Quoting the chair of the Church Buildings Council (CBC), the alarmist headline in the Church Times proclaimed “Churches may be stripped, CBC warns after ruling”, and continued
“[t]he sale of the West painting would ‘have serious repercussions, and create an unfortunate precedent for any one of our 16,000 churches seeking funding for repairs, sending a message that the way is now open for them to dispose of the treasures they have inherited to the highest bidder’ “.
True of Bluff? Well, elements of both and given conflicting issues highlighted, the Priest-in-Charge of the church in question was wise to decline to comment. The case concerned the decision of Diocesan Chancellor, HHJ Nigel Seed QC, in the London Consistory court to grant a faculty to St Stephen, Walbrook, permitting it to sell the painting Devout Men Taking the Body of St Stephen, by Benjamin West RA. (You can see a reproduction of the painting here.) However, whereas judicial consideration in Re St Stephen Walbrook  London Cons Ct (10 July) concerned the interpretation and application of church law in this particular case, the CBC’s fear was that the consequent sale of one of the CofE’s “church treasures” would have broader implications not only for individual churches but for those concerned with the financial affairs of the Church of England. Unfortunately, the issues raised by such concerns do not sit easily with the legal considerations of the court.
Consideration by the Court
The faculty to authorise the disposal of the West painting by sale had the unanimous support of the Parochial Church Council and no objections were received from English Heritage or the Local Planning Authority. However, it was not recommended by the Diocesan Advisory Committee and the Ancient Monument Society, although consulted and invited to attend discussions, indicated that it did not wish to be involved. The CBC agreed with the DAC but, after initially not wishing formally to oppose the petition, subsequently decided to do so and was given leave to become a Party Opponent out of time. The Georgian Group objected from the outset and, having initially indicated it wished to be a Party Opponent, subsequently agreed to its interests being represented at the hearing by the CBC.
The Statement of Significance gives two main reasons for the proposed disposal of the picture:
(i) It would not be appropriate or aesthetically satisfactory to re-introduce the picture into the re-ordered church;
(ii) The church has no endowments and the annual income of the church is used up entirely on paying the Common Fund and other current running costs. This leaves no provision for capital expenditure which has been identified and incorporated into a ten year fabric plan. The church has some handsome plate which it does try to use on special occasions and the West picture has been identified as the most appropriate asset to realise.
Although the case under discussion is not linked to Re St Stephen, Walbrook  3 WLR 726,  2 All ER 578, the judgment of Court of Ecclesiastical Causes Reserved is of factual relevance since this earlier decision  was instrumental in the reordering of the church, giving the famous/controversial Henry Moore altar a permanent home in the Wren church, and the removal of the West painting. The painting has been in been in storage since the reordering of the church and introduction of the altar in 1987, and the Chancellor came to the conclusion that
“the painting could not safely be brought in through the west door. The only way in would be through a window at the east end . . . . . the difficulties would be much greater than Mr Featherstone [Director, Hamilton Kerr Institute, University of Cambridge who gave evidence on behalf of the CBC], supposed, would be fraught with danger for the painting and damaging to the fabric of the church itself”.
Practicalities aside, the court was assisted by two Judge’s Witnesses with qualifications in paintings and art history, and an expert witness for the CBC. The court’s considerations included: whether the possibly unsolicited and unwanted West painting was congruent with Sir Christopher Wren’s design concept : in its original position, [as an “altar piece”, at the east end]; on the North Wall, [prior to reordering]; or a proposed return to the North Wall in the re-ordered church, [proposed by the DAC and CBC and grudgingly conceded by the Georgian Society]. It was noted by one of the judge’s witnesses [at 19] that
“the primacy of St Stephen Walbrook is as a work of architecture. The Moore altar, the Victorian windows, the West painting, were each an interruption of the original scheme. The painting was not essential liturgically or architecturally … the presence of such a classical painting [was considered to be] anomalous. Wren did not conceive of anything so large interrupting the scheme. Returning it to the north wall would provide only a sentimental remembrance of how it hung. It was [the witness’s] view that this painting has never had a natural home in this interior.”
The lack of legal authorization or Vestry approval for the initial installation, its movement within the church, or its removal was considered, the Chancellor noting [at 33] that
“[t]his case, if nothing else, is an object lesson of the consequences of incumbents behaving as though the church building is a sort of personal doll’s house for them to play with, without reference to the parishioners (who, of course, own the goods and ornaments within) or the authority of the Ordinary, exercised in this respect by the Chancellor. Unfortunately, this attitude was not restricted to the eighteenth or twentieth centuries and is still held by certain incumbents today.”
