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.
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”
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  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.
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.