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Muddle and confusion

Graham Ovenden is back in the news again.

The latest round in his battle with the law is centred on an application to have a collection of images that he curated destroyed because he is a convicted sex offender.

The judge making the decision to destroy Ovenden’s collection was at her most accurate, and honest when she said “I am no judge of art or artistic merit.  I am assessing the images upon the basis of the recognised standards of propriety that exist today.”

Ovenden is a convicted sex offender. The manner and nature of his conviction, and his apparent belief that he is the victim of a witchhunt make him the least appealing of figures, yet there is much to give anyone cause for concern.

Many of the images Ovenden curated, and which will now be destroyed, were not created by him, were owned by others before him, and did not attract the attention of the law. Some have even been exhibited widely, according to Ovenden (an assertion that does not appear to have been rebutted) providing contextual evidence about the mores and behaviour of some of our ancestors. They have become a subject for an application for a destruction order because Ovenden owns them. It is to say the least, a curiously subjective approach to the images.

The utter confusion that was Ovenden’s trial is recounted here; broadly speaking, one trial had to be abandoned because the prosecution made a mess of disclosing evidence, another was stayed to prevent an abuse of process because of the non-attendance of witnesses, and at the subsequent trial that finally secured conviction on some of the charges, the judge intervened when it was obvious that Ovenden had been charged with the wrong offences on some counts (that is to say, offences he could not be convicted of on the evidence) and substituted charges which he could be convicted of. It’s possible to see how other defendants, besides Ovenden, might form the conclusion that the courts were determined to get him, by hook or by crook.

The use of bad character evidence in Ovenden’s trial is also deepy troubling; in essence, pseudo-images that he created in 2006 were used as evidence of his sexual tastes some twenty years previously, when the offences complained of were committed. The Court of Appeal approved this approach, saying It is, …, clear that the fact that someone has an interest in pornography some years later is relevant because it would be unreal to suggest that such an interest did not exist earlier. The extent and weight to be attached to it is a matter for the jury, but it seems to us that it is relevant.  That idea, that a sexual taste is fixed and unchanging is not my experience of the world, and not, I would argue, the experienceof many of the people I encounter, but the Court of Appeal has effectively licensed the use of bad character evidence wheresoever it can be found to reinforce a weak case.

Another troubling aspect of Ovenden’s case crops up in the appeal report; one of his victims says in the victim impact statement JB said that since the matter had been brought to her attention she had suffered from sleepless nights. She also had found that giving evidence at court had been the worst experience of her life.

It’s clear that what the police did, after receiving the initial complaint against Ovenden, is go on a comprehensive trawl of his image collection seeking to identify other victims to bolster their case. Inthe process, they could be argued to have re-victimized JB; the victim impact statement of another victim, EE is less clear, but she complains that the handing round of nude and explicit photographs of her had deprived her of her dignity. She had also suffered significant financial loss. The reference to financial loss is not explained in the court report; is she referring to an unquantifiable loss because of the trauma caused by Ovenden, or of the cost of attending interviews and court?

Ovenen comes across as a pompous, pretentious and unlikeable man, and there is no doubt that the offences of indecent assault that the jury believed he committed make him a sex offender. The muddle and confusion around the charging in relation to the photographs he took, re-opens a concern we have always had, that an element of retrospectivity is being introduced into the law. In the process offenders like Ovenden see the muddle, the use of common sense statements about propriety or the assertion that sexual tastes do not change as evidence that there is an irrational withchunt against them. In all this muddle and confusion the risk is always that victims become assets of one side or the other as the adversarial process stumbles on, like two tired boxers lumbering around the ring. You don’t have to be an advocate for either side in this matter to see that the risk is that, in the muddle and confusion, the question of whether the victims matter more than the law,or vice versa, gets lost in the noise and clamour.


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This entry was posted on October 15, 2015 by in Uncategorized.

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