East Jerusalem—they were designated as occupied territories. However, the world has moved on and, as my right hon. Friend correctly pointed out, there are now other parts of the world that could, either as a matter of fact or as a matter of law, be considered occupied territories. The Government must be more open, or at least clearer, about the definition of an occupied territory.
There is, however, perhaps an even more important matter that needs resolving, which involves the level of criminal intent for the offences described in clause 17. In framing my remarks, I am grateful for the help I have had from the British Art Market Federation, the British Antique Dealers’ Association, Mr Hugo Keith QC, and Professor Janet Ulph of the University of Leicester school of law. I stress, however, that what I shall say is my interpretation. If I have got things wrong, that is my fault and not the fault of those who valiantly tried to explain the matter to me. You will be glad to hear, Mr Speaker, that I cannot for reasons of time go into the detailed legal analysis undertaken by them, but I sent the Secretary of State a copy of Mr Keith’s opinion, which carefully explains why the use of “reason to suspect” in the context of this Bill is unwise and unfair.
Clause 17(1) makes it an offence to
“deal in unlawfully exported cultural property”
that the dealer knows or has
“reason to suspect… has been unlawfully exported.”
So far, so good. No one can support the dealing in unlawfully exported cultural property when they know it has been unlawfully exported, but the mens rea—criminal intent—required under the provision has caused concern in the London art market. The worry is that “reason to suspect” will place an unacceptable and stifling burden on the market. That aspect of the Bill was touched on only briefly in the other place but was not taken up by the Government.
Clause 17 creates an offence of dishonesty, carrying with it a sentence of imprisonment of up to seven years, as well as the destruction of reputation. The problem that worries me arises from the provision that relates to the state of mind, which must be proved before the defendant can be convicted. Dealing in prohibited property knowing that it has been unlawfully exported, the first offence created by clause 17, is simple, easily described, uncontroversial and comes within well-established and clearly understood principles of criminal law. Dealing in such prohibited property believing that it has been unlawfully exported would also be an equally straightforward offence. “Knowledge” or “belief” identify the mens rea, or criminal state of mind, accompanying the prohibited activity. To establish guilt, the prosecution would have to prove that at the time when the prohibited activity took place the defendant knew or believed that he was dealing in prohibited property.
That, however, is not what the second offence created by clause 17 provides. Rather, it defines the criminal activity—dealing in prohibited property—but by relating the criminal state of mind required for the offence to “suspicion” it introduces an unusual concept into the ordinary law that applies to offences of dishonesty. Indeed, it does not even provide that the offence is proved if the defendant personally suspected that he was dealing in prohibited property.