Fit Up (28 page)

D
espite there being no requirement for forensic evidence in this case, thereby denying Challenger disclosure of Duncan’s first report on Jeremy’s computer, a judge had finally granted his wish for this to be introduced, but for damages consideration only.

Duncan had finished his revised statement on Jeremy’s computer now that the police had widened the issues of the case and was now involved with Geoffrey Fellows to compile a joint expert report to save the judge reading time by indicating on what points they agreed and disagreed. Not surprisingly, Andre and Leslie had admittedly been unnerved about the case after seeing the contents of Fellows’s report but were much more positive after receiving Duncan’s. Jeremy and I were never in any doubt as we knew of his expertise, especially in relation to Operation Ore cases, and he had even had articles published in computer magazines on the subject. Both experts were asked the same questions so that responses could be compared.

On the subject of child pornography, he found no evidence that Jeremy’s computer had been used to download, search or deliberately navigate these types of sites, nor to view or share images with others. There was a lot
of technical vocabulary to wade through but, in summary, pop-ups were responsible for the automatic download of the seventeen images which Fouhey had referred to as ‘images of note’ in his initial report. Duncan agreed with Fellows that on another occasion the computer was affected by an encrypted code contained in a script file which was likely to have loaded a pop-up page resulting in an indecent image.

It was confirmed that there was no evidence of Landslide by way of email correspondence or any associated services and that he had abundant evidence that Landslide Inc. processed many thousands of fraudulent charges to credit cards without owners’ knowledge or consent. To our delight, Duncan was able to produce the refund entries in relation to three subscriptions charged to Jeremy who had always maintained that he had challenged Landslide about them. We also found out that the reason the refunds could not be seen back on his credit card was because Landslide’s computers had been disconnected from Superior Bankcard Services and the banking system on 7 August 1999 due to excessive chargebacks. If Landslide had reconnected to the bank card system, then the refunds would have taken place but, due to the intervention of US government agencies, Landslide’s business was at an end. Just that very act all those years ago had started off this whole chain of events for us and if the police had bothered to look at their evidence more closely officers would never have knocked on our door on 30 October 2003.

Duncan revealed that a file of retrieval requests and chargebacks recovered from Landslide were given to all police forces in the UK for Operation Ore cases on 19 January 2003. Challenger had maintained that it was up to Jeremy to produce the evidence that he had received refunds to his credit cards, but he was unable to because this information was in the possession of the police. Despite our repeated requests, they had not disclosed it. He had mentioned in court that it would have taken tens of
hundreds of hours to go through these files, and yet Duncan clearly had not taken anywhere near such an exaggerated time.

The various references to ‘trawling the internet’ that Challenger had used several times in court and at the ADR meeting on 29 May 2009, thus intimating illegal searches, was also knocked into a cocked hat by Duncan. In any case, Fellows’s report never suggested this (nor Fouhey’s) and the accusation was shown to be false by forensic evidence recovered by both experts. Challenger was now on sticky ground and it was apparent to us that he had misled the court.

No wiping or cleaning had taken place either, which refuted what Gerard had said and which Hopkins had never asked Fouhey to investigate. It was all heart-warmingly good.

By the end of November, after several meetings, both Duncan and Fellows submitted their joint report and while they appeared to agree on many of the issues, Fellows did not want to agree on certain points and left them hanging. By doing so, some of the evidence was ambiguous and contradicted previous statements in the report. He eventually submitted a further summary on 17 December of what he understood to be agreed but we were not sure whether this was done by his own volition or was requested by Challenger. Then he attempted to agree it with Duncan, who said that his instructions were that the summary would be written by Leslie and that he could not agree it. It would be interesting to see how both men presented themselves in court.

A
case management hearing was held on 3 December in front of Mr Justice Clark to cover some outstanding issues before the retrial date. There had been talk of a split trial in order to deduce damages separately from the liability trial but the judge decided that this could be done at the same time so as not to call witnesses twice. He also referred to possible damages awarded to Jeremy for the ‘trawling for child porn’ comment and Challenger’s reliance on the credit card transactions. However, by the end of the hearing, it became apparent that Challenger and Grundy had never looked for evidence of the credit card chargebacks within their own exhibits provided by the National Crime Squad. Despite this, Challenger had offensively and extensively cross-examined Jeremy on his inability to provide evidence of refunds at the first trial when he had no proper factual or evidential basis to do so. It was dishonest and against the rules of the Bar.

