Change of Venue Motion Filed in US v. Khouli et al. Previews Possible Defenses in Alleged Antiquities Trafficking Case



Federal courthouse in Brooklyn, NY.
Photo by Jim Henderson.  CC
The latest pleading filed by Salem Alshdaifat’s attorney in the case of US v. Khouli et al. asks for a change of venue. The defense argues that personal and financial hardships faced by Alshdaifat, a Michigan resident, urge a transfer of the case from the federal district court in New York to Detroit.

The motion provides a possible preview into some of the defenses that may be available in the case, including:
  • a characterization of the charged conduct as “regulatory-based criminal charges,”
  • a claim that the objects that are the subject of the multi-count indictment are neither stolen nor contraband, and
  •  an argument that Alshdaifat was a middle man who did not possess criminal intent.
A federal grand jury charged Alshdaifat in May 2011 with conspiracy to smuggle, alleging that he directed Mousa Khouli to wire $20,000 to Ayman Ramadan’s UAE bank account and that Alshdaifat received an airway bill from Ramadan showing that “wooden panels” were being shipped by Ramadan’s company in the United Arab Emirates to JFK airport in New York.  Moreover, Alshdaifat is charged with money laundering conspiracy.  He is also charged with smuggling goods into the country as well as fraudulent importation and transportation of goods.  The indictment describes the goods as an Egyptian inner coffin, Egyptian funerary boats and limestone figures, and a portion of an outer lid of a nesting Egyptian coffin set.  (A grand jury indictment is a mechanism that initiates a criminal case; it is not a finding of guilt.)

Writing in support of the motion for change of venue, Alshdaifat’s attorney previews the possible defenses in the case.  The following are excerpts from the Memorandum of Law dated November 21, 2011:
  • “The facts surrounding these charged criminal violations of the Customs laws arise out of the importation of rare Egyptian antiquities, including a three-piece set of sarcophagi and other funerary objects. These artifacts were allegedly shipped to the United States in several packages, variously by international air mail and by private air and sea carriers. The government does not claim that the Egyptian artifacts were stolen or were otherwise contraband when they entered the country. Instead, the government's charges rest on a theory that the alleged conspirators willfully falsely or vaguely declared these artifacts in entry documents into the United States because the importer purportedly had insufficient or incomplete documents of origin for the objects and this might have caused them to be detained at a United States port-of-entry if detected.” (emphasis in the original)
  •  “Mr. Alshdaifat was neither the U.S. importer nor the foreign exporter of the subject Egyptian artifacts. Based on the government's own claims, he is alleged to have been the “finder” or middleman that put the alleged foreign source of the artifacts (defendant [Ayman] Ramadan) in contact with the U.S. importer, or interested antiquities dealer (defendant [Mousa] Khouli). Despite being charged with a role that essentially ended prior to the importation process, Mr. Alshdaifat is charged with his co-defendants for knowingly participating in making false or intentionally incomplete statements on shipping labels on various shipments of these Egyptian antiquities.  The government's claims against Mr. Alshdaifat, therefore, rely on findings that he knew and intentionally joined a conspiracy to falsely declare the Egyptian artifacts in their shipment to the United States after his role in being a broker to the transactions was already completed.” (emphasis in the original)
  •  “In the Egyptian sarcophagi transactions, however, Mr. Alshdaifat only had a broker's interest and did not deal in the artifacts himself. Somehow, however, he now finds himself charged together with the principals of those transactions for allegedly violating technical Customs laws in the mailing and shipping of the merchandise, a process in which he did not participate.”
  • “The government’s position in support of criminal liability on the charged air mail shipments is based largely on the claim that Mr. Alshdaifat's co-defendants put these pieces in international mail or on an airplane as air cargo without completing more formal U.S. Customs paperwork with the specific intent to avoid Customs’ detection of these shipments and break U.S. Customs' law.  No lay witnesses exist to testify as to whether a defendant's act of putting these parcels in the mail or on an airplane constituted an intentional and clandestine conspiratorial effort to get the charged, legal merchandise into the United States.” (emphasis in the original and footnote omitted)
  •  “In any event, Mr. Alshdaifat is not even implicated in the government's discovery with doing anything – in New York or elsewhere – to assist in the importation of the merchandise. He is charged with putting the alleged source of the Egyptian coffins and artifacts (defendant [Ayman] Ramadan) in contact with the New York antiquities dealer who purchased them (defendant [Mousa] Khouli). The government must concede that Mr. Alshdaifat was neither the importer nor exporter of the charged shipments, and therefore had no role in the actual shipment of the merchandise, i.e., the packaging, labeling and placing of the merchandise in international mail.  As such, he never had any contacts with New York.”
  •  “The government does not charge that the Egyptian coffins and funerary objects were stolen property. The objects imported, therefore, are not contraband or unlawful to possess in the United States. The government's claims in this Indictment rest instead on the precarious theory that the method in which the artifacts were shipped into the United States was intentionally fraudulent even though the goods themselves were not banned or prohibited from entry. Indeed, the government does not even claim that the method of importation was intentionally fraudulent to avoid import duties, since antiquities are excluded from any import tax.” (emphasis in the original)
The defense contends that the government’s conduct materially affected Alshdaifat’s business.  Alshdaifat writes in a Declaration to the court dated November 21, 2011 that he started dealing in ancient coins in Canada, selling them primarily over the internet and at international trade shows.  He describes himself as a specialist in ancient Judean coins who gained admission to many coin auction houses and membership associations.  Alshdaifat adds that he was the moderator of the “Judean ancient coin section for the largest numismatic worldwide web community.”  Defense counsel’s Memorandum of Law explains:

“Mr. Alshdaifat's circumstances are particularly extraordinary. These include the fact that from his initial arrest, the government stacked the deck against him, making it untenable for him to get his fair day in court. On July 13, 2011, the government arrested Mr. Alshdaifat in his Michigan home and confiscated his entire business inventory of ancient coins, thereby effectively shutting his business down.  It did so despite the fact that the criminal charges in the Indictment had nothing to do with Mr. Alshdaifat's coin business. Subsequently, the government returned his coins but not until his business suffered a crushing, and possibly, fatal blow. Mr. Alshdaifat's reputation as an honest coin dealer has been battered; more importantly, he has been removed or suspended from all of the auction houses where he sold his coins. His business is in dire shape.” (emphasis in the original)

Information supplied to the court describes the relationship between Alshdaifat and co-defendant Ayman Ramadan.  Court papers remark that “Mr. Alshdaifat has purchased ancient coins before from defendant Ramadan in the United Arab Emirates ("U.A.E.") and has sold coins to defendant Khouli in New York. 
 That is how he knew two of the other parties charged in this Indictment.”

