The publicist Max Clifford has been convicted by a jury of offences of indecent assault on teenage girls dating back to 1977. The facts read like an aggressive Benny Hill show where Max Clifford used his position of trust to abuse teenage girls in the context of the euphemistic casting couch. He will be sentenced on Friday.
- This blog originally appeared on the Sexual Offence handbook blog HERE. The Sexual Offences Handbook is a practitioner text containing all the law, practice and procedure in England and Wales since 1957
- Pic from Flickr under Creative Comms by Meg Mallen
An indecent assault under the law of the time (which applies here) can cover both penetrative and non-penetrative conduct from touching breasts to oral sex. For sentencing purposes the max sentence (if you’ll pardon the pun) for each count prior to the 16 September 1985 is five years if the girl was under 13 and otherwise two years. After that date it was 10 years.
Things are very different now but the sentencing judge is stuck with the old law
Indecent assault trials are never easy. They are always historic and depend on witness memories as well as supporting evidence (if available). It is for a jury to decide whether right-minded persons would consider the conduct indecent or not. They should be directed to decide whether what occurred was so offensive to contemporary standards of modesty and privacy as to be indecent, taking into account the relationship between the complainant and the defendant and how or why the defendant had embarked on this conduct or behaved in this way. This will be fairly straightforward where genitalia are touched. In relation to other parts of the body much will depend on the surrounding circumstances.
A girl under 16 cannot consent to an indecent assault. If an indecent act occurred, the offence is committed regardless of consent. Where the complainant is over 16, consent is a defence since there will have been no assault. Equally, if the defendant believes that the woman is consenting he will not be guilty. It is for a jury to decide whether the complainant consented using their good sense and experience. Submission is not consent. Annex B to the new Sentencing Council Definitive Guideline deals with sentencing historic for offending. It reads as follows:
When sentencing sexual offences under the Sexual Offences Act 1956, or other legislation pre-dating the 2003 Act, the court should apply the following principles:
1. The offender must be sentenced in accordance with the sentencing regime applicable at the date of sentence. Under the Criminal Justice Act 2003 the court must have regard to the statutory purposes of sentencing and must base the sentencing exercise on its assessment of the seriousness of the offence.
2. The sentence is limited to the maximum sentence available at the date of the commission of the offence. If the maximum sentence has been reduced, the lower maximum will be applicable.
3. The court should have regard to any applicable sentencing guidelines for equivalent offences under the Sexual Offences Act 2003.
4. The seriousness of the offence, assessed by the culpability of the offender and the harm caused or intended, is the main consideration for the court. The court should not seek to establish the likely sentence had the offender been convicted shortly after the date of the offence.
5. When assessing the culpability of the offender, the court should have regard to relevant culpability factors set out in any applicable guideline.
6. The court must assess carefully the harm done to the victim based on the facts available to it, having regard to relevant harm factors set out in any applicable guideline. Consideration of the circumstances which brought the offence to light will be of importance.
7. The court must consider the relevance of the passage of time carefully as it has the potential to aggravate or mitigate the seriousness of the offence. It will be an aggravating factor where the offender has continued to commit sexual offences against the victim or others or has continued to prevent the victim reporting the offence.
8. Where there is an absence of further offending over a long period of time, especially combined with evidence of good character, this may be treated by the court as a mitigating factor. However, as with offences dealt with under the Sexual Offences Act 2003, previous good character/exemplary conduct is different from having no previous convictions. The more serious the offence, the less the weight which should normally be attributed to this factor. Where previous good character/exemplary conduct has been used to facilitate the offence, this mitigation should not normally be allowed and such conduct may constitute an aggravating factor.
9. If the offender was very young and immature at the time of the offence, depending on the circumstances of the offence, this may be regarded as personal mitigation.
10. If the offender made admissions at the time of the offence that were not investigated this is likely to be regarded as personal mitigation. Even greater mitigation is available to the offender who reported himself to the police and/or made early admissions.
In Attorney-General’s Reference No 38 of 2013, the court considered the 15-month sentence imposed on the former BBC broadcaster Stuart Hall. Hall was sentenced for 14 counts of indecent assault on thirteen girls aged nine to 17 years old between 1967 and 1985-6. The activity included digital penetration of a 13-year-old girl who had been drinking alcohol and entering the bedroom of a nine-year-old girl who was staying at his house, placing his hand on her bare leg and moving it towards her naked genitalia. The Court increased the 15-month sentence imposed in the Crown Court to one of 30 months. The Court was keen to stress the effect upon the victims. Additionally, the court appeared to aggravate the sentence having regard to the ‘manipulation of the media’ in Hall protesting his innocence to the press prior to pleading guilty.
In the end the judge will have to look at the case in the round. Unlike Stuart Hall there will be no discount for a guilty plea although Hall’s victims were younger and he was older and more infirm at the time of sentence. The result could be the same or possibly a bit less, possibly a bit more for Max Clifford and he will serve half that period of time. A conviction for this offence automatically triggers notification on what is known as the sex offenders register but not for long if the sentence is low. A conviction or caution for this offence will result in the offender’s inclusion on the adult and child barred list subject to the consideration of representations. It may lead to a sexual offences prevention order preventing him working with children but only if the complainant was under 18. The consequence could be that after a short time in custody he could be back at work and will be able to do his own PR.
Felicity Gerry QC
Felicity Gerry is a high profile criminal barrister and author specialising in serious fatal, sexual and violent offences. She is the co-author of The Sexual Offences Handbook and also a legal media commentator.