MOB RULE – WORRIES RAISED BY THE ROLF HARRIS TRIAL: A miscarriage of justice?

 

The rule of law and mob rule

In the UK we are rightly proud of the fact that we subscribe to what is known as “the Rule of Law”.  The Oxford English Dictionary defines the “Rule of Law” as:

The authority and influence of law in society, esp. when viewed as a constraint on individual and institutional behaviour; (hence) the principle whereby all members of a society (including those in government) are considered equally subject to publicly disclosed legal codes and processes.

Rule of law is cited largely as the constitutional means of ensuring that the ruler is subject to the same laws as apply to all other citizens.  However, the rule of law applies to all citizens and, in modern times where equality and fairness are of paramount importance, it is also used to secure the rights of all citizens, regardless of race, religion, gender, sexual orientation, social group etc., and in particular, regardless of the baying of the mob.

The concept of mob rule is an ancient one.  The threat of “mob rule” in a democracy is restrained by ensuring that the rule of law protects minorities and individuals against short-term demagoguery or moral panic.  In the Salem Witch Trials the unified belief of the townspeople overpowered the logic of the law and is sometimes cited as an example of mob rule.  In 1837 Abraham Lincoln wrote about lynching and “the increasing disregard for law which pervades the country—the growing disposition to substitute the wild and furious passions in lieu of the sober judgment of courts, and the worse than savage mobs for the executive ministers of justice”.

The Jimmy Saville/ Operation Yew tree activities are quite correctly addressing areas of proper public concern.  They may also, in the Salem Witch Trials sense, be regarded as having triggered a Witch Hunt to have sparked off, in the literal sense of the word, a “Witch Hunt” where an emotional response by the mob is now beginning to override the Rule of Law.

Criminal Justice

The system of criminal justice in the UK is founded on some key principles.  These include:

  •  The Burden of Proof:  The Criminal standard was formerly described as “beyond reasonable doubt”. That standard remains, and the words commonly used, though the Judicial Studies Board guidance is that juries might be assisted by being told that to convict they must be persuaded “so that you are sure”.
  • The Presumption of Innocence: The burden of proof is thus on the prosecution, which has to collect and present enough compelling evidence to convince the trier of fact to consider only actual evidence and testimony that is legally admissible that the accused is guilty beyond reasonable doubt. If reasonable doubt remains, the accused is to be acquitted.  The “presumption of innocence” serves to emphasize that the prosecution has the obligation to prove each element of the offense beyond a reasonable doubt and that the accused bears no burden of proof
  • Jury Trial: the jury is responsible for finding the facts of the case, while the judge determines the law. These “peers of the accused” are responsible for listening to a dispute, evaluating the evidence presented, deciding on the facts, and making a decision in accordance with the rules of law and their jury instructions.  The positive belief about jury trials in the UK and the US contrasts with popular belief in many other nations, in which it is considered bizarre and risky for a person’s fate to be put into the hands of untrained laymen.

THE ROLF HARRIS CASE

This summary is based on an analysis of the contemporaneous reporting of the trial by the media.  The overall impression left by trying to weigh up the evidence is that a miscarriage of justice has occurred.

 

The allegations

In summary, the case is built around the allegations of four key witnesses

1. A woman said Harris touched her inappropriately when she was just seven or eight while he was signing autographs in Hampshire in the late 1960s.

2. Harris was accused of groping a teenage waitress’s bottom at a charity event in Cambridge in the 1970s.

3. A childhood friend of Mr Harris’ daughter said he repeatedly indecently assaulted her between the ages of 13 and 19, including once when his daughter was asleep in the same room. He admitted a relationship with the woman, but said it began after she turned 18

4. Australian woman Tonya Lee, who has waived her right to anonymity, said he abused her three times on one day while she was on a theatre group trip to the UK at the age of 15.

Witnesses from overseas also testified during the case.

 

General difficulties

There are a number of general difficulties with the case:

  • The passage of time: the events being tested took place some 30 years ago.  This would seriously test the memory of most people.
  • Lack of witnesses:  while several of the events are alleged to have taken place in public, there are no witnesses to independently verify what took place.  Therefore it becomes a matter of one person’s word against another.  This also means that the credibility of the individual witnesses is of vital importance.
  • Wider context:   Operation Yew Tree, the reports about the alleged activities of Jimmy Saville and the Stuart Hall convictions all provide a hostile environment for the trial of a high profile individual by jury.
  • Public policy about sexual offences: Public policy is developing, quite rightly, to ensure that where sexual  offences are alleged, that victims and witnesses are treated with respect and sensitivity.  However, in making the case prosecutors must still meet the requirements of the burden of proof.
  • Possibility of personal gain: The Saville case has raised the possibility of compensation for those who make such allegations.  This cannot be discounted as a factor in the case.

