A Legal Commentator’s Take on the Trial

by Anna Raccoon on August 22, 2016 (Who sadly died in August 2017)


There is a worrying shuffling of feet and staring into the middle distance in Academia. It is understandable – there is not much point in sticking your neck out so far that you end up with no job. The same thing applies to journalists. Better to keep quiet until the ‘abuse hysteria’ has passed; if it ever does.

I don’t have a career to worry about – so am quite prepared to ‘steam in’. Frankly it would require a book to do justice to the following case. What follows are only the points that particularly interested me; the omission or inclusion of any particular point has no relevance beyond that.

Stephen Hamilton is a ‘convicted pervert’. The jury has so decided, and we must accept their verdict as we accept that a man is innocent when the jury declares him ‘not guilty’.

What follows, therefore, is not a rebuttal of the jury verdict, but an examination of the process that led the jury to that verdict. Do we have a judicial system that we can be proud of, that protects the vulnerable both from external predators and equally, and importantly, from the might of the state?

My belief that we did have such a judicial system has been severely shaken by Stephen’s case.

Juries are inevitably influenced by what they read and hear in the media before they become jurors. They are exhorted not to read about the case whilst they are sitting, and there is no suggestion that they did so in this case – but the sort of emotive media reporting of Stephen’s case will be worming its way into the memories of jurors for future cases, just as his jury will have read of prior cases.

Widely reported at the time was that Stephen was charged with six charges of rape, three charges of sexual assault, four charges of child cruelty and a charge of administering a noxious substance. I shall take these in reverse order.

‘Administering a noxious substance‘.

This charge was later dismissed by the Judge, although the jury was aware of it. My first thought on hearing of it was that this was probably one of the well known ‘date rape’ drugs such as Rohypnol. Even when the drug was revealed to be Citalopram, and if you happened to know that Citalopram was an antidepressant – the juxtaposition of articles such as the Daily Mail ‘raped a vulnerable schoolgirl from the age of 10 after secretly medicating‘  her, or the Daily Star’s ‘dosed the girl’… ‘before subjecting her to sexual abuse‘ would give the impression that this was a drug administered immediately before the rape for the express intention of leaving her amenable to that rape. The jury, hopefully, would not have been influenced by these articles, but my point is that the manner in which information is presented to you by the media does influence how you ‘read’ a situation.  That the jury was aware of this charge will have influenced them.

What you don’t know yet is that Stephen was a doctor, a GP.

The other pertinent piece of information you require to understand the ‘noxious substance issue’ is that the girl concerned had suffered from severe psychiatric problems from a very early age.  In fact he gave her a low dose of Citalopram. The Crown were at pains to point out that Citalopram is not licensed for use on anyone under 18 – true it isn’t. The licence is only advisory. However that it was the right drug for her is verified by the fact that the hospital treating her continued to give her Citalopram for several years afterwards – and in far higher doses. Hence the charge was dismissed. Which leads me neatly into the next set of media distortions.

Four charges of ‘child cruelty’.

What comes into your mind on hearing of ‘child cruelty’? A terrible beating? Starvation? Torture by some unthinkable evil?

The charges of child cruelty arose from allegations of ‘neglect’. The ‘neglect’ derived from the fact that he had made several appointments for her with the Child and Adolescent Mental Health Service – which he later cancelled. Stephen put forward the defence that he cancelled the appointments when both the girl and her Mother were unwilling to engage with the mental health authorities to deal with her increasing symptoms of mental ill health. The Crown maintained that he cancelled the appointments because he feared that she would reveal to a psychiatrist that he was sexually abusing her.

That doesn’t, to my mind, explain why he would make the appointments in the first place, nor why he didn’t apparently fear that she would reveal abuse to the several doctors – her GP, several paediatricians and A & E doctors, who all saw her during this period. 

The inclusion of the ‘administering’ and ‘cruelty’ charges is a classic example of the Starmer/Saunders edict on ‘case building’ where the focus is not on the reliability of the complainant’s evidence but on boosting the prospect of a conviction by seeking to introduce evidence prejudicial to the defendant. The jury were directed that they could use a conviction on this count as some support for the prosecution case on the other counts. In order for the jury to convict on the cruelty charges they had first to be sure that the rapes had taken place  – but the reasoning was circular. How could the jury decide the cruelty charge as support for the abuse charges without imputing that he was guilty of the abuse he allegedly wanted to conceal? Logically the jury could only decide this after having considered the sexual  charges.  Thus the ‘building block’ was illusory.  This fundamental error by the prosecution and the judge was brushed aside by the Court of Appeal. Yet it ought to have undermined the safety of the conviction as a point of law – if logic be admitted to the law that is.

Pertinent to the rest of the charges is the victim’s mental health. By the time of the court case, she had been diagnosed as a psychotic schizophrenic for some years. She had been sectioned three times in her teenage years. Before the intervention of the mental health authorities she had been subject to ‘terrible temper tantrums’ and had attacked both her parents. Evidence was heard from both sides that at times she had had to be physically restrained. She both heard voices (indeed, she admitted she was still subject to hearing voices during the court case) and suffered hallucinatory visions. She had at various time ‘fully believed’ that a variety of conspiracy theories were targeting her, which she now knew to be untrue.

I am the last person to rail against the idea that anyone suffering from mental disability or mental illness be allowed to give evidence in court – however, when they are the sole complainant, of a historic offence for which there is no other evidence than their word, they suffer from an illness notorious for its ability to convince the sufferer that the fantastical is in fact reality, and they are undergoing current treatment designed to ‘teach them that the voices they hear are the result of experiences’ – then additional caution should be applied.

