Category Archives: In the news

Photo from the Essex Chronicle

Danielle Watson admits fraudulently claiming to have cancer to pay for wedding

Introduction

Weddings nowadays can be ruinously expensive. Saying ‘I do’ to the one you love can easily set you back a five figure sum (and then sum). Not surprising then, that in an age of austerity people have to be a bit creative.

Back in early 2012, blushing bride to be Danielle Watson (aged 24) hit on an alternative method of crowdsourcing the funding for her wedding – pretending that “she had stage four cervical cancer and had brought her wedding forward to April, so that it would take place before radiotherapy and chemotherapy made her hair fall out“.

The good folk of Colchester responded admirably to this – “she got free or discounted deals on haircuts, a wedding dress, a wedding reception at the Ivory Rooms in Billericay and, at fundraising events, she raised almost £10,000 towards “vitamin C treatment”“.

It turned out that she had never had cancer or any treatment for cancer, as she admitted on the 20th October 2014 on the first day of her trial for six counts of fraud relating to this.

The case has been adjourned to sentence to the 9th January 2015. It’s not clear why such a long period of time – this would usually indicate the need for medical reports to be obtained.

 

What will she get?

The starting point are the Sentencing Guidelines for Fraud (hot off the press from 1st October this year). Follow the link and go to page 6.

It is still early days of these, but we’d suggest that it is ‘High Culpability’ (which is Culpability A)on the basis of the blatant fraud, the number of victims and the circumstances are such that it is akin to having vulnerable victims and/or an abuse of trust.

On the basis of of the amount obtained (or intended to be obtained) being over the £10,000 the harm is bang in the middle of Category 4. There will be a small amount (about 10%) credit for the plea of guilty.

This gives a starting point of 18 months, with a range of 6 months to 3 years. It is difficult to know what she will get. One view would be that this is a really serious offence as it is such a cold and calculating offence that preys on people’s generosity. This would lead to a sentence of about 18-24 months.

The other view is that this is someone who has never been in trouble before (which would appear to be the case) and this is something that escalated and got out of hand. This would give a sentence of about 12-18 months, but suspended.

We don’t know which of those two broad scenarios this case would fall into it. We’ll be back in January to have a look though.

Photo from the BBC

Garron Helm jailed for an anti-semitic tweet

Introduction

The day after the newspapers picked up the story from many months ago that errant tweeters would be sent to prison for two years, another social media prosecution hits the headlines.

On 20th October 2014 Garron Helm (described as having links to an ‘extremist right wing group’) was sent to prison for 4 weeks for sending an anti-semitic tweet to Luciana Berger the MP for Liverpool Waverley.

The prosecution was probably under the Malicious Communications Act 1988 which requires the tweet to have been grossly offensive.

 

What was said?

One of the most frustrating things about these cases is that the news outlets never report exactly what is said. Sometimes this is understandable, but it would be useful for there to be some indication at least as to why we are paying for people to be prosecuted and imprisoned.

Here, the BBC were less than clear. The Liverpool Echo however, had more detail. It seems that there was a photo “which showed a Holocaust-era star on the MP’s head with the hashtag ‘Hitler was right’. Additionally, “The tweet then called the MP a “communist Jewess” and read: “You can always trust a Jew to show their true colours eventually.

Ms Berger stated that she was (understandably) ‘deeply shocked’ by the tweet. The Judge said that the offence was racially aggravated (again, perhaps understandably).

 

What was the sentence?

The Judge would have been guided by the Magistrates’ Court Sentencing Guidelines. The best place to start would be at page 42. Based on the sentence, it would fall in the category of – “Single call where extreme language used and substantial distress or fear caused to receiver“.

Additionally, the surcharge was imposed in the sum of £80. Incidentally, we think that this may have been wrong. This is because the offence was committed on 7th August 2014, which is before the law changed so that someone sent to prison by the Magistrates’ Court could get a surcharge imposed – see here for more details of this.

 

Why is it a criminal offence?

The CPS have their own guidelines as to when people should be prosecuted for ‘social media’ offences.

This clearly does not fall into the first 3 categories, so it then comes down to an assessment of whether this should be prosecuted in all the circumstances of the case.

It is a difficult one. The tweet is clearly a vile and racist one, and is illegal under the law. However, it is a different question whether a prosecution is compatible with Art 10 and the CPS policy. Whether a prosecution should have followed in this case is less clear cut. I would suggest that whilst it is not clear cut, especially when considering there is only one tweet, this should not have been prosecuted (with the caveat that there may well be other matters that we are not aware of).

