‘15. An obvious difficulty which affects allegations and oral evidence based on recollection of events which occurred several years ago is the unreliability of human memory. 16. While everyone knows that memory is fallible, I do not believe that the legal system has sufficiently absorbed the lessons of a century of psychological research into the nature of memory and the unreliability of eyewitness testimony. One of the most important lessons of such research is that in everyday life we are not aware of the extent to which our own and other people’s memories are unreliable and believe our memories to be more faithful than they are. Two common (and related) errors are to suppose: (1) that the stronger and more vivid is our feeling or experience of recollection, the more likely the recollection is to be accurate; and (2) that the more confident another person is in their recollection, the more likely their recollection is to be accurate. 17. Underlying both these errors is a faulty model of memory as a mental record which is fixed at the time of experience of an event and then fades (more or less slowly) over time. In fact, psychological research has demonstrated that memories are fluid and malleable, being constantly rewritten whenever they are retrieved. This is true even of so-called “flashbulb” memories, that is memories of experiencing or learning of a particularly shocking or traumatic event. (The very description “flashbulb” memory is in fact misleading, reflecting as it does the misconception that memory operates like a camera or other device that makes a fixed record of an experience.) External information can intrude into a witness’s memory, as can his or her own thoughts and beliefs, and both can cause dramatic changes in recollection. Events can come to be recalled as memories which did not happen at all or which happened to someone else (referred to in the literature as a failure of source memory). 18. Memory is especially unreliable when it comes to recalling past beliefs. Our memories of past beliefs are revised to make them more consistent with our present beliefs. Studies have also shown that memory is particularly vulnerable to interference and alteration when a person is presented with new information or suggestions about an event in circumstances where his or her memory of it is already weak due to the passage of time.’
‘In the light of these considerations, the best approach for a judge to adopt in the trial of a commercial case is, in my view, to place little if any reliance at all on witnesses’ recollections of what was said in meetings and conversations, and to base factual findings on inferences drawn from the documentary evidence and known or probable facts. This does not mean that oral testimony serves no useful purpose – though its utility is often disproportionate to its length. But its value lies largely, as I see it, in the opportunity which cross-examination affords to subject the documentary record to critical scrutiny and to gauge the personality, motivations and working practices of a witness, rather than in testimony of what the witness recalls of particular conversations and events. Above all, it is important to avoid the fallacy of supposing that, because a witness has confidence in his or her recollection and is honest, evidence based on that recollection provides any reliable guide to the truth.’
‘88. First, as has very recently been noted by HH Judge Gore QC inCXB v North West Anglia NHS Trust[2019] EWHC 2053 (QB) ,Gestminis not to be taken as laying down any general principle for the assessment of evidence. It is one of a line of distinguished judicial observations that emphasise the fallibility of human memory and the need to assess witness evidence in its proper place alongside contemporaneous documentary evidence and evidence upon which undoubted or probable reliance can be placed. Earlier statements of this kind are discussed by Lord Bingham in his well-known essay The Judge as Juror: The Judicial Determination of Factual Issues (from The Business of Judging, Oxford 2000). But a proper awareness of the fallibility of memory does not relieve judges of the task of making findings of fact based upon all of the evidence. Heuristics or mental short cuts are no substitute for this essential judicial function. In particular, where a party’s sworn evidence is disbelieved, the court must say why that is; it cannot simply ignore the evidence. 89. Secondly, the judge in the present case did not remark that the observations inGestminwere expressly addressed to commercial cases… Here, by contrast, the two parties were private individuals living together for much of the relevant time. That fact made it inherently improbable that details of all their interactions over the creation of the screenplay would be fully recorded in documents.’
‘This distinction between a religious belief or practice and its civil consequences underlies the way that the English and Scottish courts have always, until recently, approached issues arising out of disputes within a religious community or with a religious basis. In both jurisdictions the courts do not adjudicate on the truth of religious beliefs or on the validity of particular rites. But where a claimant asks the court to enforce private rights and obligations which depend on religious issues, the judge may have to determine such religious issues as are capable of objective ascertainment. The court addresses questions of religious belief and practice where its jurisdiction is invoked either to enforce the contractual rights of members of a community against other members of its governing body or to ensure that property held on trust is used for the purposes of the trust.’
‘This clear line of authority contradicts the idea that a court can treat a religious dispute as non-justiciable where the determination of the dispute is necessary in order to decide a matter of disputed legal right.’
‘…claims to enforce civil rights should generally be entertained by the Courts, even if they involve some determination of the internal rules or practices of a religious institution, unless that process necessitates an investigation of some matter that is, by its nature, incapable of being objectively assessed. The validity of religious beliefs or rites is such a question, at least as a general rule…’
“After taking the steps outlined in Matthew 18:15, 16, some individual brothers or sisters may report to the elders cases of unresolved serious wrongdoing”
‘the Court does not consider that, in democratic societies, the State needs to take measures to ensure that religious communities remain or are brought under a unified leadership.’
‘In accordance with the principle of autonomy, the State is prohibited from obliging a religious community to admit new members or to exclude existing ones. Similarly,Article 9 of the Convention does not guarantee any right to dissent within a religious body; in the event of a disagreement over matters of doctrine or organisation between a religious community and one of its members, the individual’s freedom of religion is exercised through his freedom to leave the community…’
‘We felt proud to count Mark as one of our friends. It was because of his standing as a Ministerial Servant and then an Elder that our friendship became as close as it did.’
‘As I mentioned, my husband had now become a Ministerial Servant and had ambitions in due course to become an Elder. Having Mark as a friend meant that Mark would have been in a position to guide and assist my husband in that regard. In addition, Mark seemed like a lovely, kind, genuine, helpful man. He could be very charming and funny.’ 36Mrs B describes the role of elders as follows: ‘The Elders are like shepherds, as it were. Their directions are always followed by members of the congregation and they are very rarely criticised. There can be serious repercussions for those who disobey them. Anybody who disobeyed an Elders instruction would receive what was called a “shepherding call”. This would involve an elder coming to see the person concerned at their house or, in a more serious case, a judicial committee would be set up in the Kingdom Hall at which the person concerned would be given instructions on how to behave. If that person continued to disobey, they would be disfellowshipped.’
‘I didn’t want to make an issue out of it nor did I feel able to complain to anybody else. The Jehovah’s Witness Organisation teaches members to love their brothers and sisters, and I therefore felt that complaining about a fellow member of the congregation would go against his teaching. As a Ministerial Servant and now an Elder, he was in a position of authority and had been awarded that title as a result of his being considered to be a trusted member of the congregation and capable of providing advice and guidance. It would have been very difficult to question his actions without facing repercussions. I did not know at the time that, if any ordinary member of the congregation had behaved in this way, it would have been considered to be inappropriate.’
