91 year old Marcus Marcussen convicted of (very) historic sex abuse

91 year old Marcus Marcussen convicted of (very) historic sex abuse

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Introduction

A few weeks ago we looked at the case of Jack Mount, the 95 year old who is due to stand trial later this year and asked whether he was the oldest person to be tried.

We believe that he is, but on 10th February 2015 Marcus Marcussen became, at 91, one of the oldest people to stand trial and be convicted, when a jury convicted him of 25 counts of indecent assault against 14 different victims. Mr Marcussen was acquitted of eight other counts of sexual abuse.

The dates of the offending were from 1957 to 1978, so a gap of 58 years. Although this is not quite the longest, it is up there.

 

Facts

These are, at the moment, pretty sparse. It is understood that all the victims were boys and the offending all occurred when Mr Marcussen was a teacher.

We know from earlier reports, that he was alleged to have “routinely ran his hands over the bodies of naked boys in changing rooms“. Additionally, he “would grab undressed children in the changing room and pull them into his lap

 

Sentence

The offences were all under s15 Sexual Offences Act 1956. The maximum sentence for each is 10 years. We have a fact sheet on historic offence, which sets out the principles that govern this. When sentencing, the Judge will have to bear in mind ‘totality’ and, more importantly, that s/he is dealing with someone aged in his 90s and therefore anything other than a very short prison sentence may well mean he dies in prison.

The starting point will be the Sexual Offences Guidelines. It is difficult to know what he will get, in part because we don’t have much details of the actual offending, but partly because his age makes the sentencing exercise so difficult.

Twenty years ago he would have probably been given a suspended sentence, but different rules apply nowadays and not only would we not like to guess what Mr Marcussen will get, we would not want to be the Judge who has to sentence him.

 

Can you have a fair trial nearly 60 years after the event?

It is a difficult question with good arguments on both sides. There are two main issues – firstly whether someone can have a fair trial after such a long period and secondly, whether it is fair in all the circumstances to try someone given how much time has passed.

Speaking personally, the first of those concerns is the bigger one to my mind. The law says that there is no delay to long, unless a defendant can show that they cannot have a fair trial. I cannot see how, realistically, it is possible to fairly judge the truth of something nearly 60 years down the line. The prejudice is too great – any evidence that might be available to show somebody’s innocence will almost certainly have disappeared (witnesses, work records as to timing, layout of rooms etc).

It was put best by a former Lord Chief Justice in B [2003] Crim 319. It is a short judgment, and takes onboard all the arguments, and specifically the fact that the jury heard the complainants and believed them. And, if they were correct, they suffered appalling abuse that the passage of time does not assuage.

Nonetheless “At the heart of our criminal justice system is the principle that while it is important that justice is done to the prosecution and justice is done to the victim, in the final analysis the fact remains that it is even more important that an injustice is not done to a defendant. It is central to the way we administer justice in this country that although it may mean that some guilty people go unpunished, it is more important that the innocent are not wrongly convicted. 

In this case it has to be recognised that because of the delay that occurred, in our judgment the appellant was put in an impossible position to defend himself. He was not … able to conduct any proper cross-examination of the complainant. There was no material he could put to the complainant to suggest that she had said that something had happened on one occasion which could be established to be incorrect. There was no material in the form of notes that were given to the doctors which showed that she had changed her account. All that the appellant could do was to say that he had not committed the acts alleged against him. Mr Jenkins says that to say to a jury, when faced with allegations of the sort that were made here, “I have not done it” is virtually no defence at all.”

That was a case with a delay of 32 years. It applies with even greater force when the delay is nearly double that.

 

Note:

We were alerted by Barbara Hewson to the case of Frederick Smith who was 94 when he was sentenced to 12 months on 14th June 2014. The Judge said “As frail as you are, bent over your Zimmer frame, justice cries out that you be sent to prison for your crimes“. Notwithstanding that the Judge said “become depressed and withdrawn and I’m inclined to the view that at the age of 94 your remorse for what you have done is real” “to prison you must go“. The Judge did say that Mr Smith “wasn’t in bad shape” and he was taken off to prison in a wheelchair.

Mr Smith died 3 months later whilst serving his sentence  after being hospitalised after a fall.