One consequence of making these sorts of offences either way is that people can then have trial by jury. Whilst it may mean higher penalties, it also means that people who are concerned about freedom of speech have the protection of a jury – and in the end who better to decided what is and isn’t acceptable but a jury? It also means that the CPS will have to think a bit more carefully before prosecuting people, which can only be a good thing.

Photo from the BBC

Robert Cerqua guilty of murdering his twin

Introduction

On New Years Eve 2013,  Robert Cerqua was at the family home in Hythe in Hampshire with his twin brother Nicholas and other members of his family. After alcohol had been consumed, Robert and Nicholas had an argument.

The prosecutor told Winchester Crown Court that “That argument appears to have turned into a tussle, punches may have been exchanged, at some point this defendant picked up a kitchen knife and he used it to stab his brother Christopher.”

Robert accepted killing his brother, but said that it was done in self-defence after his brother had threatened him with a knife. On 20th October 2014 the jury in his trial found Robert guilty by a majority of 10-2. He will be sentenced tomorrow.

 

What sentence will he get?

The only sentence that can be passed is one of life imprisonment. The issue for the Judge will be how the tariff – the minimum period of time before Robert can be considered for release, will be.

Our fact sheet sets out how the Judge will set about that task. Here, the starting point will be 15 years. There was a trial, so there can be no credit for a guilty plea. We would, however, expect a tariff of under 15 years in any event.

The reason for this is that it would appear that this was a moment (or couple of moments) of anger from Robert. In those circumstances, it may well be that the Judge will feel that this is the sort of case where a bit of mercy can be shown (relatively speaking), and reduce the tariff to somewhere in the region of 13-14 years.

If it was a drunken argument, then it may be that the Judge sees this as an unpremeditated act, where there was no intention to kill (but to cause really serious harm), and real remorse was shown afterwards. None of the aggravating features appear to be present, and therefore whilst the 15 years is a starting point, it may be that that will be reduced. The fact that the victim is his twin brother may well be seen as a mitigating feature to some extent.

 

We’ll come back tomorrow to see …

Photo from the BBC

Mark Dyson sentenced for killing his wife

 

Introduction

On 29th April 2014 Mark Dyson, then aged 55, returned to his home in Adlington which he shared with his wife Carole (aged 53), and strangled her. In the next few days, concerns were raised about her safety and her body was found when Police attended her address.

Facts

The BBC report is short to the point of terseness. The reporting is a bit fuller in the Lancashire Evening Post.

It seems that Mr “Dyson had suffered from depression and post-traumatic stress disorder caused by the premature death of the couple’s 15-year-old daughter and also a rare condition which caused him to believe he was in constant pain”.

Mrs Dyson appears to have been his carer. There was a history of Mr Dyson being violent and abusive, but not for ‘many years’.

The cause of the murder appears to have been “when his wife refused to wait for him to get up when the couple were due to go out. He strangled her with his bare hands and then possibly smothered her with a pillow.

He then walked to nearby Chorley Hospital and told staff “something terrible” had happened. He said he had been in pain for some time and his wife had been “nasty” to him”.

Sentence

The only sentence available was the mandatory sentence of life imprisonment. The question for the Judge was how long the tariff, the minimum period of time that Mr Dyson should serve before he can be considered for release, should be.

In this case, there do not appear to be any of the aggravating features. The only mitigating feature that is apparent is Mr Dyson’s mental health. For that reason, we would expect that the Judge would have taken the starting point of 15 years and reduced it by a little bit to reflect that. This would give a tariff of 14 years or so.

So far, so good. However, Mr Dyson pleaded guilty. It was not at the first available opportunity, but he did accept his responsibility for the homicide of his wife straight away. In light of that, he should receive a fair amount of credit.

The maximum credit for murder is 1/6th (rather than the usual 1/3rd) up to a maximum of 5 years. It is an interesting question whether the reduction in credit in cases like Mr Dyson should start at a third or not.

Assuming that it doesn’t, there should still have been a reduction in the region of about two years. For that reason, the 14-year tariff is longer than we would have thought. Whether the Court of Appeal will interfere with it is a different matter. Firstly, there may well be matters not in the news reports that we are not aware of. Secondly, as the Courts are fond of saying, “sentencing is an art, not a science”.

Nevertheless, we would expect that Mr Dyson will try to appeal the sentence. We’ll keep you up to date.

 

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Image from Facebook/Daily Star

10 months for assaulting police officer and bragging about it on Facebook

On 10 October, the Daily Star reported that Suzanne Porter had been sentenced for “punching cop’s teeth out then gloating on Facebook”. So what’s the story?