‘He made us feel that this was the right thing to do as good Jehovah’s Witnesses. I was reluctant to spend more time with Mark because he made me feel uncomfortable. However, if an elder told me, as a publisher to do something, then it was my duty to do so. Tony had decided that this was the course of action to be taken and his request was really an instruction from an Elder. I was required by my faith and the congregation to carry out that instruction and to provide Mark with the extra support that he was deemed to require whatever I felt about it. Although there is no hierarchy of Elders, Tony was a highly respected Elder and had been an Elder for many years. The meeting between Tony, Mary and myself ended with Tony saying a prayer for us to help Mark and calling upon Jehovah to help us.’
‘My husband and I found that we had got to the stage where we could not remove ourselves from the situation. Mark was an Elder in the congregation, and his father, Tony, had directed us to support Mark. We had no choice but to maintain the friendship. Looking back, I am sure that, had it not been for the fact that Mark was an Elder and I had received an instruction from another Elder, his father, our friendship with Mark and Mary would have come to an end well before what I describe below happened. Indeed, this situation was so difficult for us that it was causing problems in my relationship with my husband.’
‘Mark went into the back room. The children were on the third floor of the house playing. My husband, Mary and I sat in the front room talking about what we were going to do about Mark. As he had previously confided in me about his troubles and it was I who had been given that role, I decided that I should go to speak to Mark to try to convince him that he should go to the Elders about his depression.’
‘He reacted by saying “I knew it” and told me about what Mark had said in Cowbridge about wanting to give Mary a reason for them to divorce. I remember him saying to me that “half of me wants to go round and beat him… but the other half of me says I have to forgive my brother.”’
‘Part of the teachings of Jehovah’s Witnesses is to forgive one’s brother if they are truly repentant. At the time, I believed that Mark’s pleas for forgiveness meant that he was truly repentant because he seemed so plausible and so genuine. I said to him that I wouldn’t take the matter any further but that he shouldn’t ever come near me again. He said that he would do whatever it takes, and we left it at that. I felt that my only option was to forgive Mark. It was in part due to these teachings that I did not feel compelled to report Mark to the Body of Elders. Although I know that this is not rational, I was absolutely terrified that, by my actions, I felt that I had brought shame on Jehovah’s name and the others would find out. I was very worried about how that would affect my family and also Mary. I also felt shame and guilt. I also felt a continued pressure to continue to support Mark due to his position in the complication as Elder as well as his father’s earlier request. The position that both Mark and his father held within the congregation also made me feel that I was unlikely to be believed if I choose to report Mark to the Body of Elders.’
‘Obviously the last thing I wanted to do was to go on the trip with them, but my children were looking forward to it and I could not think of an adequate excuse to provide to Mary as to why we would not want to go and I had told Mark that I had forgiven him. I didn’t want to disappoint my children and the honour associated with spending time with an Elder’s family made it difficult for me to avoid socialising with Mark and Mary and their family. I was also aware of the continued instruction of Tony to support Mark and Mary, even though my fear of Mark increased. Given the position of an elder that both Tony and Mark held, I felt that I was unable to deny the request to continue to provide support to Mark and Mary although my husband and I were really struggling with this now.’
‘We spoke to Mark the next day. He told us he could do what he liked because he was an elder and that he was not answerable to us. He said that CXC needed to be disciplined because she had been smoking and that whatever she might have said would be lies.’
‘The process was extremely painful and humiliating for me to go through. I was asked explicit and inappropriate questions during the interview, including how widely I’d opened my legs when Mark had raped me. They told me that it was very important that they knew whether my legs were open wide during the rape and that they had all the details. I got hot and flustered. I told him I didn’t take a mental note of how far apart my legs were and told them all I could say was that they were somewhere in the middle. I felt very uncomfortable and I may have cried.’
‘We arrived at the Kingdom Hall and we were put in one of the rooms that they had in the back. Mark and Mary were in another room. Then they called my husband and me into a room and also called Mark and Mary in at the same time. We were all sitting in chairs in this room. David Newman started the meeting by saying a prayer, a bit like a swearing on the Bible, and said that they wanted to sort the situation out and wanted a conclusion. I couldn’t look at Mark and Mary so I sat the furthest away. Once again, I was questioned extensively and forced to relive the experience of the rape. They fired questions at me, and then would turn to Mark and say, “How do you answer?” They would ask Mary the same thing. Mary did most of the talking. She said that what I was saying couldn’t be true because Mark was impotent when he was drunk. Mark said that it couldn’t have been true because I had said that my legs were in a closed position and that he had tried to penetrate Mary when her legs were in this position and had been unable to do so. To my horror, Mark denied all the allegations. His response to my allegations was that he couldn’t remember what had happened because he was drunk. Mary also denied the allegations. Mark and Mary accused me of causing the difficulties in their marriage. They admitted that they were having marital difficulties but said that I had taken advantage of this to try to get close to Mark.’
‘I think they came and visited me at home. Incredible as it may sound, I think David Newman said to me that this was a classic case of “wife swapping”. The committee reached this decision because it was Mark’s word against mine. It was necessary for there to be two adult witnesses to corroborate an allegation. This test was not met because Mark had denied what happened and there was no one else there to see it. This was also the case with CXC. She was not considered to be a witness at all because she was a minor. Furthermore, I was instructed not to tell anyone else about the abuse and that I ought to move congregation so that I no longer had to see Mark. My perception was that the Elders had concluded that Mark’s assault had been my fault.’
‘Now though I know it wasn’t, definitely wasn’t depression and he started displaying strange behaviour and, erm, his father who was an elder in the congregation asked me and my husband if we would help take care of the family and be supportive which we were happy to do cos they were our friends…’
‘[Mrs B]: Do you remember David Korash [sc. Koresh] all those years ago that he was head of a sect in America and he slept with half of the congregation and even some of the men that he was friends with he slept with their wives? Mark was like that, he was such a charming, plausible, manipulative person and because he was an elder the things he said and did you almost accepted because of who he was and what he represented. It must be okay… Police officer: Mmm. [Mrs B]: … because he is an elder.’
‘They asked me some questions, erm, as to what lead up to it, why he did it and what he did and why didn’t I report it? And they also asked me what position my legs were in when Mark attacked me. I knew not why but I had to explain how far apart my legs were which I found excruciatingly embarrassing, erm, cos obviously my husband was sat next to me as well…’
‘She stressed throughout that her relationship with Mark and Mary was basically the same as it was with other Witnesses and she and her husband were no closer to them than they were to other Witnesses.’
‘She says she was raped by an Elder in the Jehovah’s Witnesses in 1990’
‘Women and teenage girls are generally not allowed to be alone in the presence of men without someone else being present. This rule is intended to stop inappropriate friendships and behaviour from forming. Ministerial Servants and Elders are also expected to speak with women and teenage girls in the presence of another person. However, because Elders are trusted members of the congregation, there are occasions when they are permitted to do this. For example, when preparing for baptism women and girls have to attend three “question and answer” sessions alone with an elder to ensure that they are ready for baptism. Elders may also pick female members up and take them out on field service with them. On these occasions they will be alone with the elder in his car. Congregation members would be more likely to allow their female family members to do this because the male that they would be alone with was an Elder. The organisation stress that all other relationships and loyalties must be subservient, including family members who do not hold to the faith.’
