The sentencing of Max Clifford at Southwark Crown Court on 2nd May 2014 provides a useful illustration of how the criminal courts will be applying the new definitive guidance from the Sentencing Council which applies to all persons who are sentenced for sexual offences after 1st April 2014 whenever such offences took place.
Mr. Clifford was convicted of eight offences of Indecent Assault which took place between thirty and thirty-seven years before he was sentenced in respect of them. How then did the court approach the issue of sentence for such old offences?
As noted by the sentencing judge, all of the offences were contrary to a statute which was passed in 1956 when the maximum sentence for an offence of Indecent Assault was two years’ imprisonment. The new definitive guidance reminds us that an offender cannot be sentenced for an offence committed under old legislation to a sentence any higher than the relevant maximum sentence at the time. It is for this reason that all of the sentences which Mr. Clifford received for each individual offence, which ranged from between 6 and 21 months depending on the seriousness of each offence, did not (and could not as a matter of law) exceed two years.
In sentencing Mr. Clifford to the total sentence of eight years it seems that the sentencing judge very much had in mind the new definitive guidance which makes it clear that it is the current guidance that should be taken into account even when sentencing for old offences. What this means in effect is that whilst Mr. Clifford was sentenced for offences committed a long time ago when such things were not taken as seriously as they are today he was sentenced on the basis of the current approach to the seriousness of his offending and not that which applied at the time the offences were committed.
The difference between the current approach to such sentencing and that which applied many years ago is clearly shown by the fact that whilst all of the offences committed by Mr. Clifford had two year maximum sentences at the time they were committed some of them would today have been charged as offences of Rape and Assault by Penetration for which the maximum sentence is life imprisonment. Whilst this clearly did not mean that Mr. Clifford could have been sentenced to life imprisonment it did mean that the sentencing judge was able to take account of the current sentencing climate when in sentencing Mr. Clifford.
It also seems clear that the sentencing judge took full account of the psychological trauma suffered by the victims as the new definitive guidance required him to do to a perhaps greater extent than those that they replaced. It is probably the case that very much less consideration was given by the courts to such things at the time that the various offences were committed. This seems to be a good example of just how much society’s attitudes to such things have changed over the years.
The sentencing judge also seems to have taken account of the extent to which Mr. Clifford had, on the basis of the various guilty verdicts, groomed some of his victims which is an aggravating feature in such offending that has perhaps only been recognized in the relatively recent past.
Clearly the way that the judge arrived at the total sentence of eight years was by imposing on a series of consecutive sentences which when added together amounted to the sentence of eight years. Having done this the sentencing judge then had to consider the totality of the sentence that he had to pass and it seems from his sentencing remarks that one factor that he took into account was that had he been sentencing Mr. Clifford for even a single offence of Rape of a young and vulnerable victim in today’s sentencing climate he doubted that the overall sentence would have been any less than eight years.
I understand from press reports that Mr. Clifford is considering an appeal, although it is not clear to me whether this is against conviction or sentence or both. Should there be an appeal against sentence it will be interesting to see whether the Court of Appeal seek to interfere with the sentence imposed by the sentencing judge or are of the view that it was not in any way excessive, taking into account the new definitive sentencing guidance.
Andrew J Hobson
Solicitor Advocate
3rd May 2014
