I don’t know whether Rolf Harris is in fact a serial sex offender and last week’s judgment by the Court of Appeal leaves the matter in a thoroughly unsatisfactory state.
Before looking at the judgment in detail let’s put a few misconceptions to bed.
First of all, it gives no support to those who suggest that Rolf Harris is the victim of some sort of police or CPS conspiracy. It would be quite extraordinary if there had been and there is no evidence of it. It is true that there was a failure in the disclosure process. Some very old, and as it turned out rather significant, convictions of an important witness were not disclosed at the trial. They were not disclosed because the police had not found them. That does not suggest a conspiracy, it suggests at most a lack of diligence in seeking out old records. Faults in disclosure are endemic in our creaking justice system. Even today, when criminal records are fully computerised mistakes in criminal records are far from unusual. The relevant records dated from the 1960s, long before computerisation, and were found by the police on microfiche after the trial and before the appeal. It is hardly likely that they would have done so had they been part of a conspiracy to suppress the truth.
There are other criticisms of the police which appear in the judgment, or are at least suggested by it; in particular a certain lack of enthusiasm in looking for exculpatory evidence, but there is certainly nothing to suggest a wilful attempt to stitch up an innocent man. That is not to excuse the police of all blame: a lack of diligence in a case as serious as this is a worrying matter, but it is a great deal less worrying than evidence of a conspiracy to pervert the course of justice.
Secondly, the judgment gives no support to some of the unpleasant and unfair comment that has circulated about the original prosecution counsel Sasha Wass QC. There is no criticism of her whatever in the judgment, and no reason to think that she did anything other than a proper and professional job in prosecuting Mr Harris.
Thirdly, anyone searching the internet for information about the case may have come across the information that one of Harris’s jurors was a member of the Metropolitan Police. That is true, but it is not something that featured in the appeal. Opinions differ on whether police officers (or for that matter lawyers and judges) should be able to sit on juries, but the law is clear: they are unless they have some close connection with the investigation. (For what it is worth I have changed my mind on this issue after representing a man at a trial at which the serving police officer (whom I had originally and unsuccessfully asked the judge to exclude) turned out to be the only member of the jury with the wit to notice that the foreman, confused by the judge’s complicated “route to a verdict” direction, had accidentally returned a guilty verdict when they had in fact meant it to be not guilty).
The 12 charges of indecent assault against Mr Harris were based on the evidence of 4 different women. Evidence was also given of alleged criminal behaviour towards a further 5 women or girls which, because it took place abroad, could not form the basis of any charges in this country. The evidence of the 5 “extra-territorial” women was only summarised in the judgment and we have no way of knowing for sure whether the jury believed all or any of them, although given their unanimous verdicts of guilty of every count on the indictment it seems very likely that they were inclined to disbelieve anything Mr Harris said.
This was not one of those cases where there was an obvious dearth of evidence. There has been much justified criticism of Operation Yewtree and its various saplings, but faced with the evidence of 9 different women all making sexual allegations against Mr Harris it is very hard to see how the CPS could have done anything else but prosecute him. I have little doubt that if the CPS had been reckless enough to seek my advice it would have been to prosecute.
So far as most of the women were concerned there was no issue over identification or possible misunderstanding of innocent behaviour. Either the women were deluded or lying. And in fact there was more than the evidence of the women themselves: there was a letter of apology which proved at the very least that Mr Harris had had an affair of some sort with his daughter Bindi’s friend which caused her “misery,” although it was not an explicit confession of any crime.
So it was seemingly a strong case as these thing go, although there were still reasons to be cautious. Some of the allegations were only made to the police after the fact that Mr Harris was under suspicion had been made public. One of the main witnesses, Bindi’s friend, had demanded money from Mr Harris and threatened to go the newspapers when he refused to pay; another had sold her story to the media for substantial sums of money. Not all the accounts were entirely consistent, there was a plausible possibility that some could have been made simply for financial gain, while one important witness suffered from various mental health conditions and had had treatment for years without mentioning Harris, although she had told her therapists about abuse from another man. In short, it was a strong case on paper but still one on which everything depended on the credibility of the main witnesses, with not a great deal of corroborative evidence beyond the sheer number of complainants.
The indecent assault conviction that was quashed last week related to a witness, referred to in the judgment as “WR,” although in fact her name has been widely publicised after she waived her right to anonymity following the conviction. Out of an abundance of caution I will stick with the Court of Appeal’s identification of her as “WR”.
She had alleged that in 1969, round about the time of the “first moon landings” (the first was in July 1969) and the release of Harris’s sentimental smash hit Two Little Boys (the autumn of 1969), she was 7 or 8 years old and a regular visitor to the Leigh Park Community Centre, near Portsmouth.
