Joseph Peter Hopkins 16th February 1998 Court of Appeal

Posted on 2015, May, 15 by foxblog

Please note that victims of abuse may be triggered by reading this information. The Sanctuary for the Abused [A] has advice on how to prevent triggers. National Association for People Abused in Childhood [B] has a freephone helpline and has links to local support groups. Other useful sites are One in Four [C] and Havoca [D]. Useful post on Triggers [E] from SurvivorsJustice [F] blog. Jim Hoppers pages on Mindfulness [G] and Meditation [H] may be useful.

Redaction

Some reports have had victims names redacted and some assault details redacted.

This is a difficult balance- normally I would think that I should not “censor” details but on consultation with various people I have taken the decision to redact. This is mainly to protect victims, their friends and relatives from unnecessary detail and to stop the gratification of those who seek salacious details.

In addition to the obvious “victims redaction” I have thus “assault redacted” across most of the spectrum of abuse. This may obscure sometimes the legal reason for the appeal, but should make no large difference to the vital information for researchers that these documents contain. That information is mainly names of the perpetrators, past addresses, the actual charges the perpetrators faced – on which newspapers are pathetically inaccurate and this information enables the links between people and places and abuse at various times to be ascertained.

If you think that the balance is not correct or that a particular redaction needs reconsideration, please say.

For an Index / Timeline of Court Appeal Documents on Cathy Fox Blog see [1]

This post is relevant to my Staffordshire Pindown Operation Thor post [2]

[ 1998] EWCA Crim J0216-1

No: 9705836/Y3

IN THE COURT OF APPEAL CRIMINAL DIVISION

Royal Courts of Justice

The Strand

London WC2

Monday 16th February 1998
Before:

The Vice President

(Lord Justice Rose)

Mr Justice Holland and

Mrs Justice Smith

Regina
v.

Joseph Peter Hopkins

Computer Aided Transcript of the Stenograph Notes of Smith Bernal Reporting
Limited 180 Fleet Street, London EC4A 2HD Tel No: 0171 421 4040 Fax No:
0171 831 8838 (Official Shorthand Writers to the Court)

MR A BARKER QC appeared on behalf of the Appellant

MR P THOMAS appeared on behalf of the Crown

JUDGMENT

Monday 16th February 1998
MR JUSTICE HOLLAND : Joseph Peter Hopkins is aged 56. On 6th August 1997 at
Stafford Crown Court he was convicted by a jury as follows: by count 1 of
an indictment he was convicted of indecent assault, the particulars
alleging that on a day between 1st April 1995 and 24th October 1995, he had
indecently assaulted Female A , a female person; by count 2, he was
convicted of a like offence, the particulars alleging that on a day between
1st June and 24th October 1995, he had again indecently assaulted Female A;
and by count 4, he was convicted of a further offence of indecent assault,
the particulars alleging that on a day between 1st March 1994 and 24th
October 1995, he had indecently assaulted Female B . The jury acquitted him
of a like offence that had been charged by count 3, that was of an indecent
assault on Female C, and the judge had already directed the jury they
were to acquit him on a fifth count, that of alleging a further indecent
assault on Female B. Having been convicted, the learned judge, His Honour
Judge Taylor QC, sentenced him to 18 months’ imprisonment on each count,
those sentences to be served concurrently. He appeals against conviction
with the leave of the Single Judge.
The appellant was an experienced social worker, a man of previous exemplary
character. His work at the material time involved him with persons
discharged in his community from psychiatric hospitals. He further
concerned himself with counselling and running groups for those afflicted
with anxiety management problems and those requiring stress relief.

The Crown’s essential case was that he exploited the trust put in him by
vulnerable clients so as to assault them indecently. Left to the jury there
were three such clients, we shall refer to them as Females A, B and C

The defendant’s case was that there had been no such breach of trust in as
much as none of these incidents had happened. Turning first to Female A, her
age was 20 as the date of trial. [victim redaction]

On 22nd October 1995 she first complained to the police. Contact
immediately stopped. The appellant was suspended. Turning to the particular complaints that she made and were the subject of the counts, she said as follows. [assault redacted]

Therein were the circumstances which provided the basis for the Crown case
and thus far it has to be said that was what was alleged to have occurred.
In the event, particularly during and after cross-examination, her evidence
gave rise to grave concerns as to its intrinsic weight. As to this, several
points can now be made. First, her evidence was variable and contradictory
and on crucial issues difficult to follow. An example will suffice, as recited in the summing-up:

“She was again taxed about her attitude to Mr. Hopkins. She said up until
the time when he was seeing her mother ‘I got on very well, very very well
with him. I liked him as a friend. If he came to the centre I’d rush out
and greet him affectionately, probably. The whole time I knew the defendant
I behaved in a friendly way with him. I’d put my arms around anyone. I
didn’t kiss him on the cheek. If I had not behaved like that someone would
have suspected. I didn’t want anyone to know because I believed that he
would lose his job.’ She agreed ‘I didn’t have to put my arms around anyone
unless I wanted to. I did link arms as a friend. Everyone thought, or
everybody thought I was his friend. If I behaved differently people would
believe he’d been abusing me.'”

