From the Daily Mail

#rapetruck sticker almosts lands James Hellewell in hot water

On 20 November 2014, a rather disturbing image was doing the rounds on Twitter etc. and it wasn’t long before the Mail, the BBC and other picked it up.

It appears that James Hellewell from somewhere near Leeds had taken a picture of his mother, bound, blindfolded and gagged in the back of his pick up truck, had the image printed and then fixed it to the tailgate of his truck, to create the impression that he was driving around having kidnapped a woman and placed her in the rear of his truck (what a joker, eh?).

Anyhow…as was entirely predictable, someone called the police and Mr Hellewell had a visit from the police:

Ch Insp Steve Palmer said:

“It was clear that a number of people had found the image offensive and had been alarmed and distressed by it being displayed in public.

The registered keeper of the vehicle was traced and spoken to by officers and made aware of the concerns raised and the potential for the continued display of the image to be treated as a public order offence.”

Is that a little over the top? Let’s see…

The Public Order Act 1986 s.5 is the weapon of choice here:

(1) A person is guilty of an offence if he—

(a) [not relevant]

(b) displays any writing, sign or other visible representation which is threatening or abusive,

within the hearing or sight of a person likely to be caused harassment, alarm or distress thereby.

Section 6(4) clarifies the requisite mental element of the offence:

A person is guilty of an offence under section 5 only if he intends his words or behaviour, or the writing, sign or other visible representation, to be threatening, abusive or insulting, or is aware that it may be threatening, abusive or insulting or (as the case may be) he intends his behaviour to be or is aware that it may be disorderly.

If there were a prosecution under s.5, one wonders whether it could truly be said that the sticker was “threatening, abusive or insulting” (probably not) – and perhaps also whether Mr Hellewell was aware that his behaviour may be disorderly (I suspect he probably was).

When contacted for a comment, he said: “”It’s boring now, it’s removed and I’ve apologised, get a grip.”

Comment

Some will no doubt have found this amusing, others, it appears were concerned and apparently suffered “distress”. Either way, a prosecution would seem way over the top and it appears that the response of the police in this instance – to go and have a quiet word – was more rational (though we question whether the mention of a public order offence was a) necessary and b) accurate.)

Image from the Telegraph

Jack Cottle gets 8 months for driving onto Brands Hatch racing circuit

 

On 14 June 2014, Jack Cottle deliberately drove a white VW Polo – not his vehicle – onto the race track at the Brands Hatch circuit during a four-hour event. The incident was captured – helpfully – by a passenger (see the YouTube video). The race had to be stopped, resulting in 30 minutes of the event being lost, at a cost of £4,200 to the organisers.

Cottle claimed he had been “dared” to do it.

He was arrested and prosecuted, pleading guilty to public nuisance on 10 October at Maidstone Crown Court, and the matter was put back for sentencing. The judge said:

“Motor racing is an inherently dangerous sport and quite plainly it was a matter that put persons at risk for their lives.

“You must understand that the court will be considering a custodial sentence.”

The offence

Public nuisance is a common law offence with a maximum penalty of life imprisonment. Examples of what constitutes a public nuisance can vary wildly, however probably the most notable recent example is that of Trenton Oldfield disrupting the Oxbridge Boat Race. He received a custodial sentence of 6 months’ imprisonment.

Archbold states:

“A person is guilty of a public nuisance (also known as common nuisance), who (a) does an act not warranted by law, or (b) omits to discharge a legal duty, if the effect of the act or omission is to endanger the life, health, property or comfort of the public, or to obstruct the public in the exercise or enjoyment of rights common to all Her Majesty’s subjects….This definition was approved in R. v. Rimmington; R. v. Goldstein [2006] 1 A.C. 459, in which the House of Lords held that the definition was clear, precise, adequate…”

Boasts

In the interim between the event and his sentence earlier this week, Cottle boasted online about the incident. He claimed it was something he had always wanted to do, that it was “quite funny” and that he would like to do it again.

Sentence

On 17 November 2014, Cottle was sentenced to eight months’ imprisonment. Not so funny now eh?

In mitigation, it was said that Cottle “”lacks maturity and is easily led” and that he was sorry for his actions.

The judge commented:

 “With your girlfriend in the front passenger seat and your other friend in the back filming, you drove your girlfriend’s car on to the track.

“You drove a full circuit and I have seen the films with sound commentary showing your girlfriend was hysterical and screaming and begging you to stop, and also protesting it was her car.”

