Hopkins, R v

A prosecution is not necessarily an abuse of process because an earlier investigation produced a decision not to prosecute. The court must assess the later proceedings in their actual context, including fresh complaints, the available contemporaneous material, and any real prejudice caused by delay. A fair trial may remain possible where relevant records and witness statements are available and the jury receives clear directions about delay, collusion and possible financial motives.

Evidence from several complainants may be capable of mutual support where the alleged events form a sequence and have a sufficiently similar nature. A direction to that effect is proper where the circumstances justify it.

The appellant, a former residential care officer, was convicted at Worcester Crown Court of 12 offences of indecent assault, rape and assault occasioning actual bodily harm against children in his care. He received a total sentence of 12 years’ imprisonment, including 12 years for rape.

He appealed against conviction, contending that proceedings should have been stayed as an abuse of process. He relied on the 1987 police decision that there was insufficient evidence to contemplate criminal proceedings concerning two complainants, the later emergence of complaints, and prejudice caused by delay and unavailable evidence. He also challenged the use of a mutually supportive evidence direction. He separately appealed his sentence.

1. The appeal against conviction was dismissed. The trial judge was entitled to refuse a stay for abuse of process and to retain the disputed counts on the indictment. The earlier decision not to prosecute followed complaints by two residents. The later prosecution arose after fresh complaints emerged in the substantially different context of a wider investigation involving many allegations.

2. The court applied the categories identified in Beckford [1996] 1 Cr.App.R. 94. It found neither an unfair trial nor unfairness in trying the appellant. The defence had substantial contemporaneous material from the 1987 enquiry, including statements, police notes, home records and the appellant’s own document. The deceased witnesses’ statements were read to the jury, and there was no real basis to suppose that unavailable material would have altered the determination of the issues.

3. The judge’s directions adequately addressed the effects of delay. The jury were directed to make proper allowance for any real disadvantage in the presentation of the defence, and to consider collusion, delayed reporting and possible compensation motives. Those directions preserved the fairness of the trial.

4. Given the alleged sequence and nature of the events, the judge was also entitled to give a direction in accordance with DPP v P [1991] Cr.App. R. 267, that the complainants’ evidence could be mutually supportive. The convictions were not unsafe.

5. The appeal against sentence was allowed in part. The offending was a grave betrayal of trust and required a long custodial sentence. However, 10 years, rather than 12 years, was appropriate for rape. The 12-year rape sentence was quashed and replaced with 10 years’ imprisonment; the concurrent sentences on the remaining counts stood.

• Court of Appeal (Criminal Division) — In [2004] EWCA Crim 309, the court dismissed the appeal against conviction and allowed the sentence appeal to the extent of substituting 10 years’ imprisonment for the 12-year rape sentence.
• Crown Court at Worcester — His Honour Judge Mott and a jury convicted the appellant of 12 counts of indecent assault, rape and assault occasioning actual bodily harm. A total sentence of 12 years’ imprisonment was imposed.