It’s not just gold that glitters: redefining treasure

Many hobbies that were taken up during lockdown have since fallen by the wayside, but one that continues to gain momentum is metal detecting. Possibly linked to the popularity of TV shows such as Detectorists and Finders Keepers, the number of active detectorists is increasing, which is paralleled by an increase in treasure discoveries. In 2022, there were 1,378 reported finds.

Following recent reforms to the legislative framework around treasure, it is worth revisiting the rights, restrictions and responsibilities that relate to striking gold, as well as considerations for landowners when approached by detectorists wishing to search on their land.

What is treasure and who owns it?

From the introduction of the Treasure Act 1996 until last year, whether an object was legally classified as treasure depended on its age and precious metal content, and whether it was found with other items deemed to be treasure.

Broadly speaking, finders are not generally keepers: treasure belongs to the Crown. It is an offence for a finder of treasure not to report it within 14 days, and museums are permitted to acquire treasure that is found, although there is often a reward made to the finder and/or landowner. Finds which are not treasure generally belong to the landowner, unless they have reached a prior agreement with the detectorist.

An expanded definition

Concern over the limitations of the definition of treasure was sparked following the “loss to the nation” of several historically important artefacts that failed to meet the treasure threshold. An example is the Crosby Garrett Helmet, one of only three Roman helmets with visors to be discovered in the UK. Because it contained a copper alloy and was not found with other items of treasure, it could legitimately be sold to a private bidder at auction in 2010.

This resulted in the definition of treasure being expanded in July 2023. “Treasure” now includes metal items that are at least 200 years old and provide “an exceptional insight into an aspect of national or regional history, archaeology or culture” by virtue of their rarity, location or connection with a particular person or event.

Whether the subjectivity of this new “significance-based” definition will prove problematic in practice remains to be seen, but it is anticipated that it will facilitate the preservation of the nation’s culturally valuable artefacts whilst more closely reflecting general acceptance of what constitutes treasure.

Considerations for landowners

Detectorists require the landowner’s permission to treasure-hunt on their land. There are several advantages to landowners in allowing responsible treasure-hunting: unearthed items can help to paint a picture of an estate’s heritage, a fee can be charged, and landowners are usually entitled to a share of any reward. Active engagement from landowners may also discourage “nighthawking”: the search for and removal of items from land by unauthorised nocturnal detectorists. A suitable one-page licence for treasure-hunting can cover the following:

• The defined area that may be searched and when,
• The detectorist’s responsibilities around excavation, reinstatement and compliance with relevant codes of practice,
• The circumstances in which the agreement can be terminated,
• The sharing of any reward, and
• Limitations on the landowner’s liability.
  
  

This publication is a general summary of the law. It should not replace legal advice tailored to your specific circumstances.

© Farrer & Co LLP, February 2024