He continued:

“It’s quite clear your actions were premeditated. It was deliberate, it was inexcusable.

“Your deliberate behaviour endangered not only your own life it but those of your passengers, the competitors, the emergency services, the marshals, stewards and anyone else who was nearby.

“The sentence must reflect the need to deter others who might be tempted to act as you did.”

The judge declined to impose a disqualification from driving.

Comment

Cases of public nuisance are typically difficult to sentence; what is required is to identify very specifically the harm caused by the individual’s actions. In this case, the harm is obvious. The danger to himself, his passengers, the drivers of the vehicles in the race, the marshals and emergency services is manifest. Additionally, the disruption caused to the race and the financial loss to the organiser is not to be overlooked. The selfishness and stupidity of Cottle’s actions therefore result in a high level of culpability. Additionally, Cottle bragging about the offence is likely to have been considered to have been an aggravating factor.

As to whether such an offence warrants a custodial sentence, this case is likely to divide opinion. Whilst I see force in the argument that there is a need for deterrence (the YouTube video having been watched over 2.3m times) and to avoid “copycat” incidents is important. However, one wonders whether Mr Cottle would have learned his less with a suspended sentence with some punitive requirements (curfew, unpaid work etc.) and the media spotlight highlighting just how much of an idiot he really is. Is it necessary to send him to prison? Probably not. Was it inevitable? Almost certainly.

Photo from the BBC

Nafees Hamid : neurosurgeon gets 16 years for sex attacks

Introduction

Between January 2012 and June 2013 Nafees Hamid, a Birmingham based neurosurgeon, sexually assault six of his patients. He was convicted on 17th November 2014 of nine offences against these six woman and, on 18th November, was sentenced to 16 years’ imprisonment.

Facts 

As usual we are going off the news reports alone. Given the sentence, we hope that the full remarks will be published, so that we can understand why the sentence was passed.

The defence was (to some) that the alleged assaults did not happen and (to others) that there was a proper clinical need for the touching.

It’s a bit vague, but it seems that on the pretext of a clinical examination, the doctor digitally penetrated the six woman (thanks to the ‘Birmingham Updates’ website for further information).

Comment

Firstly, the BBC got the offences wrong. They called them ‘indecent assaults’, but that was actually abolished as an offence in 2004, and replaced by a number of offences, one being Sexual Assault. In this case, it seems that the offences charged were Assault by Penetration.

This makes much more sense as the maximum sentence for Sexual Assault is 10 years, so a sentence of 16 years would be (whilst lawful as there could be consecutive sentences) extremely high. The maximum for Assault by Penetration is life imprisonment.

Here, the Sentencing Guidelines apply – see page 14. Here it is arguable that the case is Category 2 Harm. This would be on the basis that, as a patient, the victims were “particularly vulnerable due to personal circumstances“. It seems to me that it falls more naturally into Category 3 however.

In relation to Culpability, it’s more straightforward. For a doctor to abuse his patient is a huge abuse of trust, so this is certainly Culpability A. This is part of the reason that I would put it as Category 3 – to increase the ‘Harm’ to Category 2 because the victims were patients is ‘double counting’.

For Category 2 (with Harm A) the starting point (after a trial, as Mr Hamid had) is 8 years, with a range of 5 to 13 years. For Category 3, the starting point is 4 years, with a range of 2 to 6. Why  is the sentence then four times the starting point?

There are two features here – firstly, the fact that the attacks were perpetrated by a doctor is an aggravating feature, possibly over and above the breach of trust. To my mind, that cannot take it outside the sentencing range, but can take it above the starting point to about 5 years.

The second point is that there are multiple victims. This needs to be reflected in a longer sentence, however you can’t just multiply the correct sentence by six to get the ‘right sentence’. The Judge is entitled to increase the sentence to reflect this however.

Even so, the sentence seems very high and I would expect an appeal (although in the current climate, I wouldn’t rate his chances). A sentence more in the line of 8-10 years would be more what one would expect in the circumstances.

Photo from the Standard

Tania Clarence – Hospital Order for Manslaughter

Introduction

We covered the case of Tania Clarence – a mother who killed three of her four children earlier this year – when the CPS accepted a plea of guilty to manslaughter last month.

On 18th November 2014 she was sentenced by Sweeney J to a Hospital Order.

 

Sentence

We said that the sentences for this offence are wider than most, and that this would be a difficult sentencing exercise. The Judge has published the sentencing remarks, which are very well constructed – definitely worth a read.