On one occasion, she said, Harris had visited the Centre and sung on the stage. Afterwards he signed an autograph for her, and after doing so he (in the words of the judgment) “put his hand between her legs, touching her twice over her clothing. On the second occasion it was done forcefully and aggressively.” This was not the most serious offence of which he was convicted, although it did involve the youngest child. It also earned him 9 months out of his total sentence of 5 years and 9 months. According to WR (in a “Victim Impact Statement” which the jury did not hear):
“I have carried what Rolf Harris did to me for most of my life, it took away my childhood, it affected every aspect of my life from the point he assaulted me. Something that he did to me for fun that caused me physical and mental pain for his own pleasure and then probably forgot about as quickly as he did it, has had a catastrophic effect on me…..”
Following his conviction she brought, or threatened to bring, a civil action against Harris, which was settled when the disgraced antipodean crooner paid her £22,000, she having previously declined offers of £12,500 and £18,000. She told the Daily Mirror:
“I’ll never again be afraid of the dark or see the twisted image of two-faced Harris in my nightmares.”
Mr Harris’s case was that he had not been to Leigh Park before 1978, and that WR was therefore either mistaken or lying.
Last week’s Appeal Court judgment does not go so far as to say that WR was lying but it sets out the lengths to which both police and defence teams went to find corroboration both before and after his conviction.
Nobody else claims to have seen the actual incident taking place, so efforts concentrated on establishing whether Harris had performed at Leigh Park during, or even close to, the relevant time. Leigh Park is and was, to put it mildly, something of a backwater on the international celebrity circuit, so it might have been expected that any visit from him would have created quite a stir. At the trial various members of WR’s family remembered her visiting the community centre on a regular basis but none could recall a visit from Harris. Police officers trawled through local newspapers for the years 1967 – 74 but there was no report of him ever having visited. They conducted house to house inquiries and issued an appeal for witnesses who had attended the Leigh Park Community Centre between 1968 and 1972.
In the end the police efforts produced just two witnesses: a Mr Wilbourne who said rather vaguely that he had heard that Harris had “visited the area in the late 1960s,” and a long time resident of Leigh Park, David James, who confidently remembered Harris visiting the Community Centre, although he put the year as 1967 rather than 1969. He said that he could date it accurately because he had been home on leave after a long period on duty in Korea. As Lord Justice Treacy drily noted:
“That might have been thought to be somewhat odd since the Korean War took place in the early 1950s.”
According to Mr James, Harris had opened a nearby shop (as a visiting celebrity rather than as a shopkeeper) and was then invited to the community centre. James said he had met him there and thought he had obtained his autograph for his children.
By the time of the appeal further evidence had been found by the defence to cast more doubt on whether Harris had in fact been to Leigh Park at the relevant time. Most importantly, Mr James’s evidence had been effectively destroyed. He had never been to Korea as a serviceman, as he had claimed. The closest he had come was a spell in the Territorial Army, but he had never been posted anywhere abroad, let alone to Korea. In fact, it was surprising that he had been accepted by the TA, because as a young man he had done National Service in the RAF for a mere 10 days before being discharged for “unsatisfactory performance.” Far from serving his country in Korea, he had spent the 1960s acquiring convictions for petty dishonesty in the United Kingdom. These convictions – old and trivial in themselves, but significant in the light of his evidence that he was on service in Korea – were not disclosed, as they should have been, to Mr Harris’s defence team. They were not uncovered by the police until earlier this year.
The upshot of all this is that Mr James, a crucial supporting witness, appears to have been at best a fantasist, and at worst a liar.
Rather unusually, before the appeal against the 2014 convictions was heard, the fresh evidence about Leigh Park was ventilated in Harris’s separate trials for sexually assaulting teenage girls, heard at Southwark Crown Court earlier this year. Faced with the unavoidable fact that the jury would know about his convictions, his defence took the bold approach of arguing that notwithstanding the jury’s verdicts he was in fact innocent of the offences for which he had received the prison sentence. After two “hung” juries the prosecution eventually threw in the towel on the second trial and Harris was formally found Not Guilty last May.
At the recent appeal the prosecution conceded – it was unarguable really – that Mr James’s evidence had been seriously undermined, but still tried to uphold the Leigh Park conviction. The Court of Appeal, in restrained judicial language, was having none of it:
“this operates to weaken the Crown’s case on the important issue of whether Rolf Harris ever attended the Community Centre in 1969 to the extent that we cannot view the conviction on Count 1 as safe.”
Where did this finding leave the other 11 convictions?