‘I would see Mark several times a week. I would see him about three times a week at the Kingdom Hall and several times either through work or socially. Our association with Mark Sewell was so frequently because of the edict of faith that we were bound by. As Jehovah’s Witnesses were only encouraged to associate with folks who were “good association”, spending time with an approved ministerial servant or elder and their family was looked upon as a good decision. In fact, if a Jehovah’s Witness were found to be in “bad association”, they could be chastised and disciplined, or even removed from the congregation. I was glad my daughters were seen around men who had a good reputation in the faith, both socially and especially at faith-related activities. In fact, [CXC’s] association with the Sewell family was primarily for Jehovah’s Witness events. We would also see each other once a week and do some work together because both Mark and I ran cleaning companies.’
‘I now feel his excessive tactile behaviour was a means to see how far he could go with inappropriate touching.’
‘The Sewell house was an “approved” venue by the Barry Elders.’
‘This was simply fulfilling the obligation to go see the individual first, which Jehovah’s Witnesses say must happen.’
‘The practice of having the injured party face the accused and put to them the allegations is a formal Jehovah’s Witness procedure. This procedure was not questioned and was seen as a Biblical command, so coming from God. It was never questioned. Even though this experience had devastating effects for my young teenage daughter, this procedure had to be followed in order to handle matters in accordance with Jehovah’s Witness teachings.’ 73FXC describes what happened at the meeting as follows: ‘Mark denied all the allegations but Mary did most of the talking. He had used his position as an elder to persuade and assign two ministerial servants to get evidence against CXC. Without any other authorisation from the body of Elders, Glynn Sewell (Mark’s brother) and Stephen Jones (Mark’s employee) had visited two teenage boys and got them to sign some paper saying that CXC could not be trusted, was a liar and had, herself, written a “love letter” to one of the boys. I cannot remember the details but it was designed to undermine what CXC was now saying and prove that she could not be trusted. I do remember being disgusted at how these two men had fallen for such a low, devious and underhand act.’
‘Jehovah’s Witnesses require two witnesses to an event in order for it to be verified. They said that there were not “two witnesses” to the incident, so no further action could be taken. I was surprised at this because they were already aware of BXB’s allegation but they said that CXC could not be a witness because she was a child.’
‘Indeed, our religious beliefs expressly discourage a married man or woman from forming a close friendship with a member of the opposite sex to whom they are not married. This applies even more so in relation to elders, who are counselled never to be alone with a member of the opposite sex.’ 83By way of comment, Brian Jones says this: ‘The forging of friendships and connections between Jehovah’s Witnesses is no different to the same situation in any community. In my experience as one of Jehovah’s Witnesses, individuals decide who they will personally befriend and with whom they will socialise in a congregation according to a diverse range of factors including common interests, shared experiences, culture, age and many other intangible factors. They do not normally choose to befriend someone just because they have a particular responsibility or privilege in the congregation (e.g. serving as a ministerial servant or elder).’
‘I seem to recall that Mark’s wife Mary may have sat in on the meeting with Mark but I cannot be sure. I recall that he said, “no comment” to every question. The only thing he did say was that he had drunk too much alcohol on the day in question. We subsequently wrote a report about the matter and sent it to the Britain branch. I recall that the Britain branch replied quickly, perhaps within a week or two. I recall that we were directed to advise [Mrs B] of her right to report the matter to the police. Due to Mark Sewell’s confession of misusing alcohol, the Britain branch also directed that he be removed as an elder and an announcement to the Congregation was made to that effect.’
‘We took advice from the Britain branch and we were advised to inform [Mrs B] of her absolute right to report the matter to the police. We also received a letter from the Britain branch almost immediately removing Mark as an elder, given that he admitted that he was drunk in the presence of a female. An announcement was made to the congregation that Mark Sewell was no longer serving as an elder. I believe this was in August 1993. As it was [Mrs B’s] word against Mark’s, we had no Scriptural grounds to form a judicial committee at that point on the allegation of rape. An ecclesiastical judicial committee, normally comprising three elders, is formed when there is Scriptural evidence that one of Jehovah’s Witnesses has committed serious sin. In spiritually investigating serious sin, the elders apply the Bible’s rule of evidence which requires “the testimony of two witnesses” (Deuteronomy 19:15; Matthew 18:16; 1 Timothy 5:19). This means, in the absence of a confession, the allegation must be corroborated by a second witness before the congregation can take internal judicial action. An allegation may also be corroborated by a second witness to a separate allegation of a similar nature against the same accused person. The purpose of the judicial committee is to determine whether the sinner should remain one of Jehovah’s Witnesses.’
‘There is no clergy laity class distinction or paid clergy in our Christian community. The Bible teaches that there are no class distinctions in the Christian congregation, we are not to show favouritism and all are equal in God’s sight (Galatians 3:28; James 2:9; Acts 10:34, 35). Jehovah’s Witnesses call and view each other as spiritual “brothers” and “sisters”. No human is a “leader” in the congregation – Matthew 23:8-10.’
‘Any obligation and individual feels once he is baptised as one of Jehovah’s Witnesses arises from his knowledge and understanding of the Bible and his personal devotion to God. Jehovah’s Witnesses are not under compulsion or obligation to any legal or natural person to engage in any particular religious activity. To the extent that Jehovah’s Witnesses engage in such activities, they do so voluntarily out of love for God and neighbour in accordance with their personal knowledge and understanding of the Bible.’
‘The teachings of Jehovah’s Witnesses do not require or even encourage individuals to follow instructions from an elder (or anyone else) that are not in harmony with Bible teachings and principles (Acts 5:29; Matthew 23:10). The teachings and practices of Jehovah’s Witnesses have never required that one act as a confidant to a member of the opposite sex to him if they are not related or married, and specifically caution a woman from associating alone with any man to whom she is not related or married.’
‘When it comes to the “shepherding” of a person of the opposite sex, elders have been specifically directed for many years to do so only intwos, never alone.’ (Emphasis in original.)
‘Elders must be keenly alert to exercise self-control when it comes to their dealings with those of the opposite sex. It is inadvisable for an elder to make a shepherding call on a sister alone. The elder should be accompanied by another elder or a ministerial servant. Likely appreciating this problem, Paul counselled the elder Timothy: “Entreat… older women as mothers, younger women as sisters with all chasteness” (1 Timothy 5:1, 2). Some elders have been seen putting their hands on a sister as if with a fatherly gesture. But they could be deceiving themselves, for a romantic impulse instead of pure Christian brotherly affection could well be motivating such a gesture. – Compare 1 Corinthians 7:1.’
