Hopkins, R v [2004] EWCA Crim 309

Case No 2002/00077/D4[2004] EWCA Crim 309
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM HIS HONOUR JUDGE MOTT
AT WORCESTER CROWN COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 20 th February 2004
Before
LORD JUSTICE PILLMR JUSTICE GRAYMR JUSTICE AIKENS
Between
JOSEPH PETER HOPKINSAppellantTHE QUEENRespondent
MR RAYMOND WIGGLESWORTH QC for AppellantMS JULIA MACUR QC for RespondentHearing Hearing dates : 23 January 2004
JUDGMENT
[1]On 30 November 2001 in the Crown Court at Worcester before His Honour Judge Mott and a jury Joseph Peter Hopkins was convicted of 12 counts, alleging offences of indecent assault, rape and assault occasioning actual bodily harm, against 7 females and 1 male under 16. He was sentenced to a total of 12 years imprisonment. He was acquitted on other counts. For the single offence of rape, he was sentenced to 12 years imprisonment. Concurrent sentences of up to 4 years were imposed for the other offences. This is an appeal against conviction, leave having been granted by the full court.[2]The appellant was employed by Staffordshire County Council as a residential care officer at Chadswell Remand Home from the mid-1970s and Riverside Community Home from 1982 to 1987. The offences are alleged to have been committed between July 1981 and March 1987, the first, Count 14, at Chadswell and the rest at Riverside. All the complainants were children in the appellant’s care. He denied any sexual activity whatsoever. He claimed that the complainants’ motive for making the allegations was financial. Many of the residents were at the Home because of their disruptive behaviour and in some cases had criminal convictions. Their care and control plainly presented difficult problems for staff. There was evidence of the appellant’s professional approach to his work and of his generally caring approach to the children.[3]Having regard to the points taken on the appeal, it is not necessary to set out the facts of the alleged offences in great detail. The offence of rape (Count 1) was alleged to have been committed on 1985. The appellant took JH to a cellar saying he wanted to talk to her. He asked her to go down on him. He pushed her down onto her knees and he tried to put his penis into her mouth. As she resisted, he pushed her to the floor and pulled her trousers and knickers down. She shouted and screamed. The appellant spat on his hands, wet her vagina and had sexual intercourse with her. He told her she could tell anyone. They would never believe her as she was “just a dirty little slag”.[4]A few weeks later the appellant asked her to go with him to see his motorbikes. She knew she could not refuse as she would not be allowed to see her parents if she did. She complained that “he groped me all over, putting his hands inside my shorts and his fingers in my hole saying I love you” (Count 2). When she threatened to tell her mother, he struck her (Count 3). She did not tell anyone because she thought the appellant would kill her. After being shown a much later letter from a firm of solicitors, the complainant admitted enquiring about compensation for her mother who had paid for her to stay at Riverside. She wanted nothing for herself. The letter was dated 14 months after the date of the complainant’s witness statement. The complainant’s mother saw her daughter with black eyes and bruising. No complaint was made to her.[5]Offences against AB and BB were alleged to have been committed on 1 March 1987 (Counts 15 and 16). AB was with the appellant in the houseroom. He picked her up and laid her on her back on a table. He kissed her face and licked her neck (Count 15). When someone entered the room, he just laughed it off. On the same day, the appellant asked BB to help him tidy up the cellar. He produced a packet of condoms. She claimed that he took her clothing off and raped her (Count 16). The jury acquitted of rape but convicted of indecent assault. Both AB and BB complained to Miss Wood, a now deceased member of staff. Statements in writing were made and an investigation, to which we will refer, was conducted. AB remembered some of the other witnesses but denied that there had been collusion between them as to the relevant events.[6]NL, a male complainant, said that the appellant played with his penis while he was sat on the toilet (Count 8). He tried to push the appellant away but he just laughed. He did not tell anyone as he was afraid of being caned or not being believed. On another occasion, the appellant asked him to suck his penis. When he refused, he rubbed the complainant’s knuckles against his, the appellant’s, penis (Count 9).[7]Other girls complained of sexual and violent assaults. The appellant brushed his hands over the nipples of SH and made a suggestive comment (Count 11). LG had a black eye and a cut (Count 12). He was alleged to have put his hand at the top to SM’s leg (Count 13).[8]Giving evidence, the appellant denied all misconduct. Many of the children had been sexually abused before entering the Home. He had to make sure that he behaved appropriately. The allegations were completely false. During violent incidents, there could be accidental touching. He had been with BB in the cellar on 1 March 1987 but nothing had happened. His only sexual contact in the cellar was with a woman who worked in the Home. A statement from Miss Wood, now deceased, was read to the jury as was a statement of Mr Prosser-Davis, also now deceased. Some evidence was provided of the appellant’s movements on 1 March 1987. Both statements had been taken at the time of the 1987 enquiry.[9]A feature of this case is the investigation which followed the complaints made about events of 1 March 1987. Statements were taken from AB and BB and the appellant was suspended from duty. Statements were also taken from MissWood and Mr Prosser-Davis. The police enquired into the allegations and, on 3 June 1987, a detective chief inspector wrote to the appellant’s employers stating:
“I have decided that there is insufficient evidence on which to contemplate criminal proceedings”
. The appellant was reinstated.[10]Further complaints emerged in the 1990s and compensation claims were made. In 1999, the police launched a further investigation (Operation Thaw) into the allegations at Riverside and asked, by way of a newspaper advertisement, for information from the public. A police contact telephone number was published. The complaints which are the subject of the present counts then emerged.[11]The judge ruled that it was not an abuse of process to proceed with the indictment, including the counts involving AB and BB (Counts 4, 15 and 16).[12]For the appellant, Mr Wigglesworth QC submits that the trial should have been stopped as an abuse of process. The appellant had been told he would not be prosecuted for the alleged offences of 1 March 1987. Prejudice had arisen from the delay because of the death of Miss Wood and Mr Prosser-Davis, the fact that the two police officers who had carried out the 1987 investigation could not remember it, their notebooks had been destroyed and any unused material resulting from it had been destroyed. At lowest, Counts 4, 15 and 16 should have been excluded.[13]Count 4 was a fresh complaint made by AB about an incident in early 1987. She had not made it when making her April 1987 complaint. Reliance is placed on the decision in Bloomfield [1997] 1 Cr.App R 135 where, following a change of counsel, the prosecution reversed an earlier decision not to prosecute without any reason being given as to why the earlier decision was wrong. The conviction was quashed. In Robert Nigel D (transcript, 9 July 1999), the police also went back on their word and instituted proceedings in a case where the prejudice on two counts was, in the view of this Court, obvious and substantial. Convictions on those two counts were quashed but a trial involving other counts, alleging later offences, was held to be fair.[14]Reliance is also placed on the fact that, in relation to what became Count 16, the complainant gave a quite different account in 1999 from the one she had given in 1987, though this was double edged in that it gave the defence an opportunity to discredit the case as a whole by drawing attention to the inconsistencies. It is submitted that not only should counts 4, 15 and 16 have been excluded but evidence on them contaminated the other convictions because the judge had given a direction in accordance with DPP v P [1991] Cr.App. R. 267 where Lord Mackay LC stated, at page 280, that the evidence of the complainants was capable of mutually supporting each other.[15]When rejecting the application to stop the trial as an abuse of process, the judge stated that “the prosecuting authorities were essentially not seeking to resurrect old matters so much as to act on fresh complaints that had been made by, admittedly, the same two people. The context was different:
“ a context of many other people making these suggestions or allegations against the defendant so that they did not now just have two girls on their own but a whole raft of complaints and the decision was made to charge and proceed”
. The judge also held that no real prejudice to the defendant had been shown.[16]For the prosecution, Miss Macur QC relies on the principle stated in Attorney General’s Reference (No.1 of 1990) (95 Cr.App.R. 296) that the trial process itself is equipped to deal with complaints and on Beckford [1996] 1 Cr.App.R. 94. In Beckford this court identified two types of case where the proceedings may be stayed for abuse of process, namely, where the defendant would not receive a fair trial and where it would be unfair for the defendant to the tried. Each case had to be considered on its own facts. In the present case, the earlier complaints were now made in a quite different context. Documents from 1987 had been disclosed to the defence: notes taken by police officers, notes of interview of the complainants by the headmaster of the Home and the appellant’s own contemporaneous document dealing with the allegations. The Home’s records of the enquiry were disclosed.[17]The statements of Miss Wood and Mr Prosser-Davis could be (and were) read at the trial. Miss Wood’s statement did not go to the appellant’s movements on 1 March 1987 and it is not suggested that Mr Prosser-Davis could supply a complete alibi for that date. Their statements included the matters which appeared relevant at the time. The appellant had admitted going to the cellar, although he said for an innocent purpose. Considerable material was thus available to the defence and it is very unlikely that there would have been other documents relevant to the determination of the issues.[18]In the circumstances, the judge was in our view entitled to allow the trial to proceed and to allow Counts 4, 15 and 16 to be included. The judge gave appropriate directions and summed up the case fairly including a direction to the jury that they “must be alive to difficulties which he [the appellant] is or may be presented with because of the lapse of time”. He stated that they must “make all proper allowances for him in that situation and, in the end, you will want to ask yourselves whether or not, in relation to a particular count or counts as a whole, he has or has not been put at a real disadvantage in presenting his case. If you conclude that he has or may have been, then you will have that very much in mind when considering the impact of the evidence as a whole and whether it makes you sure of guilt”.[19]Attention was also drawn in the summing-up to the issue of collusion and to the possibility that the complainants were motivated by a desire for compensation.

