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The Elephant in the Sales Room: Ivory and the British Antiques Trade

Published online by Cambridge University Press:  18 October 2016

Caroline Cox
Caroline Cox*
Affiliation:
School of Law, Portsmouth Business School, University of Portsmouth, Portsmouth, United Kingdom; Email: caroline.cox@port.ac.uk
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Abstract:

In March 2015, it was reported that His Royal Highness, the Duke of Cambridge would “like to see all the ivory owned by Buckingham Palace destroyed.” In May 2015, the Conservative Party’s manifesto stated that if elected the party would “press for a total ban on ivory sales,” and policy decisions made as part of President Obama’s National Strategy for Combating Wildlife Trafficking saw “all commercial imports of African elephant ivory, including antiques” being prohibited.1 In a changing international environment, the United Kingdom’s antique trade faces a threat to the legitimate sale of pre-1947 worked ivory without the extent of any illegal trade being clear. With only 15 convictions since 1992 for offences relating to the trade in ivory in the English courts, this article examines the two most recent cases, which came to court in 2014.

Information

Type
Case Note
Information
International Journal of Cultural Property , Volume 23 , Issue 3 , August 2016, pp. 321 - 334
Copyright
Copyright © International Cultural Property Society 2016 

INTRODUCTION

The British antique trade, in common with its European counterparts, can sell worked ivory provided that the sellers can certify that the item in question has been carved before June 1947. Footnote 2 Yet the ability of dealers to self-certify a piece of ivory’s age in readiness for sale has led to allegations that the system is open to abuse and fraud. Footnote 3 The process came under scrutiny in October 2014 when two cases came before the English courts involving, respectively, an auction house and an antique dealer both of whom were charged with the sale of illegal ivory.

The regulation of the trade in wildlife, like the trade in cultural property, is regulated by a regime of public international law (that is, a regime of law between nations). In those states that have ratified it, the 1973 Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES), which has been described as the “Magna Carta for wildlife,” works by controlling the import and export of certain designated species that are either at risk of extinction or could become at risk. Footnote 4 CITES has similarities to the 1970 Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property in that both were borne out of the international community’s desire to protect, regulate, and control vulnerable items. Footnote 5 The United Kingdom (UK), as a founding member of CITES joins 181 other countries in joining the 1970 convention. Within the European Union (EU), CITES is implemented by two EU regulations, namely Council Regulation 338/97, which sets out the protection of CITES species by regulating trade, and Commission Regulation 865/2006, which sets out detailed rules concerning the implementation of Council Regulation 338/97 (EU Regulations). Footnote 6 These regulations set out the provisions regarding the issue of permits and certificates in order to create a consistent approach to the import and export of CITES species across the EU member states. The EU Regulations are directly applicable to UK law, and, as such, no further UK legislation needs to be enacted to implement them. However, these two regulations do set out certain requirements for member states to implement their own domestic legislation, including the penalties that will be applied for an offence. Footnote 7

The UK’s domestic legislation is laid down in the Control of Trade in Endangered Species (Enforcement) Regulations 1997 (COTES Regulations). Footnote 8 These regulations, which mirror the EU Regulations, set out the penalties applicable for their breach. Additionally, the COTES Regulations also applies to any trade offences that occur with regard to CITES species within the EU. For example, the sale of a piece of post-convention ivory by an auction house or an antique dealer would be dealt with under the COTES regulations. Footnote 9 The main provision of the COTES Regulations and the provision under which most prosecutions are brought is Regulation 8, which makes it an offence to purchase, offer to purchase, acquire for commercial purposes, Footnote 10 display to the public for commercial purposes, use for commercial gain, sell, keep for sale, offer for sale, or transport for sale any specimen of a species listed in Annex A of the principal regulation. Footnote 11 Regulation 8 therefore prohibits any commercial dealing in ivory, thus making it illegal to either buy or sell ivory or to keep ivory with the intention of selling it at a later date. Both species of modern-day elephants, Elephas maximus and Loxodonta africana, are Annex A species, and, as a result, the COTES Regulations applies to all forms of elephant ivory.