‘Sexual immorality is another pitfall to avoid. The world’s moral decay can influence even an elder if he does not resist the temptations used by Satan in his efforts to break the integrity of God’s people. (Compare Matthew 4:1–11; 6:9, 13.)’
‘The decision of the body of elders as to whether an accusation is Scripturally established does not in any way affect the absolute right of any person within or outside the congregation to report the matter to the appropriate statutory authorities, including the police. Elders are advised to make this clear to any person who comes to them with allegations of child abuse. It is important to understand that these internal congregation Bible based procedures focus on the wrongdoer’s relationship with God and the wrongdoer’s congregation status as one of Jehovah’s witnesses. They are not a substitute or replacement for the criminal investigation and prosecution processes. Jehovah’s Witnesses do not shield child abuses from the consequences of their sins. On the contrary, Jehovah’s Witnesses acknowledge and accept the authority of the state to investigate and prosecute any alleged crimes (Romans 13:1-4). In cases where the police investigate a crime that is also a Scriptural sin warranting congregation action, elders are usually directed to await the outcome of the criminal proceedings before concluding their spiritual investigation. This may include the wrongdoer not been given any complication responsibilities until the criminal matter is resolved. This was the advice to elders at the material time.’
‘As members of the community in which Caesar still acts as God’s minister and hence still has a certain authority, all in the Christian congregation would want to consider their personal and moral responsibility to alert the appropriate authorities in cases where there has been committed or there exists a risk that there might be committed a serious criminal offence of this type… In child abuse cases such authorities might include the family doctor, the Social Services, the NSPCC, or the police.’
‘In some cases the elders will form judicial committees to handle alleged wrongdoing that also could constitute a violation of Caesar’s criminal laws (e.g. theft, assault etc.). It is natural that the Christian congregation should find such situations to be distressing. There is clearly a need to balance the principle of “rendering Caesar’s things to Caesar” (Matthew 22:21) with those concerning the spiritual cleanness of the congregation such as one Corinthians 5:11-13.’
‘1Jehovah has provided overseers for his organisation in this “time of the end” (Daniel 12:4). They take the lead in caring for sheeplike ones, and their supervision is refreshing (Isaiah 32:1, two). Moreover, loving oversight by elders who treat God’s flock with tenderness serves as a protection from Satan and this wicked system of things – Acts 20:28-30; 1 Peter 5:8; 1 John 5:19. 2 But how do you view the elders? In your heart, do you say: “I will never go to another elder in this congregation if I have a problem, for I have no confidence in any of them”? If that is how you feel, could you be over emphasising their imperfections? ... 3 Since Christian undershepherds have been provided by the Great Shepherd, Jehovah God, how do you think he wants us to view them? Surely, God expects us to follow the Bible-based direction received through loving overseers under the supervision of the governing body of Jehovah’s Witnesses. Then “the Lord will be with the spirit we show,” We will enjoy peace, and we will be built up spiritually – 2 Timothy 4:22; compare Acts 9:31; 15:23-32. 4 Paul urged: “remember those who are taking the lead among you, who have spoken the word of God to you, and as you contemplate how their conduct turns out imitate their faith” (Hebrews 13:7). Among the early Christians, the apostles primarily took the lead. Today, we can observe those making up the governing body of Jehovah’s Witnesses, other anointed overseers, and men of the “great crowd” who take the lead and manners (Revelation 7:9). Although we are not urged to imitate their voice quality, posture, or other human traits, we should be able to make our conduct turn out well by imitating their faith. … 6 Overseers have been spirit-appointed to care for the spiritual needs of the congregation (Acts 20:28). They see to it that the kingdom message is preached in the territory of the local congregation. These scripturally qualified men also provide spiritual direction in a loving manner. The exhort, console, and bear witness to their spiritual brothers and sisters, to the end that these might go on walking worthily of God (1 Thessalonians 2:7, 8, 11, 12). Even when someone takes a full step before he is aware of it these men seek to readjust him “in the spirit of mildness” – Galatians 6:1. 7 Our hearts are motivated to cooperate with such loving overseers. This is fitting, as Paul wrote: “be obedient to those who are taking the lead among you and be submissive, for they are keeping watch over your souls as those who will render an account; that they may do this with joy and not with saying, for this would be damaging to you” (Hebrews 13:7). How are we to understand this counsel? 8 Paul urges us to obey those governing us spiritually. We are to “be submissive,” to yield to these undershepherds… 9 Jehovah would be displeased if we failed to be obedient and submissive to Christian overseers. This would also prove burdensome to them and would harm us spiritually. If we were uncooperative, the elders might care for their duties with sighing, perhaps in a spirit of discouragement that could result in a loss of joy in our Christian activities. But our obedience and submissiveness promote godly conduct and strengthen our faith… … 12 We will be helped to obey and honour those taking the lead if we remember that God himself has provided the elders (Ephesians 4:7-13)… Why Appreciate Their Service? 13 In the world, there is a tendency to reject leadership. As one lecturer said: “the rising education level has improved the talent pool such that followers have become so critical that they are almost impossible to lead.” But a spirit of independent thinking does not prevail in God’s organisation, and we have sound reasons for confidence in the men taking the lead among us. For instance, only those meeting scriptural requirements are appointed as elders (one Timothy 3:1-7). They are trained to be kind, loving, and helpful, yet firm in upholding Jehovah’s righteous standards. The elders adhere to scriptural truth, “holding firmly to the faithful word, that they may be able to exhort by healthful teaching” (Titus 1:5-9). Of course, we should not magnify the human imperfections, for all of us are imperfect (1 Kings 8:46; Romans 5:12). Instead of feeling frustrated by their limitations and treating their counsel lightly, let us appreciate and accept the Bible-based direction of the elders as coming from God.’
‘(3) In acting under this section the court shall have regard to all the circumstances of the case and in particular to— (a) the length of, and the reasons for, the delay on the part of the plaintiff; (b) the extent to which, having regard to the delay, the evidence adduced or likely to be adduced by the plaintiff or the defendant is or is likely to be less cogent than if the action had been brought within the time allowed by section 11, by section 11A or (as the case may be) by section 12; (c) the conduct of the defendant after the cause of action arose, including the extent (if any) to which he responded to requests reasonably made by the plaintiff for information or inspection for the purpose of ascertaining facts which were or might be relevant to the plaintiff's cause of action against the defendant; (d) the duration of any disability of the plaintiff arising after the date of the accrual of the cause of action; (e) the extent to which the plaintiff acted promptly and reasonably once he knew whether or not the act or omission of the defendant, to which the injury was attributable, might be capable at that time of giving rise to an action for damages; (f) the steps, if any, taken by the plaintiff to obtain medical, legal or other expert advice and the nature of any such advice he may have received.’
