To be sure, in the case of both Model X and Maud Hewes (the only two former models involved in the indecent photographing counts), there existed photographs that, although not shown to the jury, could have been found to be "indecent" were the jurors to apply the lowest common denominator of current opinion regarding photographs of nude minors. However, convicting Mr. Ovenden for "indecent photographs" was not the objective of the prosecution: that is, the Crown Prosecution Service did not want to open the door to criticism from artists, photographers and indeed, the entire art establishment for condemning works of art. So instead the CPS based its case on phony sex charges (prompted for the most part by the police), and the novel theory that merely photographing nude minors could, in and of itself, and without any visual evidence, be an act of child molestation. Think about it: Model X testified that she "remembered" being photographed while nude and blindfolded, and on another occasion, while lying back, splayed out on some rocks. The fact that those photographs never existed (because the incidents never occurred) was irrelevant to the charge. The mere allegation that photographs were taken was sufficient to secure a conviction. Photographers should be very frightened by this expansion of the Indecency with Children Act 1960 and the mischief it is sure to bring to others besides Mr. Ovenden.
That brings us to the two remaining charges involving a third model, JB. At the outset, JB alleged three incidents. First, she claimed that when she was six she had a bath with Mr. Ovenden and another girl. Allegedly, Mr. Ovenden asked her to wash his "John Thomas." (The alleged incident involved no touching, just an invitation.) Second, JB claimed that when she was 7, Mr. Ovenden blindfolded her and played a "tasting game," culminating in his putting his penis in her mouth. Third, JB claimed that when she was ten Mr. Ovenden came up behind her, grabbed her breasts through her clothing and said "come on, let's have a feel."
Allegation number two, the tasting game, was disbelieved by the jury, while Mr. Ovenden was convicted on the first and third allegations. The discussion of these charges should be prefaced by a few facts that were not fully explored at trial, but which are salient nonetheless. Within a year of the alleged "let's have a feel" incident, JB asked Mr. Ovenden to photograph her naked, which he did. She was very proud of her breasts and a photo of her naked from head to toe appears in Graham Ovenden's monograph States of Grace. When she was asked about the photography session at trial, JB said she didn't remember it, and the photograph was never introduced because Mr. Ovenden's legal team were determined to keep States of Grace out of view of the jury. But her insouciant facial expression and open pose are not those of a girl who had to fight off an attack by the photographer not long before the photo session.(One can argue that it was a mistake not to introduce the book into evidence, but hindsight is always golden.) There is also evidence of a motive by JB to give false testimony. Long before the trial, JB and her mother took sides with Mr. Ovenden's ex-wife, Annie, in a bitter dispute over the Ovendens' collapsing marriage, Edmund Ovenden's misappropriation of equity in Barley Splatt and the removal of valuable photographs and other documents from Mr. Ovenden's possession. In fact, JB worked for Annie Ovenden: in 2010, she registered the domain for Annie Ovenden's website and thereafter remained the registrant and technical contact. (This fact was discovered after trial.) A friend of the Ovendens also witnessed a conversation between Annie and JB's mother regarding how they would "get" Graham. Mr. Ovenden's legal counsel must have felt strongly enough about how fraught the charges were that they didn't wish to air this dirty laundry.
In any event, there are ample grounds on which to appeal the convictions on these charges. Let's begin with the bath allegation, which JB said happened when she was six years old. There are three possibilities: 1) JB was willfully lying, 2) JB had a memory of an event that never occurred, or 3) JB remembered a real event. Facts already mentioned above suggest that JB was lying, but assuming, for sake of argument, that she actually had a memory of such an event, the task is then to determine whether the memory is true or false. This is not simply a matter of listening to JB's testimony and deciding whether her story is convincing. As memory expert Daniel L. Schacter has observed, "[p]eople incorrectly claim -- often with great confidence -- having experienced events that have not happened." (See, The Seven Sins of Memory: How the Mind Forgets and Remembers, Houghton Mifflin, 2001.) This is especially the case when witnesses rehearse their testimony with police officers, prosecutors and others (e.g., their mothers) and become "extremely confident about what they say -- even when they are incorrect." (Schacter, Searching for Memory: the Brain, the Mind and the Past, Basic Books 1996). A great deal has been learned since the early 1990s about how memory works and much of this knowledge flies in the face of the common understanding of the man on the Clapham omnibus that a memory is like a tape recording of what happened. For this reason, the British Psychological Society (BPS) produced its Guidelines on Memory and the Law: A Report from the Research Board of the British Psychological Society, written expressly for consideration by the CPS, police and defence solicitors. The following principles, designated as "Key points" in the Report, rather speak for themselves:
- Remembering is a constructive process. Memories are mental constructions that bring together different types of knowledge in an act of remembering. As a consequence, memory is prone to error and is easily influenced by the recall environment, including police interviews and cross-examination in court.