He pointed out the inconsistency in the CBC argument, suggesting that the parish should not be allowed to “get away” with the illegal act of the removal of the painting from the church, [para, 31], while it was itself seeking to benefit from the illegal act of the introduction of the painting, [para.33. Nevertheless, he accepted its position, which: established the link between this painting and the church; its observations that the painting is doctrinally sound; and is the church’s only depiction of St Stephen, the dedicatee of the church. Nevertheless, on the basis of the evidence “heard and accepted”, the DAC’s view was rejected, [at 33].
The Chancellor then addressed the financial considerations, with regard to the church’s operating costs and limited sources of income, and those associated with the reinstallation of the painting. Whilst the church was operationally solvent, roof repairs were currently draining the funds and the church/parish was currently financially unviable. With regard to the relocation of the painting, he was satisfied that there was no location available within the City of London, and the Museum of Fine Arts in Boston, USA would be a fitting place for the painting to be displayed, cared for and maintained. It is likely that it would also be seen and appreciated by more people there than it would in St Stephen Walbrook.
In summary,the Chancellor stated [at 45] that
“[t]he CBC’s case seems to be that I should ignore the fact that the worshipping community of the parish is unanimous in not wanting this painting returned to the church or that this is trumped by the case of re St Gregory Tredington  Fam 236.
However, he was satisfied that the petitioners had made out the necessary financial need to dispose of this painting, that any connection it may be said to have had to the parish was illegally established and to the aesthetic detriment of the church and that it should be sold to be displayed in the Museum of Fine Arts in Boston. The parish, however, should not be entitled to the entire proceeds of sale, which will be subject to further submissions after the sale has been agreed.
Two legal issues are central to the case – those of precedent and the unauthorized introduction of the painting. A secondary presentational issue was evident in relation to the attitude of the CBC and to one of the expert witnesses.
The relevance of precedent in ecclesiastical courts was explained by the Worshipful Mark Hill, QC in a case in the Chichester Consistory Court , where he noted
“the consistory courts do not have a sophisticated doctrine of binding precedent and stare decisis. Nevertheless, consistency of judicial decision making means similar cases should be treated similarly.”
Furthermore, in the instant case the Chancellor said [at 44] “[v]ery little evidence was adduced by either party on the subject of precedent, even though that was an important part of the CBC’s case, as based on the DAC’s reasoning.” He observed that the only evidence presented to him was that relating to “The Raising of Lazarus“, also by West, which set “the precedent of an English church [Winchester Cathedral] selling a religious picture . . . . to an American art institution, [Wadsworth Atheneum, Hartford, Connecticut]”.
Nevertheless, the “exceptional circumstances” surrounding the sale of the St Stephen’s painting suggest that this judgment would be more widely applicable, certainly to the extent suggested by the Church Times headlines. From a legal point of view, therefore, it is incorrect and misleading to suggest that In re: St Stephen Walbrook sets a precedent that is likely be applied to any of the Church of England’s 16,200 or so churches, or that each judgment will be based upon the nationality of the artist, the quality of the work, and the compatibility with the architecture. The latter comment in fact supports the view that each case would be determined on the facts, which as the present case demonstrates, requires the detailed consideration of information and advice from experts and those involved.
Absence of a faculty
Likewise, Chancellor Seed was clear [at para.26] that
“even if the painting had been unlawfully introduced, as I have found that it was, that would not be determinative of whether or not it should be re-introduced,” [emphasis added],
and [at para. 10]
“I reject the bold submission made by the CBC that the circumstances of the introduction of the painting are of little or no importance. While they are not determinative of the position, they are of considerable significance in providing the context for consideration of any alleged subsequent unlawful actions and the approach to a contentious artefact in a church.”
Consequently, extrapolation of this judgment to the many “paintings that were introduced in the 18th century without a faculty” seems unlikely.
 The appeal was heard by the Court of Ecclesiastical Causes Reserved rather than the Court of Arches since matters of doctrine and liturgy were involved, i.e. whether a solid stone sculpture was a “table” within the meaning of Canon F2.
 A characteristic of Wren’s designs was his use of light within a church, [para. 15], a concept that was frustrated by the initial bricking up of the east window for the installation of the painting.
 In the matter of conjoined petitions relating to the theft of metal from various church buildings, and in the matter of a like application for dispensation from faculty, St Michael and All Angels, Bexhill; All Saints, Danehill; St Matthew, St Leonards-on-Sea; St Mary, Balcombe; St John the Evangelist, Upper St Leonard. 16 November 2011