What Her Majesty's Attorney General Doesn't Want You to Know (Part 2)

When Graham Ovenden was convicted in April 2013 on two counts of “indecency with a child” with respect to photographing the witness identified here as “Model X,” the charges, which the police filed on her behalf, did not relate to any existing photographs. Rather, they related to imaginary photographs that exist only in Model X’s false memories – false memories that were created by the police during their interviews with her. This is no mere speculation.

Model X did not come forward years later when she figured out what had happened to her. This was a lie that the prosecution fed the press and which the press dutifully reported. In reality, the police paid Model X an unsolicited visit in 2009 and attempted to get her to say she was blindfolded and molested. (The source for these allegations was Minty Challis, a/k/a Donna Berry.) Although the police never got Model X to allege molestation of any kind, they preyed on the inaccuracies of her memory and the clinical depression she developed in later adulthood to convince her that Mr. Ovenden had done something wrong. So how did the police find Model X in the first place? Mr. Ovenden gave them her address. He was obviously naïve to think that the police wouldn’t have their way with her.

The contrast between Model X’s written statement for the introduction to States of Grace at age 27 and her statement in 2009, at age 46, testifies to the power and will of the police to invent crimes where none exist. Here is what Model X wrote in her own hand in 1990, when she knew that several of her images would be reproduced in Graham Ovenden’s States of Grace:

There was a freedom about it -- not just being myself, but it showed other possibilities, different from everyday situations. It was nice to be accepted on the level that I was myself and he didn't used to say “this is so-and-so and she is 10 years old.” In this sense, it was very adult....

Graham didn't pose me that much. He used to just let me do things and he used to say “that's OK.” It was quite spontaneous. Sometimes he might have said “pick up your chin” or he might have said something emotive, like “look far away” or things like that. I never felt that he took away “me” as a person.

One of the things that's very important, I feel, is that the work is very honest. However erotic the pictures are, however they are provocative, they are honest pictures. We were there. We did those things. It's not like someone's faked it. I know that Graham's an artist, and not to take anything away from him, of course, but the thing is, the people are there. So, it exists and you can't pretend it doesn't exist and that sexuality doesn't exist. So the honesty, I think, is really important and I think people are just stuffy and have a lot of fears about what's okay and get confused about what's okay.... It was a very safe environment.

Now compare this resolute declaration with paragraphs 36 and 37 of the prosecution’s opening statement about what Model X would say when called to the witness box. (These paragraphs were simply regurgitated, complete with typographical error, by the Attorney General in his “Reference Under Section 36 of the Criminal Justice Act 1988,” recently submitted to the Court of Appeal, Criminal Division. Evidently the Attorney General couldn’t be bothered to find out what Model X actually said at trial.) The reader should keep in mind that these paragraphs are supposed to make out two separate “offences” of “indecency with a child:”

"[Model X] was about 10 years old when the defendant took photographs of her at a time he was still living in London. This took place in a studio in an empty bedroom of the house. [Model X] remembers the defendant telling her that he wanted to recreate a ‘Little Blind Girl’ and he told her a story about a blind girl. Susannah was sitting on the floor. She was naked. The defendant put white sticky tape on her eyes. She couldn’t see. The defendant pushed the tape down. [Model X] didn’t know what the defendant was doing through she could hear him breathing as if he was holding his breath and then exhaling.

"When the defendant moved to Cornwall, [Model X] would visit the Offender’s home address with her family. The defendant photographed her outdoors. [Model X] remembered there being rocks up the hill from the house where the defendant photographed her naked. She remembers the rocks digging into her back as she lay across them. She can recall be [sic] stretched out in certain poses and feeling vulnerable."

As mentioned above in this posting and elsewhere on this blog, the prosecution did not introduce into evidence any photographs showing Model X fully naked with tape over her eyes or lying down on rocks. The authorities had dozens of photographs of Model X, but none of them fit the descriptions of these two alleged events. However, they did have photographs by Mr. Ovenden which plainly demonstrated that Model X’s memories were confabulated – that is, her recollections were based on true events, but contained crucial details that never occurred.

Model X testified that her eyes were taped, that she was totally naked, and that she was blindfolded only when she was alone with Mr. Ovenden. However, photographs in the possession of the authorities, reveal those details as false. Reproduced here are three photographs of Model X posing with another model on the day the “blindfold” photographs were taken. The blindfold is cloth, not tape, and Model X is wearing a white dress, open at the top. (One of the photographs served as the source image for a drawing about blind Justice that Mr. Ovenden made for a patron.*)

And if Mr. Ovenden told Model X a story about a blind girl, it would hardly be sinister: blind and blindfolded figures are not uncommon in the history of art. (See paintings above.) Still other photographs in the possession of the police show Model X seated, never lying, on rocks at Barley Splatt. When one of those images (shown above right) was introduced by the defense, Model X commented under oath that it was “lovely.” The implication that someone stretched Model X out over rocks is pure invention.

This is not to call Model X a liar. She undoubtedly believed that what she testified to was the truth. (The defense failed to confront her with her statement in States of Grace for reasons unknown to this writer.) But her memories – so graphically in conflict with both her recollections at age 27 and the photographs that Graham Ovenden actually took of her – are clearly false.

