Sunday, May 12, 2013

Trial Fails to Rewrite History of Graham Ovenden's Art

[Readers who haven't read the previous posts should do so before reading this lengthy one.]

Although prosecutor Ramsay Quaife attempted to connect Graham Ovenden’s art with sexual abuse charges, he was unable to do so at trial. The “taste test,” where Mr. Ovenden was said to have blindfolded two of his models in order trick them into performing fellatio, was disbelieved by the jury for good reason: the stories were directly contradicted by circumstantial evidence and lacked the ring of truth. Mr. Quaife’s other claim – that Mr. Ovenden blindfolded his models in order to get them to pose with their legs open – was never proven because there were never any photographs to support it.

The two prosecution witnesses whose photographs by Mr. Ovenden were charged as “indecent” must have been under considerable pressure to make accusations against Mr. Ovenden. The police concocted negative statements, but when called to testify, they failed to follow the scripts that the police and prosecution had prepared for them.

One of the witnesses, the subject of a single photograph alleged to be indecent, unequivocally stated behind the witness screen that Mr. Ovenden never abused her and gave mixed reviews to her photographs. One image shown to her on cross-examination she found beautiful. As to the allegedly indecent photograph presented by the prosecution, she simply stated that it was “not me.” Presumably she meant that she didn’t feel it was a proper portrayal. That photograph, which had never been published or exhibited, was part of a group of images taken from a bound album that was seized from Mr. Ovenden’s studio and torn apart by the police in preparation for trial. Mr. Ovenden later testified in his defence that taken together with the other images, the allegedly “indecent” one would not be viewed as indecent at all. At that point, Judge Graham Cottle inquired of the prosecution whether the police were in possession of the other photographs. They said they were not, despite the fact that they had shown them to Mr. Ovenden’s counsel legal team, comprised of QC (Queen’s Counsel) Christopher Quinlan, barrister Robert Linford and solicitor Tess O’Callahan, just prior to Mr. Ovenden stepping into the witness box. Ultimately, the other images may not have been admissible for the jury to consider, as under British law, jurors are instructed to consider images in isolation from the context in which they were created.

That peculiar phrasing of the witness, that the photograph was “not me,” was probably a contrivance of the prosecution to ensure that she didn’t give an opinion as to the ultimate question – i.e., whether the image was “indecent.” The latter is strictly for the jury to decide. If she had stated that she believed the photograph was “indecent,” a mistrial might have been declared.

There was more than mere contrivance in the signed statement prepared for this witness by the police. Although the prosecution represented that it accurately summarized her extensive pre-trial interview, Mr. Ovenden’s QC compared the two and discovered that the statement mischaracterized what she had said and omitted crucial testimony which tended in Mr. Ovenden’s favour. Furthermore, she was not a witness who, as the prosecution claimed, “contacted police long after the abuse is alleged to have taken place, and only when they realised exactly what had happened to them as girls.”1 Not long before his arrest in 2006, Mr. Ovenden received a visit from the witness’s mother, who asked Mr. Ovenden for copies of photographs that he had taken of her two daughters and told Mr. Ovenden that her daughter (the witness in question) sent him her fondest wishes. What happened to this former model was not some realisation, but a visit from the police, who contacted her after Mr. Ovenden naively gave them a list of his former models in 2008.

It should not be surprising that in her interview with the police she had positive things to say about her experience of being photographed by Mr. Ovenden. In 1990, when she was 27, she made a statement about that experience and it was published as part of the introduction to Mr. Ovenden’s monograph, States of Grace. Here is what she said:
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.2
With the second prosecution witness and her allegedly “indecent” photographs, things get, as Alice once said, curiouser and curiouser.  The police laid three charges of sexual abuse against Mr. Ovenden on her behalf, but when she got to the witness box, behind a screen and out of view of Mr. Ovenden and any spectators, she steadfastly maintained that Mr. Ovenden had never abused her. Prosecutor Quaife, who must have felt betrayed, turned nasty in his questioning of her. He made her cry, but couldn’t shake her resolve. On the following Monday, when the trial was reconvened, the prosecution made an application to the court to dismiss the three unproven counts.

Judge Cottle was extremely unhappy with that decision. Although he ordered the three charges dismissed,3 as he was required to, he invited the prosecution to bring new charges in their place. Subsequently, Mr. Ovenden was separately charged with making two indecent photographs of the witness in question. These were laid in addition to two “specimen” charges that related, in part, to the same photographs. While bringing new charges in mid-trial seems unfair in terms of compromising a defendant’s ability to prepare a defence, specimen charges are manifestly unjust where, as here, the line between legality and criminality can only be drawn by looking at the images.