However, the EU Regulations also create certain derogations, one of which is directly relevant to the antique trade. Footnote 12 The Article 8 derogation, or the so-called “antique derogation” or “worked derogation,” means that it is not a breach of the EU Regulations to sell “worked” ivory items or items that have an ivory component—for instance, furniture or musical instruments—provided the worked ivory in question pre-dates 1947. To be “worked,” the item must be “significantly altered from its raw state for jewellery, adornment, art, utility, or musical instruments; and need no further carving, crafting or manufacture ‘to effect their purpose.’” Footnote 13 In addition, since May 2014, the item must be “worked across the entire surface.” “Worked” specimens acquired before 1947 can be used commercially without being covered by a commercial use certificate. Footnote 14 A good example of a legal worked object would include an antique Japanese netsuke. These charming, charismatic miniature carvings made of wood or, more commonly, ivory were worn as part of the traditional Japanese dress and served the function of securing the cord at the top of the kimono sash that held the sagemono (containers that acted like a pocket to hold personal items) in place. Good examples of netsuke are exquisitely carved and reflect Japanese culture and life and can command prices of thousands of pounds today.

However, it is unlawful to sell “unworked” specimens of any date (for example, a whole, un-carved elephant tusk). Most antiques enjoy this “antique” exemption from the regulations. However, dealers and auctioneers need to be clear about the law when they deal in any ivory items since the timing of the working of an item is vital. For example, a carved ivory bust made in 1900, having been significantly altered from its original state (a raw tusk) to make the bust 47 years before the cut-off date of June 1947, can be legally sold within the EU without the need for a CITES certificate. The bust would still come within the derogation if it had been re-carved—for example, to make an ivory bead necklace—before June 1947. However, if the re-carving had been done after that date, it would be outside the derogation and need a CITES certificate from the Animal and Plant Health Agency’s Licensing and Registration Service in order for it to be sold lawfully. Footnote 15

In May 2013, significant changes were introduced following new guidance from the European Commission on the interpretation of the derogation on antique worked items, and since then, the “worked item” derogation does not apply to the import or export of items outside the EU. Dealers have reported their confusion about the “worked item” derogation in the regulations. Leading UK solicitor, Andrew Banks, of the law firm Stone King, who advises members of the antique trade on CITES requirements has criticized the Department of Environment, Food and Rural Affairs (DEFRA) for its “wholesale failure” to make the trade properly aware of changes to the CITES regulations. Footnote 16 Banks’s statement is not without foundation. The changes to the “worked item” derogation were introduced in May 2013 without prior consultation with the trade. DEFRA was criticized for publishing the changes on their website without notification to the UK trade associations. In response, DEFRA updated its website three months later, admitting that the guidance they had released previously had been “confusing and in some cases misleading.” Footnote 17 The DEFRA licensing unit, the Animal and Plant Health Agency in Bristol, announced at the same time that they would publish revised guidance shortly; however, two years on, the revised guidance is still awaited.

The EU Regulations, while seemingly clear and unambiguous with respect to the 1947 cut-off date and whether an Article 10 certificate is or is not needed, have been criticized by both the members of the antique trade and law enforcement officials. One criticism is that, on the part of the trade, there is scope for the inaccurate assessment of objects because it is not a simple feat to accurately date a piece of carved ivory. Moreover, there is no similar provision to the United States’ Safe Harbor Provision of the Cultural Property Implementation Act 1983, which allows items that can be proven to have been in the United States for more than 20 years to be awarded so-called safe harbor and be legal to own, sell, deal, and buy. Footnote 18 The 1947 date is absolute, and the length of time that an item has been owned is irrelevant.

While experts used to handling ivory artifacts may be confident in distinguishing between new ivory and ivory that was worked centuries ago (by consideration of color and quality of carving, for example), it is not so easy to make the same judgment between ivory that came from an elephant that died in the 1960s and one that died in the 1940s. While it may be true that new, untreated ivory will appear bright white, while antique ivory items will take on the yellow luster of age that antique ivory collectors are looking for, the aging process can be faked and, when it is faked well, it is practically impossible to determine the true age of the item without invasive carbon testing.

An analysis of the limited case law and prosecution data would suggest that the illegal sale of post-convention worked ivory in the UK falls into one of the following categories: actions by a criminal element, both organized and opportunist, that operates in direct defiance of the law; Footnote 19 antique dealers and auctioneers who do not have sufficiently stringent systems in place or a sufficiently high expertise to ascertain whether the items they are offering for sale are legal pre-convention ivory or illegal post-convention ivory; Footnote 20 and antique dealers, auctioneers, or market stall owners who may turn a blind eye to the legislation, with Portobello Road in London being singled out as an area major infractions. Footnote 21

