Max Clifford appeal against sentence – Judgment reserved

Max Clifford appeal against sentence – Judgment reserved

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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.

6 COMMENTS

  1. He’d have a lower sentence to start with had he pleaded guilty and spared his victims the ordeal of a trial.

  2. A question….

    We see time and again very serious criminals (murderers, armed robbers etc) serving sentences ‘concurrently’ yet Clifford gets ‘consecutive’ sentences. How come ?

    Is this the celebrity factor coming into play again and the judge going out of his way to treat Clifford differently ?

    OK thats two questions !

    • Sorry about the delay.

      Concurrent vs. Consecutive – principle dictates that consecutive sentences are imposed when offences are committed against different victims (otherwise, the system would operate in a sort of ‘buy one, get one free’ manner). As for murders, because of the nature of the sentence (i.e. life, where it requires the parole board to assess the risk posed by the offender upon the expiration of the minimum term), it makes practical sense to impose a global sentence to reflect all offending (where there is more than one offence). In many murder cases, there is only one offence, or lesser offences are subsumed by the lead sentence on the murder count.

      As for armed robbers, what happens in practice is they in fact serve consecutive sentences; one sentence for the robbery and one for the possession of the firearm. However, in the rare cases where that is not the approach of the judge, the sentence imposed will reflect all the circumstances (robbery+gun) and so you can see that it is the overall total which matters, not the make-up of the sentences.

      The reason why consecutive sentences are used is so that individual victims do not feel that one offence is ‘worth’ more than another; how would you feel if you were one of two victims and the judge imposed 3 years on the count in relation to victim 1 and no separate penalty in relation to victim 2 (you)?

  3. Clearly rape and sexual assault isn’t a “serious crime” according to some unless of course you are the victim and or not a rape apologist then it’s up there with all those others. Make an example of those who believe that their celebrity/notoriaty will always buy them a get out of jail free card. It protected Savile but slowly, slowly the house of cards is crumbling

  4. @LES

    I write here as Captain Sensible, but in reality I’m………….Judy Finnegan.

    It was, and still is a question about sentencing which normally M’learned friends on here are quick to discuss, but not on this occassion apprently.

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