Facts

Well, it appears that Porter and her friends had been drinking at a pub in Clitheroe, Lancashire. The police had been called due to the group becoming rowdy. When the police arrived, Porter was barefoot and drunk. Porter and her group were asked to leave the pub, however it appears that they had to be spoken to again by the police because their disruptive behaviour continued.

Subsequently, officers found Porter in the middle of the road whereupon she lifted up her dress revealing her buttocks. PC Pitcher followed Porter in a police van and challenged her about her having urinated in the street and revealing her buttocks to police officers.

Porter reportedly replied :”Oh, did I?” and the officers began to make arrests.

PC Pitcher first began to detain Porter before deciding to assist colleagues in arresting Porter’s brother who was also drunk and was struggling with officers and threatening them with Porter’s stiletto shoes. When PC Pitcher went back to arrest Porter, Porter punched her in the face, knocking off her glasses and causing to stumble and fall to the floor. Porter ran off but was subsequently arrested and found to have PC Pitcher’s blood on her dress.

Injuries

PC Pitcher suffered distortion of the cartilage in her nose, a broken front tooth and three others were caused to become loose. She could not work for four weeks and needed to be accompanied by a colleague on her return due to the impact on her confidence.

Offence

Porter pleaded guilty to assault occasioning actual bodily harm under s.47 of the Offences against the Person Act 1861. The maximum sentence is 5 years’ imprisonment.

The offence could have been charged as s.89 of the Police Act 1996 (assault on a constable in execution of his duty), however that carries a maximum of 6 months’ imprisonment and the injuries in this case clearly warrant a more severe penalty than that. It is presumed, for that reason, that the decision was taken to charge the more serious offence under s.47.

Previous convictions

The Star reported that she “had a previous conviction for violence and intimidation”. The details are unknown but they are very likely to have been considered to have aggravated the seriousness of the offence.

Facebook

Porter apologised to the police but it transpired that she had posted a picture of her blood-stained dress on the social media site, Facebook, with the caption “Ruined”. One of Porter’s friends commented: “All she will want for Christmas is her two front teeth” and Porter replied: “Ha, ha.” Porter also reportedly posted an image of a broken tooth on her Facebook page.

At the sentencing hearing at Burnley Crown Court, the prosecution said that this conduct added to the victim’s distress.

Sentencing remarks

We don’t have the sentencing remarks as they have not (yet) been published. The Star reported that the Judge said: “The victim was particularly vulnerable in the circumstances. You targeted her.” This would have been considered to be an aggravated factor.

Sentence

Reference would have been made to the Assault guideline (see page 12). Taking account of the judge’s remarks as to the vulnerability of the victim and that she was targeted, it seems the judge took the view that this offence involved greater harm (vulnerability of the victim, see page 13) and higher culpability (targeting of the victim, see page 13). That placed the offence into category 1 with a range of 1-3 years’ custody (which, on the information we have, appears to be a bit high).

The next step would have been to consider the aggravation and mitigation. It would have been an aggravating feature that the victim was an on-duty police officer, that Porter was drunk and that it was committed at night, after the police had told the group to leave the pub. Porter’s previous convictions are likely to have added to the seriousness. The effect upon the victim will also have been taken into account.

Additionally, it appears that the judge relied upon the Facebook evidence to demonstrate a lack of remorse and additional distress caused to the victim.

In mitigation, it is likely the judge would have taken into account that this was a single blow as opposed to a sustained assault. Further, although not mentioned in the news report, it is likely the defence would have submitted that the fact that Porter is a single mother and has a dependent child should have resulted in a shorter sentence or the sentence being suspended.

The judge appears to have taken a starting point of 15 months, and then (we presume) given full credit for the guilty plea, resulting in a sentence of 10 months’ imprisonment. It is likely that a victim surcharge would also have been imposed.

Porter’s brother Gary Place, pleaded guilty to using threatening, abusive or insulting words or behaviour and was fined £75, with £85 costs and a £20 victim surcharge.

Photo from the BBC

6 months apiece for pyramid fraudsters

Introduction

We looked last month at the case of the Pyramid fraudsters of South West England. As we explained then, this seems to have been a classic pyramid scheme. According to the Daily Mail, “Each of 15 spaces was filled with a participant who paid £3,000 and introduced two friends, who also paid that amount. Once the chart was filled, the eight people on the bottom of the chart paid their £3,000 to the person on the top, called the ‘Bride’. Participants collected their winnings at specialist prize-giving pamper parties, where they would be asked a series of simple questions before being handed the £24,000.A set £1,000 fee from the payout was deducted, with £600 shared between charities and £400 used to pay costs the committee occurred“.