The judge then addressed the jury:

“Members of the jury, does that make sense? Why should people suspect that
he had been abusing her if she ceased to act in quite such an affectionate
and friendly manner towards him?”

More worrying was the evidence of another witness, a nurse, Witness 1.
She spoke of an interview that she had had with Female A on 2nd October, that
is some three weeks before the complaint to the police. The judge summed
the matter up to the jury in these terms:

“Then she was asked about the note she made on 2nd October, and bear in
mind, members of the jury, we are now in the month when the complaint was
made to the police. She said that according to her note Female A told her on
2nd October [victim and assault redaction]. I
suggested that she should put her feelings down in the form of a letter,
but she didn’t.'”

The concerns that that piece of evidence raises were no way allayed by the
way Female A dealt with the matter in the course of cross-examination. The
judge’s recital of that passage of her evidence shows that that at page 45F:

“[assault redaction] said ‘I don’t tell lies. I may have said it. I talk about
everything. I wouldn’t have said [Assault redaction].'”

The judge then addressing the jury said:

“Members of the jury, she was there giving quite inconsistent replies
within a very short period of time, at one moment saying she did not say
she [assault redaction], then conceding that she might have said it, and then saying
again that she had not said it.”

Later in her cross-examination, she returned to the same topic. Again, the
judge recited her evidence as follows:

“‘When I was [victim redaction] I was manipulative but I wouldn’t lie.
I would probably manipulate the situation to get more attention. I probably
exaggerated and distorted things, but there was always a bit of truth in
what I said, but it was not an accurate picture. I can stop behaving like
that, and I don’t do it any more. When I spoke to Witness 1 about [assault redaction] I was probably being manipulative. I don’t know why I was saying it. The accusations about the defendant really happened and I didn’t want anyone to go through what I did with him.”

We then move to the further matters of concern. They can be summarised as
follows: there was no complaint by Female A to anybody about this alleged
behaviour on the part of the appellant before she went to the police.
Further, despite having a close relationship with her mother, that lady did
not believe her and, in the event, gave evidence to that effect on behalf
of the appellant.

We move from Female A to Female B, the lady who is the subject of count 4. As
at trial, she was aged about 50. She had been seen by the appellant as a
client, regularly, in the course of 1994, and again, rather less regularly
in 1995, until he was suspended by reason of the allegations made by Female A.

She, in 1994, had had concerns about [victim and assault redaction]

As with Female A there were concerns apparent from the evidence about the
intrinsic weight of this lady’s account. First, it would seem that what she
was complaining about had happened before 17th May 1994, thus before she
told Dr Hooper, in complementary terms, about the assistance she was
getting from the appellant. Further, there was certainly no complaint made
by her about any conduct on the part of the appellant, whilst he was acting
as her social worker, and indeed, there was no complaint at all until she
went to the police in October 1996.

The next concern is that there was no explanation for that failure to make
complaint, no explanation for the delay in approaching the police and no
explanation for making that approach at that time. It is to be observed
that an approach to the police in October 1996 is an approach made whilst
proceedings were underway with respect to the other allegations that had
been made by Female A, and that had been by the other lady, Female C.

Finally, before departing from the case relating to Female B, this Court
observes that what she spoke of was extreme in terms of behaviour and
apparent recklessness, given the circumstances in which this conduct
allegedly took place, that is, in the course of working hours, in an
office, in a building occupied by the department with a door shut but
unlocked —eventually, against the probabilities.

Before turning then to the way in which this case is put in an attractive
address by Mr. Barker, it is necessary additionally to remind ourselves of
what was said by the third witness, Female C, that is, the lady in respect of
whom the jury returned a verdict of not guilty. Her account was that she too was a
client of the appellant, and on one occasion while she was in the grip of
an anxiety attack she was taken by him to hospital in a car. He apparently
was unable at the time or unwilling to drive, in the result, he made the
arrangements whereby his friend, Mr. A, drove the car, he sat in the
front passenger seat and she sat in the seat behind. [assault redaction] Her complaint was made after she had heard that Female A
had made a statement. It was to be observed that by the trial she was
contemplating some action at law arising out of this matter and had already
instructed a solicitor. In the course of her evidence, she appeared to be
saying that her real complaint was that he had never troubled to get her
into a hospital at all. The driver gave evidence to the jury to the effect
that he had noticed nothing untoward in the course of the journey.

