On Friday 26 April 2013, Max Clifford the well known PR consultant, was charged with a series of sexual offences.
What do we know?
The BBC News report is here.
Clifford, aged 70, was arrested in Operation Yewtree, which was set up after allegations were made against Jimmy Savile. Clifford’s arrest has nothing to do with Jimmy Savile, however the allegations became known to the police as a result of the publicity surrounding Savile.
It is alleged that Clifford committed 11 offences of indecent assault against seven women between 1966 and 1985. The youngest alleged victim was aged 14. Clifford denies all charges.
Indecent assault is an offence under Sexual Offences Act 1956:
(1) It is an offence, subject to the exception mentioned in subsection (3) of this section, for a person to make an indecent assault on a woman.
(2) A girl under the age of sixteen cannot in law give any consent which would prevent an act being an assault for the purposes of this section.
The offence was repealed in 2004 when the Sexual Offences Act 2003 came into force.
Clifford is able to be charged with indecent assault as the offence still applies to offences committed before the appeal. (There is nothing in the Act itself which deals with this situation, and so liability for acts prior to the repeal derrives from the Interpretation Act 1978 s 16(1)(c) and (e).)
There have been no more details released about the allegations.
Mr Clifford was later released on bail and is due to appear at Westminster Magistrates’ Court on 28 May.
Are things different because the offences happened so long ago?
Well, the simple answer is yes. But the situation is a fusion of ‘then and now’.
We wont deal with the specifics of Clifford’s case as a) it is inappropriate and b) we don’t really know very much.
Let’s deal with a trial first.
Where there are allegations of historic sexual abuse, the applicable law is that which was current at the time. In terms of the substantive law, the court ‘looks back’ to the date of the offence(s).
Why is this? Well, it would not be fair for a person to be guilty of an offence which was not an offence at the time they committed the relevant act. If, on Tuesday, Parliament enacted a law that criminalised the wearing of red t-shirts, would it be right that someone who wore a red t-shirt the previous day is guilty of an offence? Clearly not.
In such cases, there are potential issues surrounding abuse of process – it is often argued that the defendant cannot receive a fair trial as the conduct took place such a long time ago.
So if the hypothetical offence took place in 1964, the trial proceeds as if it was 1964?
Not quite. The procedure for the trial will be the same as it is today.
Click here for an explanation of the procedure in the Crown Court.
And what about the sentence?
Here are some basic principles from the guideline case on sentencing historic sexual offences, R v H 2012 2 Cr App R (S) 21:
1) The offence of which the defendant is convicted and the sentencing parameters (in particular, the maximum available sentence) applicable to that offence are governed not by the law at the date of sentence, but by the law in force at the time when the criminal conduct occurred.
2) Article 7(1) of the European Convention of Human Rights prohibits the imposition of a heavier penalty than one “applicable” at the time when the offence was committed.
3) Although sentence must be limited to the maximum sentence at the date when the offence was committed, it is wholly unrealistic to attempt an assessment of sentence by seeking to identify in (2013) what the sentence for the individual offence was likely to have been if the offence had come to light at or shortly after the date when it was committed.
4) Similarly, if maximum sentences have been reduced, as in some instances, for example theft, they have, the more severe attitude to the offence in earlier years, even if it could be established, should not apply.
5) As always, the particular circumstances in which the offence was committed and its seriousness must be the main focus. Due allowance for the passage of time may be appropriate. The date may have a considerable bearing on the offender’s culpability.