He is now are leading candidate for oldest person to be jailed in the UK. He pleaded guilty and so we still believe that Mr Marcussen is the oldest to stand trial. We expect that that record won’t last and the trials and imprisonment of nonagenarians, once unthinkable, will become more common.

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Dan is a barrister at 2 Dr. Johnson’s Buildings practising in crime.

13 COMMENTS

  1. I find it difficult to see how this case passed the public interest criteria for prosecution.

    The prosecution is unlikely to benefit the victims after 58 years, and at 91 he is highly unlikely to reoffend.

    I am beginning to suspect that the CPS is not prosecuting sexual crimes any longer for the public good, but as some sort of witch hunt. Do we now have a Crown Persecution Service? I do not endorse sex crimes, or think them unimportant, but they seem to me to have assumed an unreasonable priority to the police & CPS, when compared to many crimes which do more real damage to victims.

  2. Just for once the solecistic use of the “historic” (rather than the more grammatically accurate “historical”) may actually be justified. This not only took place a long time ago (“historical”), but marks a significant (and even “historic”) moment in our Criminal Justice System.

  3. I wonder why murder isn’t referred to as “historical” if he’d murdered someone and the law finally caught up with him the issue would be the murder not the historical murder. In these cases the concern appears to be about the time “historical” it took for his crimes to catch up with him.

    • I would certainly refer to it as historic/historical if it was more than 10 or so years old. Apart from the Stefan Kiszko case (where I’d call it that) I can only think of one other case from a long time ago (but can’t remember the name). Although in that sort of a case there may be a bit more evidence (DNA as an example) the same issues apply, and there are the same problems.

      The issues I raise aren’t about sex cases, but historic prosecutions in general. They invariably arise only in sex cases because murders tend to be caught straightaway or pretty soon after, and nobody would dream of prosecuting other offences fifty years down the line.

      • How it comes across to me is a wish to evoke some sympathy for the accused/convicted due to their advanced years would the same courtesy be extended to an elderly convicted murderer?

    • LES suggests that using the example of murder is helpful in understanding decisions to prosecute these sort of cases. Perhaps it is.

      Let us imagine that someone goes to a police station and says that many years ago they saw someone commit a murder. They did not report this to the authorities at the time and nobody else was aware that a crime had been committed, because the victim’s body was never found and nobody was reported missing. The complainant had always known the name of the guilty person, but because witnessing a murder was so devastating to them, they did not feel that they could talk about to anyone else about it at the time or for decades later.

      Is there even the slightest chance that in the case of murder the CPS would prosecute someone based on such a report? With absolutely no other evidence that a murder had taken place, and with the possible exculpatory evidence long since gone it would be fundamentally wrong for the accused to face the prospect of life in prison. Imagine if the CPS had an explicit policy that anyone coming forward with accusations of murder will always be believed, no matter how long ago, and no matter if there was no other evidence that murder had taken place.

  4. Patrick – actually that’s not what I’m suggesting. However to use your example – detectives solve crimes – you give them they details they do the leg work. If I witnessed a murder as a child, for example, did not realise what I had seen and or was too terrified or traumatised to speak up, but do so several years or decades later, that does not negate that I saw a murder nor that a crime was commited further though I have only now spoken up, I am not the murderer, and therefore cannot be blamed or held responsible for a crime committed by someone else.

    • LES my point is that if you had been the only witness to a murder when you were a young person and then went to the police and told them about it, there would be very little chance that the CPS would prosecute without any other evidence. However if you had been abused in your childhood and then made a complaint decades later it is highly likely that they would prosecute and very probably gain a conviction just on the basis of your personal uncorroborated statement, because the CPS has a policy of always believing complaints of child abuse.

      • Again you insist in attempting to twist my words. To be clear If I saw a crime and spoke up about it to the police they then decide whether to investigate it. If they do, and where there is sufficient evidence for a prosecution they proceed – sometimes, but not always, (see banking industry and fraud). If there is insufficient evidence they won’t that’s not unique to sex offences seems to apply to all crimes. This does not mean the crime, for example an adult raping a child, did not occur.

        Re: uncorroborate evidence this applies equally to the accused as it does to the complainant, who I prefer to refer to as the victim, however to quote a wise woman “it’s not rocket science that the person most likely to like about rape is the rapist.”

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