He said that it was clearly a case of manslaughter (not murder). The psychiatric evidence showed that Ms Clarence was “mentally ill at the time – suffering from a major depressive episode (which is a recognised medical condition) which substantially impaired your ability to form a rational judgement at the time, and is the explanation for your carrying out the killings“.

Against that backdrop, the Judge concluded that she was not ‘dangerous’ within the meaning of the Criminal Justice Act 2003. Further, for similar reason, if a Hospital Order were to be made, then it was not necessary to have restrictions on it.

That left the Judge with the choice of a prison sentence or a Hospital Order. The Judge analysed Ms Clarences’s history and set out in detail what lead to the position of her carrying out the killing. He concluded that her culpability was very low. For those reasons, which seem entirely right on the analysis that the Judge conducted, Ms Clarence was made the subject of a Hospital Order.

How long she will spend in Hospital is impossible to say – it depends on how well she responds to treatment. It could be months, it could be many years. It will probably be somewhere in between.

 

Photo from the BBC

Aliyah and Lacquan Weekes detained for ‘revenge rape’

Introduction

Whilst a woman cannot rape another person, it is possible for her to be found guilty of rape (in legal speak as a ‘secondary party’ – aiding and abetting the ‘principal’ – the man who carries out the rape).

This is very rare indeed however – no exact figures are available, but no more than one or two women a year we think. One example was given on 13th November 2014 when Aliyah Weekes was sentenced for rape, along with her brother Lacquan and an unnamed 16 years old.

Facts

The facts do not make pleasant reading. It seems that Aliyah was concerned that the 15 year old victim had been ‘telling secrets’ about her. This seems to relate to a previous attack that Aliyah had committed against another individual. In revenge for this, Aliyah arranged for her brother to rape the victim as a punishment, making this clear by saying ‘snitches get stitches’ before the attack started.

After that, “She also threatened to make the victim “do a line-up” – street slang for giving oral sex to multiple men – and warned her she would be hurt if she did not comply“. It seems that the whole incident lasted for about an hour.

Sentence

We don’t have the Sentencing remarks, but we hope in a case such as this that has generated such public interest they will be published. We do know that Aliyah got 4½ years detention and Lacquan 5 years.

There aren’t any details of what the 16 year old defendant did. He got an 18 month Youth Rehabilitation Order, so it is safe to assume that he was very much on the periphery.

For the siblings, the starting point is the Sentencing Guidelines (look at page 10). I would have said that it would be Category 2 harm, not least on the basis that the circumstances constitute “Additional degradation/humiliation“. However, looking at the sentence, this would give a starting sentence double what was received, so we imagine that the Judge took it as being Category 3.

It is clearly Culpability A due to the planning and the involvement of more than one person. This gives a starting point of 7 years, with a range of 6 to 9.

Why then the seemingly ‘light’ sentence? There was no plea of guilty, but the main mitigation was the age of the two – 19 and 18 respectively at the time of sentence. This, along with the other personal circumstances, may explain why a sentence seemingly below the guidelines.

We have to say that, despite their ages, this sentence seems an extremely merciful one. It may be, of course, that there is more to it than meets the eye, but in the current climate we would not be surprised if the AG was sniffing around this one
_78962717_weekes2

 

Image from the BBC.

RAF officer Eddie Graham jailed by The Court Martial for historic sex offences . . .10 years after retirement

 

Eddie Graham, a former RAF intelligence officer pleaded guilty to 16 counts of indecency with a child contrary to the Sexual Offences Act 1956 and was convicted of a further 7 offences (The news reports are not clear but we think they were further counts of indecency with a child, although they could also have been offences of gross indecency.) following trial at Bulford Court Martial Centre. Some details of the case have already appeared here, although at this point details were rather sketchy.

An civilian tried by a military court?

Although these offences are civilian offences section 42 of the Armed Forces Act 2006 also makes the offences service offences. However these were serious offences and Mr Graham, who has been a civilian for 10 years now, undoubtedly faces a serious custodial sentence. Why was he not tried in a civilian court? He is now a civilian and his victims were civilians, yet the court is military.

As a general rule, while there is no statute bar to bringing a prosecution of this sort in the civilian courts (as we saw here much older cases are prosecuted) a former serviceman cannot be tried for a service offence unless charged within 6 months of him ceasing to be subject to service discipline. However, s. 61(2) Armed Forces Act allows the Attorney General (currently Rt. Hon. Jeremy Wright QC MP) to consent to a prosecution outside of this time frame. The Attorney General’s powers in this respect are very wide and ill defined.

