Max Clifford was convicted on 28th April 2014 of eight counts of indecent assault against four different victims. Sentence was adjourned (with Mr Clifford on bail) until today, 2nd May.
We had predicted a sentence in the region of 3½ years. So, how did we do?
Badly it seems. The total sentence was 8 years (plus costs of £55,000). This was over double the maximum we had suggested. The full remarks are here and bear reading. We will add to this post during the course of the afternoon.
Mr Clifford was sentenced as follows (date and age of victim in brackets) :
- Count 3 – (aged 15, in 1977/78) – 12 months
- Count 4 – (aged 15, in 1977/78) – 18 months, consecutive
- Count 5 – (aged 15, in 1977/78) – 24 months, consecutive
- Count 6 – (aged 15, in 1977/78) – 24 months, concurrent
- Count 8 – (aged 19, in 1981/82) – 6 months, consecutive
- Count 9 – (aged 16 or 17, in 1980′s) – 6 months, concurrent
- Count 10 – (aged 16 or 17, in 1980′s) – 21 months, consecutive
- Count 11 – (aged 18, in 1984/85) – 15 months, consecutive
The individual sentences are not far off what we had predicted,but the total is, as we said, double what we had predicted.
What did the Judge look at when considering the sentence?
The Judge will no doubt have re-read the Court of Appeal’s decision in the Stuart Hall Attorney General’s Reference case, where Hall’s sentence was doubled from 15 months to 30 months for a number of indecent assault offences. As we have previously commented, that judgment was largely devoid of any reasoning for the increase. See our posts here and the judgment here.
The Judge will also have considered the new sentencing guidelines for sentencing sexual offences which contains a section on historical sexual offences at Annex B. He may well have considered some case law on similar offending, however the starting point will have been the guidelines.
It was reported that the Prosecutor had suggested to the Court that the Clifford’s protestations of innocence shd be an aggravating feature as it caused distress to victims“. This is something that had first been featured in the Stuart Hall case. It is a slightly worrying trend – it has always been a principle of English law that to plead not guilty and have a trial is not an aggravating feature, and it is of concern that someone could be penalised for robustly stating their innocence.
The Judge did state this (paras 19-20) : “She has been extremely upset by your public denials before trial, the reports of your attitude during trial – laughing and shaking your head in the dock at the accusations made against you. For my part I would add something that since the jury have returned verdicts I have discovered that you appeared behind a reporter outside this court whilst he was making his report of your evidence and during which you mimicked his actions in a way that was designed to trivialise these events. I find your behaviour to be quite extraordinary and a further indication that you show no remorse.
20. Whilst there is a difference in degree between your reaction to what then were allegations of indecent assault and those of a defendant who makes public denials and then pleads guilty, this additional element of trauma caused by your contemptuous attitude is something that I shall take into account in sentence“
This is something that does still troubles me. Someone who pleads not guilty and has a trial (as it the right of all of us) won’t get credit for a plea of guilty, but should not be penalised for exercising a fundamental right. What happened outside the courtroom seems to bear little relevance to the issues, and a defendant shaking his head is to be expected. Laughing at the victim is obviously a different matter, but the details aren’t clear.
Another controversial aspect (that will feature in an appeal) is that the Judge (paras 21-22) took account of matters which were not charged. That does run contrary to the general rule that someone should only be sentenced for offending that they admit, or which is proved against them.
There was mitigation – charity work done by Mr Clifford and an underlying medical condition were the main points focussed on by the Judge, but he took the view that this was far outweighed by the aggravating features – multiple victims over a period of 7 years that was targeted against vulnerable women.
The Judge then stated that he would be passing consecutive sentences and have regard to totality, passing the sentences stated above. There is nothing wrong with that, but we would suggest that the overall sentence is simply far too long.
Whilst 8 years for this sort of offending nowadays would be low (and potentially could be appealed by the Prosecution), we have to repeat that the maximum sentence for each offence was 2 years. The problem was that Parliament did not take this sort of sexual offending anywhere near as seriously as it taken now. Judges have a difficult balancing exercise here, but it is wrong to try to make up for the mistakes of the past by sentencing contrary to the proper principles.
Will Clifford appeal?
Yes. Almost certainly. He has nothing to lose (but a stack more cash). For my money, I would not expect a particularly sympathetic Court of Appeal, especially considering the result in the Stuart Hall case (see our post here for more details as to why), but I think that it will be difficult for the appeal to be dismissed.
The Judge here has put the Court of Appeal in a tricky position. The sentence is clearly manifestly excessive on the law as it was at the time (I don’t think that there’s much doubt about that) but politically it will be difficult for them to reduce the sentence, less still halve it, in such a high profile case.
He may well attempt to appeal against conviction, however we are unaware of any grounds on which to do so, based on media reports of the trial. It was reported by Danny Shaw of the BBC that his lawyers were contemplating an appeal against both conviction and sentence.
We have a fact sheet as to how people are sentenced for historic sex cases.
There was one count on which the jury could not agree, and the CPS announced today (in a move that surprised nobody) that Mr Clifford would not face a re-trial on this. That is very sensible – it would be a waste of money and if convicted, then Mr Clifford would not get a higher sentence. In those circumstances, all it would cause is further grief and stress for the complainant with no benefit. In any event, it is unlikely that Mr Clifford would be able to receive a fair trial on that allegation given the recent publicity.