an institution and the people who work for it deal with a disaster.

 

So what were my takeaways from Gina’s talk?

 

• Disaster plans need broad input and the involvement of more staff. The Christchurch Gallery’s plan failed because it had been written in isolation by one person. They rewrote it together, which Gina noted was cathartic and collaborative, bringing in valuable skills. They looked beyond their own organisation to the emergency services who were willing collaborators.

• The importance of collaboration. Gina spoke about how prior to the quake the people within the organisation were not effective collaborators. The disaster forced this change. There was better communication and more skill sharing.

• You might not have access to your premises and services may not work. Gina talked about how the Gallery was taken over as the Emergency Headquarters and how this actually gave collection staff access and ensured working WiFi. It did come with challenges as they had to move the entire collection in a matter of weeks and then had the task of getting the emergency response staff out of the building at a later date. 

• Stages of response to a disaster. Gina spoke of four stages: Fight or flight response, a honeymoon period where people came together to solve problems, disillusionment when staff are tired and just want things to get back to normal, and finally reconstruction. She credited their director in holding the team together throughout and the importance of leadership It seems worth thinking about and building these stages into emergency planning.

• The importance of the skills and experience that registrars and collection staff hold. Gina spoke about how the registrars led the move of the collection, the need for a clear chain of command and the active participation of all staff working alongside management. The registrars developed professional skills through supervision and mentoring of other staff.

• There can be unexpected benefits to a disaster. It was publicly recognised that the Gallery could not resume business as usual which enabled back of house projects to be completed such as research into old loans and copyright, projects which would not have been possible with normal workloads.

• The importance of the wider community and being visible. The Gallery organised pop-up exhibitions and moved to install artwork across the city. This increased collaborations with library colleagues, artists and new partners and sponsors. Gina spoke about there being no industry framework for a gallery without walls and the need to work in new ways with artists and others. She talked about the wish to offer meaning to the community, to what she described as ‘a broken city’. The Gallery continued to acquire new works despite having no acquisitions budget by crowdfunding. Check out their campaign for Michael Parekowhai’s Chapman’s Homer. Gina spoke about how this has made the public view both the objects and the Gallery differently as they are invested in and feel ownership of them. 

• Gina’s final comments were on the impact on the registrar and collection team with them having a raised profile, feeling valued and engaged and focused on moving forward.

Written by Alison Duke, Collections Manager, The Foundling Museum