In this case the nexus between the offending and service considerations was extremely close:

  • The offending took place at RAF Gatow in Berlin (part of British Forces Germany)
  • The victims were the children of fellow servicemen
  • Mr Graham was a scout leader on the base in addition to being a service officer.
  • The matter was handed to the RAF Police by civilian police prior to charge.

As such, it is unlikely that the Attorney General will have been much troubled by the request to prosecute in a military court.

The Court Martial also has the power to try civilians subject to service law, who are usually the partners and dependents of service personnel on overseas bases. In such circumstances the board (essentially the jury) will be made up of civilian Ministry of Defence officials. To reflect the fact that Mr Graham had retired from the RAF he was also tried by a board of civilian Ministry of Defence Officials. However the case of UK v Martin made it clear that trying civilians in Court Martial must only occur when there are compelling reasons backed by clear and foreseeable legal basis, substantiated in each case.

More on The Court Martial can be found here

The Law

The maximum sentence for indecency with a child was two years imprisonment, although as we have seen in the case of Max Clifford the court should make “measured reference” to the current guidelines and “have regard to” the sentence that would be received if the offences were committed today. It is uncertain from the reports what Mr Graham would have been charged with today as indecency with a child is now covered by several offences. However at the extreme end offences previously sentenced as indecency with a child can carry a life sentence.

As a specialist court The Court Martial is also entitled to consider the effect the offending had on HM Forces and also the effect the sentence will have on HM Forces.

Sentence

Mr Graham was sentenced to 13 years’ imprisonment and is automatically subject to notification requirements (known as signing the Sex Offenders Register) for life.

Comment

Without the sentencing remarks it is extremely difficult to tell how Mr Graham’s sentence was made up. It is clear that several of the sentences were consecutive and we can assume from the fact that the overall sentence was near the maximum, despite several guilty pleas, for the modern offence of sexual assault on a child under 13 (14 years) that the offences were very serious.

What we do not know is how much the sentence was uplifted to reflect the aggravating factors and the effect the offending would have had on HM Forces. While the Court Martial strives to be a close as possible to their civilian counterparts in both procedure and sentencing it is clear that Mr Graham’s offending was a serious abuse of trust (as an officer and a scout leader) which will have been viewed even more seriously than in a civilian setting.

We will hopefully return to this once we have the sentencing remarks.

By Matthew Bolt.

_78897092_dancingjesus

‘Dancing Jesus’ music pirates jailed

Introduction 

We looked earlier this year at the relatively heavy sentence handed to Phillip Danks for illegally uploading ‘Fast and Furious 6′. On 10th November 2014 there was a similar case, but this time with music.

The Dancing Jesus website  was owned by Kane Robinson. Richard Graham had posted more than 8,000 links to music that could be illegally downloaded. Mr Robinson pleaded guilty straight off, but it seems that Mr Graham did not plead guilty until the trial. Reading between the lines, it seems that there was legal argument as to whether what Mr Robinson did was a criminal offence and it was only after the Judge ruled that it was that Mr Robinson pleaded guilty.

Thanks to the BPI, we know that the offence to which both people pleaded guilty to was under s107(1)(e) Copyright, Design and Patent Act 1988, which creates a criminal offence for anyone who “without the licence of the copyright owner … distributes otherwise than in the course of a business to such an extent as to affect prejudicially the owner of the copyright“.

This offence is either way, with a maximum sentence of 10 years.

 

Sentence

Mr Robinson received 32 months and Mr Graham 21 months.

We don’t have the sentencing remarks, so we’re just guessing here, but the Judge would probably start with the Sentencing Guidelines for Fraud. It’s probably High Culpability for Mr Robinson, and maybe Medium for Mr Graham. After that, the Judge will look at the amount of the fraud. This is pretty hard to calculate – do you take the amount of money the two defendants made (not very much, certainly not Mr Graham)? Or the amount lost by the record companies or artists? If so, how do you calculate this?

All good questions, none of which we have an answer to. Again, with the caveat that we don’t have the sentencing remarks, we would suggest that there is a danger that the Courts are taking these sorts of offences too seriously. Yes it’s serious. Yes it’s fraud. But the sentences passed in this and the Fast and Furious case are out of kilter with other sorts of frauds.

The industry will be able to tell us why it is not just a civil matter and needs the protection of the criminal law, but assuming full credit for a plea of guilty (I would have thought that Mr Graham would have got close to full credit as there was a legitimate legal argument to be had, then the starting point for Mr Robinson would be 4 years, with 3 years for Mr Graham.

