Briefing

Guardians of the deep: Expanding protections for the UK’s military maritime heritage

For decades, protections for the wrecks of vessels in military service have been limited, varied depending on the date and location of the vessel’s sinking and dependent on those vessels being designated as Protected Places or Controlled Sites by the UK government. However, advances in underwater technology and growing international focus on the protection of underwater cultural heritage have exposed gaps in the UK’s current regime.

HFW examine how the Armed Forces Bill 2026 proposes to overhaul the Protection of Military Remains Act 1986, automatically expanding protections to all vessels lost in military service and removing time limits.

Introduction

Advances in diving and other underwater technologies have significantly increased the ability of those interested in historic wrecks to access and explore vessels which were previously lost or unreachable due to their depth. Unfortunately, this has also led to a number of historic wrecks and wreck sites being disturbed.

There have been several recent examples of this issue. In particular, the Chinese salvage barge “Chuan Hong 68” conducted a salvage operation on the wrecks of the HMS “Prince of Wales” and HMS “Repulse” (both sunk by enemy action in 1941) in Malaysian waters during 2022-2023, recovering steel, brass fittings and ordinance from the wrecks. In another case, salvors were prosecuted for taking artefacts from the “Toward”, the “Latona” and the “Harlingen”. Those individuals were prosecuted and convicted in 2013 for offences contrary to ss 236 and 237 of the UK’s Merchant Shipping Act 1995¹.

More recently, Friendship Offshore B.V. was prosecuted for conducting an unlicensed salvaging operation on the SS “Harrovian” in 2016, following an intelligence-led operation by HMS “Severn”, which had Marine Management Organisation (“MMO”) inspectors on board². This emphasises the proactive, intelligence-led monitoring of salvage activities by UK marine authorities, both within the UK Marine Area and beyond. The SS “Harrovian” was sunk on a voyage from New York to Le Havre by the German submarine U-69 in the English Channel in 1916. When UK MMO officers boarded the MV “Friendship”, they discovered approximately £90,000 worth of copper and steel on board. The master admitted that he did not have the appropriate licence and had turned off the vessel’s AIS to avoid detection.

Aside from these notable exceptions, there are relatively few reported prosecutions and arrests in relation to underwater cultural heritage.

Globally, there has been increased focus on the protection of underwater cultural heritage. Some 81 countries have ratified or accepted the 2001 UNESCO Convention on the Protection of the Underwater Cultural Heritage (“2001 Convention”), with the Republic of Ireland being the most recent.

The UK has not ratified the 2001 Convention, choosing instead to adopt the Rules of the Annex to the 2001 Convention as best practice for managing underwater archaeological sites and marine licensing. In this context, Historic England has recently published a Common Enforcement Manual (“CEM”), developed by Plymouth University and MSDS Marine, for use by marine units of the Police and Border Force, as well as for evidence gathering by other marine regulators³. The CEM sets out relevant law and procedures to be followed where suspicious diving or salvage activity is observed.

Police and Border Force officers in the UK have powers under the Policing and Crime Act 2017 (“PACA”) to investigate offences committed on vessels operating at sea where there is reason to believe that the vessel and/or persons on board have been involved in the exploitation of underwater cultural heritage within UK territorial waters. Additional offences arise under the Protection of Wrecks Act 1973, the Ancient Monuments and Archaeological Areas Act 1979, the Protection of Military Remains Act 1986, the Marine and Coastal Access Act 2009, and the Merchant Shipping Act 1995. Further details about these acts are set out below.

The Armed Forces Bill 2026, which is currently making its way through Parliament, will strengthen existing protections afforded by the Protection of Military Remains Act 1986.

Existing UK legislation

Existing UK legislation offers a wide range of protections for historic wrecks, including:

The Protection of Wrecks Act 1973, which allows the Secretary of State to designate an area around the site of a wreck as restricted, protecting it from “unauthorised intervention” on the basis of its historic, archaeological or artistic importance. Penalties can be levied on those who dive on or salvage from a designated wreck site without a licence granted by the Secretary of State or a Minister in the devolved administrations. Scotland has similar provisions under its Marine Act 2010. The powers granted under this legislation are, however, restricted to UK territorial waters.
The Ancient Monuments and Archaeological Area Act 1979, which allows the Secretary of State to maintain a schedule of protected monuments, with the threat of criminal penalties for unauthorised interference. Wrecks may be scheduled as national monuments by Historic England or by a Minister in the devolved administrations but, again, their jurisdiction is limited to UK territorial waters.