However, the reality remains that the number of reported cases involving the antique trade and sale of illegal ivory is very low. Between 1992 and 2014, there were 15 convictions for offences relating to the trade in ivory in the UK, Footnote 22 and of these 15 cases, nine related to COTES offences (specifically with regard to Regulation 8), with the remaining offences being contrary to the Customs and Excise Management Act 1979. Footnote 23 The antique trade understandably points to the seeming lack of convictions and asks, with so few successful prosecutions, where is the problem? The answer to this is complex, and it is suggested that there are several inter-woven reasons behind both the low conviction rates and the numbers of cases being brought to court at all. In 2014, two cases came before an English Magistrates’ Court involving an antique dealer and an auction house, both charged under Article 8(1) of the COTES Regulations. The cases, coming so closely together, were followed both by members of the antique trade, their advisors, elephant conservation groups, and prosecutors concerned with the apparent lack of cohesion in prosecution and sentencing policy for alleged breaches of the COTES Regulations.

THE SUCCESSFUL PROSECUTION

R. v Chiswick Auctions (William Rouse)

The first (and currently only) successful prosecution of an auctioneer in the UK for selling illegal pre-1947 ivory took place in October 2014, when Chiswick Auctions was fined £3,200 in Ealing Magistrates’ Court for the sale of a carving made from ivory that came from an elephant killed during the 1960s. Footnote 24 A general auction house with galleries in Chiswick and Twickenham, Chiswick Auction Rooms was established in 1998 and holds weekly auctions of antiques and collectables, including silver and jewellery, ceramics, and works of art, with each auction lotting in excess of 500 items. The auction room is familiar to the British public, having regularly appeared on a number of antique and auction-themed television programs.

On 3 July 2012, the auction house offered for sale under lot 282 an item catalogued as “an antique carved ivory tusk worked as a train of elephants.” The item had been accepted on behalf of the auction house by an experienced senior valuer, who upon inspecting it had appraised it as dating from the Edwardian era and, as such, falling within the Article 8 “antique derogation.” The item sold for approximately £100 to a dealer, Saeed Akhavan, a stall holder from the famous Portobello Road Market in London. During a subsequent sweep of the market by police as part of a year-long project code named “Operation Gulak,” Footnote 25 which saw plainclothes special constables, supported by officers from the National Wildlife Crime Unit, patrolling Portobello Market, checking for items being sold in contravention of the COTES Regulations, the carved tusk in question was seized and sent by police for forensic testing. The laboratory tests showed that the tusk dated from an elephant that had in fact died in the 1960s. As such, the “antique derogation” did not apply to the carving and an Article 8(1) offence under the COTES Regulations had been committed. The item was tracked back to the auction house, and Chiswick Auction’s managing director, William Rouse, was asked to make a statement to the police regarding the item. This was followed, sixteen months later on 19 August 2014, by a notice to prosecute the auction house under Regulation 8(1) of the COTES Regulations, referring to Article 4 of the EU Regulations (Appendix I).

The case was heard on 14 October 2014 at Ealing Magistrates’ Court where the auction house pleaded guilty. In mitigation, William Rouse stated that a senior auctioneer had made a genuine mistake in the age of the item. The magistrates imposed a fine of £4,500 (the maximum fine being available for the offence being £5,000) but reduced the amount to £3,200 on account of the plea of guilty having been made by the auction house. The guilty plea brought the case to a conclusion swiftly; however, following the sentence, William Rouse told the antiques press that he believed his auction house had been the victims of “an expensive witch hunt.” Footnote 26 Rouse made it clear that he was shocked by the size of the fine but chose not to appeal the sentence to the Crown Court. However, he did make his feeling on the judgment clear in a statement to the press, stating that “a huge amount of public money has been spent on this matter but to what end? We are still permitted to sell antique ivory and what has it taught us apart from the need to be even more vigilant in a situation where every auction room in the land treads a difficult line?” Footnote 27

There are several points of interest to come out of this case. This was a low value item that earned the auction house little commission. With the cost of carbon dating analysis, which is the most accurate way of dating ivory (and even then there is a margin of error of several years), greatly exceeding the sale price of the Chiswick lot, Footnote 28 is it realistic to expect auctioneers and dealers to send low cost items for testing before sale? In addition, carbon dating involves an invasive testing procedure, and although scientists are now able to date from a very small sample, Footnote 29 the fact remains that the item will be damaged to some extent. Finally, in this case, the prosecuting authorities were not prepared to rely on the “expert view” of Chiswick Auction Room’s valuer who had 20 years of experience in dealing with ivory.