Egyptian Museum No Longer Accepting Cultural Object Inquiries (For Now)

The Egyptian Museum, Cairo
Source: Bs0u10e01, Creative Commons
According to an email by the General Director of The Egyptian Museum in Cairo, the museum will not be in a position to respond to inquiries regarding any artifacts until June 2012. This information is important to anyone conducting provenance research relating to Egyptian cultural objects. The email appears below:


To whom it may concern,

Due to the current situation in Egypt, I regret to say that the
Registration, Collections Management and Documentation
Department (RCMDD) and the curatorial staff of the Egyptian
Museum, Cairo will not be accepting any new requests for
object information and images starting from 1 December, 2011
until 30 May, 2012. This is due to the huge backlog that was
created following the events of January 28th, as well as the
renovations that are currently happening in the Museum.
Information on objects from our collection can still be obtained by
accessing the intranet version of the Museum Database on the
computers dedicated to scholars in the RCMDD office, located in
the museum basement.  The department is open to scholars from
9:30 am until 2:00 pm, Sunday-Thursday.

Sincerely,
Dr. Tarek El Awady
General Director,
The Egyptian Museum, Cairo

Source: Egyptologists' Electronic Forum, forwarded by Dr. Yasmin El Shazly.

Status Conference Held in Case of US v. Khouli, Alshdaifat, Lewis

Egyptian coffin seized by ICE
in the case of US v. Khouli et al.
Photo: ICE
The US District Court for the Eastern District of New York held a status conference in the criminal matter of United States v. Khouli et al. on November 17, 2011.  The court waived all three of the defendants’ presence at the hearing.  The defendants include Mousa “Morris” Khouli, Salem Alshdaifat, and Joseph A. Lewis II.  Ayman Ramadan remains a fugitive.

By way of letter dated November 4, 2011 and written by his attorney, Khouli sought leave to attend a coin show in Baltimore, Maryland, reportedly scheduled for November 16 and 20.  The short letter explained: “As an antiquities dealer, Mr. Khouli’s livelihood depends on his ability to attend coin shows and other similar events.”  The court granted Khouli’s request and extended the ruling, waiving the appearance of the other co-defendants.

Internet records reveal that the Whitman Coin & Collectibles Baltimore Expo was held during this time.  Palmyra Heritage, the name of the business owned and operated by Khouli, was listed as occupying booth #1107 while Holyland Numismatics, the name of the business owned and operated by Alshdaifat, was listed as occupying booth #1154 at the event that took place at the Baltimore Convention Center.

Salem Alshdaifat’s attorney filed documents soon after the November 17 status hearing requesting a change of venue in an effort to curtail any hardship to Alshdaifat, who lives in Michigan.  Submitted on November 21, the pleadings reveal more information about Alshdaifat’s background and his association with co-defendant Ayman Ramadan.  The pleadings also supply a preview of Alshdaifat’s possible legal defenses.  These topics are discussed here.

The next court status conference is scheduled for January 27, 2012.

CPAC Public Session Wrap-Up: Requests by Bulgaria and Belize for Cultural Property MoUs Considered

The Cultural Property Advisory Committee (CPAC) met between November 15 and 17, 2011, holding a public session on November 16. Professor Patty Gerstenblith, newly appointed chair and director of the Center for Art, Museum, & Cultural Heritage Law at DePaul University College of Law in Chicago, presided over the meeting.

Bulgaria and Belize both petitioned the United States government for a memorandum of Understanding (MoU) seeking cultural property import protections pursuant to Article 9 of the 1970 Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property (the UNESCO Convention). The requesting nations’ official public summaries appear here:  Bulgaria | Belize.  CPAC will ultimately provide advice about the adoption or rejection of these MoU requests.

CPAC received testimony to consider whether the countries’ requests satisfy the four determinations enumerated in the federal Cultural Property Implementation Act (CPIA). They include:

1. Whether the cultural patrimony of the requesting nation is in jeopardy from pillage;

2. Whether the requesting nation has taken measures to protect the cultural patrimony;

3. Whether import protections would be of substantial benefit to deter serious pillage, and whether there are other less drastic remedies; and

4. Whether the implemtation of import protections is consistent with the global exchange of cultural property for scientific, cultural, and educational purposes.

Roman ruins in Plovdiv, Bulgaria.
Author: Kyle Taylor
Creative Commons license.
CPAC received 503 online submissions prior to the public session, and seven people presented live testimony regarding the Bulgarian request. Those appearing in person before CPAC were:

• Kevin Clinton, President of the Board of Trustees of the American Research Center in Sofia (ARCS). See his prior written comments here.

• Brian Daniels of the University of Pennsylvania Museum's Cultural Heritage Center.

• Nathan Elkins, a professor of Greek and Roman art and history at Baylor University who focuses on ancient coins.

• Stephen J. Knerly, an attorney who routinely appears before CPAC on behalf of the Association of Art Museum Directors (AAMD). Read his previously submitted written statement here.

• Christina Luke Roosevelt, a lecturer and archaeologist at Boston University who appeared on behalf of the Archaeological Institute of America’s (AIA) Cultural Policy Committee. Read her previously submitted written statement here.

• Peter Tompa, an attorney appearing on behalf of the International Association of Professional Numismatists. He is an officer of the Ancient Coin Collectors Guild (ACCG) but did not appear in this capacity. His previously submitted personal comments appear here.

• Kerry Wetterstrom, a governing officer of the Ancient Coin Collectors Guild.

Maya archaeological site in Caracol, Belize.
Author: Pgbk87. Creative Commons.
Public comments were also submitted discussing Belize’s MoU request. 153 online submissions were made, and five people appeared in Washington, DC to present live testimony. They were:

• Brian Daniels of the University of Pennsylvania Museum's Cultural Heritage Center.

• Elizabeth Gilgan, an archaeologist who worked in Belize. She serves on the board of directors of Saving Antiquities for Everyone (SAFE). Her previous written submission appears here.

• Stephen J. Knerly, an attorney appearing on behalf of AAMD. Read his previously submitted written statement here.

• Christina Luke Roosevelt, appearing on behalf of the AIA’s Cultural Policy Committee. Read her written statement here. You can also find AIA President Elizabeth Bartman’s online statement here.

• Patricia McAnany, appearing on behalf of the Society for American Archaeology and an archaeologist who has performed research in Belize.

Cultural Heritage Lawyer Awarded Top 25 International and Foreign Law Blog Honors

Thank you to the readers of Cultural Heritage Lawyer making it become one of the Top 25 international and foreign law blogs.  The award correspondence received today says:

"I am pleased to announce that your blog has been selected as one of the LexisNexis Top 25 International & Foreign Law Blogs of 2011!"

"The Top 25 group includes some of the best talent in the blogosphere and creates an invaluable content aggregate for all segments of the International & Foreign Law practice. Most good blogs provide frequent posts on timely topics, but the authors in this year’s collective take their blogs to a different level by providing insightful commentary that demonstrates how blogs can—and do—impact and influence the world of international and foreign law."

You can always click on the Top 25 image at the top right of this web page to make this blog #1!

Updates from the Crown Court; R v McQuinn; R v Shapland

The Wirral Globe reports that today Mr McQuinn was cleared by a jury in Liverpool Crown Court of causing the death of David Noble by careless driving in Spital at 0950 on 20th October 2010.  Mr Noble was riding a bicycle at the time of the collision.  There was no suggestion that Mr Noble was in any way riding improperly when he was run down by a car driven by Mr McQuinn.  Mr McQuinn explained that the accident was unavoidable because the sun was in his eyes.  The jury took 17 minutes to return a not guilty verdict.

