Sentencing in historic sexual offence cases
The Court of Appeal recently rejected the appeal by Max Clifford against his sentence for historic sexual offences. The appeal was mainly based upon complaint that the sentences passed did not reflect those prevailing at the time the offences were actually committed.
The sentence received was a total of eight years for eight counts of indecent assault contrary to s14(1) of the Sexual Offences Act 1956.
Under the current sentencing guidelines issued by the Sentencing Guidelines Council the courts are urged to consider the sentences imposed for equivalent sentences now when considering conduct that constituted a different type of offence historically.
“..the court should have regard to any applicable sentencing guidelines for equivalent offences under the Sexual Offences Act 2003”
There were various complaints about the approach to this sentence but most notably, the approach to counts 5 and 6 was submitted to be inappropriate. The sentencing Judge approached these counts, which involved the performance of oral sex, as equivalent to offences of rape in the modern era and thus the sentences imposed were excessive due to the disparity between the maximum sentence for offences of indecent assault back in 1977 and the maximum sentence for offences of rape in 2014.
The appeal was eventually rejected with some interesting observations by the Court of Appeal, most notably their view that the Judge was entitled to treat some of the offences as serious as rape and also to draw attention in this way to the gravity of the offending by modern standards.
In rejecting the appeal the Court also rejected the submission that the approach to the sentence was in breach of the spirit of article 7. It was not technically in breach of article 7 as each sentence did not exceed the maximum available in 1977 – but the aggregate total was submitted to be manifestly excessive. It was submitted on Mr. Clifford’s behalf that this approach had offended the spirit of article 7 and had also breached the principles guarding against a retrospective approach. The Court of Appeal had no hesitation in rejecting this submission but in doing so arguably did undermine the spirit of article 7 by stating that the court was entitled to reflect modern attitudes to historic offences.
It would seem clear then that defendants faced with allegations of historic sexual offences should be advised that such an approach to sentence is likely to be upheld.