The two photographs in question, taken on the same day and appearing on the same strip of negatives, were not printed by Graham Ovenden. They were printed by the police, who manipulated them in such a way so as to accentuate the genitalia. Interestingly, these photographs had already been in the possession of the police once, in 1993, when Mr. Ovenden was raided by Sergeant Michael Platt of the Metropolitan Police, Obscene Publications Squad. Mr. Platt, now retired, appeared at Mr. Ovenden’s 2013 trial. Outside the courtroom, he represented to QC Quinlan, who was standing with the rest of Mr. Ovenden’s legal team, that the two images in question were familiar to him and confirmed that they had been returned to Mr. Ovenden. Immediately thereafter, however, Mr. Platt was led away by the prosecution, only to return and say that he had been mistaken.

These two photographs, in addition to being the basis of two charges in their own right, were the basis for the specimen counts, which were grouped into different years. (If the reader finds it strange that two photographs taken on the same day could represent groupings of photographs spanning different years, so does this writer.) Where a specimen, as in Mr. Ovenden’s case, is a separately identifiable offence, the jury is instructed as follows:
Count [X] is a specimen Count. The prosecution allege that D[efendant] also committed numerous other offences of the same kind. Instead of loading up the Indictment with Counts charging many offences, they have selected one as an example, as they are entitled to do. However, you may convict D[efendant] only if you are satisfied beyond reasonable doubt that he committed the particular offence charged in the Count [X], whether or not you are satisfied beyond reasonable doubt that he also committed other such offences.
Crown Court Bench Book and Specimen Directions, Third Ed., 2010 (emphasis added).

In other words, even if the jury is uncertain about the photographs they haven’t been shown, if they find the examples (i.e., the two photographs) “indecent,” then they must convict on the specimen charge. The Bench Book gives as an example of a specimen charge “a Count of indecent assault on a child who claims to have been abused in the same way on many occasions, but cannot say precisely when or how often.” This isn’t even remotely analogous to the situation here. Photographs are physical artifacts. What someone might remember about a photograph is proven or disproven by the thing itself. These counts essentially tell the jury that if it finds one image “indecent,” then it should imagine that others are also “indecent,” regardless of what the photographs actually show. Compounding the disparity is the fact that although the witness was photographed by Mr. Ovenden on many occasions, she did not testify that she was photographed in the same pose on numerous occasions.

The witness was not called back for additional testimony regarding the new charges, but she had already expressed her opinion. As to the two photographs printed by the police, she stated, like the first witness, that they were “not me.” She also said that, at 39 years of age, looking at her photographs, she was of the opinion that no young girl should ever be photographed in such a way and that she would do anything she could do to make sure that it didn’t happen to anyone else.

This was a strong condemnation given that she did not testify to having suffered any particular damage or consequence as a result of her experiences. It is also a strange statement – a complete revision of the eloquent declarations she made during the 1990s in defence of Mr. Ovenden’s photographs of her.

Maud Hewes was photographed by Graham Ovenden twenty to twenty-five times from the time she was six until she was about fifteen. (He also once photographed her nude as an adult.) Seven of her images from 1984 through 1988, when she was between the ages of nine and fourteen, appear in Mr. Ovenden’s monograph, States of Grace. In five of them she poses by herself; in two, she is posing with another model. Ms. Hewes’ name, unlike those of the other witnesses against Mr. Ovenden, is mentioned here because she spoke publicly about Mr. Ovenden’s photographs on a number of occasions as a young woman.