‘I fully support the more generous approach to the exercise of discretion which is adopted in particular by Lord Hoffmann. The reasons for the delay are highly relevant to that exercise, as of course at the prospect of a fair trial. A fair trial can be possible long after the event and sometimes the law has no choice. It is even possible to have a fair trial of criminal charges of historic sex abuse. Much will depend upon the circumstances of the particular case.’
‘it does not seem to me that the length of the delay can be, of itself, a deciding factor. It is whether the defendant has suffered any evidential or other forensic prejudice which should make the difference.’
‘14… There are two critical points of distinction to which we have already referred. The first is that previously it was necessary for the evidence to cover the whole system being operated in the relevant home over a long period and for the court to consider whether there was a relevant breach of duty. Now no such analysis is required. In order to succeed the claimant has to show the following: (1) that he was assaulted, that is that the alleged abuse occurred; (2) that the defendant was vicariously responsible for the abuse: (3) that the abuse caused the alleged psychological or psychiatric damage; and (4) quantum. 15. In our opinion, the difficulties of establishing those matters can be overstated. On the claimant’s side the fact of the abuse depends largely, if not entirely, upon the evidence of the claimant and must be set against any evidence available to the defendant. The effect of [Lister v Hesley Hall Ltd[2002] 1 AC 215 ] is that in most cases, once abuse by an employee of the home is established, vicarious liability will follow.’
‘21… where a judge determines thesection 33application along with the substantive issues in the case he or she should take care not to determine the substantive issues, including liability, causation and quantum before determining the issue of limitation and, in particular, the effect of delay on the cogency of the evidence. To do otherwise would, as the court said, be to put the cart before the horse. 22. That is, however, simply to emphasise the order in which the judge should determine the issues. When he or she is considering the cogency of the claimant’s case, the oral evidence may be extremely valuable because it may throw light both on the prejudice suffered by the defendant and on the extent to which the claimant was reasonably inhibited in commencing proceedings. Thus, if the claimant's case is beset by inconsistencies and the claimant shows himself in evidence to be unreliable, the court may conclude that the delay is likely to prejudice the defendant in the way contemplated inNash v Eli Lilly & Co[1993] 1 WLR 782 , namely by being put to the trouble and expense of successfully defending proceedings and then not being able to recover costs against impecunious claimants. In those circumstances, viewing the matter more broadly, as A v Hoare enjoins the courts to do, it may well be that it would not be equitable to allow the claimant to proceed. On the other hand, if the evidence of the claimant is compelling and cogent that the abuse occurred, and it is said that it was the abuse that inhibited him from commencing proceedings, that is surely a compelling point in favour of the claimant.’
‘26. The logical fallacy which Lord Clarke MR was concerned with in paragraph 21 of the Nugent Care Society case and Auld LJ in paragraph 74(vii) of the Bryn Alyn case was proceeding from a finding on the (necessarily partial) evidence heard that the claimant should succeed on the merits to the conclusion that it would be equitable to disapply the limitation period. That would be to overlook the possibility that, had the defendant been in a position to deploy evidence now lost to him, the outcome might have been different. The same logical fallacy is most unlikely to apply in the reverse situation, especially when the case depends upon the reliability of the claimant himself. That may be illustrated by a simple example. A claimant sues for personal injury ten years after an alleged accident and seeks an order to disapply the limitation period of three years. The defendant has lost its witnesses and records, but advances a defence that the accident did not occur. The judge concludes, without the lost evidence, that indeed the accident did not occur. The burden is on the claimant to prove that it would be equitable to disapply the limitation period having regard to the balance of prejudice. In those circumstances he would not be able to do so. There would be no purpose in extending the limitation period and it would not be equitable to do so. Similarly, a full exploration at trial of, for example, the claimant's reasons for delay may enable the judge to reach firm conclusions which could have been no more than provisional had limitation been resolved as a preliminary issue.’
‘In the weeks following my disclosure to the elders about the rape, and their holding me morally responsible for it, I found myself unable to leave the house. I avoided seeing people. The needlessly humiliating way in which the investigation had been conducted, its erroneous conclusion and the knowledge that it seemed that I was universally disbelieved, caused me to have suicidal thoughts and become afraid to leave my home for weeks on end. My sense of loneliness, betrayal and despair was heightened due to my reliance on the Jehovah’s Witness community and by the fact that I felt scorned and let down by the Elders in whom I had placed so much of my trust. I couldn’t function, I couldn’t eat or sleep. The worst part was that nobody could believe me. Maybe a year after the incident, I started going to see a psychiatric nurse, I would just sit there wringing my hands while I was talking to her. The experience of reporting Mark to the Elders and them protecting him reinforced my sense that no one would believe me and doubled the shame and guilt that I felt in relation to the rape.’
‘When later I did report the rape to the elders, I was so humiliated and upset by the way it was investigated and by their decision not to take any further action that I felt betrayed. I was told by the Elders not to tell anyone else about it. I obeyed this direction and did not go to the police, as I should have done. I did not think I would be believed anyway, just as everyone else appeared to disbelieve me. Instead I left the congregation and my family.’
‘What is said in this present case is that while the church would accept responsibility for abuse of an altar boy and (probably) a member of the congregation, this case is different because the victim of Father Clonan's abuse came into his ambit in a non-church manner, by admiring his sporty Triumph car, by taking part in disco evenings to which all were welcome, clearing up afterwards and then doing jobs in the presbytery where Father Clonan lived with Father McTernan. But the progressive stages of intimacy were to my mind only possible because Father Clonan had the priestly status and authority which meant that no one would question his being alone with the claimant. It is this that provides the close connection between the abuse and what Father Clonan was authorised to do.’
‘86… Vicarious liability is imposed where a defendant, whose relationship with the abuser put it in a position to use the abuser to carry on its business or to further its own interests, has done so in a manner which has created or significantly enhanced the risk that the victim or victims would suffer the relevant abuse. The essential closeness of connection between the relationship between the defendant and the tortfeasor and the acts of abuse thus involves a strong causative link. 87. These are the criteria that establish the necessary “close connection” between relationship and abuse. I do not think that it is right to say that creation of risk is simply a policy consideration and not one of the criteria. Creation of risk is not enough, of itself, to give rise to vicarious liability for abuse but it is always likely to be an important element in the facts that give rise to such liability.’