Some of the widest ranging protection is afforded by The Protection of Military Remains Act 1986 (the “Act”) which was enacted “to secure the protection from unauthorised interference of the remains of military aircrafts and vessels that have crashed, sunk or been stranded in military service and of associated human remains “.

Under the Act, the Secretary of State for Defence has the authority to designate the sites of these sunk or stranded vessels as either “Protected Places” or “Controlled Sites“. Diving is permitted at Protected Places, but interference with the wreck is prohibited (the rule “look, but don’t touch and don’t penetrate” applies). At Controlled Sites, all diving or potentially intrusive activity is prohibited unless formally licensed.

For vessels, as opposed to aircraft, there are further requirements for a site to be designated under the Act. To be designated as a Protected Place, the vessel must have been sunk or stranded after 4 August 1914, the date on which Great Britain declared war on Germany at the start of the First World War, and must have been “in service with, or being used for the purposes of, any of the armed forces of the United Kingdom or any other country or territory” at the time. This latter requirement does not mean that it must have been lost during wartime. By contrast, designation under the more stringent “Controlled Site” regime requires that fewer than two hundred years must have elapsed since the crash, sinking or stranding of the vessel.

The Act covers vessels which were in British military service and were sunk or stranded around the world, in addition to vessels from any nation’s armed forces where the wreck is in UK territorial waters. Notably, there is no requirement for the lives of servicemen or women to have been lost, or for the location of the vessel in question to be known in order for the Act to apply. At the time of writing, some 113 vessels and 16 controlled sites have been designated⁴.

R v Fogg and Secretary of State for Defence [2006] EWCA Civ 1270

The applicability of the Act was expanded in the case of R v Fogg and Secretary of State for Defence [2006] EWCA Civ 1270 (“R v Fogg“), the first case where the English Courts had been required to interpret its provisions.

R v Fogg concerned the wreck of the SS “Storaa”, a merchant vessel sunk in 1943 while sailing in convoy under naval control. At the time of its sinking, the SS “Storaa” was equipped with a 12-pounder gun, four Oerlikon cannons and a light Lewis machine gun, manned by a detachment of seven Royal Navy and Army gunners. Three members of this detachment were killed in the attack that caused the vessel to sink. The Secretary of State refused to designate the vessel as a Protected Place, arguing the vessel was not “in military service”, nor being used “for the purposes of” the UK Armed Forces, at the time of sinking because it was a merchant ship. That decision was challenged by relatives of a deceased Naval gunner, who sought protection of the site under the Act.

The Court of Appeal held that the Secretary of State’s interpretation of the term “in service with” was too narrow. A merchant vessel may be “in military service” where it operates under naval command (i.e. following orders as to its place in a convoy, the routing of that convoy and the provision of the guns and men referred to above) and is subject to military discipline (under the Naval Discipline Act 1866). The decisive factor in determining this was the fact that the vessel was subject to Admiralty control and orders. Interestingly, the Court considered this more significant than the fact that the SS “Storaa” had armed servicemen on board and that it engaged in combat shortly before its sinking. Accordingly, the refusal to designate the site was ruled to be unlawful.

Thus, R v Fogg served to expand the applicability of the Act to civilian vessels that were under military command rather than exclusively naval vessels.

Proposed Amendments to the Act

The Armed Forces Bill 2026, which is currently in its second stage of reading in its passage through Parliament, proposes several major amendments to the Act. A markup illustrating these amendments appears at Annex A to this briefing. The effects of these proposed amendments are as follows:

The Act will automatically apply to vessels which were in military service, removing the need for designation before a wreck becomes a Protected Place.
The cut-off of 4 August 1914 will be removed, extending protection under the Act to all vessels in military service regardless of when they sank.
Similarly, the 200-year limit for designation of an area as a Controlled Site will be removed.

The automatic application of the Act to vessels which fit the requirements of a Protected Place, together with the removal of the requirement that a vessel must have been sunk or stranded after 4 August 1914, means that all vessels in military service at the time of their loss, regardless of age, will automatically be treated as Protected Places. When read alongside R v Fogg (in which the Court of Appeal held that the Act should be construed broadly so as to encompass a merchant vessel sailing in convoy), this indicates that the revised Act will apply to significantly more than the 113 vessels currently designated under the existing regime.

The future of wreck hunting in the UK

The potential enactment of these amendments raises significant issues for divers and salvors interested in wrecks in the territorial waters of the UK and to UK-flagged wrecks internationally where UK nationals, companies or flagged vessels are involved.

First, the expansion of the applicability of the Act will make a significant number of wrecks off-limits to those who wish to salvage items from them. Those interested in doing so will still be permitted to visit but not to disturb wrecks to which the Act will apply.