Last week the South Wales Evening Post reported that Mr Shapland was cleared by a jury in Swansea Crown Court of causing the death by careless driving of Olin Poulson after a collision on the A40 near Carmathen on 3rd September 2010.  A tachograph and telephone records revealed that Mr Shapland had been driving his articulated lorry at 52 mph (speed limit for lorries 40 mph) and had been on his hands free 'phone at the time of the collision.  He explained that Mr Poulson had turned right across his path as he was overtaking.

I am not privy to all the evidence in either case.  Clearly, in my view, each driver had a case to answer and it was only right that the prosecutions were brought.  The jury verdicts do not affect that and no prosecuting authority should expect a 100% success rate in the Crown Court.  It is an improvement over some cases in the past where prosecutions have not been brought and the drivers have never been called to explain their actions to a Court.

One Cyclist sues another; Brown v Brent & British Cycling

On the last weekend in August 2007 the Surrey Cycle Racing League with the assistance of the Army CU organised a three day stage race comprising four stages for 2nd and 3rd cat racers.  Proceedings kicked off with a short time trial up Boxhill on Friday evening and this was followed on Saturday afternoon with a 70 mile road race.  4th up Boxhill, but not so hot on the road race was George Brent, a 2nd cat rider with Addiscombe CC.  On Sunday, Stage 3 in the morning was an 11.5 mile time trial and the final stage on Sunday afternoon was a 60 mile road race on the Ewhurst Circuit with a final climb up Leith Hill.

The Ewhurst Circuit takes the riders down Ockley Road into Ewhurst where there is a sharp left at a mini-roundabout outside the Bull’s Head Pub.  At this point in the race (it may have been the 4th lap but this is not entirely clear), there was a breakaway group of 5 or 6 riders being chased by George Brent who was attempting to bridge the gap between the bunch and the lead group.  Given those circumstances it is not really surprising that he was going at speed and that he needed to take a racing line around the left hand turn, taking advantage of being a sole rider at this point.



Unhappily for both men another cyclist, Carlton Brown, came down Shere Road (from the right in the above Google earth shot) and turned into Ockley Road, apparently oblivious to the fact that a road race was in progress coming straight towards him.  The two cyclists collided close to the mini roundabout.  Any initial uncertainty as to which side of the central dotted white line the collision occurred was dispersed by the existence of video camera footage.  This demonstrated that the cyclists came together somewhere to the right of the white dotted centre line (as the picture and George Brent saw it.)

Mr Brown sued both Mr Brent and the British Cycling Federation who were ultimately responsible for the running of the race.  The report that I have seen indicates nothing about the extent of the injuries of either man but I see no indication that Mr Brent counterclaimed (as he might have done) against Mr Brown.

Mr Brown claimed that Mr Brent should not have crossed the white line in the middle of the road into his path and that he was riding too fast.  The Judge, His Honour Judge Atkins, sitting in the Croydon County Court accepted these allegations.  The fact that Mr Brent was competing in a road race did not exempt him from the obligation to comply with the Highway Code.  As the Judge put it:
            “as has been accepted, and I think rightly accepted, this was a race which was taking place on a public road and the fact that it was a race does not mean   that people can ride or drive in a different way.  They have to be aware that members of the public can use the road and they are governed by the same rules as anybody else.”

The Highway Code (rule 160) requires traffic to keep to the left of the centre line unless overtaking or turning right.  This is a rule that is breached frequently by cyclists (and I daresay motorcyclists) taking a line around a bend but I think the moral is that if you are going to do it, do it only in circumstances where you are quite sure nothing is coming the other way and that means not doing it on or near a junction.

Mr Brown also brought a claim essentially against the race organisers.  His most interesting allegation was that the organisers ought to have ensured that the road was closed to members of the public.  The judge gave that short shrift:
            “the position about that is that it is possible to ask the highway authority to close the roads.  It is obviously an extreme step to take.  I simply say that in the circumstances of this case I do not think it was a proportionate or appropriate step for the organisers to take.  I think that they under an        obligation to take all reasonable steps to ensure the safety of road users whether participating in the race or otherwise, and I think they did take all such steps.”

I hope the police forces who are most wary of races on the open roads will heed those words.  It is not proportionate or appropriate to close the roads for an amateur road race.

Mr Brown also criticised the organisers for their control of the race.   He said he should have been warned but the Judge found there were appropriate warning signs and marshals that Mr Brown did not see or hear.  A marshal had done his best to communicate to Mr Brown but, perhaps because Mr Brown was wearing ear-phones, had not got through (the Judge observed that Mr Brown was wearing head-phones but found both that that was not negligent and that it had not caused the accident).  Whether the lollipop signs that are now being trialled, and which will enable a marshal to compel a road-user to stop, would have prevented this unfortunate accident must be conjecture but certainly they should help.  He also said the organisers should have prevented Mr Brent crossing the white dotted line but the usual Commisssaire’s briefing (‘obey the highway Code’) had been given and there was no more that the organisers could reasonably have done.

Finally the Judge examined Mr Brown’s own responsibility for the accident.  He found that he should have heeded the warnings and was in the circumstances travelling too fast.  The finding that he was not negligent in wearing headphones is of potential interest.  The law (and the Highway Code) do not prohibit it but the DirectGov ‘Cycling Safely’ website advises “Stay alert! Don't listen to music or use a mobile phone while cycling – distractions cause accidents”.

 

Ultimately the Judge found Mr Brent two-thirds to blame for the collision and Mr Brown one-third to blame.  He acquitted the race organisers of any blame at all.

 

Although this is a County Court case (and strictly not citable to any future Court) it is illustrative of the duties that race competitors owe to members of the public who are not involved in the race.  Road races in this country are almost invariably very well organised and this is the first case of which I am aware where a competitor has been successfully sued.

 

Though not involved in the race I should declare an interest as a member of both the Surrey League and British Cycling.  I hope both cyclists have recovered.

Briefing Schedule Set in Appeal of Rubin v. Iran v. Boston MFA and Harvard

The case of Rubin et al. v. the Islamic Republic of Iran v. Museum of Fine Arts and Harvard University et al. is in full swing at the U.S. First Circuit Court of Appeals.  The appeals court yesterday set a briefing schedule that calls for the appellant’s brief to be filed on December 27 and the appellee’s brief to be filed 30 days thereafter.  [Update 1/27/12: The court extended these deadlines.]

In September, the United States District Court for the District of Massachusetts denied a request by Jenny Rubin and others to gain title to artifacts held by Harvard, the Museum of Fine Arts, and other Boston area cultural institutions.  The Massachusetts federal district court ruled that it was presented with no proof that Iran owned the antiquities in the museums; therefore the plaintiffs were not entitled to the cultural property.  Rubin and the others soon appealed the decision to the circuit court in October.

The Rubin plaintiffs wish to acquire the artifacts in order to satisfy a multi-million dollar court judgment they won against Iran for that government's role in sponsoring a 1997 terrorist bombing in Jerusalem. The suicide attack inflicted injury on the plaintiffs.

