The conviction of Rolf Harris was a serious miscarriage of justice. He was convicted in 2014 on the basis of no evidence. The difficulties with the convictions have been set out in a number of commentaries.
The newspapers tell us that Mr Harris has won the right to appeal his convictions. The Court of Appeal’s task will be to decide whether the jury’s verdict was safe or unsafe.
It is commonly understood that the Court of Appeal is very restrictive in how it considers question of whether a jury’s verdict was safe or not. It won’t simply take the common sense (and compelling) view that the verdict was entirely against the weight of the evidence heard by the jury (i.e. it doesn’t make any sense). Instead the Court will look at side issues of whether there is ‘fresh evidence‘ and, if so, whether there are good reasons why that evidence wasn’t put before the jury in the trial.
Other more qualified commentators have called for wider debate about the “fundamental problems” with the Court of Appeal’s approach. This includes such common sense view that, “The court of appeal needs to consider potential miscarriages of justice rather than rigid rules, and to abandon the absurd notion of jury infallibility and the grossly unfair requirement for ‘new’ evidence or argument: in many cases, the evidence needed was there all along.”
This blog looks at one particular aspect of the case that may be relevant to how the jury in the Rolf Harris Trial in 2014 arrived at a verdict that was so at odds with the evidence as to raise real questions about the conduct of the case as a whole.
In addition to the paucity of the evidence against Mr Harris, one of the jurors on the Harris trial was a serving officer in the Metropolitan Police Service. This blog considers the implications of this in terms of Mr Harris’s right to a fair trial.
POLICE OFFICER ON THE JURY
The Rolf Harris case and the policeman on the jury
The jurors were asked three questions by the Judge during selection. They were asked whether they had any connection with the case or with anyone who was involved in it. They were also asked whether they had close friends who lived in Australia or New Zealand or were going to be visiting the countries before the end of June and “with whom you are likely to be in contact during the course of the trial?” Potential jurors were also questioned about whether there was a compelling reason requiring them to be excused and that inconvenience was not a valid reason.
A serving Metropolitan Police Service (MPS) officer sat on Mr Harris’s jury. Our understanding is that this came to light after the trial had begun. Operation Yewtree was led by the MPS. Prior to the jury being empanelled, the judge did not ask any potential jurors whether they had a connection with the MPS: “… [Mr Harris’s] relatives complained to the judge during the proceedings – but he ruled the juror could continue in the role.”
The question is whether it was right for the judge to allow a serving MPS officer to continue as a juror. Three other potential jurors were available who could have served in place of the MPS officer had it been known at the right stage in the trial.
The judge in this case was Mr Justice Nigel Sweeney. He was the judge who dismissed the jury in the Vicky Pryce case on the grounds, as commonly reported by the press, that the jury were simply ‘too stupid’ .
The Thames Valley Guidance to Police Staff and Police Officers called for Jury Service is available on the internet. It says, “When arriving at court as a juror it is advised that members of police staff discretely inform the jury officer of the nature of their employment.” We assume that this did not happen in this particular case, but we do not know. Presumably the other police forces have similar guidance and this stipulation is a minimum requirement for police officers who are called to serve on a jury.
So far as we know, the police officer was not connected with the investigating case or the investigating officers. The question is, does it matter that there was a policeman on the jury?
Police officers on juries: The legal position
The main issue at stake is that justice must not only be done, but it must manifestly and undoubtedly be seen to be done.
The rule against the appearance of bias used to mean that police officers or anyone else involved with the administration of justice could not sit on a jury. This rule was abolished in the Criminal Justice Act 2003 as part of reforms intended to make it harder for people to be excused from jury service and to make juries more representative of their communities.
Prior to the change in the law, the reasons for not allowing police and other people on to juries were well understood:
“Certain classes of person, including police officers, prison officers and lawyers, are exempt by law from jury service while they are following those occupations … In Britain we adhere to the maxim that justice should not only be done but be seen to be done and, to that end, groups of citizens who have a great deal of connection with the administration of law and justice are excluded from jury service. Their knowledge, experience and training would, at best, cause them to exercise undue influence on fellow members of the jury and, at worse, tend—perhaps in spite of themselves—to prejudice them against an accused person … the factors which make such people unfit for jury service while they are practising in those occupations and professions persist after their retirement. The loyalty of ex-police officers to their colleagues remains for years. They may tend to be uncritical of police evidence. Their knowledge of an accused man’s record remains. Instead of seeing themselves as impartial arbiters, they may see themselves as protagonists for the prosecution. All this is perfectly natural, and no criticism of the police is intended. None the less, those matters unfit them to sit on a jury until such time as their knowledge fades and old habits of mind alter.”
Police officers are still barred from sitting on juries in Scotland, Northern Ireland, Ireland, France, Norway, Austria, Australia, New Zealand, Canada, Hong Kong, Malta, Gibraltar and a number of states in the United States (the remainder of the states provide a procedure to question jurors on their occupations and allegiances).
The case law on the position regarding the appropriateness of police officers serving on juries in particular circumstances is not clear; some commentators refer to the judgements as complicated.
In R v Abdroikof  HL  the House of Lords said that each case should be decided on its particular facts. They said that the issue was whether a fair-minded and informed observer would conclude that there was a real possibility the jury was biased. They said it was a matter for the trial judge to decide whether there could be a fair trial, and whether there would be an appearance of bias. In this particular case the House of Lords did not allow an appeal where the police officer juror served in the same borough as the police witnesses in the trial.