These are stiff sentences – higher than for many sexual or violent offences. Have we got our priorities right?

 

Still, at least we won’t be picking up the tab for all this, eh?

Ah. Not so fast…

This is, it is true, probably a private prosecution by the BPI. Also, as you know, if a defendant pays privately, and is acquitted, well tough – they don’t get their full money back. On that basis, you would probably assume that a private prosecutor would just have to swallow it. You would, however, be wrong.

It’s important to stress that this part of the article deals with a wider issue, and not to this particular case. I don’t know if this was a private prosecution, I don’t know how much was spent and whether any application was made for BPI’s costs (if it was a private prosecution). And I’m certainly not suggesting that BPI have done anything wrong.

Now that’s clear, let’s look at s17 Prosecution of Offenders Act 1985. Under this, a Court can make an order for the payment (in full, unlike a defendant) of the costs of a private prosecutor. If you find that surprising, then you will probably be even more surprised that this is the case even if the prosecution fails and the defendant is acquitted.

The amounts involved can be eye-watering – in a recent case the Court of Appeal did not bat an eyelid at £320 per hour. By way of comparison, a barrister instructed by the CPS would get £430 for a case that pleaded guilty at an early stage, going up to a princely £950 for a case that went to trial.

As I said, I don’t know in this case whether the BPI did get their costs back, or even applied for them, so this part of the article doesn’t relate to them. But it does demonstrate a wider issue – if the Government is serious about saving money, then they should look seriously at the question of payment of private prosecutors from central funds. Why should they get paid if they lose? Why should they get paid more than legal aid/defence rates?

Image from the BBC

Suspended sentence for former Met police officer’s stack of child abuse images

We were asked to look at the case of Simon Lawes, a former soldier and Met police officer who had pleaded guilty  to 12 offences of making indecent photographs of children, two of possessing indecent images and one of possessing extreme pornography.

The offence of making indecent images means downloading (as in making a copy of), as opposed to actually “making” the image (as in producing the original). The extreme pornography offence in this instance was in relation to bestiality but the offence can encompass images containing sexual violence.

Following a dawn raid at his home – acting on a tip-off from Lawes former partner – officers found 2,482 indecent images and films of children, including one that depicted an 18-month-old baby being raped. Most of the pictures were of girls around 10-years-old being abused, The Independent reported.

Moving images

There were 348 moving images found on his computers – one of which had belonged to the City of London police. Of those moving images, 228 were at Category A, of the new guidelines. Category A is the most serious level. 101 were at Category B and 19 at Category C, the least serious.

Still images

There were 2,134 still images found. Of those, 912 were at Category A, 605 at B and 617 at C. There were also 212 extreme images involving human sexual activity with horses, dog and pigs.

Mitigation

Lawes had been a soldier, serving in Northern Ireland prior to joining the police. He suffers from post-traumatic stress disorder and had been self-medicating with alcohol since his time in the army having – reportedly – suffered a “bad time” whilst on tour in Northern Ireland. It was said that Lawes was a highly functioning alcoholic.

Judge’s remarks

The Independent reported:

Handing down his sentence Judge Michael Baker QC told the court he had thought hard about sending him immediately to prison but said he could suspend the sentence because of Lawes’ background.

“Quite clearly these are seriously disturbing images and in the course of making them the lives of a number of children will have been significantly affected.”

Sentence

The judge imposed a suspended sentence of 12 months’ imprisonment, suspended for 2 years. Within that sentence, there was an 18-month supervision requirement, during which Lawes will have to maintain regular contact and meetings with his supervising officer. Additionally (and unsurprisingly) there was an alcohol treatment requirement added to the sentence in addition to a nine-week curfew, requiring Lawes to remain in his address between the hours of 7pm and 5am.

Comment

The way in which the new guidelines operate is still settling down (they were only ‘in force’ from 1 April 2014), however in relation to image offences it seems rather straightforward. There are 3 categories (formerly the courts used the COPINE scale which placed images into one of 5 categories) A, B and C. The guideline states:

In most cases the intrinsic character of the most serious of the offending images will initially determine the appropriate category. If, however, the most serious images are unrepresentative of the offender’s conduct a lower category may be appropriate.

That places Lawes (almost unarguably) into category A. Not only are those the most serious, but also, the “justice” of the case is done by categorising this as a Cat A case as most of the images are at that level.

The starting point is therefore 12 months custody. Add in the aggravating features such as the use of police property, the fact he was a serving police officer and the number of images – not an extremely high number but it is clear that this is not a case of experimentation which was quickly desisted.