Secondly, it will now be possible for older wrecks to be designated as Controlled Sites, thereby prohibiting all activity in the vicinity of the wreck without an MOD licence.

However, more complex issues arise in relation to the application of R v Fogg to older wrecks. If civilian/merchant vessels also fall within the remit of the Act where they were operating under military command, a further significant number of wrecks may be precluded from salvage. In R v Fogg, the SS “Storaa” was held to be in military service because it was subject to the orders of the Admiralty, pursuant to the Naval Discipline Act 1866, and there was ample evidence in this regard. However, for older wrecks, the evidence available to determine whether a vessel was “in military service” at the time of its loss is likely to be much more limited.

This may give rise to significant uncertainty as to whether merchant vessels which have some military nexus are automatically Prohibited Places and consequently whether any salvage operations in respect of such vessels are illegal under the amended Act.

With thanks to Professor Michael Williams of the University of Plymouth for his assistance in finalising this briefing.

Annex A

The proposed amendments are indicated in italics below.

Armed Forces Bill 2026 – Proposed amendments to Protection of Military Remains Act 1986

1 Application of Act

(1) This Act applies to

(a) any aircraft which has crashed (whether before or after the passing of this Act) while in military service, or

(b) any vessel which has sunk or been stranded (whether before or after the passing of the Armed Forces Act 2026) while in military service.

(1A) In the case of a vessel which sank or was stranded while in service with, or while being used for the purposes of, any of the armed forces of a country or territory outside the United Kingdom, subsection
(1)(b) applies only if the remains of the vessel are in United Kingdom waters.

(2) Subject to the following provisions of this section, the Secretary of State may by order made by statutory instrument—

~~(a)designate as a vessel to which this Act applies any vessel which appears to him to have sunk or been stranded (whether before or after the passing of this Act) while in military service;~~

(b)designate as a controlled site any area (whether in the United Kingdom, in United Kingdom waters or in international waters) which appears to him to contain a place comprising the remains of, or of a substantial part of, an aircraft or vessel to which this Act applies ~~or a vessel which has so sunk or been stranded~~;

~~and the power of the Secretary of State to designate a vessel as a vessel to which this Act applies shall be exercisable irrespective of whether the situation of the remains of the vessel is known.~~

~~(3) The Secretary of State shall not designate a vessel as a vessel to which this Act applies unless it appears to him—~~

~~(a)that the vessel sank or was stranded on or after the 4th August 1914; and~~

(b)in the case of a vessel which sank or was stranded while in service with, or while being used for the purposes of, any of the armed forces of a country or territory outside the United Kingdom, that remains of the vessel are in United Kingdom waters.

(4) The Secretary of State shall not designate any area as a controlled site in respect of any remains of an aircraft or vessel which has crashed, sunk or been stranded unless it appears to him—

~~(a)that less than two hundred years have elapsed since the crash, sinking or stranding;~~

(b)that the owners and occupiers of such land in the United Kingdom as is to be designated as, or as part of, that site do not object to the terms of the designating order which affect them; and

(c)where the aircraft or vessel crashed, sank or was stranded while in service with, or while being used for the purposes of, any of the armed forces of a country or territory outside the United Kingdom, that the remains are in the United Kingdom or in the United Kingdom waters.

(5) An area designated as a controlled site shall not extend further around any place appearing to the Secretary of State to comprise remains of an aircraft or vessel which has crashed, sunk or been stranded while in military service than appears to him appropriate for the purpose of protecting or preserving those remains or on account of the difficulty of identifying that place; and no controlled site shall have a boundary in international waters any two points on which are more than two nautical miles apart.

(6) For the purposes of this Act a place (whether in the United Kingdom, in United Kingdom waters or in international waters) is a protected place if—

(a) it comprises the remains of, or of a substantial part of, an aircraft, or vessel to which this Act applies; and

(b) it is on or in the sea bed or is the place, or in the immediate vicinity of the place, where the remains were left by the crash, sinking or stranding of that aircraft or vessel;

but no place in international waters shall be a protected place by virtue of its comprising remains of an aircraft or vessel which has crashed, sunk or been stranded while in service with, or while being used for the purposes of, any of the armed forces of a country or territory outside the United Kingdom.

(7) The power to designate any land as, or as part of, a controlled site shall be exercisable in relation to Crown land as it is exercisable in relation to other land.

(8) The Secretary of State may by order made by statutory instrument substitute references to a later date for the reference in subsection (3)(a) above to 4th August 1914 or for any reference to a date which is inserted by an order under this subsection; and a statutory instrument containing an order under this subsection shall be subject to annulment in pursuance of a resolution of either House of Parliament.

Footnotes