Protecting your Heritage and your Crops

24 April 2012

Metal detecting has become a common hobby and even profession in the last 10 years with more and more people taking it up. Finds that have been published in the media like the recently found Staffordshire Hoard (2009) excite the hobby even further. This brings more and more recently termed ‘Nighthawkers’ onto British landowner’s soil who scour the fields during the night in the hope of stealing any valuable finds without any prior permission or knowledge of the landowner. This puts landowners under pressure to; 1. Control ‘Nighthawkers’ and other more reputable metal detectorists, 2. Keep control of what landowners themselves find and the law surrounding such finds. Landowners control over metal detectorists searching their land is a very difficult matter. There are no detailed rules that regulate metal detectorists on private land. Each landowner is different and it is entirely up to the landowner to decide whether they allow one or more metal detectorists onto their land or ban it completely. The only advice to landowners is to make sure you either know the person wishing to metal detect very well or that they are part of a local metal detecting group. Also it is advisable to get a simple agreement set up in writing between the two parties along with a copy of the Secretary of State’s Code of Practice concerning the Treasure Act 1996 so that the legal status of the landowner and finder is known if any substantial find was made. Obviously this is not fool proof. The honesty of the finder is still a key issue especially with finds that only just come under Treasure status where the finder is often inclined to withhold certain finds in order to keep them. The Treasure Act 1996 states that treasure is: -Any object found that is at least 300 years old and contains at least 10% gold or silver. -Any coin, if at least 2 in number, of the same period and percentage weight of precious metal as above. -Any coin that is one of at least 10 coins which is at least 300 years old. -Any object that is at least 200 years old which is designated treasure by the Secretary of State. -Any object that is found, at the same time, in the same find as a treasure or found previously but would qualify as a treasure because of the above points. Equally the issue with ‘Nighthawkers’ is the problem that they are purposefully doing it illegally and usually during the night, making it impossible to not only know what, if any, objects they are stealing but also making it very difficult to catch anyone in the act. Therefore making any sort of recovery or punishment by legal action very difficult. Usually with the majority of landowners and the majority of finds this would not be a problem as most finds would be of limited value. However as more recent hoards have been found and publicised greatly (Frome hoard 2010,Huxley hoard 2004, Hoxne hoard 1992) the comparative worth of the find means more attempts at legal action against Nighthawkers and the damage that they cause to our Heritage and the landowners crops. English Heritage did a report on the subject and said that only 7 landowners reported being ‘Nighthawked’ out of a study of 240 landowners (which makes the practice comparatively rare if we take these figures as a true representation of Nighthawking). However where it does occur English Heritage found that penalties were ‘woefully insufficient’. But what legal action can be taken against ‘Nighthawking’? At the moment the only legal action that can be taken against the ‘Nighthawkers’ is under the Theft Act 1978 which again can only be used if there is evidence such as a landowner monitoring or catching a Nighthawking incident. However even then the likelihood of any such case carrying on through the CPS (Crown Prosecution Service) to an acceptable level of punishment is low (small fines up to the maximum value of the objects stolen, if known, and a temporary confiscation of the metal detector). This is partly because of the lack of knowledge by many parties of the importance of local heritage and partly that the monetary value is only half of the story. Schemes like the newly formed English Heritage Nighthawking database, which is still under construction, will provide an easy way to report Nighthawking to the relative authorities. In the mean time any Nighthawking incidents should be reported to: Deterrents that have been used against Nighthawking are in no way a universal strategy but could prove useful depending on the situation a landowner is in. Methods tried to exclude Nighthawking include blanket bans regarding metal detecting, monitoring via CCTV or by patrols and security fencing (usually funded for by the developer if the site is for development). Another method is to metal detect a site to pick up anything detectable before a Nighthawk does, this could be done practically by communicating with a local metal detecting society and completing such a task at a time of year as to not affect any crops. It is not only the CPS and the Police that need to be more aware of the importance of such things but also the landowners; many do take an interest in their local heritage but some more than others. Even with the rigorous planning rules and regulations about any building affecting the environment or the physical appearance of the land, the subterranean archaeological features are well explored before any building can go ahead. The same sort of regulations need to apply to heritage generally in terms of the smaller finds that come out of the ground rather than the still visible and perhaps large structural buildings. These buildings and our local histories should be of benefit to landowners rather than of burden, this along with added publicity of Nighthawking should be encouraging landowners, the police and the law to be enthusiastic about protecting everyone’s local heritage rather than hiding away from it. Treasure Act 1996 – Secretary of State’s Code of Practice – – For additional information please contact: Edward Worthy of Gepp & Sons. The above is not legal advice; it is intended to provide information of general interest about current legal issues.