Take account of the mitigation, including the PTSD, the alcoholism and his previous character (serving in the army and the police etc.) and the guilty plea, a sentence of 12 months does not seem inappropriate.

The judge can then consider whether it is appropriate to suspend the sentence – only sentences of 24 months or less can be suspended. In this case, (and I am making a few assumptions here) the judge is likely to have considered the (presumed) lack of evidence that Lawes is likely to progress to contact offences (therefore there is a lack of a risk to the public) and the need to treat his alcoholism and help him get his life back together. A 12-month sentence of immediate custody (out in less than 6 months) is unlikely to give Lawes the chance to begin any treatment for his alcoholism. The pragmatic course is to pass a suspended sentence (the period of suspension under which can be up to 2 years) which enables Lawes to undergo some treatment  – after all the aim of sentencing is to rehabilitation and reduce the risk of reoffending, as well as punish. As to that last point, the curfew is really the ‘punitive’ element of the sentence, and so we can see that the judge in this case imposed a very sensible sentence, ticking many of the aims of sentencing, avoiding sending someone to custody and saving a few thousands pounds in the process.

For those reasons an appeal is highly unlikely.

Oh and, there is likely to have been a victim surcharge imposed.

Photo from the BBC

Is Jack Mount (95) going to be oldest man ever to be tried in England?

We looked last year at who were the oldest criminals in the UK. Learning on 7th November 2014 that a Mr Jack Mount, a 95 year old former teacher, is to stand trial relating to allegations of 32 historic sex offences dating back to 1954 (and spanning until 1949), we dusted that off to see where Mr Mount will stand in the list of oldest defendants (not criminals).

There have been people older than Mr Mount arrested and one 100 year old man sentenced for manslaughter (he didn’t go to prison), these have resulted in no action, or a guilty plea.

However, if there is a trial then, we believe, Mr Mount will be the oldest defendant ever to stand trial in England and Wales. If he were to be convicted and sent to prison, then he would be the oldest person sent to prison. He may then become England’s oldest prisoner, but we are not sure about that. It is implicit in this, but we re-iterate, we know nothing about Mr Mount’s case and so are not suggesting that he is in any way guilty or should go to prison – a jury will hear his case next year.

Although the 60 year old gap between offence and trial (and it will be 61 by the time of the trial) is huge, and certainly one of the longest, it is definitely not the longest. a Mr RD was convicted in 2012 of offences going back to 1949 – a gap of 63 years. Mr D was ‘only’ 78 at the time however, and so a long way behind Mr Mount. He got 11 years, and so will be more than a full decade younger than Mr Mount when he gets out.

Mr D appealed his conviction, in part upon the grounds that he could not have a fair trial after such a long period. You can read more about his case (and how his appeal fared) in the Court of Appeal judgment here.

 

Image from the BBC

Max Clifford loses appeal against sentence for historic sexual offences

Max Clifford was convicted on 28th April 2014 of eight counts of indecent assault against four different victims. On 2nd May 2014 he was sentenced to a total of 8 years’ imprisonment.

On 9 October 2014, the Court of Appeal heard his appeal against sentence and reserved judgment after a hearing lasting just over one hour.

On 7 November 2014, the court issued its judgment, dismissing the appeal against sentence. The judgment can be seen here and is well worth a read.

The facts

Mr Clifford was sentenced as follows (age of victim and date of offence in brackets) :

Victim 1

These offences occurred when Clifford met V1 on holiday. He claimed he could help her get some work and be “the UK’s Jodie Foster”. He gained the trust of V1’s parents and took V1 out in his car.

• Count 3 – (aged 15, in 1977/78) – 12 months

Count 3 reflected 7 occasions on which Clifford exposed his penis to V1 and instructed her to masturbate him, claiming it was essential in order to establish a basis of trust between them.

•Count 4 – (aged 15, in 1977/78) – 18 months, consecutive

Count 4 reflected digital penetration on two occasions [today this would be charged as assault by penetration, with a maximum sentence of life imprisonment].

•Count 5 – (aged 15, in 1977/78) – 24 months, consecutive

•Count 6 – (aged 15, in 1977/78) – 24 months, concurrent

Counts 5 and 6 reflected the first and third occasions on which Clifford instructed V1 to perform oral sex upon him and thereafter criticised her performance. On the second time he instructed her to perform oral sex upon him, he told her that a photographer had taken pictures of her doing so, but that she need not worry as he had lots of connections in the press. She threatened to commit suicide. In respect of those counts, the Judge remarked that had the offences been committed after the 2003 Act was in force, they would have resulted in convictions for rape and applying the new guideline, they would have been placed in category B, with a starting point of 10 years’ imprisonment.