Photo credit: Nightryder84, detail of cup found at Marlik, Iran, Creative Commons.

From Sculpture to Scrap: The Theft of America’s Copper Heritage

Bronze, a mixture of copper and tin,
is found in many statues and plaques,
which are vulnerable to copper thieves.
Frederic Remington, ''The Bronco Buster,"
given to the Lyndon B. Johnson Library.
Public domain image.




Copper theft continues to run rampant throughout the country. Museums, cultural institutions, churches, art galleries, universities, and more have been impacted by the great raid on copper and bronze sculpture and plaques. That is because the price of copper is high, largely driven up by rapid industrial development in China and India.

The recent press report of a sword swiped from a copper statue located at Abraham Lincoln’s tomb site in Springfield, Illinois has become common over the last several years. And thieves may be less interested in the art and more interested in the metal’s melted value.

Many states have laws that regulate scrap metal recyclers so that law enforcement can uncover scrap metal crimes. In New Hampshire, Chapter 322 of the Revised Statutes Annotated mandates junk and scrap metal dealers to be licensed, requires photo identification from person’s turning in metal for scrap, and permits law enforcement access to business records. Maine just announced its intention to stiffen regulations. Last week legislation moved forward in Augusta that would have scrap metal dealers check photo identification and vehicle information for anyone selling scrap metal, place a 72 hour delay on processing the metal, and have payments sent by check to a physical address. Penalties for noncompliance could include a license suspension for scrap metal processors.

Protecting outdoor statuary from copper theft may not be easy, but contacting a security consultant for a site assessment should be a first step for any cultural institution. Security options can then be considered in light of the actual risks and the institution’s budget.  Members of the nonprofit International Foundation for Cultural Property Protection may be able to help.

If a theft occurs, it should be reported to the local police immediately. Be sure to tell the police about Scrap Theft Alert, where law enforcement can report a theft to the membership of the Institute of Scrap Recycling Industries.

PART II OF II: US Attorney Reveals Legal and Factual Claims in Forfeiture Lawsuit Against Cristo Portacroce – Case Reveals Italy’s Refusal to Turn Painting Over to Gentili di Giuseppe Family


Portrait of Girolamo Romano,
painter of the disputed artwork known as
Cristo Portacroce Trascinato Da Un Mangoldo.
In support of the warrant seizing Christ Carrying the Cross Dragged by a Rogue (Cristo Portacroce Trascinato Da Un Manigoldo) from The Mary Brogan Museum of Art and Science and in support of the civil complaint seeking forfeiture, the US Attorney for the Northern District of Florida supplies important details about the artwork’s asserted history.  Homeland Security Investigations (HSI) agent Phillip Reynolds describes facts in an affidavit submitted to the federal district court that permits the construction of the following timeline and details:

June 1914 - Art collector Federico Gentili di Giuseppe, Italian and of Jewish descent and living in Paris, purchased the Cristo Portacroce from the Crespi family collection. The 16th century painting by artist Girolamo Romano, was lawfully exported from Italy.

April 20, 1940 - Just before the Nazi invasion of France, Federico Gentili di Giuseppe died and left his estate to his son and daughter. They fled Paris without their possessions.

March 17, 1941 - The French Vichy government ordered the liquidation of the entire Gentili di Giuseppe estate.

April 23, 1941 - The Cristo Portacroce, and dozens of other paintings once in the Gentili di Giuseppe family’s possession, were auctioned. “Lemar” of Paris reportedly bought the Cristo Portacroce.

1994 - A Girolamo Romani catalog raisonné published by Alessandro Nova listed the Cristo Portacroce as having been owned by Federico Gentili di Giuseppe.

1997 – Descendants of Federico Gentili di Giuseppe sued the Louvre for the return of five paintings sold during the same auction as the Cristo Portacroce.

1998 - The Brera Art Gallery (Pinacoteca di Brera) took possession of the painting, although no details are provided regarding this transfer.

June 2, 1999 – a French court ordered custody of the five paintings at the Louvre to Federico Gentili di Giuseppe’s descendants, acknowledging that the 1941 auction was a “nullity” in that several painting were purchased by Nazis, including Luftwaffe chief Hermann Göring. The court also ordered the Louvre to pay 40,000 francs (approximately $8300).

After June 2, 1999 – The Art Institute of Chicago, the Boston Museum of Fine Arts, and the Art Museum of Princeton University all returned works of art to the Gentili di Giuseppe family heirs. Institutions in Berlin, Cologne, and Lyons did the same.

January 10, 2000 and March 14, 2000 – Lawyer Jean Pierre Sulzer twice contacted the the Brera Art Gallery by mail on behalf of Gentili di Giuseppe’s descendants, receiving no reply.

2001 – The Brera Art Gallery referred the restitution claims of the Gentili di Giuseppe heirs to the Italian Ministry of Culture, and attorneys for the family wrote a letter to the ministry on October 3, 2001 asking for the painting.

June 6, 2002 – The Commission for Art Recovery of the World Jewish Congress, a New York based group that seeks to restitute cultural property taken from Holocaust victims, wrote a letter to Italian President Silvio Berlusconi after the Ministry of Culture reportedly rejected the claims of the Gentili di Giuseppe family. The letter urged the president to reconsider Italy’s position.  (The contents of the letter suggest that the Brera made an earlier reply stating that it acquired the painting--and a second painting--in good faith.  The Brera's letter is not contained in court documents).

March 14, 2003 – The Italian Ministry of Culture responded to the Commission for Art Recovery’s intervention by saying that it carefully reviewed the matter in light of the Washington Principles and could not find that it could accommodate the request for repatriation. (See the Washington Principles here).

2006 – The Commission on Looted Art in Europe reportedly contacted the Italian government in an effort to have the Christo Portacroce returned.

March 18, 2011 – The Brogan placed the painting on display at its museum in Tallahassee, Florida.

November 4, 2011 – The loan contract between the Brera and the Brogan was due to terminate on November 6, and the painting was to be delivered to Italy.  Immigration and Customs Enforcement (ICE seized the painting on November 4, 2011 to prevent its return to Milan, and the US Attorney filed its in rem action against the artwork seeking its forfeiture.

The prosecution will seek to prove these alleged facts as it attempts to convince the federal district court that it has the evidence to forfeit the Cristo Portacroce.  Time will tell if any party steps forward to contest the claim.

See Part I for a discussion of the US government's asserted legal claims in this case.

PART I OF II: US Attorney Reveals Legal and Factual Claims in Forfeiture Lawsuit Against Cristo Portacroce – Argues That Painting Loaned to The Brogan by The Brera Was Stolen, Smuggled, and War Material


"The Brera,"
which once possessed the Romano painting
seized by ICE in Florida on November 4, 2011.
Author: Masi27185. Creative Commons License
Immigration and Customs Enforcement’s (ICE) Homeland Security Investigations (HSI) seized the painting known as Christ Carrying the Cross Dragged by a Rogue pursuant to a court authorized warrant on Friday, November 4, 2011. Judicial records reveal that federal officials chose to seize the painting at that time because the artwork, which was on loan to and openly displayed at The Mary Brogan Museum of Art and Science, was about to be returned to the Brera Art Gallery (Pinacoteca di Brera) in Milan, Italy. The Brera originally possessed and loaned the artwork, painted by Girolamo Romano around 1543.