Just after the hearing, Andre had instructed Jeremy to get reacquainted with the details of his case and to be prepared to be vigorously questioned by Challenger. Although all through 2010 we had received regular updates of progress, Jeremy’s mind had gone on a permanent holiday away from this as a coping mechanism. To prepare him again was like encouraging a reluctant child to revise for an examination – and the biggest examination
of his life was fast approaching. Everyone had a role to play and the stakes were massive this time. There was no room for error.

I read the transcripts from the first trial and put myself in Jeremy’s shoes of how I would have answered. A lot of his replies had not been particularly good in that they were too long, not quite correct or he asked Challenger questions. Asking questions to barristers was a gift for them. They could tie your testimony in knots and lead you into all sorts of trouble. The best policy was to keep the answers short and truthful. Jeremy had allowed Challenger to walk all over him during the lengthy cross-examination and that could not happen again. I could not impress upon Jeremy enough the part he had to play in the efforts to win at trial. He could not sit back and let his legal team unearth evidence, attend case management hearings, create copious amounts of correspondence and trial bundles for him to just turn up to court and wing it. He had to know his case backwards because they could do everything but stand up in the witness box for him. I did understand his mental anguish about this and I knew I had to get him focused. Even I had to go into the witness box again but, having done it once and survived the experience, I knew I could cope next time. However, my part to play was not as lengthy as Jeremy’s would inevitably be.

I sat down with Jeremy the first weekend in December when, assuming the role of Challenger, I undertook some harsh cross-examination and told him to read the trial bundles. I asked Jeremy a few questions but his replies were not factually correct and he appeared to have a poor memory of certain events. Drastic action was required and I typed up a memory map with nine main headings and sub-headings within each point. If I could get him to remember the main headings, then fleshing out the detail should surely follow. At first I let Jeremy read the document and left him with it for a couple of hours before asking him to concentrate on one point and see how much he could remember.

‘What is your case?’ I asked and he responded that DC Hopkins charged him when he did not have the evidence and had been told this by his own expert; that he had been charged because he had made complaints about his professionalism and conduct; and that he believed he was being fitted up. That seemed to be a good start but there were times when I changed the order of questions around, which got him muddled, or he was unable to remember much, or the answer was different. This was very frustrating because if Jeremy was going to be on point to sustain the onslaught from Challenger, we were going to have to do this every day. However, I could see that each time I asked him a random question out of the blue, whether he was watching television or reading, his demeanour immediately changed to tense and irritable – and even more so when I had to correct him. At times I was severe and relentless and on some occasions this resulted in him storming out and threatening to quit, made worse by the fact that he knew he would eventually have to return to face me again.

While we persevered with our task, we heard from Andre that at the same time as he had sent in the trial papers to the court on 17 December, the police had sent in a letter to the court to inform them that they had concerns as to whether Hopkins would be able to attend the retrial. This event appeared as a result of Mrs Hopkins calling Grundy a few days before to say that her husband was so unwell he could not undertake any communication with her.

We had been alerted at the beginning of August, when the police submitted Hopkins’s second statement where he stated that his recollection of the events of Jeremy’s case was poor due to time passing, that he was taking drugs for hypertension. The side effects of these, he said, made him anxious and adversely affected his memory. How convenient, I thought! He went on to say that in the short time he worked at the Child Protection Unit he was subjected to the viewing of gross and unpleasant images
and was privy to disturbing matters, for which he felt that he was ill-prepared and not counselled for the type of work involved. I was surprised at this because I remembered chatting with DS Patel about her work while she was driving me to the shop and she said that they received regular counselling. To quote Hopkins further:

None of these factors were mentioned in his first statement or in the witness box previously. In fact, he had clearly stated that Jeremy’s case had not bothered him. Then there was the question of why Hertfordshire Constabulary would send someone so psychologically damaged to assist in a murder inquiry after leaving the Child Protection Unit. If Hopkins was still suffering so much at the mention of child pornography, then his employers had clearly failed to give him the treatment for his ‘work place injury’ in my opinion!