We turn to the significance of all that shortly. Mr. Barker, on behalf of
the appellant, submitted, first, that there was no case for his client to
answer. He had at the conclusion of the prosecution case made such a
submission to the learned judge, who had rejected it. That submission was
made under the second limb of

* R v. Galbraith * 73 Cr.App.R. 124 . Mr. Barker submits to us that the
judge was wrong in rejecting that submission, and so unreasonably wrong
that on that ground alone we should find this conviction to be unsafe. We
decline to take up that particular invitation. We remind ourselves that the
judge had the advantage over this Court of seeing the witnesses, of gaining
a feel of the case, and it would be a bold move on this Court to seek to
displace his judgment as to the matters to be left to the jury for their
decision.

Mr. Barker’s second submission turns upon the observation of this Court in * R
v. Makanjuola and John E * [1995] 2 Cr.App.R. 469 at 472. In giving the
judgment Lord Taylor C.J. said as follows, doing so in the context of
section 32(1) of the Criminal Justice Act 1991:

“Given that the requirement of a corroboration direction is abrogated in
the terms of section 32(1), we have been invited to give guidance as to the
circumstances in which, as a matter of discretion, a judge ought in the
summing-up to a jury urge caution in regard to a particular witness and the
terms in which that should be done. The circumstances and evidence in
criminal cases are infinitely variable and it is impossible to categorise
how a judge should deal with them. But it is clear that to carry on giving

‘discretionary’ warnings generally and in the same terms as were previously
obligatory would be contrary to the policy and purpose of the Act. Whether,
as a matter of discretion, a judge should give any warning and if so its
strength and terms must depend upon the content and manner of the witness’s
evidence, the circumstances of the case and the issues raised. The judge
will often consider that no special warning is required at all. Where,
however the witness has been shown to be unreliable, he or she may consider
it necessary to urge caution. In a more extreme case, if the witness is
shown to have lied, to have made previous false complaints, or to bear the
defendant some grudge, a stronger warning may be thought appropriate and
the judge may suggest it would be wise to look for some supporting material
before acting on the impugned witness’s evidence. We stress that these
observations are merely illustrative of some, not all, of the factors which
judges may take into account in measuring where a witness stands in the
scale of reliability and what response they should make at that level in
their directions to the jury.”

This Court is quite satisfied that in the case of both Females A and B a
warning of the type specified in the passage cited was needed and the
warning had to be strong given all the circumstances.

In our judgment, the jury should have been directed that it was wise to
look for some supporting material before relying on Female A’s evidence. The
jury should have been directed that it would have been wise to look for
some supporting material before relying on Females B’s evidence. One
immediate advantage of such directions would be that the judge would be
bound to point out to the jury that leaving aside similar fact evidence, as
to which we come later, there was, in truth, no supporting evidence
available to substantiate what Female A said and there was no supporting
evidence available to substantiate what Female B said.

That being what was required in the judgment of this Court, we turn to the
summing-up; in the event there was no such direction at all. The absence of
any such direction amounts, in our judgment, to such an irregularity in the
circumstances of this case as to make the resultant convictions unsafe.

What in the event was left to the jury was a similar fact direction. It was
long and in terms careful. The basis for the direction explained by the
judge in these terms:

“Now the prosecution allege that the circumstances connecting each
individual alleged victim are so similar that in considering whether one
has told the truth about her allegations, you can find support for her by
considering the evidence of the other alleged victims as to their
allegations. This is, of course, subject to what I have already said about
the need to find the individual alleged victim potentially credible.

The similarities between the cases of each woman relied on by the
prosecution are that in each case the defendant came into contact with them
in his capacity as a psychiatric social worker and, they say, took
advantage of his position and the circumstances in which he had contact
with them in order to indecently assault them, and there are, of course
similarities between some of the allegations of indecent assault.”