‘11. The organisational structure of Jehovah’s Witnesses is modelled on first century Christianity as described in the bible. Jehovah’s Witnesses rely on passages from the bible to set their policy and religious practices. This distinguishes them from other religious denominations who use the bible to shape thinking, guide behaviour and teach lessons, but do not use it directly to set policy and religious practices. As a result, written documents, including worldwide monthly Jehovah’s Witness publications such as Watchtower and Awake!, that describe the policy and religious practices of Jehovah’s Witnesses, often quote biblical references. 12. Worldwide Jehovah’s Witnesses now comprise about 8 million people who live in many different countries. There is a hierarchical organisational structure. A Governing Body coordinates organisational arrangements and doctrinal matters (Acts 15). The Governing Body supervises over 100 branch offices worldwide, each of which is supervised by a branch committee. One of the branch offices is the United Kingdom office based in London. The branch office has a branch committee. The committee oversees districts within the branch and assigns a district overseer to oversee each district. Within each district, there are about 12 circuits. A circuit overseer is assigned to oversee each circuit. Within each circuit, there are about 20 congregations. Within each congregation, there are elders, ministerial servants and members of the congregation. 13. Notwithstanding its hierarchical organisational structure, in accordance with the model of the early Christian communities as described in the bible, there is no hierarchical structure of setting apart a clergy class from the laity. All members are expected to teach and can lead bible study. Congregational responsibilities are split between “overseers and ministerial servants” (Philippians 1:1). Overseers are also referred to as elders. Generally, there are a number of elders and ministerial servants in each congregation. Members of the congregation are called “publishers” and call each other “brother” and “sister” (Matthew 23:8-12). 14. Elders are selected for appointment based on scriptural qualifications and will be mature spiritual men who have been baptised for many years, will be viewed as good examples in Christian living and previously will have served as ministerial servants (1 Timothy 3:1-7 and Titus 1:5-9). However, elders are not considered to be closer to God or superior persons (Job 32:21,22). They do not adopt an elevating title, such as Father, Reverend or Pastor, or take a superior position with reference to other members because there is only one leader who is Christ (Matthew 23:8-11). As such, they are not required to make any particular pledge or promise of obedience or loyalty to others within the governing structure of the organisation and there is therefore no relationship between an elder and a circuit overseer in the way that there is, for example, between a pastor and a bishop. They are not to be viewed as masters over others, but as fellow workers (Romans 12:8; 1 Corinthians 3:5; 4:1-2) who are appointed to shepherd the congregation of God (Acts 20:28). They therefore have no unique or advanced academic background and are volunteers of the congregation who are appointed to do the work of shepherding and overseeing spiritual matters (Watchtower1 October 1977 ). Their primary role is to guide and protect the congregation spiritually, including taking the lead in evangelising and presiding over all types of congregational meetings. 15. Ministerial servants are members of the congregation who are also selected for appointment based on scriptural qualifications which require them to be serious individuals who hold the secret of the faith with a clean conscience (Timothy 3:8-12; 12:13). They provide voluntary practical assistance to the elders and service to the congregation. They care for organisational and physical tasks that must be handled in the congregation. Tasks include keeping the Kingdom Hall clean and tidy, arranging the platform and microphones as circumstances require, manning and controlling the sound system and microphones for the use of the congregation, organising and making available literature for the congregation, serving as attendants at meetings, assisting in emptying collections boxes, keeping accounting records for the money, managing records to help to co-ordinate field service and any other tasks to which the elders may assign them from time to time (The Organised Book: Organised to Accomplish Our Ministry, chapter 6 p.55-59 ). 16. There is evidence in the case that ministerial servants are not supposed to have any independent pastoral or shepherding role. The evidence comes from a number of past and present elders, particularly from Paul Gillies, who is a trustee of the First Defendants, a member of the British branch committee and an overseer. It also comes from Dr Monica Applewhite who has written a report about the structure and governance of Jehovah's Witnesses. She is an American expert in clinical social work whose previous experience and expertise in relation to Jehovah's Witnesses is limited to being requested by the Watchtower Society to review three separate Jehovah’s Witness civil liability cases. Whether or not a ministerial servant is supposed to have any independent pastoral or shepherding role is an issue in the case. Specifically, it is an issue whether Peter Stewart was acting in any such role towards the claimant and her family at the material time. In so far as reliance is placed by the defendants upon The Organised Book: Organised to Accomplish Our Ministry chapter 6 p.55-59 , it is worthy of note that at p.56 it states “their work within the congregation generally involves non teaching responsibilities” (my emphasis) and at p.58-59 it states that, “if there are not enough elders to conduct the congregational book studies, some of the more qualified ministerial servants are used as study conductors to care for assigned groups. They may be assigned to handle parts in the service meeting and the theocratic ministry school and to deliver public talks in the local congregation. Other privileges may be extended to some of the ministerial servants where there is particular need and they meet the requirements for the assignment”. 17. Jehovah's Witness meetings are generally held in a place of worship called “Kingdom Hall”. They are open to the public. Meetings are held twice each week, once on a weeknight and once on a Saturday or Sunday. On a weeknight, the programme consists of the congregational bible study, the theocratic ministry school and the field service meeting. In the 1980s and early 1990s, the congregational bible study was called the congregational book study and normally occurred in small groups, either at Kingdom Hall or in members' private homes. The format for that activity was a one hour question and answer discussion of a bible topic using a printed publication of Jehovah's Witnesses. The theocratic ministry school includes talks from the elders with contributions from members about various bible readings. The field service meeting relates to house to house activities. At a weekend, the programme consists of the public meeting and the Watchtower study. The Watchtower study is a one hour question and answer discussion of a bible subject using an article in the Watchtower magazine. Generally, an elder takes the lead in teaching at congregational meetings. Members have the opportunity to give comments and to speak for a few minutes during the meetings. Families remain together. There are no separate arrangements for children. Parents are primarily responsible for their own children's secular and spiritual education (1Timothy 5:8; Deuteronomy 6:6-7). There is no bar, though, on parents seeking additional help from others. 18. Bible study is conducted in a variety of ways, including group bible study, family bible study, individual study and the door to door ministry of field service. Regular door to door ministry is expected to be the life of all Jehovah’s Witnesses (Acts 20:20). It is not limited to religious leaders or a chosen few, but should be carried out by all (Acts 5:42). Members are instructed to go and make disciples of all people (Matthew 28:18-20). It is performed voluntarily and without pay (Matthew 10:7-10). 19. Jehovah’s Witnesses strive to live by a strict code of moral conduct based on the scriptures. However, when a member of the congregation is accused of committing a sin, the body of elders will assign two elders to investigate if there is evidence that the sin was committed. If there is, the body of elders will appoint a judicial committee of three or more elders to provide spiritual assistance to the person who committed the sin. If they find the individual genuinely repentant they will provide spiritual counsel and reproof to help avoid recurrence of the sin and may restrict the individual from full participation in meetings (Acts 26:20; Watchtower 1976,1 December 1981 ,15 September 1994 ,15 July 2007 ). There may be an announcement to the congregation during a regular scheduled meeting that the individual has been “reproved”, but the sin itself should not be mentioned (Shepherd the Flock of God p.98; Watchtower1 December 1976 ). If the reproved individual is an elder or ministerial servant, he will be “deleted”, that is removed, from that position and an announcement of the deletion should also be made to the congregation at a meeting (Shepherd the Flock of God p.42; Watchtower1 December 1976 ). If the judicial committee finds an individual is not repentant, he or she may be “disfellowshipped”, that is excommunicated, from the congregation. In that case, an announcement should be made to the congregation that the individual is no longer one of the Jehovah’s Witnesses, but again the sin itself would not be mentioned (Shepherd for The Flock of God p.101). The information received by and the deliberations of a judicial committee are supposed to remain confidential (Proverbs 25:9). Those who are disfellowshipped should be “shunned” by all those who wish to have a good relationship with Jehovah (Pay Attention to Yourselves and to All The Flock 1991 p.103).’
