The two terms used are the terms used by the Court of Appeal when deciding whether an appeal against a sentence should be allowed by a defendant and a prosecutor respectively. Max Clifford is a man who arouses strong emotions, and there were many who felt a certain level of schadenfreude at his downfall. But a basic principle of law is that all should be treated equally, at least in the sense that nobody should be getting special favours (or special treatment the other way).
The reaction to Mr Clifford receiving eight years in prison appears to have divided the public, at least in the sense that many ‘lay’ people feel that the sentence is richly deserved, and possibly not long enough. At the same time, most lawyers were shocked at the length (I was certainly in that camp – my prediction was no more than three and a half years).
Looking at the offending through modern eyes (and you can read the sentencing remarks of HHJ Leonard QC here that sets out the offences in detail) the seriousness is clear. If Clifford was charged under the Sexual Offences Act 2003 (the current law) then he would probably be facing two charges of rape and one of assault by penetration that have a maximum sentence of life imprisonment on top of other offences that have top limits of 10 and 14 years.
For what he was convicted of doing, Clifford would have got a sentence of about ten to 12 years if these offences were in the last decade (instead of the period of 1977-1984). On that basis, the sentence of eight years looks quite light.
What’s the problem? The problem is that at the time that the offences happened, digital penetration of a woman’s vagina was indecent assault (now Assault by Penetration with a maximum of life). Penetration of a woman’s mouth with a penis was indecent assault (now Rape, again maximum of life). Even the ‘replacement’ offence of Sexual Assault has a maximum sentence of 10 years.
And the maximum sentence for indecent assault? Two years in prison. A basic rule of law is that you cannot have retrospective punishment – i.e., you cannot be convicted for something that was not a crime when it happened. Also, you cannot get a higher sentence now if you happened to be sentenced later in time when the maximum sentence has changed.
So, in Clifford’s case, taking the penile penetration of one victim’s mouth, he could not be charged with rape because at the time (1977) rape was limited to penile penetration of a vagina. The only offence with which he could be charged was indecent assault.
But, there were eight counts that he was convicted of, so couldn’t the judge just give him the maximum on each count and then make them consecutive? This would give a sentence of 16 years to play with?
Unfortunately, it doesn’t work like that.
Some of the offences would merit less than two years, even if committed today. But, more importantly than that, although a judge when sentencing should start by working out what the person in front of him should get if he were sentenced today, he must respect the sentencing structures that were in place at the time. This is a difficult, and somewhat bizarre, exercise for a judge to do.
The judge must look at ‘totality’ – in other words when he has worked out the individual sentences that he would pass, he has to step back and see if the total sentence is right. Whilst this may seem odd, it does make sense.
To use an example far removed from this case, if someone goes out and steals a sandwich from Sainsbury’s, then half an hour later a drink from Tesco’s and half an hour after that something from Boots, then this is three separate offences of theft. It would obviously be wrong however to take the appropriate sentence for each and just add them together, you have to take a ‘global approach’ and decide what sentence the course of conduct merits. Generally speaking, as more offences are committed, whilst these add to the seriousness and the length of the sentence, they add proportionately less to the sentence – sentencing multiple offences works on a logarithmic scale if you like.
This applies to Mr Clifford’s case. It was for this reason that the estimates of the likely sentence that he would receive were in the region of three to four years.
The sentencing judge has gone off piste here. There will undoubtedly be an appeal by Clifford against this sentence, it will be over to the Court of Appeal to decide what to do.
I don’t envy them – the usual rules would mean the sentence should be reduced, but this is an appeal that will have a lot of attention from a public who will not want to see Clifford get any less than he has got.
Dan is a barrister at 2 Dr Johnson's Buildings practicing mainly in criminal and immigration law. You can follow him on Twitter (@danbunting)