These factors may be linked together, depending on the overall quality of the evidence and the prosecution case.

 

Specific difficulties with the allegations

It would be reasonable to conclude, in addition to the general difficulties, that there were serious deficiencies in the case:

1. A woman said Harris touched her inappropriately when she was just seven or eight while he was signing autographs in Hampshire in the late 1960s:  The reservations about this case are:

–              The prosecution were unable to find any evidence at all that Rolf Harris actually went to the place where the incident was alleged to have taken place.  Harris says he had been filming a TV series in the Australian outback at the time and the court heard that no evidence could be found that Mr Harris had been at the community centre. It seems unlikely in the extreme that at that time the appearance of a major star at a local event would not have been covered by the newspapers.

–       The witness told the jury that Harris had touched her inappropriately with his “big hairy hands”.  Rolf Harris showed his hands to the court – they are not hairy and indeed a rapid survey of film recordings of Harris over the years shows that indeed he does not have hairy hands.

–              The allegation is of an intimate assault in a public place and in a crowded situation.  It is difficult to work out how this actually happened.  There does not seem to be a precise description in the public domain of exactly what it was that was alleged to have taken place.

 

2. Harris was accused of groping a teenage waitress’s bottom at a charity event in Cambridge in the 1970s.

–              The witness said that the incident took place when she was 13.  However, the only film footage that has been found was some years later, which would make the witness 16 when the incident took place.  It seems improbable that the witness would be unclear about at what point in her childhood the incident took place – there is a world of difference for a young person in whether they were 13 or 16.

–              The prosecution evidence that Harris had been to Cambridge, although a few years later than they claimed in their initial case, was produced relatively late and to Harris’s disadvantage.  Harris claimed not to know he was in Cambridge and the probability that this was so was supported by witness Sue Cooke.

–              Similarly, it is alleged that the assault took place in public, but it is unclear how or why there were no witnesses.

 

3. A childhood friend of Mr Harris’ daughter said he repeatedly indecently assaulted her between the ages of 13 and 19, including once when his daughter was asleep in the same room. He admitted a relationship with the woman, but said it began after she turned 18.

–              Harris does not deny having a relationship with this woman as an adult.  Indeed, the woman told Harris’s daughter of this.  While this is not to Mr Harris’s credit, it does not constitute an offence.

–              At the time of the alleged incidents, the girl kept a diary which makes no mention of the incidents.  In addition, the girl appears to have actively sought out the company of Harris and his family, which is in contradiction to the allegations made.  While this does not in itself rule out the allegations – there are many possible explanations for her to seek out their company – it does require the prosecution to demonstrate that the assaults did take place.  As the evidence stands it is the girls word against that of Harris and his daughter.

–              it would seem that the girl, as an adult, attempted to blackmail Harris.  This tends to undermine her credibility as a witness, along with her alcoholism.

–              No doubt because of public policy around the treatment of sexual abuse, it does not seem that the defence discussed the impact of the witnesses alcoholism on her claims, especially around the strong questions it raises about her credibility, honesty and manipulation.  Indeed, her manipulative nature was demonstrated through her attempt to blackmail Harris.  This would tend to suggest the need for further corroborative evidence.

4. Australian woman Tonya Lee, who has waived her right to anonymity, said he abused her three times on one day while she was on a theatre group trip to the UK at the age of 15.

–              Again, there is no corroborative evidence.  It is Tonya Lee’s word against Harris’s.

–              Lee sold her stories to the newspapers, which tends to undermine her credibility as a witness, as does her admission that she had told lies about her involvement with the media.

 

Prosecution case

Putting aside the issues about deficiencies in the evidence and witness credibility, the prosecution case was that each witness described a similar pattern of behaviour; that of a man acting without fear of the consequences.

The law does not say that evidence can be admitted of similarity where “a similar pattern of behaviour” is demonstrated.  Rather, it says that behaviour must be “strikingly similar”.