‘…it is apparent from the structure and governance of Jehovah’s Witnesses as summarised above and from the evidence from numerous elders, particularly the lengthy evidence of Alan Orton, that being a Jehovah’s Witness is a way of life for all members. It is not confined to the attendance at services. It affects every aspect of one’s daily life. That is particularly so for those who become elders and ministerial servants. The strict code of moral conduct by which all members are expected to observe and apply to their day-to-day living is enforced by the existence of the judicial committee and its jurisdiction over all aspects of the life of a Jehovah's Witness.’
‘The high level of control over all aspects of the life of a Jehovah’s Witness is arguably a closer relationship than that to be found in an employer/employee relationship.’
‘A ministerial servant may not be very far up the ladder of the structure but his role is one of great importance. The routine tasks performed by him are necessary and important tasks without which many of the activities of Jehovah’s Witnesses cannot be carried out. He deputises for an elder in the absence of an elder. I am satisfied that, in deputising, he assists the elders, not only with routine administrative tasks but also standing in on occasions with a teaching role, if necessary. One also cannot become an elder without first having been a ministerial servant. As such, a ministerial servant is part and parcel of the organisation and integral to it.’
‘He is a fundamental part of the whole enterprise dedicating himself to the good of Jehovah’s Witnesses. His duties are solely to serve the interests of the organisation. He is constantly working for the good of the organisation of Jehovah’s Witnesses and not for himself.’
‘My conclusion in relation to the second stage is that, on the facts as I find them to be, the sexual abuse of the claimant by Peter Stewart was not as a result of the mere opportunity of his presence in the claimant’s company for reasons outside any role he was playing as a Jehovah’s Witness. Whether the abuse took place at or after book study at whoever’s home, on field service, at Kingdom Hall or at the Convention, he was ostensibly performing his duties as a Jehovah’s Witness ministerial servant. I am satisfied that the progressive acts of intimacy were only possible because he had the actual or ostensible status of a ministerial servant that meant no one who saw him questioned his being alone with the claimant. As in the cases of Lister and Maga, it is that that provides the close connection between the abuse and what he was authorised to do. In the words of Lord Steyn, they were “inextricably interwoven” with the carrying out of his duties. In such circumstances, in my judgment, it is fair and just to hold the defendants to be vicariously liable for his acts.’
‘The scope of vicarious liability depends upon the answers to two questions. First, what sort of relationship has to exist between an individual and a defendant before the defendant can be made vicariously liable in tort for the conduct of that individual? Secondly, in what manner does the conduct of that individual have to be related to that relationship, in order for vicarious liability to be imposed on the defendant?’
‘…a relationship other than one of employment is in principle capable of giving rise to vicarious liability where harm is wrongfully done by an individual who carries on activities as an integral part of the business activities carried on by a defendant and for its benefit (rather than his activities being entirely attributable to the conduct of a recognisably independent business of his own or of a third party), and where the commission of the wrongful act is a risk created by the defendant by assigning those activities to the individual in question.’
‘…the abusers were placed by the organisations in question, as part of their mission, in a position in which they committed a tort whose commission was a risk inherent in the activities assigned to them’
‘The prison service carries on activities in furtherance of its aims. The fact that those aims are not commercially motivated, but serve the public interest, is no bar to the imposition of vicarious liability. Prisoners working in the prison kitchens, such as Mr Inder, are integrated into the operation of the prison, so that the activities assigned to them by the prison service form an integral part of the activities which it carries on in the furtherance of its aims: in particular, the activity of providing meals for prisoners. They are placed by the prison service in a position where there is a risk that they may commit a variety of negligent acts within the field of activities assigned to them. That is recognised by the health and safety training which they receive. Furthermore, they work under the direction of prison staff. Mrs Cox was injured as a result of negligence by Mr Inder in carrying on the activities assigned to him. The prison service is therefore vicariously liable to her.’
‘44. In the simplest terms, the court has to consider two matters. The first question is what functions or “field of activities” have been entrusted by the employer to the employee, or, in everyday language, what was the nature of his job. As has been emphasised in several cases, this question must be addressed broadly; see in particular the passage in Diplock LJ's judgment inIlkiw v Samuels[1963] 1 WLR 991 , 1004... 45. Secondly, the court must decide whether there was sufficient connection between the position in which he was employed and his wrongful conduct to make it right for the employer to be held liable under the principle of social justice which goes back to Holt CJ. To try to measure the closeness of connection, as it were, on a scale of 1 to 10, would be a forlorn exercise and, what is more, it would miss the point. The cases in which the necessary connection has been found for Holt CJ’s principle to be applied are cases in which the employee used or misused the position entrusted to him in a way which injured the third party.’
‘…determining what would have been the sphere, scope, course (all these nouns are used) of the servant’s employment if the prohibition had not been imposed. As each of these nouns implies, the matter must be looked at broadly, not dissecting the servant’s task into its component activities — such as driving, loading, sheeting and the like — by asking: what was the job on which he was engaged for his employer? and answering that question as a jury would.’
‘47. In the present case it was [the employee] Mr Khan’s job to attend to customers and to respond to their inquiries. His conduct in answering the claimant’s request in a foul mouthed way and ordering him to leave was inexcusable but within the “field of activities” assigned to him. What happened thereafter was an unbroken sequence of events. It was argued by the respondent and accepted by the judge that there ceased to be any significant connection between Mr Khan’s employment and his behaviour towards the claimant when he came out from behind the counter and followed the claimant onto the forecourt. I disagree for two reasons. First, I do not consider that it is right to regard him as having metaphorically taken off his uniform the moment he stepped from behind the counter. He was following up on what he had said to the claimant. It was a seamless episode. Secondly, when Mr Khan followed the claimant back to his car and opened the front passenger door, he again told the claimant in threatening words that he was never to come back to the petrol station. This was not something personal between them; it was an order to keep away from his employer’s premises, which he reinforced by violence. In giving such an order he was purporting to act about his employer’s business. It was a gross abuse of his position, but it was in connection with the business in which he was employed to serve customers. His employers entrusted him with that position and it is just that as between them and the claimant, they should be held responsible for their employee’s abuse of it. 48. Mr Khan’s motive is irrelevant. It looks obvious that he was motivated by personal racism rather than a desire to benefit his employer's business, but that is neither here nor there.’