The phenomenon of the confabulation of memory is well known, as attested to in the following précis by Dr. Ian Anderson, a Chartered Psychologist. Although Dr. Anderson did not consult in the Ovenden case, he clearly should have, as his observations would have helped the jury to understand how someone could have one set of memories of certain childhood experiences at age 27 but a drastically different set at age 46:

A lay view of memory function might well be characterized as a belief that memories are recorded and stored rather like an archive of video recordings to be retrieved and replayed at will. Research over decades has demonstrated that this is not accurate. The general view that psychologists hold of memory is that memories are stored not as whole narratives, but as fragments. Fragments of memory are reconstituted into narratives at the time of their retrieval. I would note that functions of memory are clearly much more complex than the description I have just given; but I believe my description represents a simple overview that accurately contrasts with the lay version of memory noted above.

Whatever the mechanisms of memory, most of us believe that our memories are more or less accurate. We also believe that we are better at remembering important events than trivial events. Research has consistently shown, however, that our memories are probably far less accurate than we believe them to be. Our memories are sufficient for most practical purposes as demonstrated by the fact that we can function in our day-to-day lives. But there are occasions when normal people in normal situations ‘remember’ things that have not occurred.

This ‘remembering’ of events that have not occurred is known in psychology as confabulation. Confabulation is also referred to in more general contexts as ‘False Memory Syndrome’ and sometimes ‘Recovered Memory Syndrome’. Confabulation of memory is one example of our brains/minds filling in the gaps of missing information in order to make sense of the world. Both our visual system and our auditory system also routinely perform this task, and indeed sometimes get it wrong.

I want to be clear that confabulation is a normal artifact of memory that happens to the healthily functioning brains/minds of most people at some time or another.

Some people are more prone to confabulation than others…. [T]here is a plethora of publications devoted to this phenomenon. I would draw attention to an article published as recently as 5 August 2010 (Mazzoni et al., 2010). In this study as many as one in five of the 1,600 participants reported clear recollections of incidents that they knew had never taken place. Most of the false memories reported by the now-adults in the study related to events between the ages of four and eight years old.

If a memory is confabulated a person who experiences that memory has in a sense invented the memory, although that person will not in any way be aware that it is an invention. In other words, confabulated memories are experienced as if they are the truth. Indeed, one of the ways that researchers are able on some occasions to identify clearly confabulated memories is by the certainty with which those who report those memories maintain them in the face of irrefutable evidence to the contrary.

Once a memory has been confabulated it is impossible to separate it from a real memory. Therefore, if a person can create a confabulated memory he or she can certainly maintain it consistently even though in a sense the memory is fabricated. Not only can the individual who experiences the memory not distinguish between a real memory and a confabulated memory, but research has also demonstrated that without external reference psychologists are no better at distinguishing confabulated memories from real memories than are others. However, there are some contextual factors and features that properly raise doubts in relation to the veracity of a memory when it is considered.

The research above also demonstrates that there are specific circumstances that are likely to increase the possibility of the creation of confabulated memories. “One set of circumstances that has been associated with the creation of confabulated memories is when a person has been the subject of certain types of psychological counselling or other interventions of psychological therapy.

There are many types of psychological interventions, sometimes known as ‘talking therapies’. It is by no means inevitable that a competently delivered form of psychological therapy will necessarily create confabulated memories. However, in order to comment as to whether a particular therapeutic intervention has the potential to create confabulated memories, it is necessary to consider both the style of therapy and the details of the ways in which the individual therapist delivered that therapy. “As I imply above in relation to potential for any therapeutic intervention to create a confabulated memory, the devil is in the details.

For completeness, I will add that the potential for confabulation as a result of therapeutic intervention probably arises for no better reason than the fact that talking therapy typically involves an intense interpersonal relationship between therapist and client focused upon specific problems in the client’s life and sometimes the reasons for those problems. In other words, although therapeutic interventions have a high potential to create confabulated memories, the fact of the matter is that any such conversation, interview, or discussion has this potential, and ‘talking therapy’ is merely a special case of this type of interaction.

Another set of circumstances that has been associated with the creation of confabulated memories is the investigating process itself, particularly the methods of interviewing used by, for example, the police. Such issues as interviewer expectations, specific types of questions (particularly leading questions), summaries that confirm interviewer expectations and omit or deny contrary information provided by witnesses, etc. are all things that have the potential to pollute memory.

I am not suggesting by the above that interviewers would necessarily intend to distort accurate recall; in fact, it may be the very intention to elicit accurate recall that sometimes creates the circumstances for confabulation. A lay person considering such interviews would not necessarily be able to point to specific interactions that have the potential to create confabulation: this requires an expert analysis.

In light of the fact that Model X has suffered from depression in adulthood and given the interventions by the police, who swooped down on Model X with a fury to “get” Graham Ovenden, it is clear that Model X’s testimony consisted not of accurate memories, but confabulations.

One can also sense just how deeply Model X was manipulated by the police. The Attorney General notes that in her victim impact statement, taken in 2013, Model X said that “giving evidence had been the worst experience of her life” and that “she had struggled with vague feeling [sic] throughout her life that she had been taken advantage of; throughout her life she had felt loneliness and isolation and felt very alone in her relationships.” These claims (quoted here from the Attorney General’s brief, not the victim impact statement), were, like Model X’s testimony, embroidered by the police. Applied to real child abuse, they might be believable, but here they are just tropes.

It’s no wonder that giving evidence was the worst experience of Model X’s life. She had her memory irreparably damaged and then discovered on cross-examination, when she was confronted with the photographic evidence, that something was truly amiss. This is something for which the police should be punished, not something for which Graham Ovenden should be held responsible.


*The title of the drawing is “Justice conducts the choir of innocents in her new anthem” and is reproduced here.