“It has never … been doubted that if the crime charged is committed in a uniquely or strikingly similar manner to other crimes committed by the accused the manner in which the other crimes were committed may be evidence upon which a jury could reasonably conclude that the accused was guilty of the crime charged. The similarity would have to be so unique or striking that common sense makes it inexplicable on the basis of coincidence.”[1]

What is most striking about the allegations is their differences:

  • The witnesses are of various ages.  It could not be said that they demonstrate a pattern.
  • The settings and circumstances appear to be very different.
  • In each case there a different level of familiarity is alleged.
  • Some of the overseas allegations again seem different in kind (fear of rape etc).

There is no unique or striking characteristic, no thread, that defines the allegations, other than the fact that the witnesses knew the identity of the alleged perpetrator.

Indeed, the pattern of behaviour cited by the prosecution – someone acting without fear of the consequences – sounds remarkably like a generic descriptor of much criminal behaviour.

Given both the differences between the allegations and the deficiencies in the evidence, it does not seem that the key to the prosecution case should be that there was a similar pattern of behaviour i.e. a series of broadly implausible events, described by witnesses lacking in credibility and unsupported by any corroborating evidence.

Harris’s defence that these incidents didn’t happen has been dismissed out of hand and used as evidence of his lack of contrition.  However, the prosecution have fallen someway short in proving their case.  Indeed, it is for them to prove that these things did happen, not for Harris to have to prove that the events didn’t take place.

 

The Jury Verdict

The jury found Harris guilty of 12 counts of indecently assaulting four girls in the 1960s, 1970s and 1980s.  Based on the reporting of the case the judge appeared to have given the jury a balanced presentation of the prosecution and defence case, albeit that he left them to decide on the evidence.

The jury took nearly 38 hours to come to a decision, so clearly as a jury there was no blindingly obvious and agreed decision for the as they entered the jury room.  We don’t know what discussions they had or the external influences which they brought into the room with them.  We know that juries are a mixed bunch, with varying abilities to understand the evidence and directions, that’s not to say that the jury did not comprehend the evidence, however, they may have been acting from a range of motivations and influences, conscious and unconscious.

However, on the face of it, their verdict seems to beggar belief.   The facts do not support an evidential finding that Harris committed the offences.  They do show that Harris had a consensual affair with a woman who had been childhood friends with his daughter.  Everything else is mere conjecture.

It is assumed that the jury were going home each evening and at weekends and not staying in a hotel and were therefore subject during the trial and during their decision making to the general information circulating in the media about Saville and Operation Yew Tree.   The jury would have been aware of the media hype around Operation Yew Tree and the trials (with varying outcomes) of Stuart Hall, Dave Lee Travis and Bill Roache before they began their jury duties.

Sadly, whatever the jury’s verdict and despite our reliance on juries to uphold the rule of law, their finding cannot make the accusations true.  The truth of the matter is that the prosecution did not have the facts to prove their case.

The conclusion has to be that the jury have been influenced by factors which should be considered as “mob rule”.

 

MISCARRIAGE OF JUSTICE

It is clear from the media reporting and from looking at comments on social media that Harris has been branded as a paedophile, despite the fact that the evidence does not support it.

It is also clear, from recent incidents with social media that speaking out against “the rule of the mob” leads to death threats, abuse and other forms of personal attack (crazy and threatening post, antisocial behaviour etc.).  So much for free speech in this country!

The media and child abuse groups have created a band wagon.  It is politically incorrect to speak out and say the obvious without becoming a target for abuse and threats.   The obvious thing is that Harris has been convicted on the basis of no evidence.

Similarly it is also politically incorrect to state the obvious, so that when more alleged victims come forward, one can’t simply say “well of course they would, they’re hoping there will be some money in it for them.”    More to the point, it distracts from situations where there is a real case to answer.

There are also questions being asked about the adequacy of the sentence – I suggest that these questions aren’t being raised by the witnesses but rather by people who have a politically correct axe to grind, but no real or personal interest in the Harris prosecution.

Indeed, as a country we are quickly falling into a situation where politically correct mob rule will distort the rule of law.

 

Please can we have an outbreak of common sense, stop the witch hunts, return to the rule of law and the tenets of our criminal justice system.  Please someone speak out loudly for Rolf Harris.

 

[1] [1975] AC 421, 462, per Lord Salmon

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