In particular, it should not be left to the jury to play the part of psychiatric experts.

There had been no particular change in the young girl’s symptoms between the diagnoses of schizophrenia – and her making allegations of sexual abuse. She now alleged that the incidents of being ‘held down’ during temper tantrums, were, in fact, examples of her statutory rape.

However, from the time of the allegations, the diagnosis was swiftly changed to one of ‘complex post-traumatic disorder’. In short, no sooner had the allegation been aired, than her doctors ascribed all her symptoms to the effects of the allegations. She herself accepted that she had received intensive ‘therapy’ following which she had become ‘more amenable’ to the suggestion that her symptoms may have been caused by trauma.

Thus it was, that in the ensuing court case, only her treating psychiatrist was allowed to give expert evidence, not on her diagnosis, but as to the nature of hallucinations and delusions. The defence case was that these allegations were all totally untrue and were likely to be the product of her mental illness, pre-trial therapy and suggestion. The possibility of malicious allegations could not however be excluded. 

Other matters which should not have influenced the jury – but quite possibly could have done, is that this trial was in Manchester a mere three months after the well publicised and emotive case of Michael Brewer, where the victim, Frances Andrade, had committed suicide in the days after giving evidence where she had been branded a fantasist. In Stephen Hamilton’s trial, Judge Mansell, showing commendable concern for the young girl, enquired:

‘…can you just tell us how … how you feel about the suggestion made that you have lied?’

‘I couldn’t get the fact that someone was calling me a liar out of my head, and it made me want to kill myself.’

That is a terrifying responsibility to put on the shoulders of the jury. It served no purpose in elucidating the evidence and her response could only serve to suggest to the jury that if they acquitted the defendant, she might kill herself.

The defence sought to adduce the evidence of Dr Janet Boakes, an expert on the subject of False Memory Syndrome. Dr Boakes had prepared a number of reports based upon the girl’s police video recorded interviews, psychiatric evidence and medical notes. She concluded that the girl may have recovered her memories during psychological counselling in which case the reliability of her allegations might be affected. Dr Boakes has given evidence in a large number of cases, where even the prosecution agreed:

Psychologist Prof John Morton, giving evidence for the prosecution, admitted: “A typical case of false memory involves

a well educated female in her 30s who has had treatment for some psychological problem such as depression or an eating disorder.”

However, it is true that Dr Boakes’ evidence has been rejected in two cases. The judge used this fact, amongst other details, to exclude her evidence from this case.

The court drew a distinction between expert opinion addressing physical disease and mental illness. To admit that part of Dr Boakes’ evidence of assistance to the jury “would only have had the effect of focussing the jury away from assessing X… and all the evidence; rather, it would have been towards resolving conflicting evidence of diagnosis.

Unlike expert opinion in physical disease cases, these diagnoses involved a value judgment as to “what the doctors believed represented an accurate history of X’s relationship with her father.”

Thus, it appears that in cases involving mental illness, conflicting evidence of diagnosis will not be admitted.

Her doctors had changed their minds on hearing of the belated sexual abuse allegations relating to six years beforehand. That was the only diagnosis the jury were invited to examine. ‘False memory syndrome’ is not a diagnosis but a shorthand for a state of mind of progressive belief in non-existent events. 

Dr Boake’s evidence went to the reliability and hence the credibility of the complainant’s allegations The point is that the ‘product’ of such a process may be convincing and compelling to a jury, as was the case here, so that a jury might be readily swayed by the girl’s narrative and self-assertions without it being open to effective cross-examination.

Any such opinion should have an evidential foundation – which in this case was satisfied by the history of the complainant, her treatment and telltale indicators – one such being her initial statement that she ‘remembered’ the abuse as a ‘physical memory’; indicative of a belief in ‘body memories’ the royal road to ‘false memory’  – this is not something the jury are likely to understand without expert evidence so it ought to be admitted. 

The theory that memories are stored in body cells so that strong physical sensations are a ‘physical  memory’ which can be interpreted as a guide to past events previously hidden from consciousness is unfounded in neurological science. There is such a thing as ‘tactile hallucination’ which may occur in anybody; it is not indicative of abuse.

The judge failed to understand this; worse, he then went on to endorse the existence of ‘body memories’, state that they are a symptom of abuse, and thus assumed the mantle of an expert by expressing an expert opinion, which is incorrect and without allowing rebuttal by the defence.

When the case went to appeal, the Court of Appeal ignored this issue.

Throughout the judgment the court is highly critical of experts ‘usurping the function of the jury’. Yet, it could be argued that by concluding that the part of the report of Dr Boakes which may have been of assistance to the jury was correctly withheld from the jury, the Court of Appeal has itself usurped the function of the jury.

I wish I felt more confident that the jury had been given ALL the expert evidence that was available to help them decide ‘who’ as the judge put it, ‘was telling the truth’.

Stephen Hamilton is now serving an 18 year prison sentence. The GMC have barred him from practicing his medical skills. He has lost his home, his career, and his family. As a man protesting his innocence, he will remain on the stricter regime of a high category prison.

Stephen has a website if you are interested in further information.

I will leave Stephen with the last word:

It is hoped the complainant will continue to improve, as most young adults do after a psychotic episode.  As part of her recovery it could be expected for her to perceive the reality behind her false memories.  When she reports this change she should be supported by those around her, not persuaded to stick with the previous account.