When page proofs of States of Grace arrived in New York from the printer in Hong Kong in October 1991, United States Customs seized them. At a court hearing in February 1992, the United States government announced, without filing charges, that the book contained depictions of minors engaged in “sexually explicit conduct” under United States law, which prohibits the portrayal of a “lascivious exhibition of the genitals.” One month later, at a second hearing on the matter, the head of the Child Exploitation and Obscenity Section (CEOS) of the United States Justice Department’s Criminal Division, Robert Flores, identified the image of Ms. Hewes on page 54 of the book as the only potentially pornographic image in the book. (Actually, he equivocated, claiming there might be other pornographic images, although he was at a loss to explain which ones or why.) A month later, as the defence of the book was taking shape in New York, Robert Atkins, then a reporter for the Village Voice, interviewed Ms. Hewes, then 18, by telephone. She told him:
When I modeled for Graham, I’d make up the poses and he’d shoot them. He never asked me to be sexy and I never tried to…he’s been a family friend since I was four years old.4
The following month, Ms. Hewes flew to New York, where she made a sworn declaration that was submitted to the United States District Court, Eastern District of New York. In pertinent part, it stated as follows:
I have known Graham Ovenden as a family friend for fourteen years – since I was four years old. I have modeled for Graham on numerous occasions – in fact, too numerous to count – for both his photographs and paintings. I have modeled for him both clothed and fully nude, both alone and with other children.... The portrait which the United States has charged as indecent is a portrait of me as I was eight years ago. I am not acting in a sexual way in the picture and Graham never asked me to be sexual or treated me as a sexual object. The accusation that the image is “obscene” is, to me, an accusation that I am “obscene,” something to which I take offense.5
Ms. Hewes also spoke about her photographs in the U.K., the first time on April 21, 1993, when she was interviewed by agents of both the Metropolitan Police, Obscene Publications Squad (OPS), and the Kirkwall police, after Mr. Ovenden was arrested by the OPS on suspicion of being part of a pornography “ring,” one of the obsessions of the police at the time. Her statement both affirms and adds to what she had previously said:
I have been shown a booklet of photographs 'MP 20' which contains images of myself. The photographs appear to pinpoint a certain age, although I have been widely photographed since I was about 4 until I was maybe 15 years old. All the people that I have worked with I have known very well, and have felt perfectly comfortable with them. I have never been indecently assaulted by any of them or forced to do anything against my wishes. I have now been through the "MP 20" booklet and initialed all the photos that I recognize of myself. I have also put the initials of the photographer when positively identified. All the photographs that I have identified as being Graham Ovenden's were taken at Barley Splatt....

I decline the idea that any of the images of myself are indecent and emphatically state that I was never abused, or photographed/drawn by co-ercion. Photographic or life drawing 'sessions' were never a prearranged appointment. I was at Graham Ovendens a lot of the time and the Ovendens were, are like a second family to me. Quite a lot of the time Emily and I would ask to be photographed. The only time a session was arranged was for the 'Alice Project' between Graham, Brian P and myself. Because it was a project sometimes we would decide that we ought to do some more for the project. The images in the 'MP 20" which I have marked G.O. refer to Graham Ovenden. Graham Ovenden is one of my best friends and also like a father figure. Signature: [M.] Hewes.6
At the time Ms. Hewes made that statement she was living in the Orkneys, very far from Cornwall, with her father and stepmother, both of whom were present on the day Ms. Hewes was questioned. Ms. Hewes’ stepmother, a friend of the Ovendens, posted a letter to Mr. Ovenden five days after Ms. Hewes made her statement. The letter is reproduced here in large part:
Nethermill, Rousay, Orkney                                                         Monday 26th April 1993

Dear Graham:

I’m typing this because my writing is becoming so unreadable these days. I enclose a photocopy of a bad photocopy of [Maud's] statement which you may wish to show to your solicitor. I insisted on getting it done at the fish factory in the last couple of minutes before Platt and Hills got on the 3.25 ferry. In my frantic hurry I didn’t line the first page up properly and so two lines are missing. I’ve typed up the statement so you can read it easily but you can make out [Maud’s] initialed alterations on the photocopy.

Michael Platt (the Met), Philip Hills (New Scotland Yard) and Morag Scrimgeur (Kirkwall Police) arrived at 11:15. Joseph and [Maud] were interviewed separately and privately, though the policewoman was present during [Maud’s] interview. I was not allowed to stay while Joseph was questioned. I did try to insist on it but was told they would have to take him somewhere else. Wish I’d been sure of the legal position. Have they a right to take someone who is not under arrest, only a witness? I was made to feel it would be very unreasonable if I kept on.

The mode of questioning was more like interrogation than anything else – very manipulative, full of leading questions and in Joseph’s case they used both veiled and open threats. After 20-30 minutes Platt had reduced [Maud] to tears. At this stage I was allowed in. She said he became much less heavy and manipulative after this. Eventually she agreed to write a statement. Platt tried to steer it but she resisted quite well. In fact she showed an admirable defiant independence. Platt read it and said later to Joseph that she had been schooled by Graham Ovenden. He forgets of course that she is nineteen, intelligent and articulate, and that she’s been out to the States to testify in a similar case.

