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