On the face of it, perhaps very much as they were. WR was seemingly unconnected with the other complainants. Most of the evidence in the trial had had nothing to do with her, or with Leigh Park or with the fantastic imaginings of Mr James. That, indeed, was the view of the Court of Appeal, which concluded:
The result was that Harris was refused leave to appeal on the remaining 11 counts.
His argument was that the jury had been told by the judge that WR’s evidence could be used to support the other allegations; in other words, if the jury were sure that WR was truthful and accurate, they could use that fact in helping to decide his guilt on the other allegations. If they followed that direction, part of the evidence used to convict Mr Harris on the other counts could have been the false assumption that he was guilty of sexually assaulting a seven or eight year old girl in Leigh Park.
Of course we don’t know whether the jury reached their verdicts in that way. It was the first count on the indictment, it was the first alleged assault to have occurred, and it involved the allegation against the youngest alleged victim. What is more, unlike some of the other witnesses WR had not, before the trial sullied her hands with demands for money; she might for that reason have seemed a more reliable and “independent” witness than some of the others. That indeed was how she was presented by the Prosecution. Ms Wass asked her in re-examination what she had to gain by lying. Her answer was:
“Nothing to gain whatsoever except for closure on the incident that happened to me.”
On the other hand, hers was by no means the central allegation in the case, and it is perfectly possible, perhaps even likely, that the jury first considered the evidence on the other counts and then, having decided he was guilty of those, denied him the benefit of the doubt on the Leigh Park allegations.
As juries never give reasons for their verdicts we have no way of knowing for sure. The Court of Appeal however, seemed quite content that the jury’s incorrect assessment of WR’s evidence could not have affected its assessment of the rest of the witnesses. It is a curious and inconsistent piece of reasoning, given that the jury had been told in terms by the trial judge that they could use their findings on the Leigh Park allegation to do just that.
It is possible that the jury’s discussion could have gone something like this:
“Right, let’s look at this count by count. That’s as good a way as any other.
Count 1 – she’s not in it for the money, unlike some perhaps. She just wants closure. Why would she lie? She seemed pretty convincing and, what’s more, that Mr James was an impressive witness. Ex military man, independent witness, no reason to lie. And what about Rolf? Can’t really trust him over two impeccable witnesses like them can we?
OK, so we’re all sure he’s guilty of Count 1?
Right. Now let’s look at Count 2. Who should we believe the woman or the paedophile? …”
What we do know is that Harris’s trial, as with the vast majority of allegations of historic sex abuse, depended heavily on the view that the jury took of the credibility of the complainants, with limited corroboration beyond the sheer number of witnesses. It did not depend on inferences to be drawn from circumstantial evidence (unless the sheer number of complainants is itself treated as a “circumstance”), still less on scientific evidence pointing towards his guilt. It boiled down to the simple question: “are we sure the complainants are telling the truth?” and (the other side of the same question) “are we sure that Mr Harris is lying?”
At least as far as the Leigh Park allegation is concerned the overwhelming weight of the evidence now is that Mr Harris not only was not guilty, but could not have been guilty.
We have a serious problem here. The jury system, indeed much of the legal system, is based on the – I was going to say “premise” but I think I’ll go instead with “comforting hooey,” that jurors (and judges and magistrates too) are able safely to determine who is telling the truth merely by looking and listening. Juries are assumed to be shrewd enough to pick up on an inconsistency here, a suspicious evasion there, a significant mistake somewhere else; they are even entitled, if they like, to take into account the “demeanour” of a witness, whatever that may be (“he looked thoroughly shifty .. her tears looked genuine”). In a multi-complainant case, the assumption is, they can stir up all the allegations to reach a safe conclusion: they are asked to return separate verdicts on each count, but are often entitled, as here, to consider the evidence from one complainant as supporting that of others.
Don’t worry about liars and fantasists, the British (or strictly English and Welsh) justice system is the best in the world and if you’re not telling the truth the jury will find you out.
Assuming that juries are generally able to sniff out a liar is a comforting myth, but even if it is true the fact is that this particular jury wasn’t much good at it. It was bamboozled by the evidence of WR and David James. Moreover, the standard of proof being what it is, we can say that the jury was not just inclined to believe them; it must have been “sure” that the pair were accurate. They may well have been fantasists or mistaken rather than liars, but the fact is that every member of the jury swallowed their untrue evidence without reservation. However good juries might generally be at teasing out fact from fiction, it is inescapable that this particular jury proved itself unable to do just that, at least on this part of the case.