Andre had become aware that a Dr Bhushan was treating Hopkins and had written a letter to Grundy detailing the problems with his patient, and he had requested disclosure of this document. However, Grundy refused to do this or reveal the note of the telephone call from Mrs Hopkins as she considered them both privileged. She had not sought any clinical notes on behalf of Hopkins and would not be doing so as she had no authority.

It was going to be a problem if Hopkins did not attend the retrial and there was talk from the Defence about the January date being postponed.
I could not bear to consider the possibility of new dates being planned further on into 2011. When was it ever going to end? In that moment, all I could think about was that my fiftieth birthday, coming up at the end of February, would be another spoiled occasion. It also once again reminded me of the passing of time and that I was forty-three when I embarked on this journey for justice.

Not letting this issue stop them, Andre and Leslie had other pre-trial matters to deal with. These were dark days for both of us and I felt guilty at what I was putting Jeremy through with the intense preparation, but we had to win the case.

To be fully prepared, Christmas was cancelled for all of us.

W
e tried to relax on Christmas Day. It was an event that had been put on hold for years and we were now used to dealing with it in our own way. From Boxing Day onwards we pored over the books and Jeremy’s memory map while I was on leave until 2 January. I returned to work in the full knowledge that finally he had made adequate preparations for trial and the only concern I had was his state of mind and how he would perform in the witness box. I could tell he was petrified with the trial only ten days away. It was one thing to put questions to him in the comfort of our home but quite another to be in a courtroom.

On the evening of Wednesday 5 January, Andre called Jeremy to inform him that the police were going to make an application to the court to break the fixture date of 11 January due to Hopkins’s reported ‘recent ill health’. While they chatted about battle plans I became bored with only being able to hear one half of the conversation and I started to browse the internet. Since Andre had asked me to investigate Hopkins’s involvement in Operation Metropolis cases, every so often I would try to search for any other useful information on him. Overhearing Jeremy mention Hopkins’s employment with the Environment Agency, in the Google search bar I typed ‘Brian Hopkins Environment Agency Preston’.

I was quickly rewarded with so much information as a result of this
search that I did not know what to feast my eyes on first. I clicked on the Environment Agency website and under the public relations news section it had proudly reported the success of Operation Pandora, a nationwide investigation into the dumping of hazardous waste.

I read the top line: ‘Two people have been charged after dozens of barrels of lethal chemicals were allegedly illegally dumped in north Shropshire, the Environment Agency said today.’

Scanning over the report with haste I looked at the last paragraph: ‘The Environmental Agency’s National Environmental Crime Team officer, Brian Hopkins, who is co-ordinating Operation Pandora, said: “These charges are the result of an ongoing complex and nationwide investigation into the alleged storage and disposal of hazardous waste across Lancashire, Shropshire and the North East.”’

Excitedly I interrupted Jeremy and said that Hopkins was working. He gave me a puzzled look and repeated what I had said to Andre. Immediately the phone was thrust into my hand and Andre asked me what I had found. I said that Hopkins was leading a nationwide investigation for the Environmental Agency and giving quotes to the press, which hardly sounded like the man who was suffering from amnesia and posttraumatic stress. The same story was also featured in the
Lancashire Evening Post
, the
Shropshire Star
, the NatWest Mentor website, as well as some environmental publications, on 2 December 2010.

Andre asked for the search words I had used so that he could see exactly what was on my screen. I could hear him tapping the keyboard before exclaiming, ‘You little star!’ We started to cross-reference Operation Pandora and found that the two people who were arrested were appearing in court on 27 January and found the name of the solicitors representing them. It appeared that Hopkins was too ill to attend our court case but would be all right for late January. Andre ended our conversation as he wanted to instruct his team to look for more information, but the
following morning he decided to call Hopkins at his office in Preston where he was informed that he was not in but due in the following day. There was no suggestion that he was unwell. He also asked a trainee solicitor to telephone the Press Office for the Environment Agency who confirmed to her that Hopkins remained on the Operation Pandora investigation and that court appearances were scheduled for later that month.