The guidance given with respect to a similar fact direction has as its
principal source the speech of Lord McKay, in * DPP v. P * [1991] 3
Cr.App.R. 267 , at 280:

“When a question of the kind raised in this case arises I consider that the
judge must first decide whether there is material upon which the jury would
be entitled to conclude that the evidence of one victim, about what
occurred to that victim, is so related to the evidence given by another
victim, about what happened to that other victim, that the evidence of the
first victim provides strong enough support for the evidence of the second
victim to make it just to admit it notwithstanding the prejudicial effect
of admitting evidence. This relationship, from which support is derived may
take many forms and while these forms may include ‘striking similarity’ in
the manner in which the crime is committed, consisting of unusual
characteristics in its execution the necessary relationship is by no means
confined to such circumstances. Relationships in time and circumstances
other than these may well be important relationships in this connection.
Where the identity of the perpetrator is in issue, and evidence of this
kind is important in that connection, obviously something in the nature of
what has been called in the course of the argument a signature or other
special feature will be necessary. To transpose this requirement to other
situations where the question is whether a crime has been committed, rather
than who did commit it, is to impose an unnecessary and improper
restriction upon the application of the principle.”

Having regard to the circumstances of this case, and to the guidance given,
then in judgment of this Court. It was inappropriate to give a similar fact
direction. The similarities that the judge identified have appeared from
the passage already cited. But they were very modest in number and
significance and really amounted to no more than repeated allegations of a
breach of a social worker/client relationship.

The acts were markedly different, the respective circumstances were
markedly different. There was nothing about that which was alleged by
Female B which in any way made it more likely that Female A was telling the
truth. There was similarly nothing in that which Female A described which was
similarly helpful in trying to decide whether Female B was telling the
truth. Similarly Female C’s evidence could offer no assistance on the
remaining counts. But further and more importantly, the whole exercise was
inherently dangerous. In the absence of really striking similarities, there
was no compensation herein for the lack of any truly independent evidence
supporting either of these alleged victims. The judge himself pointed out
that the doctrine does not begin to assist unless each participating
witness was potentially credible. Here, as is already pointed out in this
judgment, each participating witness was potentially incredible, hence the
need for the * Makanjuola * warning. The jury should not have been led by
the judge down this line of reasoning. The essential underlying lack of
credibility of either Female A , B or, for that matter, C, should
have ruled out this approach to overcoming the absence of any truly
independent supporting evidence: such similarities as there were could not
offer potential compensatory proof.

In the course of dealing with this line of argument, reference has been
deliberately made to Female C because at the time of giving the directions
her evidence was put before the jury as potentially contributing to the
similar fact evidence. The learned judge additionally did confront the
problem that Female C’s evidence even if accepted might not establish an
indecent assault in as much as she said left some doubt as to whether what
the appellant had done was done with an indecent intention. The judge was
prevailed upon to give a further direction to the jury namely that they
could nonetheless take her evidence into account even if they were minded
to acquit on the count relating to her, count 3.

We need not lengthen this judgment still further, save to say that such an
exercise added still more risk to the jury’s assessment of the evidence in
this matter. Plainly to rely upon Female C on the premise she had not been
indecently assaulted in order to support a case of indecent assault against
either Female A or B suggests potentially flawed and dangerous line of
reasoning and one that would do nothing to add to the strength of any
conviction in this case.

For all those reasons we are entirely satisfied that these convictions are
unsafe and the appeal is allowed.

MR BARKER: The appellant has been legally aided but my instructing
solicitors applied for a transcript and rather than the Court applying for
one, in the hope of expediting matters, in the absence of any order they
are likely to pay the costs themselves. I would ask your Lordship to
consider a defendant’s costs order.

THE VICE PRESIDENT : Yes.

Links

[1] Cathy Fox Blog 2015 May 8 [constantly updated] An Index / Timeline of Court Appeal Documents on Cathy Fox Blog https://cathyfox.wordpress.com/2015/05/08/a-timeline-of-court-and-ewca-documentation-on-cathy-fox-blog/

[2] Cathy Fox blog 2015 Apr 14 Pindown, Operation Thor and the Cover up of Child Sexual Abuse in Staffordshires Childrens Homes https://cathyfox.wordpress.com/2015/05/14/pindown-operation-thor-and-the-cover-up-of-child-sexual-abuse-in-staffordshires-childrens-homes/

[A] Sanctuary for the Abused http://abusesanctuary.blogspot.co.uk/2006/07/for-survivors-coping-with-triggers-if.html

[B] NAPAC http://www.napac.org.uk/

[C] One in Four http://www.oneinfour.org.uk/

[D] Havoca http://www.havoca.org/HAVOCA_home.htm

[E] SurvivorsJustice Triggers post http://survivorsjustice.com/2014/02/26/triggers-what-are-they-and-how-do-we-work-through-them/

[F] SurvivorsJustice Blog http://survivorsjustice.com/

[G] Jim Hopper Mindfulness http://www.jimhopper.com/mindfulness/

[H] Jim Hopper Meditation http://www.jimhopper.com/mindfulness/#cultivate