Tag Archives: Max Clifford

Historic sexual abuse allegations

 

What are we talking about?

These are cases in which there are allegations of sexual abuse which occurred decades ago. Frequently these can include repeated abuse over a significant period of time, with numerous victims.

Often, the victims are young, vulnerable individuals.

There is usually a degree of breach of trust in such cases, and

It is common for the abuse to be centred around an institution such as a school or church, or within a family.

Should they be prosecuted? It is a very long time ago.

It can be difficult to ensure that a defendant receives a fair trial if the allegations concern conduct 30 or 40 years ago. The situation, as one would imagine, is complicated.

Nick Ferrari, presenter on LBC radio, said this week, ‘I can’t remember what I was doing last week. How is a defendant supposed to remember an incident 30 or 40 years ago?’. Whilst many sympathise with this view, the question must be asked whether the passage of time negates the need to detect, investigate and prosecute serious crime.

In April 2013, the Chief of the Met Police stated that they would continue to look for the other men involved in Stephen Lawrence’s murder, 20 years after the event. No one would suggest that that course of action is wrong, so why should police and the CPS not investigate and prosecute allegations of serious sexual abuse?

The courts will take every step to ensure that the defendant receives a fair trial. The judge will ensure the jury are properly directed on the law and the evidence and will remind them of the difficulties of historic cases – particularly when it comes to ‘his word against hers’ (as so often is the case).

What about the delay in reporting? Does this suggest they are lying?

CPS Guidance on the topic states:

“It is now widely accepted that delay in reporting is not indicative of a false allegation and prosecutors should be proactive in encouraging the police to investigate thoroughly to uncover any available supporting evidence. Not surprisingly victims may have problems recalling the precise details of each and every incident, especially in relation to dates.”

There can be many reasons why a complainant may not report such abuse until years – even decades – after the event. These can include fear of not being believed (certainly in the case of a prominent public figure) and an unwillingness to relive the incident.  In the Stuart Hall case this week, we have seen reported that numerous complainants – unconnected to one another – came forward after hearing of the initial allegations against him.

A delay in reporting abuse of course does not mean a complainant is lying, but there are added complications when the incident is alleged to have happened so long ago.

What about defendant anonymity? If they are acquitted, their reputations are ruined.

This a tricky question.

On the one hand, there are strong arguments to say that because of the reputational damage caused by such serious allegations – irrespective of whether they are proven or not – there should be anonymity for those accused of such crimes.

Some say, this should merely extend to when a defendant is charged, as at that point, the CPS have taken the decision that there is sufficient evidence to prosecute etc.

Others say this should extend to conviction, as the reputational damage is the same even if a defendant is not named until they are charged.

On the other hand, one cannot deny the importance of encouraging victims of historical abuse to come forward. The Stuart Hall case provides a persuasive example. Had his name not been published, then it may be that the allegations would have resulted in only 3 charges rather than 14 being brought. Indeed, one complainant said she only came forward after hearing about Stuart Hall’s arrest on the radio.

So, what is the solution?

Well, better reporting of acquittals and defence cases in trials such as this would go some way to reducing the reputational damage caused by unproven allegations. With a bit more information, and a little bit of education, the wider public may understand that arrested and charged means only that an allegation has been made and the CPS consider that a) there is a realistic prospect of conviction and b) it is in the public interest to prosecute.

However, there remains the ‘no smoke without fire’ mentality which is damaging.

Mark George QC wrote on defendant anonymity here, earlier this year.

Here is an article on ‘The right to know’ in today’s Telegraph.

Current practice in naming suspects

The following is a quote from a BBC article (3 May 2013).

“When someone is arrested for an offence – and the incident appears to be newsworthy – journalists will try to establish what has happened. That ultimately means trying to establish who has been arrested, because journalists want their reporting to be accurate.

But the police’s position in relation to names is shifting in the wake of the Leveson Inquiry report.

Lord Justice Leveson said that arrested suspects should not be named “save in exceptional and clearly identified circumstances”.

Current practice is that a police force issues a statement along the lines of a “A 34-year-old man has been arrested on suspicion of such-and-such a crime”.

What happens next varies from force to force. Some will informally confirm the name of the person arrested if journalists have worked it out for themselves. Some won’t.

Police chiefs want to introduce an official policy under which forces would “neither confirm nor deny” (NCND) the name of anyone arrested.”

Sentencing

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.

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Max Clifford charged with historic sexual offences

Max Clifford

 

 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.

Image from The Guardian