An occupational hazard when practising as an antiques trader or auctioneer is the necessity on occasions to understand and comply with the very complex Convention on International Trade in Endangered Species and the Control of Trade in Endangered Species (Enforcement) regulations (CITES), 1997.
Recent cases have highlighted some of the difficulties that not only defendants but also prosecutors are having in getting to grips with the implementation and interpretation of CITES regulations.
That of Chanticleer Antiques, which was heard before Isleworth Crown Court, saw the defendant Sally Wilkinson charged with the sale of an ivory carving of a nude that police believed had been 'worked' after June 1947 in contravention of CITES rules.
The prosecution did not date the article definitively but proceeded on the basis that it was up to the defendant to prove it was carved before 1947. It is of course a basic tenet of English law that one is innocent until proven guilty and this case appeared to be "a bridge too far" to the presiding judge who disagreed with the prosecution approach and made adverse comment to that effect.
By then, the prosecution had already decided to withdraw the case.
One notable difference between Chanticleer and another recent case, that of Chiswick Auctions (who pleaded guilty to a similar contravention), was that the item concerned in the Chanticleer case was not sent for forensic dating analysis. In the current economic climate the Crown Prosecution Service have relatively limited resources and decisions on whether to incur the costs of experts are considered on a case-by-case basis. There is therefore an economic element to the decision-making process.
I recently represented a client in relation to another CITES prosecution relating to the sale of a modern crocodile-skin handbag. Here the case appeared to me to be flawed from the outset.
The protected species encompassed by CITES regulations are set out in four annexes to the regulations, with annex A covering the most endangered species. It is not possible to trade in material listed in annex A (unless it is a worked-on specimen dating from before 1947) unless an Article 10 certificate is obtained from the Wildlife Licensing and Registration Service (Animal Health) in Bristol.
The handbag in this case was made of a species of crocodile that could have been in either Annex A or Annex B (if it was made from an animal farmed in Australia, Papua New Guinea or Indonesia).
The law in this case is clear. Unless you can prove that the specimen is in Annex B then you must proceed on the assumption it is in Annex A and thus obtain an Article 10 certificate in order to sell it.
Prior to sale my client had taken the very reasonable precaution of taking some advice from an expert in the field regarding whether the material required an Article 10 certificate.
The advice they received appeared to indicate that the material fell into Annex B. This was based on a common-sense approach insofar as the article for sale had been manufactured by a reputable fashion house which was almost certainly going to use as the source of their material a farmed species.
There was, however, no definitive proof that this was the case, so on selling the article an Article 10 certificate should have been obtained.
At the time police were made aware of the impending sale of the article by Animal Health but did not prevent it taking place. That did not prevent the client concerned from being prosecuted as a result of the sale.
The decision to prosecute seemed harsh in the circumstances. The flaws in the prosecution appeared to me to be two-fold. Firstly, the article concerned had already been shipped overseas so the prosecution were unable to conduct the test that could prove definitively if it was made from a wild or a farmed species. The CPS's own guidance on the subject indicates that they should undertake that task as part of their case.
Secondly, the law allows that a person shall not be guilty of an offence if he or she proves to the satisfaction of the court that they had no reason to believe the specimen was (in the current case) in Annex A.
Here my client had taken and relied upon advice that the bag was made from a farmed species, but the prosecution's view was that the client could "employ whoever they like for advice but it was up to them to prove it was correct". Ultimately common sense prevailed and - as with Chanticleer Antiques - the case was withdrawn.
So what can be learnt from the two cases?
The control of trade in endangered species is something to be welcomed, but it's evident at present that prosecutors, defence lawyers and arguably the judiciary are uncertain how far the obligation is upon the seller to ensure that material is in compliance with the regulations.
Expert help is also available but - as with my client - it seems that even this might not be considered sufficient by the prosecuting authorities. The lack of many reported test cases and appeal decisions to draw upon has meant that the law remains both complex and at times also confusing. As before, the best advice for any trader in materials controlled by the regulations is to tread with care.
However, these recent cases would seem to offer at least some hope of a more pragmatic approach to prosecutions. Ultimately sensible decisions were made when the prosecution was perhaps in a fuller possession of the facts.
My personal view is that, in the majority of future cases, it will be imperative the CPS obtain forensic testing. The onus is on them to prove what the specimen is and unless it is obvious it will be up to the CPS to obtain that evidence.
Andrew Banks is a partner at law firm Stone King with offices in Bath, London and Cambridge.