The Ministry of Justice “marked down” a senior researcher in a performance review because she blew the whistle on a sex offender treatment programme that made rapists and paedophiles more dangerous, a tribunal has found.
Government analyst Kathryn Hopkins was asked to study the effects of the Sex Offender Treatment Programme (SOTP), a controversial scheme that involved bringing offenders together to discuss their crimes. Among those believed to have undergone the treatment programme are the “black cab rapist” John Worboys and several notorious paedophiles.
It had been used on prisoners since 2000. Her initial results in February 2012 found that it actually increased the risk of reoffending — yet the government let the scheme continue until March 2017.
Hopkins sued the MoJ for whistleblowing detriments in a case heard at London Central Employment Tribunal last month. They include the MoJ’s decision to mark her down in a midyear performance review in 2014, following her whistleblowing. In a judgment seen by BuzzFeed News, the court found that the MoJ gave her a rating of “must improve” as a direct result.
However, Judge Lewis, assisted by nonlegal experts Ms C Ihnatowicz and Mr I McLaughlin, ruled that as this happened more than three months before she brought a claim, the case was out of time, meaning Hopkins will not receive compensation.
The MoJ told BuzzFeed News it does not agree with the judgment, and claimed the “rationale for the performance marking was because of quality issues”.
In the 59-page judgment handed down on Wednesday, the panel gave a blow-by-blow account of Hopkins’ battle to get her research published and her repeated whistleblowing about the potential risk to the public. Commenting on Hopkins’ motivation in whistleblowing, Judge Lewis wrote: “It is clear from her conduct throughout that her main concern was protection of the public.“
Hopkins was asked to rework the study multiple times and eventually the entire research was started from scratch using a different method and a new team, which came to the same conclusion in a report that was finally published in 2017.
The court said that although it was “not in a position to make the technical judgment ourselves” about the robustness of Hopkins’ initial results in 2012, it noted “the fact that later expanded and rerun tests continually showed the same adverse results suggests that the claimant’s first interpretation and analysis was likely to have been reasonable.”
The judgment includes a finding of fact that Hopkins’ research had passed a final quality assurance in March 2014, despite the MoJ trying to argue it had not. Crucially, the following year the MoJ decided to re-run the research from scratch using a slightly different methodology and the new team of analysts.
The judgment says: “The [MoJ’s witnesses] tried to suggest to the tribunal that this was only a partial [quality assurance], but that is not what the document states and it is not what [one of the quality assurers] suggested in his evidence.” The MoJ maintains, however, that it was still not “a formal sign-off process” as it had not been signed off by the director of Analytical Services.
The judgment confirms that the new re-run research completed in March 2017 essentially “confirmed what the claimant had been saying all along.” The final published study found that “More treated sex offenders committed at least one sexual reoffence (excluding breach) during the follow-up period when compared with the matched comparison offenders (10% compared with 8%).”
An employment tribunal can include historical wrongs that can be joined together into one case, but these can usually only be compensated for if at least one of them occurred within three months of making a claim. For Hopkins’ case to succeed, she needed to win on her most recent detriment, which related to her name being left off the final published research.
“The facts against the MoJ are absolutely damning.”
Reacting to the judgment, Hopkins told BuzzFeed News: “The facts against the MoJ are absolutely damning. This shows exactly what happened. The important point is that the MoJ knew about the research in 2012 and spent five years trying to change it. They were also really horrible to me when I complained. I complained and complained and complained and they did nothing about it.”
Hopkins, who had no lawyer throughout the hearing, went on: “I would’ve preferred to win but this is one of those cases where the judgment carries more weight than the actual verdict. The judgment has set out what happened and what happened is more important.”
The judgment notes that Hopkins felt threatened by colleagues in the Ministry of Justice. In July 2014, she wrote of her concern that handling of the research could be “in breach of the Civil Service Code”, which sets out standards of behaviour expected from civil servants.
In an email regarding Hopkins’ comments, the former director of Analytical Services and chief scientist at the MoJ, Rebecca Endean, told a colleague to advise Hopkins that she “would welcome” a formal complaint, before adding: “However this would expose the poor quality of her work (I would need to be very clear why the work is way below what I would expect from a band A) and therefore she might want to think twice.”
She went on: “I am really getting to the point where I am going to insist that we start formal poor performance proceedings as this behaviour is not acceptable and we should not accommodate it. If we are failing the CSC then It is In this regard rather than anything else.”
“This is one of those cases where the judgment carries more weight than the actual verdict.”
The judgment states that Hopkins “took it as a threat and decided not to put in such a complaint”.
It also states that the MoJ’s decision to give Hopkins a midyear mark of “must improve” was “plainly a detriment” and “caused her enormous distress”.
