Thursday - 30 October 2014

Legal threat to trade in documents

21 May 2013Written by Ivan Macquisten

A demand from the National Archives for lots to be withdrawn from auction at Tennants of Leyburn could have wider implications for the trade in historical documents.

Tennants withdrew the four lots - documents relating to prison records of the 19th century - from their May 8 sale after being informed by the National Archives that they appeared to be public records under the terms of the 1958 Public Records Act and, therefore, could not be sold.

The documents, ranging in date from the 1837-39 records of Lincolnshire Castle Gaol to the 1890 list of hangman and executioner appointments, were acquired by the vendor in the 1960s and there is no question over the probity of that acquisition.

However, what goes to the heart of the issue is the apparent belief of the National Archives that such public documents could never pass into private ownership because no-one would have the authority to make such a transaction or gift.

If this premise stands, it would call into question the sale and private ownership of documents from every sphere of public life relating to government, such as the military, politics and the civil service.

Specialist Paul Hughes, who has worked at Tennants for six years following a career as a dealer, told ATG that he had never come across a similar situation, asking: "Where does the burden of proof lie - with the vendor or auctioneer, or the Ministry of Justice?"

Dambuster Logbook

Tennants are not alone, however.

In March J.S. Auctions of Banbury had to withdraw from sale a set of logbooks from the 617 Dambuster Squadron after being challenged over their title by the RAF.

In their case, the logbooks had been consigned by the son of the man to whom they had been given by a 617 Squadron member in the early 1980s. An accompanying letter, apparently at first thought by the RAF to be a forgery, has now been acknowledged as genuine, but the investigation as to whether the squadron member who made the gift had the authority to do so continues.

Historical documents specialist Richard Westwood-Brookes of Shropshire auctioneers Mullock's, who regularly offers major documents of international importance, said that he was aware of restrictions and bans on the sale of manorial and tithe records, which were deemed property of the Crown, but added that the sort of challenge faced by Tennants was a "very, very hazy area".

"If the authorities making them withdraw the items from auction turn out to be wrong, should the vendor and auctioneer be able to sue them for material loss?" he asked.

Last week's ATG auction previews included a lot for Mullocks' May 21 sale, the telexed dispatch announcing the retaking of the Falklands, as signed by the then Prime Minister, Margaret Thatcher, among others. The item was sourced from Lady Thatcher herself.

A similar challenge from the National Archives on the basis that the dispatch was a public record under the Act would effectively be arguing that the Prime Minister had no right to retain it for private use.

Mr Westwood-Brookes has received no such challenge as yet.

As ATG went to press, both Tennants and J.S. Auctions were still waiting for an update on their respective investigations. Meanwhile, ATG were waiting for a statement from the Ministry of Justice on the matter.

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