Editors faced legal dilemma over naming of sex-in-garden couple filmed by police officer from helicopter

Media organisations trying to decide whether to name a couple filmed by the South Yorkshire Police helicopter having sex in their garden were told by a judge that he believed identifying them would be a “direct and real threat to their mental health and well-being”.

Editors were left having to make their own judgments after the end of a trial at Sheffield Crown Court as the judge said it was not for him resolve a dispute over whether the woman involved should be considered a complainant of a sexual offence and so entitled to lifelong anonymity.

But Judge Peter Kelson QC said that he had read the statements submitted by the couple about the consequences of their being identified and concluded: “I perceive a direct and real threat to their mental health and well-being.”

The couple’s perfectly legal antics were shown to a jury in a graphic 11-minute recording which left nothing to the imagination during the trial of four helicopter crew members who were eventually cleared of misconduct in a public office on Friday last week.

Former officer Adrian Pogmore (pictured top), who had admitted the offence, was jailed for a year yesterday.

Lawyers representing media organisations had argued that, as the jury had heard how the couple knew they were being observed by the helicopter and claimed they were “putting on a show”, they could not be considered victims of voyeurism.

But prosecutors disagreed.

Following the trial, media organisations were left with a dilemma as the only way the issue would be decided by a court would be if an editor were to prosecuted under the 1992 act for naming the couple.

At the beginning of the three-week trial Judge Kelson imposed orders under section 46 of the Youth Justice and Criminal Evidence Act banning the identification of a number of other people who were also filmed from the helicopter without their consent as they sunbathed naked.

But the couple filmed having sex on their patio had refused to take part in the prosecution and the judge decided that, as they were not witnesses, they could not be protected with any anonymity order.

He made an order under section 4 (2) of the Contempt of Court Act which temporarily banned the media from identifying the couple.

But at the end of the prosecution case, the judge said it was difficult to see any basis for continuing an order banning their identification.

Richard Wright QC, prosecuting, said the crown disagreed, prompting an application by a group of newspapers – The Sun, Daily Mail, The Times, The Daily Telegraph and the Daily Express – for the court to lift orders relating to the couple.

Barrister Jesse Nicholls, for the newspapers, told the judge at a hearing on Thursday, that there was agreement among the parties that there was no basis at all on which he could make an order banning the media from identifying the couple.

Judge Kelson said that “Mr Nicholls’s analysis of the law is virtually unimpeachable” but agreed to an application by Paul Greaney QC, on behalf of all the defendants, that the section 4 order should remain in place until the end of the trial, as suddenly identifying the couple at that stage in the trial could turn the jury against the accused.

Wright said that it was the continued view of the Crown Prosecution Service that the woman was a victim of a sexual offence within the meaning of section 1 of the Sexual Offences Act 1992 and, therefore, entitled to automatic, lifelong anonymity.

He said this was because the woman had made a statement saying she did not consent to being recorded having sex.

Nicholls disagreed with this view and invited the judge to give guidance – which the judge declined at the time of the hearing.

Wright said: “It’s a matter for editors. If they do (publish the names) and there’s a complaint, the police will be duty bound to investigate.”

He told the judge: “Your honour should not be drawn into making observations.”

At the end of the trial, Judge Kelson returned to the issue, saying: “It seems to me plain from the statements (the couple) made in 2014 that certainly (the woman) could be a complainant under section 67(3) of the 2003 Act.

“She did not know that Mr Pogmore was recording the activity.”

But the judge added: “What remains is whether (the couple) have actually made a complaint.”

Judge Kelson concluded: “That’s not a matter for me. I can’t say any more. I can’t give legal advice to any party or any individual.”

The judge also said he could not resist an application by Nicholls for the court to release the statements made by the couple and the pixelated footage of the couple which was shown to the jury.

He said: “The gravitation of the law is in one direction”, and added: “It seems to me, with regret, that I’m not in a position to resist any application for publication in this case.”

During the trial, Wright explained to the judge that none of the defendants, including Pogmore, had been charged with voyeurism due to the difficulty proving “sexual gratification” as a motive.

Picture: Anna Gowthorpe/PA Wire

 

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