‘It seems to me that, despite the time and the place, Mr Major was purporting to act as managing director of NR. He was exercising the very wide remit which had been granted to him by NR. His managerial decisionmaking having been challenged, he took it upon himself to seek to exercise authority over his subordinate employees. The lecture itself was concerned with the nature and extent of his authority in relation to NR's business and the exercise of that authority over his fellow employees. He chose to wear his metaphorical managing director's hat and to deliver a lecture to his subordinates. He was purporting to use his position and drove home his managerial authority, with which he had been entrusted, with the use of blows. Looked at objectively, he was purporting to exercise his authority over his subordinates and was not merely one of a group of drunken revellers whose conversation had turned to work. It seems to me that the attack arose out of a misuse of the position entrusted to Mr Major as managing director. He asserted his authority in the presence of around 50% of NR’s staff and misused that authority. It was not merely a discussion leading to an altercation between hotel guests and visitors, as the judge described them.’
‘What was crucial here was that the discussions about work became an exercise in laying down the law by Mr Major, indeed an explicit assertion of his authority, vehemently and crudely expressed by him, with the intention of quelling dissent. That exercise of authority was something he was entitled to carry out if he chose to do so, and, however unwise it may have been to do so in such circumstances, it did arise from the “field of activity” assigned to him.’
‘He told us he could do what he liked because he was an elder and that he was not answerable to us.’
‘the law should develop novel categories of negligence incrementally and by analogy with established categories, rather than by a massive extension of a prima facie duty of care restrained only by indefinable “considerations which ought to negative, or to reduce or limit the scope of the duty or the class of person to whom it is owed”.’
‘Regardless of the biblical origins of the two-witness rule, the Jehovah’s Witness organisation’s retention of and continued application of the rule to a complaint of child sexual abuse is wrong. It fails to reflect the learning of the many people who have been involved in examining the behaviour of abusers and the circumstances of survivors. It shows a failure by the organisation to recognise that the rule will more often than not operate in favour of a perpetrator of child sexual abuse, who will not only avoid sanction but will also remain in the congregation and the community with their rights intact and with the capacity to interact with their victim. A complainant of child sexual abuse whose allegation has not been corroborated by confession by their abuser or a second “credible” eyewitness is necessarily disempowered and subjected to ongoing traumatisation. To place a victim of child sexual abuse in such a position is today, and was 30 years ago, unacceptable and wrong.’
‘Before forming a committee, elders determine if the accusation has substance. It must be Scripturally serious enough to result in disfellowshipping. There must be either two witnesses or a confession of wrongdoing. If there is not enough evidence to form a committee but serious questions have been raised, two elders may be assigned to investigate the matter.’ (d). Fourth, Mrs B was not compelled to attend the judicial committee hearing, but felt morally obliged to do so, given CXC’s allegations. Mrs B’s evidence to this effect was consistent with the guidance at p. 119 of the Handbook: ‘Accusers should be ready to assume their responsibility, as was required in Israel. (Deut. 17:6, 7; 19:16-21)’ (e). Under the guidance applicable at the time, the allegations against Mark Sewell could in principle have been found proven on the evidence of Mrs B and CXC taken together. At p. 111 of the Handbook, under the heading ‘What kind of evidence is acceptable?’, the following appears: ‘There must be evidence of two or three eyewitnesses, not just persons repeating what they have heard; no action can be taken if there is only one witness. (Deut. 9:15; John 8:17) … The testimony of youths may be considered; it is up to the elders to determine if the testimony has the ring of truth. … If there are two or three witnesses to the same kind of wrongdoing but each one is witness to a separate incident, their testimony can be considered. Such evidence may be used to establish guilt, but it is preferable to have two witnesses to the same occurrence of wrongdoing.’
‘I suffer from episodes of anxiety and panic attacks which occur on a daily basis including the sensation of having “butterflies in my stomach” and upsurges of panic which are triggered by certain events. I have memories, flashbacks and nightmares of the abuse – experience these a few times a month. The flashbacks can be triggered by anything and happen at any time. If, for example, I pass Mark and Mary’s house I might start thinking about what happened and have a panic attack. Sometimes intimacy can trigger a panic attack because I hate the feeling of being confined. When I have nightmares I have a picture of Mark and Mary in my mind. Sometimes I’m arguing with them and sometimes I’m friends with them. My husband has told me that I have called out their names. I wake up very panicky or sweaty. I find that I lose my temper and become irritable generally. I have difficulties with sleep and appetite. After everything that has happened, I still feel guilty and ashamed about what happened.’
‘breach of trust, the inability to form or maintain emotional and sexual relationships, the impact on education, and the effect on the victim of the, often, long interval before the fact of the abuse is reported.’
‘the nature and severity of the abuse itself, any short-term and long-term physical, emotional and psychiatric or psychological injuries, and the general effect of the abuse on the claimant’s capacity to function throughout their life. The latter may include the ability to sustain personal and sexual relationships, to benefit from education and to undertake paid employment.’
‘In part (A) of this chapter some of the brackets contain an element of compensation for post-traumatic stress disorder. This is of course not a universal feature of cases of psychiatric injury and hence a number of the awards upon which the brackets are based did not reflect it. Where it does figure any award will tend towards the upper end of the bracket. Cases where post-traumatic stress disorder is the sole psychiatric condition are dealt with in part (B) of this chapter. Where cases arise out of sexual and/or physical abuse in breach of parental, family, or other trust, involving victims who are young and/or vulnerable, awards will tend to be at the upper end of the relevant bracket to take account (A)(vii) below.’ 203The factors to be taken into account are: ‘(i) the injured person’s ability to cope with life, education and work; (ii) the effect on the injured person’s relationships with family, friends and those with whom he or she comes into contact; (iii) the extent to which treatment would be successful; (iv) future vulnerability; (v) prognosis; (vi) whether medical help has been sought; (vii) Claims relating to sexual and physical abuse usually include significant aspect of psychiatric or psychological damage. The brackets discussed in this chapter provides a useful starting point in the assessment of general damages in such cases. It should not be forgotten, however, that this aspect of the injury is likely to form only part of the injury for which damages will be awarded. Many cases include physical or sexual abuse and injury. Others have an element of false imprisonment. The fact of an abuse of trust is relevant to the award of damages. A further feature, which distinguishes these cases from most involving psychiatric damage, is that there may have been a long period during which the effects of the abuse were on diagnosed, untreated, unrecognised, or even denied. Awards should take into account not only the psychiatric effects of the abuse on the injured party but also the immediate effect of the abuse at the time that it was perpetrated, including feelings of degradation. Aggravated damages may be appropriate. Cases of prolonged and frequent physical and sexual abuse of a child over many years by a person in a position of trust, involving penetrative violation, are likely to fall into (A)(a) or (B)(b) and reflect aggravated damages, leading to an award towards the top end of the bracket.’