The US Attorney’s Office for the Northern District of Florida filed a civil forfeiture action in federal district court in Tallahassee the same day as the seizure. Seizure permits the government to take possession of the painting, but a forfeiture order issued by the court would allow the government to gain title of the painting. That is why the US Attorney’s Office filed an in rem (against the thing) lawsuit, naming the artwork as the defendant. The case is captioned and docketed as United States of America v. Painting Known as Cristo Portacroce Trascinato Da Un Mangoldo, 4:11-cv-00571-RH-WCS.

Federal prosecutors argue in their civil complaint that forfeiture of the painting is proper under multiple legal theories. They cite the typical ones under the criminal statutes (Title 18 of the United States Code) and the customs statutes (Title 19 of the United States Code). But the government also makes a claim under Title 22, the foreign relations section.

First, prosecutors allege that the painting was smuggled pursuant to 18 USC § 545 and therefore must be forfeited under the terms of this criminal statute.

They also say that the artwork must be forfeited because it was illegally imported in contravention of the customs law at 19 USC § 1595a(c)(1)(A) since the painting was “stolen, smuggled, or clandestinely imported or introduced” into the United States.

Next, federal attorneys claim that the painting was about to be exported in violation of 19 USC § 1595a(d), a customs law requiring that the painting “shall be seized and forfeited to the United States” because its export would be “contrary to law.”

Federal lawyers also make a claim under the Illegal Exportation of War Materials statute at 22 USC § 401(a), saying that it mandates forfeiture of the painting: “Whenever an attempt is made to export or ship from or take out of the United States any arms or munitions of war or other articles in violation of law, or whenever it is known or there shall be probable cause to believe that any arms or munitions of war or other articles are intended to be or are being or have been exported or removed from the United States in violation of law” then the article may be seized and shall be forfeited.” (Emphasis added by the author).

Finally, the government makes the claim that the painting was stolen under 18 USC § 2314, the National Stolen Property Act, which criminalizes conduct whereby a person “transports, transmits, or transfers in interstate or foreign commerce any goods, wares, merchandise, securities or money, of the value of $5,000 or more, knowing the same to have been stolen, converted or taken by fraud.”

The court will decide if prosecutors possess the evidence to prove their case.  To date, the information prosecutors possess appears considerable. That material is discussed in Part II.

Museums at Risk - Results of the 2011 ICCROM-UNESCO International Storage Survey

Museums are at risk. That is the conclusion of the 2011 ICCROM-UNESCO International Storage Survey conducted between June and September by the International Centre for the Study of the Preservation and Restoration of Cultural Property and the United Nations Educational, Scientific and Cultural Organization. The published summary below shows significant deficiencies in museum storage, museum administration, risk management, and loss prevention.

Strategic planning, resource development, and risk preparation are crucial to maintaining first-class cultural institutions. Museums in need of assistance can contact the International Foundation for Cultural Property Protection (IFCPP) http://www.ifcpp.com/, RE-ORG http://www.re-org.info/, or other professionals who support cultural institutions.  The public, meanwhile, is encouraged to lend a hand to their local museums, libraries, and historical societies--both financially and by volunteering--so that history, art, science, and culture can be preserved and transmitted.  Many volunteer opportunities can be found at http://www.volunteermatch.org/.

A larger version of the report is available here.


CONTACT: www.culturalheritagelawyer.com

Legal update: R (on application of Kate Cairns) v Deputy Coroner of Inner West London

Today sitting in the Adminsitrative Court, Silber J has rejected the claim brought by Kate Cairns for a Judicial Review of the Inquest into the death of her sister Eilidh Cairns, who was fatally struck by an HGV in Notting Hill on 5th February 2009.  There were complaints about case management which appear to relate specifically to the way in which that particular Inquest was conducted.

Of broader public interest was the Deputy Coroner's decision not to make any recommendation pursuant to her powers under rule 43 of the Coroners Rules 1984.  This rule provides that:

"Prevention of future deaths
43.—(1) Where—
(a) a coroner is holding an inquest into a person's death;
(b) the evidence gives rise to a concern that circumstances creating a risk of other deaths will occur, or will continue to exist, in the future; and
(c) in the coroner's opinion, action should be taken to prevent the occurrence or continuation of such circumstances, or to eliminate or reduce the risk of death created by such circumstances,
the coroner may report the circumstances to a person who the coroner believes may have power to take such action."

As pointed out by Silber J, this rule provides the Coroner with a considerable degree of discretion, so that even if (a), (b) and (c) are all satisfied (which they surely are in all cases where cyclists are run down by HGVs), the Coroner may (not must or should) report the circumstances to a person who it is believed may have power to take such action.

What fortified the Judge in his conviction that the Coroner had not exercised her discretion in such a way that no reasonable Coroner could have done was that "PC Clark of the Collision Investigation [Branch of the Metropolitan Police] explained that he was unaware of anything which could be done to prevent accidents of the kind in which Miss Cairns was tragically killed".

The really worrying thing is that this counsel of despair from the police is both voiced and is so readily accepted.  A Collision Investigator ought to start from the premise that this type of collision is preventable - a clue is in his title, in that the Metropolitan Police (and most Coroners) have, unlike the Administrative Court, abandoned the term 'road traffic accident' for 'road traffic collision'.  The reason for the change in terminology is because of the potential to confuse 'accident' with 'unavoidable event'.  A Police Sergeant in the Metropolitan Police's Cycle Task Force reminded me of this change last week.  It does not take more than a moment's reflection to come up with the ideas of better (or any) mirrors, sensors, training and enforcement as areas for action that may eliminate or reduce the risk of a repeat of the circumstances that led to Eilidh Cairns's untimely death.   My reading of the rule is that it is concerned not so much with a specific action that would have necessarily prevented the death inquired into (sadly the facts seem to have remained obscure in Eilidh's case) but action that would reduce the risk of future deaths in the same circumstances.

All of us who cycle on London's streets know that the quality of lorry driver is highly variable.  Near misses from lorries are not pursued by the Metropolitan Police because (I learnt last week) a safe passing distance is thought to be too subjective.  The quality of response from employers of drivers who have passed much too close varies from the highly responsible to the shockingly irresponsible (I have had one example of each in the last few days).  It does not take many miles of cycling experience to recognize that action is required to reduce the number of HGV/cyclist collisions which so frequently result in death.  A 'nothing can be done' attitude would be unthinkable if considering deaths in an industrial, disease, terrorism or virtually any other unnatural premature death outside the context of road traffic collisions (maybe even especially in the context of pedestrians and cyclists - I will wait with interest to learn, for example, whether a report is made in relation to the recent M5 tragedy).