THE UNSUCCESSFUL PROSECUTION

R. v Sara Wilkinson

Sara Wilkinson’s business, Chanticleer Antiques, specializes in small antiques and collectables, including ivory carvings and portrait miniatures on Portobello Road in London. Footnote 30 In April 2014, Wilkinson was charged with the sale of an ivory carving of a nude figure that police believed to have been worked after June 1947. The case was widely publicized in the national and trade press, Footnote 31 and, unlike in the Chiswick case, Wilkinson’s ivory figure was not sent for forensic testing as part of the prosecution’s case. Wilkinson, a dealer with more than 47 years of experience of dealing in ivory, was approached on 12 August 2013, in the Dolphin Arcade by police officers from the Metropolitan Police Service (MPS) and asked about three items in her stock: a small carved tusk (which Wilkinson correctly assessed as not being made of elephant ivory), a taxidermy terrapin, and an ivory carving of a nude and a cherub, which Wilkinson had appraised as dating from circa 1870 and which she was offering for sale at £3,250.

On 9 November of the same year, Wilkinson was asked to attend Notting Hill police station for an interview. At that time, two of the items that had been seized by police on the 12 August (the terrapin and the carved hippo tusk) were returned to her, the police being satisfied that neither were from species listed on Appendix A under CITES and both were old “worked” items. However, the carved ivory figure was retained by police, and Wilkinson was asked to prove both the age of the carving and its source. Referring to her business records, Wilkinson was able to give the police details as to how and when the figure had been acquired by her. However, she was not able to provide evidence as to the age of the carving beyond her belief, as a dealer with more than 40 years of experience in handling ivory, that it dated to the second half of the nineteenth century based on the quality and style of the carving. On 24 April 2014, the dealer was informed that she would be charged with the sale of a modern elephant ivory carving contrary to Article 8 of the COTES Regulations because she had failed to produce written documentation confirming the age of the carving.

The case rested on how the age of the item should be proven. Whereas the Chiswick case was proven on the basis of forensic testing carried out by the prosecution, the ivory in the Wilkinson case was not dated by the prosecution nor was it sent for forensic testing at any time during the case. Instead, the police prosecution team, led by Inspector Matthew Appleton of the MPS, proceeded on the basis that the burden of proof, with respect to the age of the carving being shown to precede the 1947 date, lay with the defendant. “In other words,” Wilkinson told reporters, “I was guilty until I could prove my innocence.” Footnote 32

Wilkinson was in fact one of several stand holders that were questioned by a unit of special constables, again as part of Scotland Yard’s “Operation Gulak.” However, where her colleagues on Portobello Road chose to take a police caution, Wilkinson stood by her assertion that the carving in question was legal pre-1947 worked ivory and, after entering a plea of “not guilty” at the Hammersmith Magistrates’ Court on 22 January 2015, the case was sent to Isleworth Crown Court for hearing. However, the day before the final hearing, the Crown Prosecution Service (CPS) announced that it would no longer be offering any evidence in the case on the grounds that there was not a realistic prospect of conviction. It is suggested that there had been a dispute between the CPS and the police officers involved on how to proceed in the prosecution of the case, including difficulties encountered in finding an expert witness willing to rule on the date of the carving and the failure to submit the carving for carbon dating. Footnote 33 Wilkinson attended court merely to be formally found not guilty, with the judge describing placing the burden of proof on the defendant as “a bridge too far.” Footnote 34 However, without a binding judicial determination (the judge’s comments in Wilkinson are obiter, meaning the judge’s words are not binding as future precedent), the enforcement authorities assertion that the burden of proof in determining the age of an ivory object should lie with the defendant remains untested.

ANALYSIS

The difference in the prosecutors’ approach in these two cases invites questions as to how future prosecutions will be conducted. The presumption of innocence is a cornerstone of English law, Footnote 35 and the prosecuting authorities attempt to reverse this should concern the antique trade. In addition, consideration should also be given to the binding effect of the Crown Court as well as of the Magistrates’ Court, from which it hears appeals. The Crown Court derives its jurisdiction from the Senior Courts Act, Footnote 36 which provides that the “Crown Court shall be a senior court of record,” Footnote 37 suggesting that the decision of the Crown Court will be binding. However, there is a difference between the binding nature of Crown Court decisions made on indictment (in which an appeal against conviction or sentence will be heard by the Criminal Division of the Court of Appeal) and those decisions that are made on a point of law, which are not binding, although they are of persuasive authority.