The MoJ had argued that the rating was “only indicative” and was not included in Hopkins’ end-of-year review, at which she was marked “good”, and that therefore the move was not a detriment.
However, the judging panel said: “We disagree. The mark was plainly a detriment. It indicated to the claimant that her managers did not have a good view of her performance. It caused her enormous distress.”
After she was given the mark, which came after her whistleblowing meeting, Hopkins had time off work with stress and told her manager at the time, Sarah Morton, that she was suicidal.
Morton said Hopkins was put in the category because of performance issues including mistakes transposing data in another study and having “a very hostile reaction” to criticism of her work.
However, the judgment found that the “must improve” rating was given because of her whistleblowing.
The tribunal did not accept the MoJ’s arguments regarding Hopkins’ lack of collaboration with colleagues, and instead said these suggested a criticism of her whistleblowing.
“We also have concerns about the suggestion that the claimant ought to be more ‘collaborative’ and less ‘defensive’ together with the hints at ‘behavioural issues’ which included the claimant’s reference to Ms Morton’s children [an incident where Hopkins asked Morton how she would feel if her children were assaulted as a result of the SOTP programme continuing],” it reads.
“The claimant did the work. But she argued passionately about the reliability of her research, what it showed and the dangers of delaying publication. We find this criticism of her behaviour suggestive of a criticism of her for making the protected disclosures.”
The tribunal found that Morton’s evidence regarding the reasons for the “must improve” rating were “vague and imprecise”.
The judgment went on to say that “small points for improvement” being noted at an appraisal meeting were not enough to lead to a negative rating, and that none of the matters had been raised before the meeting, despite it being MoJ policy to have an ongoing discussion about performance.
Noting that both before the performance review (which came after several whistleblowing attempts) and after, when she changed managers, Hopkins’ ratings were “good”, the court found it was “disproportionate and therefore very surprising” that she was marked “must improve”. The judgment also said the panel regarded a note in October 2014 detailing issues with Hopkins’ performance “with caution” because the MoJ had “just decided to re-run the data set and may have been self-justifying”.
“The final report confirmed what the claimant had been saying all along.”
In her concluding remarks, Judge Lewis wrote: “We can understand the claimant’s frustration that it took five years to publish a report on such an important matter of public policy. The final report confirmed what the claimant had been saying all along, ie that there was a higher rate of reoffending by prisoners who had undertaken the SOTP programme.
“We also understand the claimant’s disappointment that the final report did not sufficiently acknowledge her extensive contribution. However, it is necessary to focus on the issues before the tribunal. Ultimately the question is why the respondent treated the claimant in the ways the has identified. Apart from the mid-year review marking, we find the reasons, while sometimes unfair, were not in any way because of her protected disclosures.”
The SOTP was a six-month group therapy course taken by thousands of prisoners serving sentences for rape, child abuse, and other sexual offences from 1991 to 2017. Hopkins said she raised the alarm in early 2012 that it was not working — her initial findings suggested it increased reoffending and was a risk to public safety.
The court said: “We find that the claimant believed that the information she disclosed showed criminal offences were likely to be committed and that such belief was reasonable … The belief was reasonable because it was explicitly indicated by the preliminary results.”
It added: “We also find that the claimant disclosed information which in her reasonable belief tended to show the SOTP results were being covered up by not being published. She disclosed the findings, the fact that she had been asked to recalculate and address ‘red herrings’ for two years and that she had continually advised the results would not change.”
The judgment also addresses criticism of Hopkins’ research — and attempts to delay and stop its publication.
The court noted that the basis for the SOTP was “a theoretical paper written by a Canadian psychologist, Karl Hanson” where offenders had to role play their offence. It said, however, that “there was no empirical evidence as to whether such a programme would work or not.”
The court also noted that Hanson was one of two peer reviewers that Hopkins’ 2012 report was initially sent to and that he was the more critical of the two. The data risked undermining his own theoretical work. “He was particularly concerned regarding how to match offenders in both groups who had committed multiple offences, and also as to whether the decision to put an offender on a programme or not incorporated any unidentified factor,” the court said.
The judgment quotes emails from the prison service (then the National Offender Management Service, or NOMS) asking for publication to be delayed — and later for the research to be stopped. In May 2012, Ruth Mann, then head of evidence and offence specialism at NOMS, wrote: “I’ve said before, the findings from this analysis, if they hold up, have serious consequences for NOMS. I am not sure I have fully got across to you how difficult this could be to handle and how many people we will need to prepare.”
She added: “I understand ... that the aim is to publish the report in July — from NOMS point of view, this simply does not give us enough time to manage the internal handling issues … I was hoping and expecting that we could proceed slowly and carefully through the various stages of scrutiny (NOMSreview, peer review, discussion with CSAP) and that any or all of these stages may lead to reconsideration of parts of the analysis.”