Joseph was interviewed twice – long and hard. He was shown three or four photos which he recognized as G.O.’s because of the wallpaper! And two others which he could not identify. [Maud] was also unable to these. Platt was clearly very frustrated. Rather bad photos – I’m not surprised no one can remember them….

They were very anxious to extract evidence of a network for taking and distributing photos. They are convinced of this. … Joseph was asked if he had ever been to Germany with Graham Ovenden. Hills asked Joseph in my presence what he knows about the ‘Alice fantasy’! Upon my very spontaneous burst of laughter, he added “Don’t forget we’ve seen the correspondence. They seem to be looking for the ideal child to play Alice.” Later I heard Platt ask [Maud] how she felt now she was too old to be Alice. Similar mockery from [Maud]! Hills stated categorically in front of me that the Lewis Carroll Society was a cover for paedophiles to exchange photos of young girls! And Platt told Joseph during his second interview that all this is an attempt to use art to cover up paedophile practice. At this time Platt also accused Joseph of only just being able to keep the lid on it all – he was protecting others. [Maud] too was just managing to do the same – any minute now she would crack and spill out everything about everyone. They offered Joseph a deal – making a not so implicit promise to make things easier for him if he revealed all about everybody. They finished “We’ll be back in three months and this time you won’t know when we’re coming.”

Platt claimed that they had two disclosures of indecent assault already.* In the car on the way to the pier, appealing to my concern for [Maud], he said it had taken a month to get one girl to talk. (I don’t know what age this girl is now or if indeed she is part of this case – I was too intent on getting a photocopy – but the poor girl, he’d obviously kept on and on until he heard what he wanted to hear.)

Curiously, there was a programme on T.V. last night called “Street Legal” presented by Paul Foot. It dealt with misbehavior by the Metropolitan Police. Apparently a large increase of money has been set aside by them for the next three years to cover expected increases in compensation!

I’m sorry this letter is so long. You can tell how angry/agitated I am. I just hope that some of this is useful. I hope it arrives safely. Could you give me a quick ring to let me know? Love to you all from us both.

*[Those charges, if they existed, had nothing to do with Mr. Ovenden or anyone connected to him.]

Ms. Hewes was interviewed again in 1996, at the age of 22, for a documentary entitled “For the Sake of the Children,” which was part of the series Films of Fire and shown on Channel 4 in 1997.7 She not only affirmed her earlier statements about her photographs, but pointed out that images shown to her by the Metropolitan Police had been manipulated by them and did not reflect the original work, or intent, of Mr. Ovenden.

Intent, however, is not an issue when it comes to determining whether an image is “indecent.” This topic will be covered in greater detail later, but the standard of what is “indecent” under British law ostensibly precludes a consideration of either the intent of the maker or the context in which the image was made. Motivation and context are only relevant, if at all, to show that the images were made intentionally rather than by accident. As the Court of Appeal stated in Regina v. Graham-Kerr [1988] 1WLR 1098,
The question, as it seems to us, is whether the photograph itself is indecent. Photographs, after all, may last a large number of years, pass from hand to hand and so on. In our view it is not possible to relate the question of whether or not a photograph is indecent with the original motivation of the person who took it. It may be that the original motivation was perfectly innocent subjectively regarded; but if the photograph is one which right-thinking people would regard as indecent, the motivation of the original taker, in our view, cannot be a relevant matter.
The court in Graham-Kerr also approved of the lower court’s instruction to the jury to “apply the standard of decency which ordinary right-thinking members of the public would set.” This standard, the Court of Appeal found, was no different from the alternative formulation, that the jury should apply “recognised standards of propriety.”

Judge Cottle’s instruction to the jury in Mr. Ovenden’s case regarding the three photographs was much the same: “The question is – would right-minded people regard such photographs as ‘indecent’?”8 Technically, that instruction was correct. But how is it possible that the jury could have ignored the plainly prejudicial conjectures of prosecutor Quaife that Mr. Ovenden was “a paedophile,”9 one who “abused children in Cornwall and London, sometimes while taking photographs,”10 and is “besotted with little girls.”11 Although these claims were unsupported by any evidence, they were clearly aimed at dirtying up Mr. Ovenden so as to predispose the jury to convict him.

Moreover, what was the jury to make of images, which were not the subject of any charge and did not depict actual children, shown and described by the prosecution near the end of the trial during Mr. Ovenden’s cross-examination? These were composite works – collages – made up from original drawings and paintings by Mr. Ovenden not depicting any real people, together with pictures from adult (not child) pornographic magazines. The collages, which suggested that the child figures in the drawings were engaging in hard core sexual acts, were actually an interim step for a series that came to be titled, “As Through A Glass Darkly.”12(To say that the collages depicted children engaged in sexual acts would be inaccurate, both for the fact that no actual child was portrayed and that the images were plainly collages and not intended to look real.)