The police and the CPS have stated that in their view future prosecutions will be brought on the basis that it is for the defense to prove the age of the artifact in question. In a CPS memorandum of understanding, which was prepared following the collapse of the Wilkinson case, it was concluded that

notwithstanding situations where a specimen’s identity is obvious, the law provides that if a specimen is advertised, displayed or otherwise packaged as being/containing a controlled specimen, it shall be taken as such and the Crown is under no obligation, legal or otherwise, to prove its nature. Footnote 38

However, following Wilkinson, nothing has changed. Dealers still have the benefit of the Article 8 “antique derogation,” and without a binding judgment to the contrary or a decision by the prosecution to bear the cost of forensic testing in every case, self-certification of the age of an item by a dealer remains.

When considering the COTES Regulations, it is impossible to ignore its European heritage, coming as it does out of EU Regulations, and, as such, considering a decision from the courts of another European country makes an interesting comparison when it comes to how the prosecution should make their case and where the burden of proof should lie. In September 2013, one of Sweden’s best regarded and well-established auction houses was investigated for trading illegal ivory. The Uppsala Auktionskammare, which specializes in fine arts and antiques, was investigated for placing 30 ivory items for sale on its online auction site. The ivory was seized by Swedish police who suspected it to have come direct from poachers. The auction house was charged by the Swedish prosecutor with “intentionally or negligently in the course of business at its online auction on August 27, 2013 selling or holding for sale, fifteen items of illegal processed elephant ivory” without the required “CITES certificates or documentation showing that the items are exempt from the provisions of Article 8.1 and 8.5 of Council Regulation (EC) No 338/97 of 9 December 1996 on the protection of species of wild fauna and flora by regulating trade therein.” Footnote 39

The case pivoted on how the auction house had proven the ivory items being sold were pre-1947 and, therefore, legal ivory objects with the antique exemption. The prosecution relied upon the fact that Uppsala Auktionskammare had offered the items for sale without scientific testing, having instead relied on the expert advice of their senior valuer, Charlotte Widenfelt. In its judgment, the court found that “there is nothing in the evidence which the prosecution has relied on that in any way contradicts the data in Charlotte Widenfelt’s testimony about the objects’ age” so that “the auction House has thus, by examination of the witness Charlotte Widenfelt, substantiated its claim that all of the items covered by the application were worked before 3 March 1947.” Footnote 40 The court concluded that the items were therefore exempt from the CITES regulations. In his summary, the district judge placed great emphasis on the expertise of the valuer, Charlotte Widenfelt, who had been asked to give a second evaluation of the items being offered for sale. As an Oriental art specialist and a nationally accepted authority on antique ivory (she is an expert on the Swedish “Antique Roadshow” program), he accepted her testimony that, based on her knowledge and experience, the items were legal. The items themselves were never subjected to scientific testing, either before or during the court case. The distinction between this case and those in the UK is notable because the UK and Sweden have exactly the same rules regarding the sale of CITES-regulated items, but clearly the prosecuting authorities are now viewing the means of prosecution in very different ways.

Following the Wilkinson case, the successful prosecution of offences involving ivory under the COTES Regulations are arguably at something of an impasse. The CPS’s memorandum of understanding may show a determination to successfully prosecute the sale of illegal ivory, but the CPS has been criticized for its handling of COTES prosecutions. In 2006, the National Audit Office (NAO) identified a host of poor administrative practices by the CPS in their handling of prosecutions of wildlife crimes, highlighting a lack of specialist knowledge on the part of the CPS. The NAO highlighted issues that included the poor preparation of cases leading to delays, poor case tracking with files going missing, and the inadequate prioritization of cases. There is evidence, as seen in the Wilkinson case, that this recognition has led to an understandable conflict between investigators, who may have spent many months or years gathering evidence to bring a case to court and then must see their cases collapse through what they perceive as the incompetence of prosecutors.

However, in accordance with the guidelines set down and published by the CPS, wildlife crimes need to have a better than 51 percent chance of successful prosecution and be in the “public benefit” to warrant being brought to court. Regrettably, previously conducted criminological research has shown that cases involving wildlife crimes have continually failed to meet the second of these criteria, either because of the perceived effect of the crime on the species in question (the argument, perhaps, that prosecuting a dealer for selling ivory from an elephant that died in the 1960s will have no detrimental effect on the current elephant population) or because the crime is seen as being low priority in terms of the value of the item. Footnote 41 With ivory items changing hands at car boot sales, auctions, and fairs for tens of pounds, this is perhaps understandable, at least in terms of the economics involved.