In 2014 — after much reanalysis of her initial research — the court found that Hopkins was told to change slides and omit “firm implications” about the research findings from a presentation to MoJ and NOMS staff.
The judgment says: “The claimant was told that ‘at tomorrow’s presentation we do not draw firm implications on the impact of the programme’. Changes were also required to the claimant’s slide pack, removing the claimant’s conclusions.”
One of Hopkins’ slides states that there were two possible implications of the results: that the “core SOTP” either “does not work” or “makes things worse”, or that “the methods used have been unable to attribute cause and effect to the findings”. It was replaced with a slide stating: “Discussion. Q. What do the findings mean? Q. What are the next steps?”
Hopkins’ claim that she was bullied by colleagues in the MoJ after whistleblowing is also addressed in the judgment. In 2013, when she told a senior psychologist in NOMS who had inquired about the results of the research that they indicated the SOTP was harmful, Endean “was very angry”.
“She told her she should be keeping the research confidential until an outcome was agreed. The claimant said, ‘You are asking me to lie’. Ms Endean disagreed that was the correct viewpoint,” the judgment reads.
The court found that Hopkins had been shouted at by Endean during meetings about the research, including “being told to ‘wipe that smile off your face’ or something very similar”. It also found that Hopkins “repeatedly complained” that she “wanted the bullying to stop.”
“The evidence of a number of witnesses was that Ms Endean was a forceful character,” the judgment reads.
While the judgment found that Hopkins’ midyear review mark was a detriment and related to her whistleblowing, it concluded that other claims could not be upheld. For example, a new manager’s failure to carry out a whistleblowing investigation was not considered a detriment because “at this stage, the claimant did not want a formal whistleblowing investigation”. They also said his motivation not to investigate was not to do with her whistleblowing.
The same manager’s decision not to carry out a formal bullying investigation was a detriment — but the court found it was motivated by factors other than whistleblowing. It was his first day in a new job, Endean — the main alleged bully — had left, and he was not certain if her behaviour had constituted bullying.
A refusal to discuss a midyear mark at a meeting focused on bullying and stress was not accepted as motivated by whistleblowing.
The tribunal found the department exhibited “very poor practice” when a manager told HR there was no case to answer on bullying allegations “without having spoken to anyone else” or carrying out a proper investigation. However, it said that this, too, was not motivated by whistleblowing but by repeated advice from HR to resolve the matter informally — and Hopkins’ own desire to keep things informal.
Being moved to a different team was not considered a detriment or motivated by whistleblowing. Instead, it was because her relationship with a previous manager “had broken down and her health was suffering”. Similarly, a further team move was deemed to be a result of a restructuring and keeping her away from a manager she had difficulty with.
The judgment said that handing over the project to a new researcher to be re-run was a detriment but was not motivated by whistleblowing. Rather, the decision was taken by a new manager trying to move things on. Similarly, it found that Hopkins was not sidelined from the project at this point because of her whistleblowing.
The tribunal said there was “virtually no evidence” on the issue of her being overlooked for promotion or why this was. It was therefore not upheld.
Among Hopkins’ grievances was the fact that the final report did not include as a named author, despite the work she had carried out in the preceding years. The colleague who made the decision claimed that he was unaware of Hopkins’ whistleblowing and that he “did not know how much [of the work] she had done”.
The judgment said it did “not find that entirely credible”. However, it ultimately concluded that “there was room for different opinions on whether the claimant should have been noted as an additional author.”
“Potentially it could be reasonable to believe there would be a miscarriage of justice if prisoners were less likely to be granted parole or released early because they had not been on the course.”
The judgment concluded that Hopkins will not receive compensation because the midyear review took place more than three months before Hopkins brought the claim.
“There simply is not the evidence to prove it was not reasonably practicable for the claimant to present a tribunal claim about the mid-year review marking in or shortly after September 2016. This claim is therefore out of time,” it read.
However, the case could have further implications. It could open up the possibility of lawsuits against the MoJ by prisoners whose release was delayed because they could not go on the programme.
“We think potentially it could be reasonable to believe there would be a miscarriage of justice if prisoners were less likely to be granted parole or released early because they had not been on the course,” the judgment said.
A Ministry of Justice spokesperson said: “We are pleased that the judge found that we did not discriminate against Ms Hopkins.
“This was a complex piece of research and at no point did we seek to avoid publication. Peer review is an important and standard part of all research which ensures findings are valid and accurately presented.
“Both internal and external experts who reviewed Ms Hopkins’ research judged that it was not of sufficient quality and that the methodology needed to be changed to remove the risk of bias and inaccurate results.”