Parish is too well off to sell armour, court decides

17 April 2014

Photos kind permission of Thomas del Mar LTD

THE parish of Oakley with Wootton St Lawrence, in the diocese of Winchester, is not, after all, to be allowed to sell a rare artefact that hung in the church for almost 300 years (News, 18 October 2013).

The artefact is a rare 15th-century Flemish armet (a type of helmet worn by knights and men-at-arms in the 15th and 16th centuries), which formed part of a marble monument in the church to Sir Thomas Hooke, Baronet, who died in 1677.

This week, the Church Buildings Council (CBC) won an important appeal in the Court of Arches of Canterbury, against the decision of the Chancellor, Judge Christopher Clark QC, in the Consistory Court of Winchester, to grant to the churchwardens and assistant minister of the parish a faculty permitting its sale.

Until 1969, the armet, a pair of gauntlets, a pair of spurs, and a dagger hung from an ornate bracket above the monument. Then, when the gauntlet, spurs, and dagger were stolen, the armet was placed in a bank vault. Because that proved expensive, the armet was taken to the Tower of London in 1975, and later transferred to the Royal Armouries Museum in Leeds.

The faculty for the sale of the armet was granted in August 2010, and it was sold at public auction in London on 8 December 2010 for £45,000, to an American collector. The CBC, which had not been consulted, opposed the sale, and raised the issue that, since the armet was part of a funerary monument, any living heirs of Sir Thomas Hooke should have been consulted.

Two living heirs were then traced: Sir John Hamilton Spencer-Smith, Bt, and James Lee. The former transferred the whole of his ownership in the armet to the churchwardens of the parish, in exchange for the PCC's undertaking to maintain and repair the tomb of Sir Thomas. Mr Lee agreed to the sale, on condition that he received half the purchase price.

The Court of Arches, consisting of the Dean of the Arches, the Worshipful Charles George QC, the Diocesan Chancellor of Sheffield, the Worshipful David McClean QC, and the Vicar-General of Canterbury, Timothy Briden, heard the CBC's appeal. The first ground on which the appeal succeeded was that this was a well-managed and reasonably well-resourced parish carrying out its Christian mission with considerable success.

Chancellor Clark, who granted the faculty, should not have concluded that the PCC had a strong financial case for selling the armet. His erroneous conclusion on financial needs required his decision on sale to be quashed.

It was also argued for the CBC that Chancellor Clark had adopted an incorrect approach to the historic link between the armet and the parish when he described "the possible link between the armet and the present and future inhabitants of the parish [as] very limited", and the armet as not playing "a significant part in the history or heritage of the village", even though Sir Thomas was buried in the church, and the armet, which formed part of the accoutrements of his tomb, had hung in the church for so long.

The petitioners disputed that: they argued that the armet had not hung in the church for more than 40 years, and that it was agreed by all parties that it could never be returned to the church.

The term "separation" described the circumstances in which an article had been housed for a considerable time in some place other than the church, such as a bank. In the case of historic articles with a significant connection with a church or parish, that factor would commonly outweigh any argument based on "separation", the Court said.

It was doubtful whether "separation" would ever, on its own, have sufficient strength to justify the sale of a church treasure. Chancellor Clark erred in his approach to the issue of "separation", and there was no basis in law or in fact for his conclusion, the court said.

Since Chancellor Clark had erred in law in granting the petition for a faculty, the court had power to substitute its own discretion on the petition; and it dismissed the petition. The armet was "a national asset with historic links to the parish, and there was no proven financial case for its sale", the court ruled. Little, if any, weight should be attached to the fact that it had been physically out of the church and parish for many years.

It was clear, the court said, that the original proposal to sell the armet was not driven by any pressing financial situation in the parish; rather, the armet was seen as a valuable asset that could become part of parish funds.

The petitioners might be dismayed, and feel that they were being penalised for "the commendable strength of their financial position", the court added; and it might "seem surprising to many people unfamiliar with ecclesiastical law that the petitioners were not permitted to convert the armet into usable funds".

It was the court's view, however, that the strong presumption against disposal by sale of church treasures was both soundly based and generally beneficial in its consequences.

If the loan to the Royal Artilleries Museum were to continue, the court hoped that a fibre-glass replica might, subject to faculty, be hung in the church above the effigy of Sir Thomas, "thus giving new life to the connection between the armet, the church, and the village".

Question of the week: Should parishes be able to sell treasures that no longer reside in their churches? 

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