CONCLUSION

The British government is on the verge of making changes to the COTES Regulations and considering imposing a blanket ban on the sale of all ivory, be it antique or not, and this is understandably of concern to the antique trade, who fear not only for their businesses but also for the potential loss of important cultural and artistic pieces. The view of dealers and auctioneers who have already seen a negative impact on their sales in ivory following the US ban was eloquently expressed by Rebecca Davies, chief executive of LAPADA, the Association of Art and Antiques Dealers, when she said that the implementation of the manifesto promise would be “the final nail in the coffin for many of them whose expertise is focused on items that historically contain ivory.” Footnote 42 In view of the potential economic loss to the antique industry, the British government, together with its CITES partners, while being understandably concerned about the rise in the illegal ivory trade, requires a unified, coordinated policy with regard to the prosecution of Article 8 offences. Following the collapse of the Wilkinson case, clarification is needed both for the trade and their advisors as well as for the prosecuting authorities.

However, there are a number of reasons as to why such a clarification may be slow in coming. First, the CPS and the MPS may want to see, as evidenced in their stance in the Wilkinson case and the CPS’s memorandum of understanding that followed it, the burden of proof placing the requirement to prove the age of an ivory item on the defendant rather than on the Crown (and, by this, they mean forensic testing). But the only judge to consider it has deemed this approach to be “a bridge too far.” Inspector Matthew Appleton, as the officer leading the MPS investigations regarding the antique trades’ sale of items derived from CITES species, has been clear in his assertions, however, that with no ratio (that is, the point in a case that determines the judgment) or obiter (a judge’s expression of opinion, which is not essential to the decision and therefore not legally binding as a precedent) to support (in fact, no common law support at all), the burden should lie with the seller in proving the age of an item. In other words, Inspector Appleton wishes to see COTES offences involving ivory prosecuted on a strict liability basis unless the supporting provenance shows otherwise.

Strict liability offences are those that require no proof of mens rea (the intention or knowledge of committing the offence) in relation to one or more aspects of the actus reus (the action or conduct of the accused in committing the offence). Strict liability offences are not only regulatory offences aimed at businesses in relation to health and safety but also many driving offences including speeding and driving without insurance. The use of strict liability in criminal law is controversial since it means a person may be liable where they are not at fault or have taken all reasonable care to ensure compliance of the law as was seen in Callow v Tillstone. Footnote 43 This approach would bring an end to the ability of a dealer or auction house to simply rely on their expertise and knowledge. This stance points to a showdown between prosecutors and the courts, and until a case similar to Wilkinson is heard in full or the COTES Regulations are changed, the understanding of the law and, in particular, the burden of proof by the trades, the police, and the CPS will remain in contention.

Second, current forensic testing, which could prove to be the solution, is expensive and invasive. Until science has created a cheap, non-invasive, and accurate test, dealers will be wary. Carbon dating was used in the Chiswick case to determine that the elephant from which the carved tusk had come had died in the 1960s. Carbon dating uses a method that measures the activity of the radioisotope Carbon 14 still present in the tested sample. In terms of the types of ivory items being sold, this type of testing has two major drawbacks. The first of these is that Carbon 14 testing works by measuring the level of carbon, and during the lifetime of any organism, human, plant, or elephant, it is continually taking in carbon from the atmosphere around it. When the organism dies, it stops taking in new carbon. In terms of elephant ivory, the test can be used to determine whether or not the animal died before or after the crucial 1947 date. During the early part of the 1950s, atmospheric nuclear weapons testing had the effect of artificially increasing the amounts of different isotopes of carbon, particularly Carbon 14, to the extent that it had doubled in readings by 1965. As such, scientists can show whether or not a piece of ivory pre-dates this period by showing that it has a lower ratio of Carbon 14 than more modern ivory will.

However, there have been questions of the accuracy of Carbon 14 testing with assertions such as “fewer than 50 percent of the radiocarbon dates from geological and archaeological samples in north-eastern North America have been adopted as ‘acceptable’ by investigators.” Footnote 44 Forensic testing is also expensive. Currently, a schedule of fees from a leading British laboratory show their fees for a radioisotope analysis of a single article to be £450 plus value-added tax. Footnote 45 Bearing in mind that the carved tusk in the Chiswick case sold for £100, forensic testing is simply not economically viable for items valued as low as this. Finally, current forensic testing methods are invasive and involve taking a sample from the object for analysis. While the amount required is small, the resulting damage will be proportionate. Even a tiny sample from a delicate portrait miniature will be catastrophic. If prosecutors want to see COTES breaches become strict liability offences, the question of reliable, affordable, and non-destructive forensic testing must be addressed.