Just as importantly, the jury must also have decided that when Harris said in evidence that he had never been to Leigh Park during the relevant years he was lying, even though we now know that he was telling the truth. One of the critical points in the trial related to another complainant who accused him of an assault in Cambridge. Mr Harris said he had never been to Cambridge but late in the trial footage emerged proving conclusively that he had been. He said that this was a simple mistake, the prosecution said it was a lie. In deciding whether it was a lie or a mistake the jury could have been expected to take into account the fact that he had similarly claimed not to have gone to Leigh Park, despite the existence of witnesses who said that he had. It is not hard to see how the Leigh Park evidence could have cemented the jury’s view of him as a liar. This is how one exchange from Harris’s cross-examination was reported by the Daily Telegraph:
Ms Wass said that while Harris claimed his alleged victims were all making up their claims, the new evidence of the film showed that he had lied.
She said: “That film footage which has come to light very late in the day… will demonstrate that it is not these victims who have lied, it’s you who have lied. And you hoped to get away with that lie when it came to (the alleged victim who claimed she was assaulted in Cambridge).”
Harris said: ” I didn’t realise it was a lie, I had no recollection of being in Cambridge until I saw that video.”
Ms Wass said Harris “can’t have failed to know” that he was in Cambridge and told the entertainer: “The footage shows that you have lied during this case as you have lied about every other victim.”
The jury agreed with Ms Wass: they were sure he had lied about Leigh Park – he had not.
The Court of Appeal has historically had a lamentable record of reversing miscarriages of justice. Here is Lord Chief Justice Goddard upholding the conviction of poor, innocent Timothy Evans (1950) 34 Cr. App. R. 72:
“In our opinion the appellant was properly convicted, there is no ground for interfering with the conviction, and the appeal is dismissed.”
Just over 2 weeks later Evans went to the gallows. That had been a case where the jury could have been forgiven for not spotting that the chief prosecution witness was one of the nastiest serial killers of the century, but they also failed to spot that he was a liar.
Derek Bentley suffered the same fate. Croom-Johnson J. dismissed his appeal against conviction for murder with these words:
“In our opinion this is nothing more than an ordinary appeal in a murder trial, an ordinary appeal which is, in our judgment, without foundation and which is accordingly dismissed.”
It was no comfort to him, and little to his surviving relatives that the Court of Appeal decided 46 years later that in fact he had had an unfair trial even by the standards of his time, and that his appeal should have succeeded.
The Birmingham 6, bullied and tortured into confessions, appealed against their convictions to be told by Lord Widgery, that they had suffered “no ill treatment beyond the normal,” and then, after a second appeal, by Lord Lane that “the longer this hearing has gone on, the more convinced this court has become that the verdict of the jury was correct.”
Their attempt to sue the police for assault got nowhere when Lord Denning head of the Civil Division of the Court of Appeal, stopped it, on the grounds that if they succeeded it would open up:
“such an appalling vista that every sensible person in the land would say: It cannot be right that these actions should go any further.”
The innocent Guildford 4 and the Maguire 7 all suffered similar treatment in the Court of Appeal with applications for leave to appeal being confidently rejected.
And it is not of course just “high profile” cases that have suffered this treatment over the years. I defy any reasonable person to read Jon Robins’s powerful book about the relatively unknown case of Tony Stock, convicted of a brutal Leeds robbery, and to say with confidence that the Court of Appeal was right repeatedly to refuse his appeals.
All too often over the years the Court of Appeal has been reluctant to quash convictions where reasonable doubt exists, seemingly terrified by the appalling vista that to admit that juries make mistakes will undermine the whole justice system. It sometimes seems, even now, that the Court sees its role as upholding convictions wherever possible, when it should be its job to scrutinise them with the utmost care.
There are many flaws in our jury system, not least (as this case vividly demonstrates) that juries do not give reasons for their verdicts. I still support it because I fear that any alternative would be even worse. But if a jury system is to produce justice it is essential that it is supervised by a Court of Appeal that is willing to correct the risk of injustice where it is staring them in the face.
Justice is always going to be elusive in some cases. Sometimes it may simply be impossible to be sure where the truth lies. Perhaps a system in which verdicts are handed down with no explanation and no reasons is no longer one that we should accept.
But accepting that that it is the system we have, Rolf Harris should be given a retrial. He may well be guilty. A case which looked strong on paper remains strong; but a strong-looking case is not the same as an unanswerable one. Of course a retrial would be another ordeal for the complainants. Of course finality in litigation is something to be sought, as long as it can be reconciled with justice. Unfortunately at present the only thing that anyone can properly be sure about is that his jury got it catastrophically wrong on Count 1. There is no rational reason to be satisfied that it got the rest of the verdicts right.