Chief constable caves to judges on disk grab
Judges concerned over conduct
Avon and Somerset Chief Constable, Colin Port, bowed to the law this week and returned computer disks seized by his force from computer forensic expert Jim Bates.
However, reports from the High Court in London, suggest that Mr Port is determined to keep on expressing the point of view that had him hauled up in the first place – and legal experts question whether his grasp of the law is all that it should be.
Mr Port was due to appear in court yesterday to explain why he had failed to comply with a ruling that required him to return a large quantity of computer and hard copy material to computer forensic expert, Jim Bates. This was seized last September during police attempts to obtain evidence of a "conspiracy to obtain indecent images of children".
In court last month, the Police justified the extensive seizures on the grounds that they were looking for evidence of e-mails and other communications that might provide evidence of a conspiracy. The judges were unimpressed, and were particularly unhappy that the police seized legally privileged material – items that may constitute evidence in an ongoing court case – despite being warned that they were not allowed to do so.
Following last month's ruling, and a consent order drawn up between Mr Bates and Avon and Somerset Police, agreeing to hand the material back, Mr Port went public – most notably in The Sun – expressing his willingness to go to prison, rather than comply.
Mr Bates responded by summoning him back to court, where he was due to appear yesterday to explain his actions and possibly answer charges of contempt.
In the end, the bulk of the computer material was delivered up to the offices of Mr Bates’ solicitors on Monday night, just hours before Mr Port was due in court.
As Mr Bates’ solicitor told us: "Our application to commit him to prison was unsuccessful but he was not awarded his costs on the basis of his behaviour since the order of 8 May."
This includes various comments to the popular press that could be interpreted as suggesting that Mr Bates’ possession of child abuse images was in some way connected to a personal interest in the subject, as opposed to merely related to his professional duties.
In their judgment yesterday Lord Justice Stanley Burnton, Mr Justice Wilkie and Mr Justice Calvert Smith criticised Port for attempting to smear Bates in a series of newspaper articles "all of which were directed to bring Bates into disrepute as a result of suggestions that there was salacious material which he had on computers otherwise than for purely professional purposes".
Lord Justice Stanley Burnton said Mr Bates had held all the material "in a professional capacity". He added: "The conduct of the chief constable since the order was made has been of concern to us".
Despite this, Mr Port was still arguing his corner yesterday – if not before the judges, at least to the national press. According to various reports, he later spoke outside the court, calling on Bates to destroy all the material which had been returned. He also claimed that the case raised concerns about who was allowed access to highly sensitive material.
He said: "Each time these images are viewed it is a fresh victimisation of the child," he said. "Tighter governance is crucial. We need a nationwide accreditation system with clear rules and safeguarding of victims and a fail-safe that allows accreditation to be withdrawn should any aspect of those rules be breached."
However, academic and expert witness, Professor Peter Sommer, expressed his surprise at these remarks. He told us: "The law on possession of indecent images of children is very clear already: it is simply forbidden. It is a strict liability offence, and anyone found in possession of such images without good grounds for doing so is committing a crime and likely to be punished accordingly.
"For fairly obvious reasons, the law allows certain individuals to possess certain images at certain times: the law allows certain individuals to possess certain images at certain times: s.46 of the Sexual Offences Act 2003 specifically allows an individual to retain an indecent image for the 'prevention, detection or investigation of crime, or for the purposes of criminal proceedings' – but only so long as they are working on such matters.
"As long as Jim Bates- or anyone else - is 'under instruction' in respect of particular cases, he may retain material: when that instruction ceases, he must either return it to the relevant authorities or destroy it.
"It is not altogether clear what gaps in the law Mr Port is seeking to close."
We have asked Avon and Somerset Police for comment, but so far have received no response. ®