- Recall of a single or several highly specific details does not guarantee that a memory is accurate or even that it actually occurred. In general, the only way to establish the truth of a memory is with independent corroborating evidence.
- People can remember events that they have not in reality experienced. This does not necessarily entail deliberate deception. For example, an event that was imagined, was a blend of a number of different events, or that makes personal sense for some other reason, can come to be genuinely experienced as a memory, (these are often referred to as ‘confabulations’).
In general the accuracy of memories dating to below the age of about seven years cannot be established in the absence of independent corroborating evidence.
There was no independent corroborating evidence in JB's case. The "fact" of JB and her mother agreeing that JB disclosed the alleged incident when she was fifteen or sixteen (assuming, for the sake of argument, that this is true), does no more than corroborate the existence of a memory, not whether the memory is true. Independent corroborating evidence means evidence that is adduced or discovered contemporaneously with the alleged event and that directly supports one or more aspects of it. It does not mean a supposed conversation ten years later. Simply put, the CPS should never have prosecuted Mr. Ovenden on this charge.
What else is wrong with the two JB-related convictions? They are inconsistent with the acquittal on the third allegation, the so-called "tasting game" incident. The standard on voiding a conviction due to inconsistent verdicts is an exacting one. The burden is on the defendant to prove that the verdict is "unsafe," that is, that there is both "a logical inconsistency between the verdicts" and "no explanation" for the inconsistency. Dhillon  EWCA Crim 1577, par. 33. There is no universal test for determining whether a verdict is "unsafe." However, in R v. Cross  EWCA Crim 1533, the court found that verdicts would be inconsistent where:
They cannot possibly be explained by any line of reasoning which the jury could have adopted looking at the evidence as fair-minded ordinary people. The appellate court has to apply this test in the context of the issues which were presented to the jury, but that does not of course mean that a jury had to view the evidence bearing on those issues in the way that was argued for either by the prosecution or the defence.
Here, one needs to view the allegations by JB in the overall context of the case. First, the counts of conviction (the bath and "let's have a feel" incidents) were completely different from any other allegation in the case. Second, the only allegation by JB that was supported by a similar allegation -- the tasting game -- was thrown out by the jury. These two facts alone make out a prima facie case for "inconsistency."
Another factor to consider is that JB's credibility was at issue, since Mr. Ovenden denied that the three alleged events ever occurred. It might be argued that the testimony of JB's mother swayed the jury as to the bath incident, but it could not possibly explain the conviction on the "let's have a feel" count. Moreover, the convictions on these two counts came only after the jury had been deadlocked for four days and Judge Cottle instructed the jurors that they could convict by a majority. Consequently, the jury's decision has the hallmarks of a "compromise" where the jurors split the difference -- acquitting Mr. Ovenden on the more serious charge (one that was potentially corroborated by a similar allegation by LD), but convicting him on the two minor ones.
The closer one looks at the case against Graham Ovenden, the more one sees its vindictive heart. The case is replete with official corruption, from the coercion and coaching of witnesses, to novel applications of law, to bringing charges that should never have been brought. It is a rich irony, indeed, that in his petition to the Court of Appeal to put Mr. Ovenden behind bars, H.M. Attorney General cites as a consequence of Mr. Ovenden's supposed "abuse," the turmoil that the police and prosecution caused Model X and Maud Hewes -- turmoil, it must be said, that these witnesses never felt either when they modeled for Mr. Ovenden or when they looked back on their experiences in their twenties.
It is now up to the Court of Appeal to see that justice is done by reversing Mr. Ovenden's convictions.