Action by whom, the police officer or Coroner may ask?  Happily the rule requires only that the recipient of a Coroner's recommendation may have power to take action.  I suggest the (new) Secretary of State for Transport, the (new) Metropolitan Police Commissioner and the Mayor of London as my candidates for persons who may have such power.

ICE Seizes Stolen Art From Florida's Brogan Museum - Said To Be Taken During WWII

ICE seizes Romano painting said to be stolen by the Nazis.  Photo courtesy of ICE
Immigration and Customs Enforcement (ICE) officials in Tallahassee, Florida yesterday served a seizure warrant on "Christ Carrying the Cross Dragged by a Rascal."  The painting had been held at the Mary Brogan Museum of Art and Science at the request of the US Attorney's office, northern district of Florida, while prosecutors determined whether the painting by Girolamo Romano’s was unlawfully taken from a Jewish family during World War II.  Now the artwork is now in federal custody.

Who will have final title and possession of the artwork ultimately will be determined by a federal district court judge.

[UPDATE: November 9, 2011 - Read more details here.]

Find the complete press release describing the seizure and issued by ICE here.  Also, listen to Chucha Barber, the Brogan Museum’s chief executive officer, who provides a short audio sketch of the ownership claims to the painting on PRI's The World.

Thanks go to Gary Nurkin for alerting me to this news.

Los Angeles County Judge Orders Getty Museum to Mediate Armenian Zeyt'un Bible Pages Dispute

The Matenadaran in Yereva, Armenia
where the Zeyt'un Gospel Bible is housed,
minus the seven pages at The Getty in L.A.
Author: TigranMets (Creative Commons)

The Getty Museum and the Western Prelacy of the Armenian Apostolic Church are headed to mediation over the issue of the Zeyt’un Gospel pages. This week Judge Abraham Khan of the Los Angeles County superior court told the parties to return next spring if an agreement was not reached, reports the Los Angeles Times.

In June 2010 the Armenian Apostolic Church filed a civil lawsuit against the J. Paul Getty Museum alleging that the museum acquired stolen property. The church seeks the return of seven manuscript pages, parts of an illuminated Bible that was created in 1256 and later lost during the Armenian bloodshed that occurred during the early 20th century. The actual Bible, minus its missing pages, is located in Armenia at The Matenadaran (officially known as the Mesrop Mashtots Institute of Ancient Manuscripts).

The church sued the Getty on four counts:
• Replevin, which is the legal action that a party takes to recover personal property that was taken unlawfully;

• Conversion, which is the legal claim that a party unlawfully used personal property for its own use;

• Treble damages--specifically $105 million--which is a tripling of monetary damages that is permitted by statute, in this case California’s penal law; and

• Quiet title, which is a legal action intended to remove doubt about who owns a certain piece of property.

At issue in the case is the provenance of the biblical pages, which are canon tables or an index. The Getty Museum states on its web site that “[t]he Zeyt'un Gospels, made in the scriptorium at Hromklay for Katholikos Constantine I in 1256, are the earliest signed work of T'oros Roslin, the most accomplished illuminator and scribe in Armenia in the 1200s. These canon tables were separated from the manuscript at some point in the past and eventually acquired by the Getty Museum, while the rest of the manuscript is in a public collection in Armenia.” In a June 2, 2010 press release issued just after the lawsuit was filed, the Getty said that it “legally acquired the Canon Tables in 1994 from a private collection in the United States after a thorough review of their provenance. They have been repeatedly described and reproduced in publications in English, Armenian and French. Indeed, a notable Armenian scholar who also was the primate of the Armenian Church of America acknowledged key details about the Canon Tables' provenance in a 1943 article, including the fact that they were owned by an Armenian family in the United States. The pages have been publicly exhibited throughout the United States, including a well-publicized 1994 exhibition of Armenian art and culture at the Pierpont Morgan Library in New York.” The Getty Museum added: “Promptly after acquiring the Canon Tables, the Getty prominently featured them in the J. Paul Getty Museum Journal, Volume 23, including a cover illustration. The Canon Tables have been published and exhibited several times since the Getty acquired them. At no time in the ninety or so years that the Canon Tables have been in the United States has anyone questioned their ownership.”

The Armenian church, meanwhile, writes in its initial legal complaint that “the seven missing stolen pages (canon tablets) of the Zeyt’un Gospel Bible ripped from the full manuscript that became stolen property eventually ended up in a private collection of a family in Watertown, Massachusetts, where they were loaned to the Piermont Morgan Library in 1994 for an exhibition entitled “Treasures From Heaven.” The family’s name remained anonymous at that time. The Catholicosate was never informed by the family or by the Piermont Morgan Library of their possession of the seven missing stolen pages which clearly were part of the entire Zeyt’un Gospel Bible manuscript.” The church adds that it only discovered the missing pages when they were noticed “by chance” at the Getty Museum in 2007.

Also at issue in this case is the statute of limitations. However, the court has saved its assessment of this issue for a later date if the parties cannot reach a mediated settlement.

References:

CONTACT INFORMATION: www.culturalheritagelawyer.com/.

AIA Submits Public Comments to CPAC in Support of Bulgaria's MoU Request

The Archaeological Institute of America (AIA) yesterday submitted public comments supporting Bulgaria's request for a Memorandum of Understanding that would implement US import protections covering cultural artifacts.  The comments were made to the Cultural Property Advisory Committee by Peter Herdrich, chief executive officer of the AIA:

"Dear Cultural Property Advisory Council,
I write to you to urge your support for the Memorandum of Understanding between the United States and Bulgaria in order to help protect the cultural and archaeological heritage of this great and historic country. As Chief Executive Officer of the Archaeological Institute of America, I can assure you that our 235,000 members speak with one voice on this issue, agreeing that we should do whatever we can to create import restrictions on archaeological and ethnological material from across Bulgaria’s long history. Our members include professional archaeologists with academic and research interests in Bulgarian material, archaeological enthusiasts with a curiosity about Bulgaria’s past, and students who form the next generation of scholars. All recognize the value of Bulgaria’s unique archaeological patrimony. And that patrimony is under threat. In the January/February 2009 issue of ARCHAEOLOGY magazine, the entire country was listed as one on the world’s most endangered sites and described thus: 'Like its neighbors, Bulgaria is rich in archaeological remains—ancient Greek, Thracian, Roman, Byzantine, and Ottoman. But rather than draw millions of visitors each year to its ancient sites, this poor Balkan country mainly exports its cultural heritage. The transition from Communism to a free market economy has left Bulgaria exposed to the swirling forces of the global illicit antiquities trade. Desperate poverty means huge numbers of Bulgarians…are involved in the trade.' The members of the Archaeological Institute of America agree that the United States should do whatever we can to stamp out that trade that threatens sites across Bulgaria and to support Bulgarian heritage. Therefore we ask that on November 16, you recommend the creation of a Memorandum of Understanding between our government and the government of the Republic of Bulgaria. Sincerely, Peter Herdrich Archaeological Institute of America"

_______________________________
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My morning with the Metropolitan Police Cycling Taskforce

Last month I referred in a blog to the Metropolitan Police Task Force in connection with my response to the latest public consultation by the Metropolitan Police Authority to set police priorities.  This resulted in an invitation from the Inspector in charge of the Cycle Task Force to see the work that they did.  I accepted and as a consequence I pedalled down to Chelsea football stadium yesterday morning to meet one of their officers.

