R v Joseph Hopkinson

This is a renewed application for an extension of time of 448 days (around 15 months) in which to apply for leave to appeal against conviction and an application to adduce fresh evidence following refusal by the single judge. The applicant has also optimistically applied for bail in the event that leave to appeal is granted.

On 13 February 2023 in the Crown Court at Gloucester, the applicant pleaded guilty on the first day of trial to an offence of arranging or facilitating the commission of a child sex offence, contrary to section 14(1) of the Sexual Offences Act 2003. On 18 April 2023 he was sentenced by His Honour Judge Rupert Lowe to seven years and two months' imprisonment for that offence. His application for leave to appeal against that sentence was refused by the single judge and has not been renewed. He had pleaded guilty on an earlier occasion to two drugs offences for each of which he received a concurrent determinate sentence of nine months' imprisonment.

The factual background can be summarised as follows. On 27 June 2022 the applicant began communicating on a social media platform, "Pornsocket", which is focused on sharing pornography, with a person purporting to be an adult female named Vicky who lived in Cheltenham with a 10-year-old daughter named Isla. Their communications moved to a different platform, “Wickr”, and developed over a period of around seven weeks. During that time the conversation rapidly turned to Isla and her alleged sexual experiences with Vicky's estranged husband. Vicky had made it clear that she (Vicky) was not looking for a relationship with a man.

The applicant stated that he "liked young girls", "loved little girls who like sex" and stated that he had been looking online for women with a sexual interest in their children. As the conversation progressed, the applicant said that he wanted to have sex with Isla whilst Vicky was watching. The conversation became more graphic and at one point the applicant said he would supply Isla with cannabis so that she was drugged whilst he sexually abused her. Eventually, arrangements were made for the applicant to travel to Cheltenham on 18 August 2022 and to meet Vicky in a cafe near the train station. In the days leading up to the meeting, the applicant sent a message to Vicky saying:

Despite these concerns the applicant decided to go ahead with the meeting. In a voice call with Vicky on Wickr on the morning of 18 August, the applicant referred to a picture which she had sent him of "Isla" which he described as "a little night time bonus" which "really got me going" and then said, "I suppose it's time to maybe see the real thing now." He described himself as "getting hard" and said he was "ready to meet her" (i.e. the child) and that he was really excited about it and that he was "glad that we're on the same page".

“Vicky” was indeed an undercover police officer, and by the time that the meeting was arranged the police had already traced the applicant to his home in Leicester. When he arrived at Cheltenham Station police officers were waiting for him. They arrested him. On his arrest he was found to be in possession of a small quantity of cannabis and some cannabis oil, as well as Viagra medication. He declined to answer any questions in interview in relation to the alleged sexual offending.

The applicant was advised by his former legal representatives that he had no grounds for appeal against his sentence. The question of appealing against his conviction did not arise at that stage because he had pleaded guilty.

In grounds of his own composition the applicant contends that there was evidence which was not disclosed by the prosecution in the unused material which would have supported his case that he had arranged to meet an adult, namely Vicky, and not a child. He claims that he had said during the chat with Vicky that meeting her daughter was a fantasy and that he would not do it for real. He also claims that he should not have been advised by his solicitor to give a no comment interview because he had a defence to the charges against him, and that he was wrongly advised to plead guilty to the offence. He asserts that his trial counsel was not "fully aware of all parts of the evidence", that the police had edited the chat logs in a way which omitted key references to the discussions about Isla all being a fantasy, and that his arrest was unlawful because the police had stated inaccurately that he had been chatting online with a person he believed to be a 10-year-old child, whereas his only communications had been with Vicky.

The question for this court is whether there are any grounds upon which it might reasonably be argued that the conviction is unsafe. The fact that the applicant pleaded guilty is not a bar to an appeal but it is a considerable obstacle.

The applicant was fit to plead, he knew what he was doing and he intended to plead guilty after receiving legal advice. He suggests that the legal advice he was given about the strength of the prosecution case against him was erroneous because it was given without seeing the allegedly undisclosed material. Yet this is not a case where it is alleged that the applicant was unaware that he had a defence and pleaded guilty in ignorance of that defence. On the contrary, he was advancing the "fantasy" defence right up to trial.

Put at its highest, the appellant's complaint is that in the absence of the disclosure which would have supported his defence he had little choice but to plead guilty. However, even if he were able to show that the prosecution had not carried out its disclosure obligations, he would need to establish that in the light of the undisclosed material the defence would quite probably have succeeded, and that as a result a clear injustice has occurred. This case falls far short of establishing any of these matters.

In the light of his criticisms of his legal representatives, the applicant has waived privilege, and a detailed response to those criticisms has been received from the applicant's defence counsel. We have carefully considered what she has said, as well as the applicant's response and all the numerous letters he has written to the court both before and after the decision of the single judge, one of which runs to over 100 pages.

The defence statement, which was served in December 2022, denied that the applicant committed the offence and stated that he:

On 5 January 2023 the CPS wrote to the applicant's solicitors to say that on consideration of that defence statement they were satisfied that they had disclosed all prosecution material which had not previously been disclosed and which might reasonably be expected to assist the defence. They invited the solicitors to let them know if they consider that there was anything else which ought to be disclosed, and reminded them of their right to apply to the court under section 8 of the Criminal Procedure and Investigations Act 1996 in the event of a dispute.

It follows that the CPS considered that it had disclosed anything in the chat logs which would have supported the applicant's defence that everything he said to Vicky about Isla was part of a fantasy. There is no evidence to support his assertions to the contrary.