In Hanif and Khan v. the United Kingdom (application nos. 52999/08 and 61779/08)  there was a dispute between the defence and the prosecution regarding the credibility of the evidence of the police officers. The applicants complained that the presence of a police officer on the jury violated their right to a fair hearing. The European Court of Human Rights held, unanimously, that there had been a violation of Article 6 § 1(right to a fair trial) of the European Convention on Human Rights.
The European Court of Human Rights said where there was an important conflict regarding police evidence in the case and a police officer who was personally acquainted with the police officer witness giving the relevant evidence is a member of the jury, jury directions and judicial warnings were insufficient to guard against the risk that the juror may, albeit subconsciously, favour the evidence of the police.
Are there any reasons why the presence of an MPS officer on the jury for the Rolf Harris trial in 2014 might lead a fair-minded observer to conclude that there was a real possibility the jury was biased?
Mr Harris’s trial was no run of the mill prosecution. It was a high profile, sensationalised case. For the police and the CPS it was a high risk case. At the time of the trial Operation Yewtree, led by the MPS, was losing 18:1 on the arrest/ conviction scoreboard. The MPS, through Yewtree, had its back against the wall.
In Mr Harris’s case, the prosecution case relied primarily on unsupported witness testimony. In these circumstances it might seems that an MPS officer juror might not only prefer the unsupported evidence of the prosecution to the denials of the defendant but might also positively encourage other jury members to do so.
In terms of police culture, the reasons for not having police officers on juries might be said to still prevail.
Following Plebgate Robert Chesshyre wrote:
“The first thing to understand about the police is that they are a tribe. And, as with all tribes, their loyalties are foremost to each other. Police cover-ups are invariably motivated by the desire of officers at all levels to protect their own. Police bond together as do no other group of fellow workers …”
The strength and pervasiveness of the culture in the Metropolitan Police is well documented. It has variously been described as ‘Institutionally racist’; having ‘A culture of fear’; being ‘Institutionally sexist’; and as having a culture of ‘corruption and cover up’.
In the context of the high profile, high risk, media circus of the Harris trial, can we really believe that any Metropolitan Policeman would be able to entirely shake off police culture and provide an unbiased view?
Is it really plausible that an MPS officer, in a high profile and sensationalised case in which his employing force has its back up against the wall, could be seen as neutral juror?
No, a fair-minded and informed observer would conclude that there was a real possibility that the jury was biased.
The issue for most people remains the fact that the evidence does not support the jury findings. In all the circumstances the presence of a serving police officer on the jury at the very least raise doubts about whether the jury was biased. Given the historic reasons for not allowing police and other people on to juries, is it really plausible that one day there is a whole heap of reasons for not having police on a jury and the next, well, that those reasons exist no more? This does not in anyway undermine respect for police officers, it simply recognises that the police have a particular job to do and that in order to do it well they have to hold strong bonds with other police officers.
ADDENDUM: JURY DELIBERATIONS
This section is included as an informative supplement to the blog.
Other than the presence of an MPS officer, we know nothing about the jury. We don’t know who they were. Nor do we know what took place in the jury room.
During the course of their deliberations the jury returned to the court three times before reaching a verdict:
- On 20 June, after being out for six hours, the jury came back with the following questions:
- What steps they could take if they were unable to reach unanimous verdicts?
Sweeney said, “At the moment the only verdict on each count I can accept from you is one upon which you are all agreed,” the judge said in reply. However, Justice Sweeney noted that position could change, in which case he’d give “further directions“.
- The jury also asked about police inquiries that were made to try and determine whether Mr Harris was in Portsmouth in the late 1960s or early 1970s.
- Jurors also asked about the possibility of watching again footage of Mr Harris in a 1978 episode of Star Games which was filmed in Cambridge.
- The jury further asked about a home video of Mr Harris’s main accuser shot in Australia around the time she alleges the entertainer first indecently assaulted her as a 13-year-old.
The first question suggests a strong concern that they would not be able to bring in a unanimous verdict i.e. they had established between themselves at that stage that there were clear and strong divisions within the jury.
- On 26 June, the jury came back with further questions. By now they had been out for nearly 27 hours:
- Can we discuss the legal directions given, as there seems some confusion. A juror is making behavioural assumptions which is taken into account as evidence on many counts?
- We are to judge each count independently, please clarify?
- Is it allowed to stereotype what the victim should have done prior to an alleged offence taking place in more than one count and using it against them?
- As opposed to using patterns within counts to help an outcome of one count, surely it is non advisable to take evidence from one count in the future to judge the count in the here and now, NB counts three to nine, please clarify?
- Can the voracity of a witness statement in one count be taken into account when judging the voracity of a witness statement in another count?
Justice Sweeney responded by reminding the jury of the lengthy legal directions he’d given them both in court and in writing. They could, if they decided to, consider evidence from other complainants or witnesses when deciding each indecent assault charge, he said. He also reiterated there was no classic or typical response to abuse.
“A late complaint does not necessarily signal a false complaint any more than an immediate complaint demonstrates it’s true,” he said. He reminded them that there was no stereotype for a sexual offence, a sex offender or a victim of sexual abuse.
These questions are quite complicated. People have struggled to understand what the jury were getting at. It seems that they were trying to understand the rules similar fact evidence – and struggling with it. Where might an MPS officer might be in this discussion?
- The next day, 27 June, after the jury had been deliberating for 7 days (30 hours) they asked for letters to be sent to their employers excusing them from work if their deliberations continued. This seems to signal strong and continuing divisions and/ or that one or more jurors were holding out.
On 30 June, after 37 hours and 45 minutes, the jury returned a unanimous verdict, finding Mr Harris guilty on all 12 counts.
The jury questions and the length of their deliberations suggest strong divisions within the jury. To an observer this makes it surprising that they came in with a unanimous verdict on all 12 counts.