DVD evidenceThe police and prosecution were well aware that the composite works were an interim step because those images had been securely deleted by Mr. Ovenden from his hard drive once the final work was completed. Using special forensic software, the police recovered the explicit composite images, which were in a deleted folder titled “DESTROY IT.” But the police would have first viewed the final works on a data DVD seized from Mr. Ovenden’s studio. There were two copies, both of which were put into separate evidence bags. (“Copy 2,” shown here, was left behind.)

As Through A Glass Darkly ( Frontice)
To create the final works of the series, Mr. Ovenden took the explicit images he had created and overlaid them with visual “noise” from severely deteriorated Victorian glass negatives, giving the work a sense of “random acts of destruction of time.” The explicit content was thus only alluded to but not shown, creating a discomforting visual tension to the work. (Three of the final works are shown here.)

As Through a Glass Darkly 06The prosecution showed the jury two of the sexually explicit interim works and described the rest of them in graphic detail as evidence of the alleged motivation behind all of Mr. Ovenden’s artwork. That this evidence was far more prejudicial than probative of any aspect of the offences with which Mr. Ovenden was charged cannot be doubted. They do not make it more or less likely that he committed the offences of child abuse for which he was charged; nor do they make it more likely that he created “indecent” images of his models. They did, however, instill in the minds of the jurors concrete images to remember while they considered the specimen charges, that is, the photographs of Maud Hewes that they were never shown. Given that they saw only about half a dozen photographs by Mr. Ovenden during the entire trial (only three of which were charged as “indecent”), it was inevitable that the interim images and their descriptions would loom large in the jurors’ minds. As Through a Glass Darkly 15In the interest of basic fairness, the judge should have excluded the composite images from the trial, but basic fairness was hardly the order of the day.

Something or someone made Maud Hewes change her mind about the images Mr. Ovenden took of her, but she was not forthcoming about it. When she was questioned by Mr. Ovenden’s QC, she claimed not to have remembered her statement to the Metropolitan Police twenty years ago, which seems quite unlikely given the fact that it was a topic of conversation at home and she spoke about it to others and discussed it in the documentary, “For the Sake of the Children.” Notwithstanding her change of mind and regardless of prosecutor Quaife’s jaundiced view of the supposed “paedophilic” intent of Mr. Ovenden’s art, history will vindicate Mr. Ovenden. As his daughter, whose image appears in States of Grace together with Ms. Hewes, told The Guardian in 1993, 
We were always an open household and as young children would often run round naked … These pictures were just never anything to do with sex.13


1“Graham Ovenden convicted of child sex offences,” The Guardian, April 2, 2013, 12:23.BST.

2Ovenden, Graham. States of Grace. Ophelia Editions, New York & Amsterdam, 1992, p. 10.

3Cooper, Rob, “Artist Graham Ovenden found guilty of indecency against young girls after using nude children in his paintings,” Daily Mail Online, April 2, 2013, 15:21 GMT.

4Atkins, Robert, “Lolita Syndrome,” Village Voice, April 14, 1992.

5Id., note 2, page 80.

6Statement of Maud Hewes, age 19, April 21, 1993, taken by Michael Platt, Metropolitan Police (OPS), Philip Hills, New Scotland Yard, and Morag Scrimgeur, PC441, Kirkwall Police. Typographical errors in the original.

7 The interview will hopefully be transcribed and posted on this blog.

8“Artist Graham Ovenden’s indecency case jury retires,” BBC News, March 26, 2013, 14:31 GMT.

9BBC News, “Artist Graham Ovenden accused of being paedophile,” March 11, 2013, 16:48 GMT;; McDermott, Kerry, “Internationally acclaimed artist ‘sexually abused young girls in nighties after blindfolding them’,” Daily Mail Online, March 11, 2013;

10“Graham Ovenden child sex abuse trial: Nakedness ‘no shame’, BBC News, March 21, 2013, 16:08 GMT.

11Morris, Steven, “Artist Graham Ovenden denies abusing young models,” The Guardian, March 21, 2013.


13Morris, Steven, “Graham Ovenden lived in rambling rural idyll with a dark side,” The Guardian, April 2, 2013, 20:32 BST.

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