Andre had also found out that Paul Schofield, a partner of Farley’s Solicitors, was representing the individuals mentioned in the news articles and who had been charged by Hopkins. He remembered meeting with him at Leyland Police Station in December and, in fact, had spoken in passing of his time in the police force. It had been a good day for us and would go a long way in discrediting the police in how they had conducted themselves during this litigation.

The police were granted their hearing for 7 January and minutes before this was to take place, Andre again made a call to the Environment Agency. Hopkins was still not available and not on annual leave. One of his colleagues told Andre that he was working, although not in the office that day, but was expected back. She further volunteered that Hopkins had been working ‘down south’ and would be back in the office briefly later in the day. Andre also asked her whether she knew if he was working the following week but she could not access his diary and, again, there was certainly no suggestion or indication that he was sick or would not be working.

Outside of the court, Andre and Leslie stood with Challenger. Leslie asked him if he knew where Hopkins was that day and he responded that he had ‘no idea’. Once inside the court, Challenger put forward his arguments, to which Leslie was vehemently opposed because there was very little evidence to support the application or justify the lateness of it. Challenger, with some reluctance and under instruction by the judge, briefly showed Leslie and Andre the letter from Dr Bhushan addressed to
Grundy dated 22 December 2010. From what they were able to establish from its contents, together with comments from the judge, it became evident that material alterations had been made in this second report compared to the original report by Dr Bhushan and that the police were instrumental in drafting this to put before the court in support of their application to vacate the trial. Also, Grundy’s insistence on claiming privilege was questionable in the circumstances and was considered an attempt to prevent us and the court from knowing the full and true circumstances behind Hopkins’s non-attendance at the trial.

Unsurprisingly, Mr Justice Stewart ordered that their application to break the fixture be dismissed and we were awarded costs. That was always nice to hear. It was also ordered that Hopkins should be issued a witness summons and that further evidence should be provided if he was not going to attend.

If the police continued to maintain and hide behind Hopkins’s ill health, we might never get a retrial and although we very much wanted him to appear in order to give evidence, we made the decision that, rather than have the trial postponed, we would press on, using his statement and sworn evidence from the first trial.

It was a difficult weekend for Jeremy. He was very quiet and withdrawn and I dared not mention the memory map or even the case at all. If he wanted to talk about it then he was to bring it up first. I felt like I was walking on eggshells, aware that saying the wrong thing would make him irritable. It was worrying, so to distract him from the case I encouraged him to walk the dogs and spend some time with his family while I organised a trip to the cinema. It would be good to lose ourselves in a good film while he munched on a large hot dog, a box of very expensive sweets and ice cream washed down with a ridiculously large carton of Coke. Despite his constant anxiety, there was still no change to his appetite.

On the Monday, Andre had been notified by Grundy that Hopkins
had had a sudden onset of symptoms the previous day after he became aware that the trial would be going ahead. Apparently, he had become so distressed he had to be seen urgently by a doctor and was prescribed medication. Hopkins was their main witness and it seemed they were still aiming to get an adjournment. Our suspicions were that Hopkins’s illness was bogus. However, in some ways I could understand if he was in some state of anxiety at the thought of having to return to the witness box, as the first time had been a ferocious experience at the hands of Leslie in his endeavour to extract the truth. Jeremy was also dreading going up against Challenger again but refused any medical assistance. He did not want his mind clouded with drugs, especially after all the preparation he had gone through, but now that he was so close to having a second chance to right the scales of justice, his courage was rapidly disappearing. I told him that he knew his case and that he did not need courage to tell the truth.

That afternoon, Andre phoned to tell us two things. One, that the trial was being pushed back a day to start on Wednesday, as the eleventh was to be set aside as a ‘reading day’ for the judge. This was annoying and disappointing at the same time because we were psyched up ready to go. The second thing was much more frightening: Jeremy’s legal aid for the second trial was being withdrawn and we had no more personal funds to finance it. Our well was dry! Andre said that our only chance would be to switch to a Conditional Fee Arrangement, a no-win, no-fee policy, which also required us to purchase insurance. If we were turned down for insurance, there would be no CFA, and on top of that we only had a day to sort out this unexpected obstacle. There were no guarantees and if we were turned down, it would all be over.

If we had been nervous before about returning to the High Court, we were now petrified at the thought of not being able to get the case heard due to lack of funding.