The schedule of unused material, which was updated on the same date, included the crime report which recorded that: "Between 27 June 2022 and 17 August 2022 the suspect used Pornsocket and Wickr to chat to a person he believed to be an adult female. During the course of ongoing conversations the suspect arranges to travel to meet female and commit sexual offences, including rape, against the female's 10-year-old child." That note tallies completely with the record of the applicant's interview, in which at the start PC George (one of the interviewing officers) told him that his arrest on suspicion of arranging or facilitating the commission of a child sex offence under section 14 of the Sexual Offences Act 2003 came about "because we received information that between 27 June 2022 and 17 August 2022 you have communicated online with an adult female and made arrangements to meet her in order to engage in sexual activity with a child."

Therefore, at the time of his police interview, the applicant was well aware of why he had been arrested and what the charges against him were. He is wrong to suggest that he was arrested on the basis that he had been communicating directly with a 10-year-old child. Any factual mistake in his custody record is irrelevant to the safety of his conviction. There is equally no substance in his allegation that the arrest was unlawful. The caution was administered both at the time of arrest and at the time of interview, so he knew the consequences of reliance on his right to silence. Moreover, as the single judge observed, the applicant had past familiarity with the court process. He had previous convictions for possession of indecent images of children.

A summary of the chats compiled by the police was put to the applicant in interview to which he responded "no comment". That was his choice. We are satisfied that it made no material difference to the prospects of his being convicted at trial that he did not volunteer his fantasy defence there and then. Even if he had gone to trial and the judge had given an adverse inference direction to the jury, it is unlikely to have had any material effect on the outcome, and the prospect of such a direction was not a matter that could have made all the difference between the decision to plead guilty rather than take his chances at trial.

Nor is there any substance in the applicant's central allegation that the CPS failed to disclose material that would have assisted his defence. The CPS said that it had disclosed all relevant material and his defence team considered the used and unused material and agreed that it had. However often and loudly the applicant asserted that other messages existed, there is no evidence that they did.

The applicant's suggestion that his solicitors and counsel should have applied for a stay of the prosecution case on the basis that there was no case to answer is completely baseless. Far from there being no case to answer, the evidence in the messages and his subsequent attendance at Cheltenham Railway Station with Viagra and cannabis in his pocket was more than enough to establish all the elements of the offence with which he was charged.

We have also considered, without prejudice to its admissibility, the relevance of the so-called fresh evidence that the applicant seeks to adduce. This comprises legally privileged communications between the applicant's mother and his solicitors shortly before the trial in which his mother passed on the applicant's concerns about the prosecution not disclosing material which would back up his defence, including the chat logs. In the second email the applicant's mother referred to notes the applicant had written to his legal team about "how he views his defence". She asked if his barrister could give him advice about whether the points he had made would outweigh the prosecution case and whether his legal team still felt he would be better off pleading guilty.

In response the solicitor explained that counsel had the applicant's notes and that she would read them so she knew what evidence he would give in court. She said that the CPS had already served all their evidence and that had been reviewed by a CPS lawyer and if there was going to be any change it would have happened by then.

None of these exchanges affords any arguable basis for questioning the safety of the conviction. On the contrary, they demonstrate that the defence legal team were competent and that they had no concerns about disclosure. The solicitor informed the applicant's mother that the barrister would run through the applicant's evidence with him "but essentially what Joe is saying is that he did not believe this to be real and that it was fantasy." She then said that she had been through all the text messages, that counsel would also do so, and that the trial would boil down to whether the jury believed that the applicant was fantasising about the whole thing or not. She said that they had known about the text messages for some time and "in general they are indefensible except where Joe says it was fantasy". She reiterated that throughout all their conversations he had denied wanting to meet the child.

Thus the defence legal team knew what the defence was and were prepared to run it at trial, if that is what the applicant chose to do.

It is clear from counsel's detailed response to the applicant's ground of appeal that he was fully and properly advised and had ample opportunity to consider the considerable volume of evidence against him, which included 817 pages of chat logs between him and Vicky. Having seen the evidence for ourselves, we are satisfied that there is no truth in the suggestion that he told Vicky that he was not interested in meeting Isla, only her.

On the day of trial there was a lengthy conference with the applicant in which counsel advised him that the prosecution case against him was strong. She pointed out that in the run up to the meeting with Vicky he had suggested setting up new Wickr accounts and had set up the deletion of previous accounts in order to erase the messages which evidenced his arranging to commit a child sex offence. That strongly suggested that he had something to hide and contradicted his assertion that it was all fantasy. She advised him that if this was indeed fantasy and that he did not intend to commit the offence, he should have a trial. It was stressed that his plea was his decision and there was a discussion about the credit he would receive for plea, and about mitigation. It was against that background that the applicant decided to plead guilty.

We are satisfied that the advice given to the applicant was impeccable and that he entered the guilty plea of his own free will and not as a result of any compulsion, misapprehension or inappropriate or inaccurate legal advice. In the light of the messages, particularly those sent closer to the time of the meeting, it was fanciful to suppose that a jury would have accepted that he was not serious about meeting Isla and raping her. The plea of guilty was a common sense response to an overwhelming prosecution case.

We have considered the chronology provided by the applicant and his reasons for the delay in making these applications but we agree with the single judge that there is insufficient justification for the delay in appealing. The shock and impact of the appellant's arrest, remand, conviction and sentence do not provide an adequate excuse. We also agree with him that these applications are totally without merit and that this conviction is safe. The renewed applications are therefore dismissed.

The applicant was given fair warning by the single judge that if he renewed the application he would potentially face a loss of time order. The judge indicated that this was a case in which such an order should be made. The applicant has made no representations as to why such an order should not be made.

We are conscious that the applicant is serving a lengthy determinate sentence. However, as Hallett LJ, the then Vice President of the CACD observed in R v Gray & Ors [2014] EWCA Crim 2372: