a person referred to in the sub-paragraph which immediately pre-
cedes it.
The Archbishop relied upon the fact that two of the existing foundation gov-
ernors had fulfilled the requirements of paragraphs 10(1)(b) and (c) respect-
ively at the time of their appointment, and thus the requirement of
paragraph 5 of the governing instrument was satisfied. He argued that para-
graph 10(1) alone defined who was eligible for election or appointment as a
parent governor, and that paragraph 10(2) was relevant only to the method
of choosing parent governors. The claimants argued that paragraph 10(2)
meant that it was only lawful for the foundation body to appoint governors eli-
gible under paragraphs 10(1)(b) or (c) if it was not reasonably practicable to
appoint a current parent. In upholding the decision of the first instance
judge, the Court of Appeal, by a majority, agreed with the arguments of the
Archbishop. The Court of Appeal noted the particular function of foundation
governors to secure, preserve and develop the religious character of the
school. It was held that to accept the arguments of the claimants would be
to place an undue fetter on the discretion of the Archbishop in appointing
foundation governors and would create unintended and unreasonable oper-
ational difficulties for the Archbishop in exercising his discretion. Sir
Richard Buxton, in a dissenting judgment, found that paragraph 10(2) also
informed whether a person was eligible for election or appointment as a
parent governor and as such the governing body of the school was unlawfully
constituted as it did not have two foundation governors who, at the time of
their appointment, were eligible for election or appointment as parent gover-
nors. [RA]
doi:10.1017/S0956618X11000676
Gilmore v Archdeacon of Charing Cross
Court of Arches: April 2011
Clergy discipline conduct unbecoming sexual misconduct penalty
The appellant appealed against the decision of, and the penalty imposed by, a
clergy discipline tribunal for conduct unbecoming or inappropriate to the
office and work of a clerk in holy orders. The appellant had provided overnight
accommodation in the rectory for two servicemen attending a Lesbian, Gay,
Bisexual and Transexual Conference in London. The appellant had made inde-
cent proposals of a sexual nature to the two servicemen and persisted in pressing
his attentions on them when they had clearly indicated that his attentions were
3 8 2 C AS E N OT E S
unwelcome. The following morning he entered the servicemens bedroom and
masturbated as they were engaged in sexual activity. While noting that the appel-
lant did not pose a risk to vulnerable individuals, the court dismissed the appeal.
The court observed the lack of contrition and remorse but acknowledged the
brevity of the period over which the misconduct had taken place. The penalty
of removal from office and a prohibition for two years was upheld. The tran-
script of the determination of the Court of Arches, dated May 2011, together
with that of the first instance tribunal may be found at ,http://www.ecclaw.
co.uk/clergydiscipline.php., accessed 16 June 2011. [RA]
doi:10.1017/S0956618X11000688
Re Holy Trinity, Horwich
Manchester Consistory Court: Tattersall Ch, May 2011
Re-ordering pews necessity
The petitioners sought a faculty to re-order the balcony of a nineteenth-century
Grade II listed church. The nave had been re-ordered, reducing its seating area.
The petitioners sought to replace nineteenth-century box pews with eight bench
pews from the nave and to alter the floor levels so as to provide more flexible
space in the balcony area. It was argued that the pews were in poor repair,
uncomfortable and incongruous with the newly ordered nave. Growth in attend-
ance and special events meant that the balcony was used occasionally. The peti-
tion was recommended by the diocesan advisory committee but not
unanimously. The Georgian Group opposed the petition. The Church
Buildings Council also opposed the application, arguing that the pews were
rare and important survivals illustrating four types of socially graded seating,
from backless benches presumably for paupers, backed benches for slightly
better off people, wide seats and small arm-rests for the wealthier and a range
of pews with narrow seats and no arm rests for those in-between. They were
rare examples of such pews in their original church setting. The court held
that, although there was some incongruity between the re-ordered nave and
the balcony, this was not visible from the nave and could be at least partially rec-
tified by tidying up the balcony and re-staining the pews. The changes sought by
removal of the pews were not a matter of necessity but merely of taste and
comfort in relation to a balcony that was used infrequently. The faculty was
refused. [Catherine Shelley]
doi:10.1017/S0956618X1100069X
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