At the crown court last month, the judge challenged the prosecution's controversial reading of the law and said that placing the burden of proof on the defendant rather than the plaintiff was "a bridge too far".
Sara 'Sally' Wilkinson of Chanticleer Antiques has been an antiques dealer on Portobello Road for 47 years. On Saturday, August 12, 2013, she was approached in the Dolphin Arcade by a man in plain clothes accompanied by two police officers from Scotland Yard and asked about the ivory and tortoiseshell in her stock.
Causing "great embarrassment" at peak trading time, a crowd gathered to see the officers confiscate three items of stock: a small carved tusk that Ms Wilkinson assured them was not elephant ivory, a taxidermy terrapin and an ivory carving of a nude and a cherub upon a socle base that the dealer believed to be c.1870. It was among the most expensive items in her stock, marked at £3250.
The dealer later learned she was one of a dozen stands raided at Portobello by a unit of volunteer special constables headed by Inspector (Metropolitan Special Constabulary) Matthew M. Appleton as part of Operation Gulak, designed to crack down on the illegal trade in modern ivory and the parts of other endangered species worked after 1947.
On November 9, 2013, Ms Wilkinson attended Notting Hill police station with her legal aid solicitor James Collins of Stringfellow & Co of West Kensington to be interviewed. Two of the seized objects were returned: neither the carved hippo tusk nor the terrapin were from species listed as Appendix A by CITES and both were old 'worked' items. But the ivory nude was retained and Ms Wilkinson was asked to prove both the age of the carving and its source.
A meticulous record keeper, Ms Wilkinson's stock book record showed it had been acquired from the Charles Ross saleroom in Woburn on July 13, 2005, but the dealer was unable to provide evidence of the age of the carving other than her belief, after years of dealing experience, that it dated to the second half of the 19th century. It was carved in the Pre-Raphaelite style.
"I always keep a small stock of ivory and am scrupulous in making sure all my items were carved more than 100 years ago. This is done in order to comply with the law and also to ensure that my customers who have the need can move the carvings to the countries that will legally accept carvings done before 1947," she told ATG.
While most of the Portobello traders in her position had accepted a caution in the hope of immediately putting the matter behind them, Mr Collins warned Ms Wilkinson that to have a CITES charge on police record could jeopardise her ability to travel freely to the United States and other countries in the future. This, she decided, was not acceptable and determined to fight any charge.
Burden of Proof
On April 24 this year, she received a phone call from Inspector Appleton saying she would be charged with the sale of a modern elephant ivory carving under the Control of Trade in Endangered Species (Enforcement) (CITES) Regulations 1997.
She had failed to produce written documentation stating the age of the carving when requested by police and - Mr Collins was told - it was now up to his client to prove the nude was carved prior to June 1947.
Unlike the recent case involving Chiswick Auctions and an ivory carving proven by scientific testing to date from the 1960s, the police were not proposing to send the item for forensic analysis (a process that costs in excess of £500).
"In other words," said Ms Wilkinson, "I was guilty until I could prove my innocence."
It was a controversial reading of the law - described in court papers as "an attempt to overturn previous interpretation of the regulations" - and Inspector Appleton believed this case, and a handful of others like it, could set a precedent for future action.
It was, as he told the Evening Standard at the time, his belief that the law says that "the burden is on the seller to prove that the ivory is old. Just saying it looks old isn't a defence".*
Given the highly unusual nature of the case, and the issues at stake, the case was moved from Hammersmith Magistrate's Court to be heard before a jury at a crown court with the trial scheduled for January 22, 2015.
However, only a day before the final hearing at Isleworth Crown Court on October 20, Ms Wilkinson heard from her solicitor's office that the Crown Prosecution Service would no longer be offering any evidence in the case on the grounds that there was no longer a realistic prospect of conviction.
There had also been a dispute between the CPS and the officers on how to proceed. The reasons given included the 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.
The dealer was required to attend the court as a formality when the judge formally found her not guilty and questioned the merits of a charge that placed the burden of proof on the defendant. That, he said, was "a bridge too far".
Ms Wilkinson says she will continue to hold a stock of antique ivory at the Dolphin Arcade.
The police have not yet returned her £3250 carving and she has made an official complaint regarding their behaviour in this matter.
Given that this was a crown rather than a high court judgment, the case does not count as a legal precedent. The failure to bring the case to conclusion also impairs any judicial findings.
Indeed, solicitor Paul Brill at Stringfellow & Co told ATG in the wake of the case: "It is difficult to say that dealers can now be more or less confident how to proceed in this area. Legally it remains unsatisfactorily uncertain."
* Like others charged following the Operation Gulak ivory raids on Portobello, Sally Wilkinson was told it was not sufficient proof to say - even after years of dealing experience - that an elephant ivory carving was old and 'worked' prior to June 1947 as CITES regulations demand. The police were asking for documentary proof to support any claims.
Inspector (MSC) Matthew M. Appleton told the Evening Standard at the time: "The burden is on the seller to prove that the ivory is old. Just saying it looks old isn't a defence."
Shortly after her interview at Notting Hill police station, Sally Wilkinson twice called the Wildlife Licensing and Registration Service (Animal Health) in Bristol to obtain so-called Article 10 certification for her remaining stock. There she was assured she did not need any paperwork and was free to sell the items as long, of course, as they were worked prior to June 1947. Lydia Andrews of Animal Health followed up the telephone conversation with a confirmation email.