Finally, what of the legislation and the lawmakers themselves? While the EU Regulations control the trade in CITES species, they give the member states jurisdiction with respect to penalties for breaches and as the differences between the prosecution of Uppsala Auktionskammare and that of Wilkinson demonstrate, this can result in contrary decisions across the EU. This is an issue because dealers and auction houses in the UK have a well-developed and important cross-Channel trade with their mainland European colleagues and will not be pleased to see them subjected to seemingly different rules. Meanwhile, the trade has expressed their confusion at the UK’s legal position and at the lack of guidance from DEFRA. The department, to whom many of the antique tradespeople turn for guidance with respect to CITES, failed to advertise the changes to the worked specimen rules made in 2013. By their own admission in a press release posted on the DEFRA website on 20 August 2013, they admitted that information was “confusing and in some cases misleading.”

In terms of British government policy, the UK antique tradespeople have been given assurances by previous governments that with regard to pre-1947 worked items the government would not seek to put an end to trade in antique ivory. Footnote 46 However, the Conservative Party’s manifesto reiterated its intention to press for a total ban on the sale of ivory, and, this time, the previous assurances to the trade were lacking. As a result, it is not clear where the antique trade stands in the British government’s stance on the sale of ivory. What is clear is that there are conservation groups lobbying the government to make good on its pledges to push for a ban on the sale of all ivory (particularly in light of the joint announcement by President Barrack Obama of the United States and President Xi Jinping of China to end ivory sales in China Footnote 47 ) and this is an understandable concern for the antique trade.

The British Antiques Dealers Association estimates that there are more than 2 million items made either entirely of ivory or with an ivory component in ordinary homes across the UK, from pianos with ivory keys, to puzzle balls, portrait miniatures, and billiards balls. It is likely that at some point their current owners will wish to sell them and will seek advice from UK auction houses and dealers. As the law stands, it is still legal to sell pre-1947 worked ivory items, and until a case comes to court that says differently, it remains for the seller to assert the age of the piece in question and for the prosecution to prove otherwise. However, the Wilkinson case and the stance of the MPS led by Inspector Appleton has resulted in a palpable concern about selling ivory among the UK’s antique dealers and auction houses to the extent that some, following Chiswick Auction Room’s lead, are now refusing to sell any at all. Footnote 48

Clarity and clear direction is urgently needed, not just for the antique trade but also for the many owners of ivory items, either inherited or collected, who may wish to sell at some time in the future. For some individuals, this may simply be a small memento of little value passed down through their family, but for others, such as a retired solicitor who recently contacted the writer, it could represent a collection of culturally significant and valuable ivory artifacts that forms the basis of their pension policy and significant percentage of the value of their estate. To see this reduced to nothing will be personally devastating.

Footnotes

1. Conservative Party Manifesto (2015), 55, https://www.conservatives.com/manifesto (accessed 4 December 2015).

2. Council Regulation 338/97 on the protection of species of wild fauna and flora by regulating trade therein, [1997] OJ L61, Art. 8(3); Commission Regulation 865/2006 laying down detailed rules concerning the implementation of Council Regulation (EC) no. 338/97 on the protection of species of wild fauna and flora by regulating trade therein, [2006] OJ L166 (together EU Regulations).

3. International Fund for Animal Welfare (IFAW), “Elephants on the High Street: An Investigation into Ivory Trade in the UK,” 2004, http://www.ifaw.org/united-states/node/6338 (accessed 15 August 2015).

4. Neme Reference Neme2009. Convention on International Trade in Endangered Species of Wild Fauna and Flora, 1 July 1975, 993 UNTS 243 (CITES).

5. Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property, 14 November 1970, 823 UNTS 231.

6. Council Regulation 338/97; Commission Regulation 865/2006.

7. Post “Brexit,” the United Kingdom’s (UK) Parliament may consider that replacing the EU Regulations already in existence not to be in the UK’s best interest and, instead, decide to implement them by way of statutory instrument. The EU Regulations are more stringent than those laid down by CITES and so it would make sense for the UK to build on these rather than start again with new legislation.

8. Control of Trade in Endangered Species (Enforcement) Regulations 1997, No. 1372.

9. “Magistrates’ Court Sentencing Guidelines: Sentencing for Wildlife Trade and Conservation Offences,” November 2002.

10. Commercial purposes does not include possessing or giving away.

11. A “specimen” is defined in Art. 2(t) of Council Regulation 338/97 and includes “animal or plant, whether alive or dead, of the species listed in Annexes A to D, any part 5 or derivative thereof.”