The judge told the jury:

“Ask yourselves whether there is any real possibility that all or some of these witnesses have put their heads together in a conspiracy to lie about the defendant.”
Later he directed them:
“Another important question that you ask yourselves is, may it be that any of these witnesses, whether in 1987 or during ‘Operation Thaw,’ have been influenced in making their allegations by hearing about other people or another person also making sexual allegations. You know that only two of them made complaints while they were there and with all the others it has been well into double figures in terms of years before they made those complaints. Or may all of them or some of them have been influenced to some degree or other by a desire for compensation.?”
[20]Referring to the long lapse of time before complaints were made,

the judge stated:

“……. of course, a gap in time like that may, in some cases, indicate a complaint made as an afterthought for ulterior motives.”
That, the judge stated, “is essentially something for your own good judgment.”[21]Moreover, given the alleged sequence of events at the Home, and the nature of the allegations made by residents there, the judge was entitled to give a direction in accordance with DPP v P. It was hardly argued to the contrary and understandably so. The direction given was an appropriate one.[22]In our judgment the verdicts in this case are not rendered unsafe, or the trial rendered unfair, because Counts 4, 15 and 16 were considered at the trial along with the other counts or for any other reason. No doubts were raised in our minds about the safety of these convictions and it was for these reasons that the appeal was dismissed.

The Sentence

[23]Hopkins appeals against sentence with leave of the single judge. He is 60 years of age and of previous good character. The offences were serious and rightly described by the judge as “the grossest betrayal of your trust”. At least two of the victims were still deeply affected by what the appellant had done to them. A long sentence was required.[24]In all the circumstances, we consider that a sentence of 10 years imprisonment would have been appropriate. The sentence of 12 years imprisonment for rape is quashed and there is substituted for it a sentence of 10 years imprisonment. The other sentences stand and will continue to run concurrently. To that extent, the appeal is allowed.