I was a little early and was surrounded by some special constables so keen to security mark my bicycle that I felt it would be impolite to decline.  That done, I had the PC, Michael, pointed out to me.  He was a little way down Fulham Road, standing beside his bicycle staring intently at some pedestrian lights.  The plan was to stop the cyclists who jumped the lights and invite them to enter the cab of a lorry to see what it was like ‘Exchanging Places’.  I had just missed him forcing one reluctant cyclist to a stop by interlocking arms which had resulted in the cyclist falling from his bike and muttering about a possible complaint.  The first lesson is clear enough; if a uniformed police officer requires you to stop, do so voluntarily.  It is less hazardous than the other way.

Part 1 – Exchanging Places

Introductions made, I stepped up into the driver’s seat of a Keltbray lorry.  In the passenger seat was another police officer who had experience (as it transpires, does Michael) of driving HGVs.  Another officer pushed my own bicycle into various positions around the nearside and front of the lorry.

My first impression (possibly contrary to the one intended) was just how good the driver’s visibility was from the cab using the ‘standard’ side mirrors and an angled mirror at the front of the windscreen, revealing what was immediately in front, and a further angled mirror on the offside just above the passenger side window.  I asked whether these were the standard required mirrors and was told that they were on new vehicles but there is no requirement for the retro-fitting of older vehicles.  Without those two ‘additional’ mirrors there were huge blind spots both to the front and to the nearside of the cab.  The officer explained that it would be unacceptable to require retrofitting because of the cost.  I have to say that I disagree with that viewpoint.  [I am also fairly sure that the position is quite a lot more complicated than that and retrofitting of at least some mirrors on at least some lorries is required.  Furthermore Sir Alan Beith’s bill is reaching a critical stage and this merits a whole different post] 
In any event, having seen how the simple expedient of carrying two additional mirrors so dramatically improves the ability of the driver to see areas which include the ones that he is directly driving into, if going either straight ahead or turning to the left, I am even more firmly behind the See me, Save me campaign set up in memory of Eilidh Cairns.  Responsible companies will install these mirrors (and sensors because as the officer explained to me there will always be drivers who do not look in their mirrors, however good) but it is the less responsible ones about which we should be most concerned and who should certainly be denied any competitive advantage over their more responsible competitors.  It is hard to see why having adequate mirrors/sensors should be thought of as anything other than essential equipment to lessen the risk an industry imposes upon other people.  With or without mirrors or sensors, I will be continuing my policy of never trusting an HGV unless and until you have eye-balled the driver.  (I was one of a tiny disappointing minority who would not be changing their behaviour as a result of the experience).
It was striking that from a lorry cab at the first stop line, anything in the cyclists’ advanced stop box is invisible without the additional mirror at the front.  The police officer and I did agree that if you have a lorry behind, you get into a position where you can eyeball the driver even if that takes you over the second stop line.  Perhaps advanced stop boxes should be deeper but I was told that was unacceptable because it would interfere with road capacity and therefore traffic flow!  Perhaps careful lorry drivers should stop short of the stop line so that they could see the box ahead?  No that was not practical either I was told (though the Sergeant I saw later said better trained drivers did do this)..
The officer in the cab was friendly and charming and I am sure police relations with the cycling public features largely on the agenda.  He did not though appear to be an experienced cyclist (at one point I was shown how difficult it was to see the officer on the ground wheeling my bike ‘and that is with him standing up, never mind when he is sitting down on his bike’) and any suggested action on the part of lorry drivers and their employers to reduce risk seemed to be excused away with a rapid refocus on the actions of the cyclist.
I am sure this exercise is useful (feedback forms including my own confirm this) but it should not be thought to be tackling bad driving.  ‘Exchanging Places’ is really a misnomer, I saw no lorry drivers invited to take the place of cyclists.  I remain unconvinced that many of tragic cases we have of lorries running down cyclists are caused by the cyclist’s ignorance of a driver’s blind spots.  As I mentioned in the cab, I saw bad driving by lorries around cyclists on a daily basis and had on my way to Chelsea witnessed (but sadly not filmed) a trailer lorry overtake a group of cyclists before turning left forcing them all to a stop.  I was going to be interested to learn what action was taken to counter this sort of behaviour. Collision avoidance, it seems to me, requires not just a warning to cyclists about how they pass lorries but also to lorries about how they pass cyclists.  The former is perhaps the easier to address.

Part 2 – The Patrol

I next followed Michael through the crowded streets of west London up to High Holborn then across the infamous Blackfriars Bridge to the Taskforce’s HQ at Palestra.  We had only gone a few hundred metres before at a red light, Michael took the opportunity to warn a cyclist who had stopped way past the stop line.  I waited in the advance stop box alongside a police motorcyclist (I really do not know the state of the lights when he got into that box; it was stop/go traffic) to whom the sight of a colleague on a bicycle seemed to be quite a novelty ‘Whatever next?’

Further on Michael stopped, said he was turning round and headed back towards a skip lorry.  I was beginning to learn that Michael had extraordinarily keen vision.  I see a lot of mobile ‘phone use by drivers; what I see must be the tip of an iceberg because Michael spotted many examples all of which I missed.  This was the first.  The lorry driver was instantly apologetic with a sob story so convincing it could almost have been rehearsed.  Michael is kind hearted almost, in my view, to a fault.  He warned the driver in relation to his use of a hand held mobile ‘phone and for failure to wear a seat belt.  Once the driver had gone on his way promising never to do it again, I queried how an officer decides whether or not to issue a penalty notice.  In this case the driver had picked up his ‘phone only for a moment before seeing Michael.  Of course I had not seen it at all, but still the concept of a lorry driver in crowded Chelsea streets looking at his phone screen and deciding to take the call scares me.  Michael did not, it seems, have any option of ‘encouraging’ him to attend a course in exchange for such leniency (I would happily help devise one which would probably involve lorry drivers on bicycles riding up and down the A30 from East Bedfont to Staines; though there would probably be some health and safety objection on the grounds that there were too many lorries about!)

We carried on up to Hyde Park Corner and to Piccadilly, where Michael again spotted a driver creeping forward and looking down at his mobile ‘phone either texting or dialling.  He was pulled over and the intent was to issue the driver with a paperless ticket.  This involved Michael using his own hand held electronic device during the course of which the system hung so it remained a matter of conjecture as to whether the Fixed Penalty had gone through or not.  It is to Michael’s credit that he and the driver left on evidently friendly terms.

A little further on, a courier on a fixed wheel emerged from a side street through a red light without so much as a glance in our direction as we went through our light on green.   Michael put on a burst of speed and forced the cyclist against the kerb to stop him.  This one was definitely going to get a ticket but it was reduced in amount if the cyclist logged onto the Taskforce’s cycling safety website for some online training within the next couple of weeks.

