THE BLOG
05/05/2014 07:12 BST | Updated 03/07/2014 06:59 BST

How Max Clifford Changed the Law

Max Clifford was sentenced to 8 years imprisonment on Friday 2nd May 2014. He was convicted by a majority verdict of offences of indecent assault against children and young women aged 15 to 19. Under the modern law post the Sexual Offences 2003, if this were recent conduct, some charges would be oral rape and the maximum would be a life sentence so the total sentence for Max Clifford is a bit low by modern standards. However, all of the offending took place before 1985 when the maximum sentence for each offence was 2 years. This maximum reflects the lack of value given to girls and young women by Parliament in the past. On current law and principles it is an excessive sentence for an historic offence, think 2.5 years for Stuart Hall in relation to much younger children. The sentence for Max Clifford was achieved by adding up penalties in a US style manner following new sentencing guidelines issued this month. These guidelines suggest that old cases can be sentenced according to the modern approach. The facts of the offences include oral rape, lying on top of a young woman who was not consenting and sexually touching her. She gave evidence that she thought she was going to be raped. There were other indecent assaults on other young people which included forced masturbation. He had bad character, in the sense that evidence was also called, that was not the subject of a charge, that he had sexually touched a 12 year old child in Spain many years ago. He also demonstrated a lack of remorse in his behaviour outside court. I anticipate there will be an appeal and it would be helpful if it is heard quickly as the new approach signalled by HHJ Leonard QC makes it difficult to advise anyone on the likely sentence. English law and the European Convention on Human Rights have long recognised that a heavier penalty should not be imposed than one that was applicable at the time the offence was committed although, if the sentence is reduced on appeal, no doubt someone will blame "Europe". To get around this principle the sentencing judge imposed individual sentences less than the statutory maximum of 2 years and added them all up. By doing this he gave primacy to the new tough guidelines issued by the Sentencing Council over Parliamentary statute and principles of totality. It is an interesting legal point on retrospecitivity which will not interest most members of the public. It is hard to say which is the most gruesome, the offending by Max Clifford or the outpouring of hatred of him in mainstream and social media. However, people are not sentenced just because they are odious, we have to have regard to the rule of law and legal principle in order not to clog the courts with defendants who refuse to plead guilty because of the potential sentence. Max Clifford's legal team have a short time to appeal. They will decide whether the convictions can be appealed because the evidence of the then 12 year old was admitted and then go on to think about whether the sentencing approach was correct. In the meantime, we lawyers all have cases awaiting trial and sentence where the advice on sentence will have to be doubled