Top Avon and Somerset cop up before the beak

Avon and Somerset villains may be breathing easier this week as the local constabulary devotes ever more of its time to the vexed question of whether to lock up their own Chief Constable, Colin Port.

In September last year, Avon and Somerset Police seized a wide range of material from the home of Jim Bates, a computer forensics expert who has been called frequently over the past two decades to act as an expert witness in cases that require the detailed investigation of computer based material. They were investigating a charge of conspiring to possess indecent material, in connection with an ongoing case, in which some doubts had been cast as to whether Bates was still qualified to be considered an expert witness.

His expert status is key to all that follows, since although it is a strict liability offence to possess indecent images of children – that is, mere possession is a crime – there are certain specific statutory exemptions. One of these is being "under instruction" as a named expert witness in a trial. That provides immunity for the individual, whilst material relating to a trial is likely to be "privileged" and therefore protected from police seizure.

Earlier this month, a judicial review declared that the grounds on which the police drew up their original warrant for the search were flawed, because they had not taken into account the possibility of Bates’ continuing expert status and had seized material despite there being grounds to believe it was privileged.

The material seized in this manner is reported to include around 2,500 allegedly indecent hard copy images, data sticks, and over 80 hard drives – two of which are clones relating to the court case for which Bates’ services as an expert were in question.

The judicial review appears to have ordered that the hard copy material not be returned directly to Bates, but be sealed pending further investigation. Bates is also apparently content to hand over the cloned drives to court officers – leaving a dispute over the other drives on which there may be trace images, deriving from evidence used in other cases.

Port has expressed his unwillingness to hand over any of this. However, his arguments have been evolving subtly over the last couple of weeks. Initially, police seizure of the drives was aimed at recovering evidence of a conspiracy: in court, police counsel talked about email correspondence being the target of the seizure.

In a statement to the Sun last week, Chief Constable Port appeared to be concerned with who might be recipients of the material. He was reported as saying: "We don't know what's on these hard drives, but it is highly likely they contain indecent material going back to the 1990s.

"Common sense dictates to me that we shouldn't be returning indecent images to anyone - yet I am prevented from even examining the material."

Today "senior sources" are quoted in the Times saying that "the public would be appalled if he were to hand over these hard drives, which are suspected of containing images of child abuse, without examining them with a view to identifying the children, rescuing them and preventing any further abuse".

If he has reason for suspecting that these are previously undiscovered images of abuse, then he has a point: if they are simply images already submitted by police in trials over the last two decades, his comments represent a damning condemnation on the failure of police forces to take proper action on material whilst it was in their possession.

Matters hotted up last week as, according to one legal source close to these matters: "Last Friday the police applied for a warrant against the Chief Constable to enable them to take possession of the computers lawfully. It was seen as a device by the court which refused to issue a warrant.

"The judge said it was an attempt to circumvent the order of the High Court requiring him to return the computers."

This – the absurd spectacle of a police force applying for a warrant against their own Chief Constable – is almost certainly the catalyst for an application made to the High Court yesterday requiring that he turn up and explain himself. A spokesman for the High Court confirmed that "in the Divisional Court, Lord Justice Maurice Kay and Mr Justice Collins granted permission for the applicant (Jim Bates) to seek an order. That application will be heard on 16th June."

In other words, no ruling has yet been made. However, in less than a month, the Chief Constable of Avon and Somerset Police will be up before the law, asked to provide reasons as to why he has not only defied a legitimate court order – but has gone public with that defiance. If the court decides that this constitutes a contempt of court, it is within their powers to commit Mr Port to prison for a fixed term or until such time as they decide that he has purged his contempt (by complying with the court’s wishes).

He may yet seek to have the judicial review ruling set aside or overturned. In a comment to the Register today he said: "I am taking independent legal advice as to my position and in the circumstances I will address my response to these allegations to the court, and will not be responding to media comment whilst the proceedings are continuing."

Watch this space. ®