We carried on up to Holborn.  I had let a girl on a Boris Bike through a tight gap in traffic ahead of me and so she passed Michael as he waited for me to catch up.  She therefore knew a police officer was right behind her but that did not stop her from going through the next red light (slowly it has to be said and without any sign of a pedestrian nearby, so rather different in quality from the courier’s offence).  Michael had no difficulty stopping her and with, I thought, impeccable judgment, did not issue a fixed penalty.  Instead he took the bike number of her Boris bike, as requested by TfL, so that they could write to her and ask her kindly to obey the law whilst riding one of their bikes.

It was then a first for me going over Blackfriars Bridge on a bicycle.  I would have liked to have been there to protest but have never quite managed and my sense was that Michael shared my puzzlement that the speed limit on that bridge has just been raised (‘to ease traffic flow’).

Finally after we had parked up our bikes and were walking over to the Palestra entrance, Michael again spotted a white van driver on a handheld mobile.  He indicated to him to put it down.

Part 3 – In Palestra with the Police Sergeant

Michael escorted me to the desk of his Sergeant, Simon, who was off his bike as a consequence of a nasty motorcycle accident.  He had been asked by his Inspector to discuss tactics and performance with me and to answer my questions.

I was interested in the lorry side of ‘Exchanging Places’ and Simon did assure me that they ran some very successful courses for lorry drivers.  It was stressed that a lorry driver’s time is money (rather like mine is, I thought) and they (or their employers) were incentivised to attend by receiving necessary continuing training points.  When Simon told me that they terrify some of them, I at first thought he meant by putting them on bicycles in traffic, but it transpired what he meant was by stressing the consequences to them (financial, loss of liberty and psychological) of being involved in a collision.

On police discretion, he was very sure that we were far better policed by officers than by automatons and he had no time for ‘zero tolerance’.  I moved on to ‘total tolerance’ which is how I see enforcement of advanced stop lines.  The statistics on Simon’s computer did not break down how may traffic light offences were advanced stop line (only) but he did agree that the figure would be ‘zero or close to zero’.  He felt that since this was an endorseable offence the penalty was disproportionate to the ‘inconvenience’ caused.  I felt that these boxes potentially were there not just for convenience but for safety and were being ignored as a matter of routine by many drivers who knew there was no risk of enforcement action.   Simon did think it was rather unpleasant for a motorist to have an officer give him a warning in the presence of other ‘intimidating’ cyclists.  His knockout point was to ask me how I would feel if I was given a ticket for entering such a box on my bicycle other than through the designated feeder lane.  I said that were that to happen I looked forward to challenging the penalty in the Magistrates’ Court (the hard part would be deciding whether to defend the case on the grounds of necessity or to plead guilty and ask for an absolute discharge but either way to ask for my costs).  Apparently enforcement of advanced stop lines might happen in the future, particularly if it became a separate non-endorseable offence.

I wanted to raise the question of the reporting of driving offences, which in my view is a great deal more difficult than it ought to be, and about which I have blogged in the past.  Simon indicated that in the event of a collision the requirement of the Road Traffic Act to report it to the police required the formality of attending a police station.  We each tried to remind the other and ourselves of the precise reporting requirements of the Act and agreed that it did not apply to a report made by a cyclist.  Simon’s point then was that clearly it would not be right to have cyclists in some privileged position compared to, say, motorcyclists.  However what is clear to some is not to others, and I cannot see any principled objection to making cyclists’ lives easier than motorists; we are after all as a state or society trying to encourage cycling at the expense of motoring for an embarrassment of good reasons.  Of course, Simon is not in a position to do anything to affect this (nor probably is his Inspector whom I did not meet).  It is something that I think the Police Authority could look at when determining their priorities.  During my waits in queues in Charing Cross Police Station I have had plenty of time to study the lists of dedicated numbers for the reporting of offences such as domestic violence or homophobic abuse to which some priority has plainly (and rightly) been given.

Looking at the feedback forms from ‘Exchanging Places’ the question of cycle training came up and I took the opportunity to ask Simon about what he thought of bikeability training and whether his officers were bikeability trained.  Simon indicated he was enthusiastic about bikeability and his officers were trained to the same principles.  He well understood the primary riding position and why cyclists took it.  I mentioned that my own (limited) observations of officers riding was that they were not a shining beacon to enlighten the motoring public that occupation of a lane by a bicycle was acceptable and not provocative behaviour.  Further I had heard second hand that some of the letters written by Roadsafe were said to have reinforced the perception that cyclists should be at the edge of the road.  I am certainly not going to attempt to teach experienced police officers how they should ride but I nonetheless wonder whether an experienced outside bikeability instructor might be able to give them some insights.

My perception of the patrol was that is a very useful way of dealing with mobile phone users and traffic light offences.  However nobody is going to act aggressively or close pass a uniformed police officer and I wondered if they ever went out undercover.  The problem with that is that unless unformed they cannot require someone to stop.  They have very good HD cameras on their helmets and so could usefully be gathering evidence but I suppose, on reflection, they have a steadily rising group of people doing that for them for free.  This moved us on to the Roadsafe initiative (which is separate from Simon’s group).  Simon thought prosecuting close passing motor vehicles was not sensible because it was all very subjective.  I disagree, in many cases a vehicle is much too close in clear contravention of the Highway Code and driving at the very least without due consideration.  It further represents a powerful disincentive to cycling (if it make me think twice it must make countless others never take to their bikes again).  We discussed the effectiveness of writing letters and were able to agree that it was better than nothing.  I mentioned that the Surrey Police had taken the view that one of my shots of a close pass was sufficient for a prosecution and I will let Simon know the outcome of that in due course.

Finally I slightly abused my invitation by raising my own personal disappointment that a motorist who attacked me had been given a police caution, and how I thought that violence against cyclists was a pernicious evil that ought to excite a determined response.  I had just read about yet another case of a motorist taking the trouble to stop and get out of his vehicle to assault a cyclist, this time in Cambridge.  Simon had heard of the Bexley case but had not heard the suggestion that the police had required a bit of encouragement to track down and pursue that yob.  Simon’s take was that the caution in my case had nothing to do with the victim being a cyclist and illustrated a more general problem.

Overall

It would certainly not be fair to suggest that the police are doing nothing to counter poor driving on our roads (and I make clear I have never suggested this).  It was amply demonstrated to me that the Cycling Taskforce is in a very good position to spot and deal with mobile phone and traffic light offences.  The statistics Simon showed me demonstrate they do even more with, for example, a handful of drunk drivers apprehended (they do have breathalysers in their substantial panniers).  I mentioned that I felt some greater emphasis of this part of their work on their website could be useful.  Certainly I do not see it as my role to promulgate this information for them.  The observational powers of Michael were truly impressive and this is unquestionably a good use of hard pressed police funds.  Indeed out of patrol cars and off motorbikes and onto bicycles is a good way to go in Central London.

As I mentioned to Simon on the lift downward, I am more likely to be harmed by a bad driver than by a terrorist and the status and resources of traffic officers ought to reflect that.  I maintain the view, which I have represented to the Police Authority, that greater priority could be given to the easy reporting and serious enforcement action, against those whose poor driving endangers vulnerable road users.


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