Rustat memorial, Jesus College, Cambridge: procedural and evidential issues

The hearing of the petition for a faculty for the relocation of the memorial commemorating Tobias Rustat from the Chapel of Jesus College, Cambridge is to take place from Wednesday 2 February 2022, and will be held in the College Chapel*.

Background

The College web pages give the background to the involvement of Tobias Rustat with the College and the Consistory Court hearing, including links to the short introduction to the application and the full submission. In brief:

“Tobias Rustat (1608-1694) was one of Jesus College’s most significant benefactors. Rustat had financial and other involvement in the Royal African Company (RAC), a slave trading company, over a substantial period of time including at the time when he donated to the College…Jesus College acknowledges that involvement in enslavement, trafficking and exploitation is unambiguously wrong. Following the recommendations of its Legacy of Slavery Working Party (LSWP), the College has decided to critically address Tobias Rustat’s role in our history in various ways”.

Re Jesus College Cambridge [2022] ECC Ely 1

Procedural and evidential issues were considered in the hearing conducted on Zoom on 8 January 2022,  Re Jesus College Cambridge [2022] ECC Ely 1The Deputy Chancellor David Hodge QC heard an application by the parties opponent to the petition: for permission to call the expert evidence of an historian; and to adjourn the hearing of this petition which is presently fixed for three days commencing on 2 February 2022. At the end of the hearing he announced that he would allow the application to call expert evidence but would not adjourn the substantive hearing. He also refused an informal application by the petitioners for permission to rely upon the evidence of an eighth witness, Professor Shepherd. His reasons are given in the written judgment which was handed down by email [1].

The faculty application provoked a mass of objections, and many of the objectors have become parties opponent to the petition [4]. The Notification of Advice (the NoA) issued by the Diocesan Advisory Committee (the DAC) on 29 January 2021 states that the Committee did not object to the works or proposals being approved by the court, subject to the following provisos:

(1) The DAC recommends that temporary storage of the monument should be limited to one year, after which time it should be reinstalled in the chapel in its current location.
(2) If during the period of temporary removal the college identifies a long-term new home for the memorial outside the chapel, proposals for such should be submitted to the DAC for recommendation, together with a further statement detailing all the options appraised, and giving theological, pastoral and practical reasons against the monument’s reinstatement in the chapel.
(3) Any disposal of the monument should be on the basis of a long-term loan rather than a donation or sale.
(4) A new memorial should be placed on the wall of the chapel noting the burial of Tobias Rustat and his dates, together with separate interpretative material.
(5) Further details concerning any conservation works found to be necessary should be submitted to the DAC for recommendation.

The NoA records that in the opinion of the Committee, the work proposed is likely to affect the character of the Chapel as a building of special architectural or historic interest. It notes that Historic England, the local planning authority, the Society for the Protection of Ancient Buildings, the Ancient Monuments Society (since 1 October 2021 re-named as Historic Buildings & Places), and the Church Buildings Council have all been consulted about the proposals; and that all the responding consultees have raised objections which have not been withdrawn [6].

On 6 August 2021 the Chancellor of the Diocese of Ely, Chancellor Leonard QC, heard an application by Mr Gau on behalf of the parties opponent to recuse himself from the case on the grounds of an appearance of bias. He concluded that he should not recuse himself on the grounds advanced by Mr Gau in his skeleton argument; but there were other aspects of the faculty hearing that he felt he needed to consider. He asked Deputy Chancellor, the Worshipful David Etherington QC, to take the proceedings forward [7], but the Deputy Chancellor felt that he should withdraw from the proceedings due to a perceived conflict of interest. Consequently, David Hodge QC was appointed as a Deputy Chancellor of the Diocese of Ely solely for the purpose of determining this petition and all related matters. He stated:

“I have made it clear that I have no connections with the University of Cambridge, still less this College; and I cannot recall ever having met the present Bishop of Ely (who has submitted a short witness statement in support of the College’s petition)” [8].

A directions hearing took place before David Hodge QC remotely by Zoom on Monday 15 November 2021 [9] to [11] which resolved that the Petitioners would be permitted to call seven witnesses [10(1)] and the parties opponent to call four witnesses [10(2)]. In a document dated 14 December 2021 and headed “Application to break fixture and serve further evidence” the parties opponent objected to the late service of the expert witness statement of Dr Edwards [12]; and on 6 January 2022, Dr Aaron Graham produced a preliminary estimate that he would require at least four months to examine and analyse all the relevant documentary materials and produce a report as an expert witness [15]. The College response to the parties opponent’s application is contained in a document prepared by Mr Hill and dated 16 December 2021 in which he invited the court to dismiss the application [16] to [21].

In his Conclusions to the hearing [22] to [27], the Deputy Chancellor  said:

[28]. As previously stated, at the conclusion of the hearing I announced that I would allow the application by the parties opponent to call expert evidence from Dr Graham but I would not adjourn the substantive hearing of the petition from 2 to 4 February. I also refused the informal application by the petitioners for permission to rely upon the evidence of Professor Shepherd”.

An explanation of his conclusions is given in [29] to [33[.


* College chapels (and other non-parochial units) can opt into the Faculty jurisdiction, s38 Ecclesiastical Jurisdiction and Care of Churches Measure 2018.

Cite this article as: David Pocklington, "Rustat memorial, Jesus College, Cambridge: procedural and evidential issues" in Law & Religion UK, 26 January 2022, https://lawandreligionuk.com/2022/01/26/rustat-memorial-jesus-college-cambridge-procedural-and-evidential-issues/

 

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