Basically, you pay £3,000 to buy in and hope that more people follow you in. If they do, then you get £23,000 when you get to the top of the pyramid.

 

Sentences

The reporting restrictions were lifted after the final three women pleaded guilty on 18th September 2014. They were sentenced on 13th October 2014 as follows :

  • Mary Nash, 65 (charts co-ordinator) – 6 months
  • Susan Crane, 68 (committee secretary) – 6 months
  • Hazel Cameron, 54 (games coordinator) – 6 months, suspended for two years

 

Will there be an appeal?

As we said previously, the maximum sentence is only 2 years (so a lot less serious than other fraud offences) and with the absence of any guidelines, or more details, it’s pretty hard to say.

We hope that there is an appeal, as it would be useful to have some guidance on how serious an offence this is.

How did we do?

We said “We would have thought that those who pleaded guilty yesterday should just about get a non custodial sentence.

So, not bang on, but one out of three isn’t too bad..?

Photo from the BBC

Tania Clarence pleads guilty to manslaughter of her three children

Introduction

On 22nd April 2014 Gary Clarence was with one his four children and other family in South Africa when the police informed him that his three other children had been found smothered to death, and his wife, Tania Clarence, had been arrested for their murder.

On 13th October 2014, Ms Clarence entered pleas of guilty to the manslaughter of the three children – twins Ben and Max aged 3, and Olivia, aged 4). The prosecution will not seek a trial on the charges of murder, and the matter was therefore adjourned for sentence.

 

Why manslaughter?

The three children all had type 2 spinal muscular atrophy (see here for the NHS fact sheet on it).  –  “killed her three-year-old twin sons Ben and Max and daughter Olivia, aged four, because she was depressed and wanted to end their suffering.

More details will no doubt emerge at the sentencing hearing, but “The prosecution said Mrs Clarence killed her three-year-old twin sons Ben and Max and daughter Olivia, aged four, because she was depressed and wanted to end their suffering.” Apparently, “Mrs Clarence could “see not hope for the future” and could no longer cope with caring for her children.”

We will get an fact sheet on murder/manslaughter up at some point (promise), but in this case the defendant stated that “This offending did occur whilst Mrs Clarence was suffering from an abnormality of the mind.

“She was manifesting stress throughout the life of the children by their suffering and caring for three children with this condition was exhausting, distressing, debilitating and turned out to be overwhelming.” After killing her children, Ms Clarence tried to kill herself.

The Prosecution would have accepted that there was an abnormality of mind that substantially diminished Ms Clarence’s capacity, and hence accepted the plea to manslaughter.

 

What will the sentence be?

Sentencing for manslaughter has the widest range for any criminal offence. Whilst sentences have been on the rise in recent years (in accordance with all offences), the sentence here will depend on the psychiatric evidence and whether it can be dealt with by a Hospital Order, or whether there will be some form of prison sentence.

It is an exceptionally difficult sentencing exercise for the Judge. Whilst there needs to be a recognition that three children died, clearly this is a hugely tragic event for all concerned. People often scoff, or get offended, when the term an ‘act of love’ is used when a mother or father kills their offspring, but it may be that it goes some way to explaining the circumstances (to the extent that it can ever be explained) behind the headlines.

Parents killing their children is obviously an incredibly rare event (though proportionately less rare) fortunately, and we would suggest that deterrence plays no part in the sentencing here.

Photo from the BBC

Richard Pease jailed for drunken hovercraft piloting

Introduction

Richard Pease was a hovercraft pilot – is that right – do you pilot a hovercraft? Or drive? Anyway, Mr Pease was in charge of the regular hovercraft service from Southsea to the Isle of Wight. I’ve taken this route and would say that if you have to go to the Isle of Wight, it’s actually quite a nice little journey. If the weather is right.

But if you took the hovercraft on 22nd June 2014, you might disagree with me. Mr Pease was taking 36 passengers to the Isle of Wight when he missed the landing pad.

Other crew members had already had their suspicions aroused. They had “noticed Pease’s reaction time was slow during the crossing and that he failed to carry out a manoeuvre properly when the hovercraft came across a tanker

After the abortive landing, “he gave no positive response, his head dropped and his body went limp in the chair“. He was later arrested and when he was breathalysed six hours later was still three times over the limit.

 

Offence

It’s not completely clear what the charge was, but we’d have a stab at it being under s78 Railway and Transport Safety Act 2003. This creates two offences relating to a Master or Pilot of a ship –

(2) A person to whom this section applies commits an offence if his ability to carry out his duties is impaired because of drink or drugs.

(3) A person to whom this section applies commits an offence if the proportion of alcohol in his breath, blood or urine exceeds the prescribed limit.

