THE Chancellor of the diocese of Winchester granted a new
faculty, following a faculty that had erroneously been granted, for
the sale of a valuable antique piece of armour dating from the
first half of the 16th century, which had hung above a monument in
the church of St Lawrence's, Wootton.
The church dates from the medieval period. In a recess in the
south wall of the chancel is a white marble monument to Sir Thomas
Hooke, baronet, who died in 1677. He built and lived in a
neighbouring manor, Tangier House. His effigy shows a bewigged
gentleman wearing plate armour, resting on one arm with one hand on
a helmet. About five feet above the monument is/was an iron bracket
from which, until 1969, there hung a spiked metal helmet with visor
("the armet"), gauntlets, spurs, and a dagger.
In 1969, the gauntlet, spurs, and dagger were stolen. Because of
its potential value, and the evident lack of security, the armet
was placed in a bank vault in Basingstoke. The deposit proved
expensive, and in 1974 a faculty was granted to permit the armet to
go on indefinite loan to the Armouries of the Tower of London.
In 1996, much of the collection of armour at the Tower,
including the armet, was transferred to the Royal Armouries Museum
in Leeds. The armet was relegated to a storeroom, and remained on
In March 2010, the PCC was short of funds, and consideration was
given to the possible sale of the armet. The PCC unanimously
proved its sale, and specialist London valuers and auctioneers
gave a "conservative pre-sale estimate" of £30,000 to £40,000. A
petition for a faculty was lodged, and in August 2010 the
Consistory Court granted the faculty for the armet to be sold on
the open market for the best possible price. In December 2010, the
armet was sold in London at public auction for £45,000, the
under-bidder being the Royal Armouries.
In granting the faculty, the Chancellor had failed to consider
the possibility that, if the armet was a funerary monument to Sir
Thomas, there might be in existence heirs to his estate, and also
that, where a petition for a faculty concerned "an article of
particular historic, architectural, archaeological, or artistic
interest, and involves the . . . disposal of that article," rule 15
of the Faculty Jurisdiction Rules 2000 stated that, unless there
had already been consultation with the Council for the Care of
Churches, now the Church Buildings Council ("CBC"), notice should
be served by the diocesan registrar on the Council.
In February 2011, the CBC wrote to the Registrar expressing
concern about the situation, and in May 2011 the Chancellor
directed that it was "just and expedient" to set aside the faculty.
The CBC said that the armet was part of the funerary monument to
Sir Thomas; so it was necessary to obtain the consent of any living
heirs of Sir Thomas before good title could pass to a buyer, and
that in any event the court should not order the sale.
Having considered the evidence of expert witnesses, the
Chancellor, Christopher Harvey Clark QC, said that he was satisfied
on the balance of probabilities that the armet formed part of a
funerary monument set up after his death to the memory of Sir
Thomas. It followed that, even though in a sense it was attached to
the building, it never became part of the freehold of the church.
It remained the property of the person by whom it was erected
during his or her lifetime. On the death of the person placing it
in position, it became the property of the heirs of Sir Thomas.
With the help of two genealogists, two heirs of Sir Thomas were
found: Sir John Hamilton Spencer-Smith, and James S. Lee. By a deed
of gift, dated 28 February 2012, the former transferred the whole
of his ownership in the armet to the churchwardens of the parish of
Oakley with Wootton St Lawrence, with intent to give effect to the
sale of the armet in exchange for the PCC's undertaking to maintain
and repair Sir Thomas's tomb.
Mr Lee also agreed to the sale, and to transfer his interest in
the armet, on condition that he received half the sale price. As a
result, the armet was then owned jointly by the churchwardens and
Mr Lee in equal shares, and they were able to give good title under
The crucial but contentious issue, however, was whether the sale
should be permitted.
The petitioners argued that the armet should be sold, since it
had played no part in the life of the church for more than 40
years, and was in effect redundant to the needs of the church; that
for security reasons there was no prospect of the armet's ever
returning to the church, and it was likely to stay in a museum
indefinitely; that there was no aesthetic or artistic connection
between the armet and the memorial; and that its absence had not
affected the quality of the marble effigy of Sir Thomas, or the
aesthetic pleasure to be derived from it.
Further, the petitioners said that the Hooke family's connection
with the parish had ceased in 1710, when Tangier House was sold.
That contrasted with the centuries-old link between some families
and the village where they lived. The church was now facing very
real financial difficulties, which would be alleviated by the
proceeds of sale of the armet, the petitioners argued.
The CBC opposed the sale, and said that the concept of
redundancy was inappropriate in this case, because, unlike, for
example, old bells no longer of any use, the armet had not become
redundant, since it never had a practical use. It simply formed
part of the funerary accoutrements to the memorial of Sir
If the court upheld the argument that the armet was redundant,
the CBC said, then every valuable article which had, for reasons of
security, been deposited for any length of time in a cathedral
treasury or a museum could be said to be redundant; so it could be
a precedent for other parishes to seek faculties for sale. Mere
financial need that fell short of a financial emergency should not
justify the sale of an article of artistic or historic value, the
The petitioners replied that they had acted in good faith, and,
if the court were to refuse a faculty now, they could find
themselves facing legal proceedings for breach of contract, and in
particular for breach of warranty of title. Those circumstances,
they said, made their case one that could be decided on very
specific grounds that would not set a precedent.
The Chancellor ruled that in all the circumstances he was
satisfied that the petitioners had proved their case so as to
justify an order for sale of the armet. He had been troubled by the
suggestion that an order for sale could lead to an item of historic
or artistic value going to a foreign buyer.
It was for the Export Licensing Committee, however, to decide
whether any particular item should be allowed to go abroad, or
whether a British museum or gallery should be given the opportunity
to match the sale price in order to retain the article in this
country, he said. If the museum or gallery had insufficient funds,
it could ask the Treasury for assistance and/or launch a public
The availability or otherwise of state funding for national
museums or galleries was not, in the Chancellor's judgment, a
relevant factor for the Consistory Court to take into