It’s not every case that fuses international law, endangered species, border controls and fine art. But Juliet Forster-Copperi v Director of Border Revenue [2016] UKFTT 0157 (TC) is one such case.
The facts
Ms Forster Copperi was an 80-year British-born artist relocating from Southern Africa to the UK. Her worldly possessions were being shipped over and among them was a sculpture made from recovered whale-bones she found on the beach at St Francis Bay, near Port Elisabeth in South Africa. She had inscribed the whale-bones with text and illustrations relating to humanity’s destructive impact on the natural environment.
The Tribunal described it as a “serious work of art”. The artist had no interest in selling it but it was a jewel in her collection and a useful marketing hook for selling her other work.
The sculpture was seized on arrival in the UK because none of the relevant permits had been obtained by the shipper or the artist. The UK Border Force was possibly going to destroy it, or possibly auction or donate it to a gallery.
The artist asked the Border Force to return the sculpture to her. They refused and the matter came before the Tribunal on appeal.
The law
The movement of artwork made from endangered species across international borders is controlled by the Convention on the International Trade in Endangered Species (CITES) 1973. The purpose of CITES is to deter the exploitation of endangered species for profit.
In Europe, CITES is enforced by Council Regulation (EC) 338/97, which is ‘directly effective’ in the UK – in other words, it creates directly enforceable rules and does not require domestic law to give effect to it.
Whales are considered one of the species most vulnerable to exploitation. They are listed in Annex A of the Regulation.
The Regulations (Articles 4 and 11) required the artist to have an export permit issued by the South African authorities. An import permit would only be issued where a valid export permit exists and the item is not being used for primarily commercial purposes. It is possible to obtain an export permit after the item arrives in the UK, but only in very limited circumstances and in this case the artist could not comply with these requirements.
The Regulations are strictly enforced. Failure to comply with CITES may amount to a criminal offence. The rules apply whether or not the item was made before or after the CITES came into existence in 1973.
However, under UK law, the Border Force may decide to restore an item that has been seized, subject to conditions, even if CITES and the Regulations have not been complied with (section 152 of the Customs and Excise Management Act 1979).
The Border Force claimed that ignorance of the law is no excuse and that the artist had tried to import the sculpture for a commercial purpose.
The tribunal’s decision
The legal test was whether the Border Force’s decision was reasonable (ie. whether no reasonable customs official could have decided to seize the sculpture). The decision must also be proportionate under EU law. In blunt Anglo-Saxon terms, the punishment should fit the crime.
Here, the Border Force failed to consider proportionality. The artist had been told by the shipper that there was no need for an export permit and that they had never had any issues previously. She relied on these assurances and acted honestly and in good faith. It was impossible now to obtain a retrospective licence from South Africa as the Border Force would not release the item once seized. The sculpture was approximately 30 to 40 years old and was therefore not from recently poached whale. While recognizing that CITES needs to be strictly policed, the Tribunal found there was no public interest in refusing to restore such a sculpture to the artist and ordered the Border Force to review the decision.
From the drift of the decision, I expect that the sculpture is likely to be released by the Border Force after a further review.
Discussion
Importantly, the Tribunal concluded that there was no need for the artist to show there were “exceptional circumstances” to justify return of the item (§ 25). This phrase seems to come from government policy, rather than any hard law. The Border Force must exercise its power in a proportionate manner: ie. ‘make the punishment fit the crime’ and consider all the circumstances of the case.
This case adds to a series of recent decisions by the tax Tribunal considering the application of CITES. They include:
- Hedley’s Humpers Limited v The Commissioners for Her Majesty’s Revenue & Customs [2013] UKFTT 684 (TC). HMRC refused to restore twelve nineteenth century Japanese “inro” ivory works to Christies in the UK. The CITES permits were not completed properly and were unstamped. Christies did not appeal but sued the shipper, (Hedley’s). The Tribunal did not make a finding on discretion as Hedley’s were unable to establish direct ownership of the inro, which were under the control of the Crown. The appeal was also years out of time.
- Talbot v The Director of Border Revenue [2012] UKFTT 381 (TC): this is a useful case for a number of points on discretion. It concerned a refusal to restore ivory imported in breach of CITES. HMRC put the appellant in a ‘Catch 22’ situation by requiring him to get a retrospective licence before they would restore when this was no longer possible as HMRC would not re-export the ivory to South Africa. It was an impossible condition.
- Imran Bakht v Director of Border Revenue [2014] UKFTT 551 (TC): this case set out the supervisory jurisdiction of the Tribunal, the reasonableness test, relevant/irrelevant considerations, facts must be considered at the time of the review decision and the burden being on the appellant.
The upshot for artists and shippers seeking to challenge the refusal to return items seized due to breach of CITES is that they should:
- Focus on any evidence to show that they acted responsibly throughout the process and/or that they were the innocent victim of a mistake or assurances by others;
- Provide evidence of any efforts they took to obtain a retrospective licence and any reasons why the law in the country of export make this impossible;
- Where appropriate, challenge the reasonableness of the Border Force decision on the grounds of failure to consider relevant considerations, proportionality.
Once the item is seized, expect a legal battle in the Tribunal but bear in mind that appellants are more far likely to get a fair hearing before a Judge than before the Border Force. This case makes that very clear.
[I’m part of 36 Bedford Row’s Art Law team. Led by Jessica Franses, we’ve successfully represented art collectors challenging the seizure of items under CITES. For any enquiries, please contact us].