The prescribed limit is the same as for driving a car.

It can be seen that these are pretty similar to the similar offences relating to Road Traffic Act for driving a car whilst being impaired by alcohol or over the prescribed limit. These offences are, however, either way with a maximum sentence of 2 years.

He was sentenced to 8 months imprisonment.

 

Comment

This is clearly a serious offence. We all know the consequences of drink driving, and this could have been even worse.

It sounds like Mr Pease had previous alcohol issues, and he is presumably of ‘good character’. Whilst we’re not sure whether the same rules apply to Maritime Agencies as to the DVLA, but it is clear that he will not be working in his old profession anytime soon.

It is a difficult case. Whilst the need for a custodial sentence to ‘send a message’ can be seen, it is a personal tragedy and a shorter custodial sentence, or one that was suspended, would send the same message equally well. Against that, given the potentially catastrophic consequences, it is unlikely that an appeal will go anywhere.

Image from the BBC

Max Clifford appeal against sentence – Judgment reserved

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.

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.

What did the Court of Appeal say?

Well, very little. The judgment was reserved.

The Court gave Mr Horwell QC a bit of rough ride in relation to the bad character point but seemed to be with him on the maximum sentence point.

Ms Cottage QC, for the prosecution, was given a hard time in relation to her submissions in respect of defendants’ conduct in and out of court during and after a trial.

The Stuart Hall effect?

This remains to be seen but I think we can expect to see a reference to it in the judgment

Judgment?

The Court reserved judgment to allow them to discuss the “significant number of issues” that had been raised.

Comment

There is the potential for this judgment to be important both in relation to bad character evidence and also the approach to be taken by the courts when sentencing for historical sexual abuse, particularly where there is a significant disparity in the maximum sentences for the offence charged and its modern day equivalent.

We’ll of course have a look at the judgment when it is released.

This post was sponsored by Prime Lawyers, criminal lawyers in Sydney, Australia.

Photo from the BBC

Max Clifford appeals 8-year sentence for sex offences: Preview

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 will hear his appeal against sentence.

Sentence

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

The full remarks are here and bear reading. The maximum sentence for each offence was 2 years, as limited by the Sexual Offences Act 1956. As we all know, Parliament did not take sexual offences anywhere near serious enough and it took them until 1985 to increase the maximum sentence. We have a fact sheet as to how people are sentenced for historic sex cases.

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 Judge’s remarks

The Judge took a very dim view of the offences. An example of that can be seen at para.3 of the sentencing remarks:

 “These are historic offences which took place between 30 and 37 years ago. I judge that the reason why they were not brought to light sooner is because of your own dominant character and your position in the world of entertainment which meant that your victims thought you were untouchable, something I judge that you, too, believed and traded upon. This features in the evidence. By way of example the victim of Count 11 told the jury that, as you were pulling up your trousers after a sexual act and as she was leaving, you said something like “no one is going to believe you” and it was said as if to make her not tell anyone.”

para.53:

“I have also take into account that there were multiple victims, that your offending extended over a period of 7 years, and that you targeted vulnerable women who you thought would comply because they were desperate to succeed in a career where success can be illusive.”

The Judge decided to impose consecutive sentences for each of the victims, which is par for the course in such cases.

The issues for the court

The basic issue is whether or not the sentences are manifestly excessive in length or wrong in principle.

It is likely that Clifford will argue that

a) some or all of the sentences are too long,

b) the judge was wrong to take into account the alleged conduct which was not subject to a count on the indictment,

c) the judge was incorrect to make the sentences on counts 3-6 (in respect of V1) consecutive, and

d) in any event the overall sentence was too long, having regard to totality.

The Stuart Hall effect 

It was reported that the Prosecutor had suggested to the Court that the Clifford’s protestations of innocence should be an aggravating feature as it caused distress to victims“. This is something that had first been featured in the Stuart Hall case.

This issue divides opinion. Whilst on one hand, the distress caused by public denials and protestations of innocence can be readily understood – and therefore the logic for regarding such behaviour as an aggravating feature is obvious, it is important to recognise the principle that defendants should not be penalised for the way in which they conduct their defence. This brings with it the complex issue of celebrity-defendants – when celebs are prosecuted, there is accompanying media interest and the CPS consequently make a public statement. That induces the celebrity defendant to make a response (and one can well understand why). After the Stuart Hall case, it appears that such a decision may result in a harsher sentence, depending on how vehement the denials are.

It will be interesting to see how the Court of Appeal deals with that issue on Thursday, as the Stuart Hall judgment was delivered by the now retired Lord Judge CJ.

We’ll update this post after the appeal hearing.