12. Council Regulation 338/97, Art. 8(3).

13. Ibid., Art. 8(3).

14. A commercial use certificate is also known as an Article 10 certificate. A certificate is required for any CITES specimen listed on Annex A that is to be imported into, or (re-)export from, the European Union (EU) for a commercial use or for the movement of specimens within the EU where there has been a previous movement restriction imposed. Animal and Plant Health Agency, “Guidance: Endangered Species: Imports and Exports and Commercial Use,” 1 January 2013.

15. “CITES Guide,” Antiques Trade Gazette, 2013, https://www.antiquestradegazette.com/guides/information-guides/endangered-species/ (accessed 24 August 2015).

16. Roland Arkell, “Lawyer Slams DEFRA over CITES Chaos,” Antiques Trade Gazette, 1 July 2015, http://www.antiquestradegazette.com/news/2015/lawyer-slams-defra-over-cites-chaos (accessed 1 July 2015).

17. Ibid.

18. 19 USC § 2611(2)(D) (2012).

19. J. Adetunji, “Watchmaker Given Suspended Sentence for Trading Ivory,” The Guardian, 13 June 2008, 1st ed., Crime sec.

20. Roland Arkell, “Auction House Fined £3200 over Ivory Breach,” Antiques Trade Gazette, 20 October 2014, http://www.antiquestradegazette.com/news/2014/oct/20/auction-house-fined-3200-over-ivory-breach/ (accessed 20 September 2015).

21. IFAW 2004.

22. From information kindly provided by the National Wildlife Crime Unit.

23. Customs and Excise Management Act 1979, c. 12.

24. R. v Chiswick Auctions (William Rouse), [2014], (Ealing Magistrates Court); “Auction House Fined £3200 over Ivory Breach.”

25. Operation Gulak was led by Inspector Matthew Appleton of the Metropolitan Police Service (MPS). It is at the forefront of law enforcement efforts to tackle the trade in illegal ivory goods. The operation is made up of a team of special constables working alongside the MPS Arts and Antiques Unit.

26. “Auction House Fined £3200 over Ivory Breach.”

27. Ibid.

28. Oxford Radiocarbon Accelerator Unit, “Radiocarbon Dating for Art History,” Oxford University, 2015.

29. Ibid.

30. R. v Sara Wilkinson, [2014], (Isleworth Crown Court); Noelle McElhatton, ed., “Asking Portobello Dealer to Prove Age of Ivory Carving Is ‘a Bridge Too Far’ Says Judge,” Antiques Trade Gazette, 25 November 2015, https://www.antiquestradegazette.com/news/2014/asking-portobello-dealer-to-prove-age-of-ivory-carving-is-a-bridge-too-far-says-judge/ (accessed 12 September 2016).

31. “Auction House Fined £3200 over Ivory Breach.”

32. Ibid.

33. Ibid.

34. Ibid.

35. Human Rights Act 1998, Sch. 1, Art. 6(2).

36. Senior Courts Act 1981, c. 54, ss. 45–48.

37. Ibid., s. 45(1).

38. A. Caird, Senior Crown Prosecutor, Memorandum of Understanding, 11 May 2015.

39. Niklas Cederqvist, “Uppsala Auktionskammare Freed Because of Legal Quagmire.” Antique Monologue, 17 September 2014, http://antikmonologen.blogspot.co.uk/2014/09/uppsala-auktionskammare-frias-pa-grund.html (accessed 12 September 2016).

40. Ibid.

41. Nurse Reference Nurse2012.

42. I. Macquisten, “UK Ivory Ban Would Destroy My Business,” Antiques Trade Gazette, 5 May 2015, https://www.antiquestradegazette.com/news/2015/uk-ivory-ban-would-destroy-my-business/ (accessed 5 May 2015).

43. Callow v Tillstone (1900) 64 JP 823 322, saw a butcher convicted of selling unfit meat despite the fact that he had had the meat certified as safe by a vet before the sale. His conviction was upheld as the offence was one of strict liability and it mattered not how diligent he had been to ensure the safety of the meat.

44. Ogden Reference Ogden1977.

45. Oxford Radiocarbon Accelerator Unit, “Schedule of charges,” Oxford University, 2015.

46. “UK Ivory Ban Would Destroy My Business.”

47. Office of the Press Secretary, White House, 25 September 2015.

48. “Auction House Fined £3200 over Ivory Breach.”

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