The jury also heard evidence of an offence allegedly committed abroad. The Judge said:

“Pertinent to count 3-6 is the evidence of what you did to a 12 year old girl whilst she was on holiday in Puerto Cabopino. I am satisfied so that I am sure on the evidence which the jury heard that this amounted to another sexual offence against a young child. Had the offence not taken place abroad and at a time when it was not justiciable here you would have been charged with indecent assault in relation to it.”

The offence was not capable of being tried in the UK and therefore the jury were not required to return a verdict in respect of it.

Victim 2

• Count 8 – (aged 20, in 1981/82) – 6 months, consecutive

V2 approached Clifford for help with her acting career. He used his familiar technique by pretending that she would be considered for a new Charles Bronson film for which she would be perfect. He telephoned her pretending to be another man, telling her that Max Clifford fancied her and if she played her cards right she would be very famous. At his office, after persuading her to pose for some pictures, Clifford lunged towards V2 and tried to kiss her. When she resisted he pushed her down onto the sofa. She was really frightened and she was just screaming for him to leave her alone.

Victim 3

• Count 9 – (aged 16 or 17, in 1980′s) – 6 months, concurrent

•Count 10 – (aged 16 or 17, in 1980′s) – 21 months, consecutive

V3 was introduced to Clifford for him to provide advice on her modelling career. Count 9 reflected an instance when he took her into his office and told her how he could help and how lucky she was to be represented by him. He told her to take her dress off because he needed to see her figure. He told her that she turned him on and he moved his hands over her body, chest and hips. Count 10 represented activity when Clifford tried to force his erect penis into V3’s mouth, putting his hand on the back of her head, resulting in partial entry. He ejaculated on her face and collar bone.

Victim 4

• Count 11 – (aged 18, in 1984/85) – 15 months, consecutive

V4 had an audition at a nightclub in Piccadilly. Clifford happened to be there having a meeting with three other men. He approached her and asked her if she was interested in acting – she replied that she was. He said he could get her a screen test in a James Bond film and pretended to telephone Cubby Broccoli. The person on the phone pretending to be Broccoli said she would have to find out if Clifford was circumcised before she could get the screen test. Clifford led her to the lavatory, placed her hand on his erect penis and told her to masturbate him. He pulled down her leotard and pulled at her nipples.

The jury also heard evidence regarding other instances of alleged sexual behaviour which were not the subject of counts on the indictment. The Judge took these into account as context to the offences which did feature on the indictment. These included instances where he instructed girls aged around 18 to masturbate him or perform oral sex upon him to ejaculation.

The total sentence was 8 years (plus costs of £55,000).

Clifford’s arguments

Mr Horwell QC appearing for Clifford, made submissions under four broad headings:

1) Guidelines – The way in which the judge at the Crown Court used and referred to the guidelines and the disparity of the maximum sentences for indecent assault (2 years) and rape or assault by penetration (life).

The submission was essentially that it was no coincidence that the judge said he had been sentencing for offences under the 2003 Act, he would have imposed sentences of 8 years, and the resulting sentence for all the offences was one of 8 years. Based on the disparity in maxima, it was incorrect to take such an approach.

2) Maximum sentences – The Judge imposed maximum sentences for two of the counts notwithstanding his explicit acceptance that the offences were not the most serious of their kind.

The submission was essentially that the sentences on those counts were too long (and implicit in that is perhaps that the other sentences would require a reduction to maintain the relationship between the separate counts).

3) Bad character – the Judge “took into account” matters which he ought not to have done; the bad character which was not supported by a conviction was used to aggravate the seriousness of the offences and authority prevents such an approach – the principle that a defendant should not be punished for matters which he or she has not been convicted of, must be upheld.

4) Conduct in and out of court – reference was made to Clifford’s conduct in and out of court. Mr Horwell QC complained that a) the Judge did not refer explicitly to any comments made by Clifford on the steps of the court, nor did he comment on Clifford’s conduct during the trial and that this was a very different situation to that in Hall, where the Court of Appeal explicitly referred to Stuart Hall’s comments to the media.

The submission was essentially that this should not have aggravated the seriousness of the offence.

The result

The court dismissed the appeal against sentence, commenting that the 8-year sentence was “justified and correct”.

Points to note

a) The court broadly divided the issues into two: (i) the criticism of the judge’s approach; and (ii) whether or not the overall sentence was manifestly excessive.

b) Criticism 1: the approach to the sentences imposed on counts 5 and 6

The court said that – as is well settled – the structure of the sentence is a matter for the judge. Whether he wanted to impose two x 24 months concurrent, or 2 x 12 months consecutive, was a matter for him, and the practical effect would have been the same, save for that there could have been no criticism of the latter approach (because 12 months was well below the maximum and they were two separate offences warranting, in that circumstance, a consecutive sentence) and so why should there be a criticism of the former? When considering the overall sentence on those two counts, 24 months was not incorrect.

Secondly, the judge should not have compared the offences under counts 5 and 6 to that of rape (which is what they would have been charged as if committed in the present day), the effect of the argument being that the judge should have limited the degree to which the sentence was increased by reference to the current guidelines. The Court of Appeal rejected this argument stating that the judge was entitled to remark upon the gravity of the offence by reference to modern standards and that the sentence was limited by the lower maximum sentence in force at the time; so notwithstanding the reference to the current guidelines and the equivalent offences which carry a much higher maximum sentence, Clifford was protected against a sentence unfairly inflated by the change in attitudes.

c) Criticism 2: article 7 of the ECHR and Clifford’s knowledge of the 2-year maximum sentence

This argument got short shrift from the court; in essence, the point was that the court should have assessed the offender’s culpability by reference to the 2 year maximum and not the comparable offence under the 2003 Act (with a much higher maximum sentence). The court said that (i) “the suggestion that the appellant would have been prepared to commit this offence in the knowledge that the maximum was 2 years but might not have had he been aware of a higher maximum available some years later is unreal.” At first glance this is somewhat concerning as this has long been a feature of the principle against retrospectivity – it would be unfair to hike up the maximum sentence for an offence and then backdate it to before the increase. Additionally, the notion of deterrence relies partly on the fact that people are assumed to know what penalty they may receive. However, the court explained its reasoning:

“He deliberately committed these offences because he was sure he could get away with them, not because of some calculation as to the possible level of punishment. For a person like the appellant, the deterrent would be the possibility of exposure which he thought he had successfully guarded against, rather than the level of sentence available to the court. Moreover, it was no part of the appellant’s case that he would not have committed these offences, had he thought that a greater maximum level of penalty than 2 years would subsequently be enacted by Parliament. His case was a total denial of any misconduct.”

That will no doubt satisfy some, but leave others with a sense of unease. Are we content for the court to decide the thought process  of the offender dating back some 30 years?

d) R v H:

The court reiterated the guidance given in H and underlined the phraseology used: “measured reference” to the current guidelines and “have regard to” (as opposed to anything more concrete). There was no art.7 breach and the court was clear that a judge is entitled to reflect modern attitudes to historic offences, and to look to modern sentencing guidelines.

e) Criticism 3: The bad character evidence

The court determined that the judge had fallen into error in the way in which he dealt with the bad character evidence which did not form part of the indictment. Commenting that the sentencing remarks gave almost as much time to the bad character as to the offences on the indictment, the court was concerned as to the impression it created, namely that those aspects had an effect upon the sentence. They said they were relevant background but could not inflate the sentence.

f) Criticism 4: Clifford’s conduct

This was a common sense decision. The court distinguished Clifford’s protestations of innocence from those in the Stuart Hall case. This is welcome (and unsurprising) as it cannot be that a defendant (subsequently found guilty) is punished for protesting his innocence, particularly in a case where there is intense media interest. As to the other two incidents (his “laughing” in court and “dancing” behind a Sky News presenter) there was no evidence of the former and no evidence of any impact on the victims as a result of the latter. Accordingly, the judge had fallen into error in taking these matters into account.

It then fell to the court to consider whether the overall sentence was too long. It determined, by reference to the principles in R v H and reference to the current sentencing guideline that the sentence of 8 years in total was justified and correct.

Comment

This final comment suggests that the court may well have upheld a slightly higher sentence. This follows in the footsteps of the Stuart Hall judgment in that it is a continuation of a real step-change in the way that historic (particular celebrity) sex cases are sentenced. Where there are multiple offences, it is likely that, subject to observance of maximum sentences and other principles, the resultant sentence will be far closer to that which would be imposed today than ever before.

Clifford is by far the largest casualty of the courts reflecting the change in attitude to such behaviour, but it cannot be said that such a result is unwelcome.