Should lawyers be alarmed by a new sentencing principle established in the Max Clifford case?

Max Clifford was convicted of eight counts of indecent assault and sentenced to eight years. Earlier this month the Court of Appeal heard his appeal against sentence.

One of his complaints was that the judge had wrongly taken into account Clifford’s conduct around the trial. In his sentencing remarks, it was evident that the judge had been so incensed about what he believed was Clifford’s frivolous PR strategy outside Southwark Crown Court that he treated it as an aggravating factor which lengthened the sentence.

The issue for the court was whether convicted defendants in criminal cases which attract mass publicity should receive heavier sentences for loudly protesting their innocence or for behaving for the benefit of paparazzi camped outside court in a way that many may find ridiculous or contemptible.

Clifford did himself no favours but there is a danger that those accused by the state of a serious crime should be denied the right to publicly defend themselves and risk punishment for using the media to proclaim their innocence. In relation to clowning out-of-court behaviour, it is easy to overlook how stressed people can act unwisely when goaded by cameras.

The appeal court differentiated two behaviours: denying wrongdoing versus traducing the complainant(s). This difference is illustrated by how Stuart Hall behaved in 2013 before pleading guilty to sex crimes. He held ‘press conferences’ outside court and denounced his victims as liars and mercenaries. The sentencing judge held that this ‘added to the distress of some if not all of your victims’ and therefore the sentence reduction for his guilty plea should be less.

The prosecution appealed his sentence as unduly lenient to the Court of Appeal. It took a sterner line, holding that because his behaviour preceded his guilty plea it amounted to ‘a deliberate falsehood’ and was ‘a serious aggravating feature’ of his crimes. The court held that a reason for its doubling of Hall’s sentence was to enable his victims to ‘feel vindicated and find some peace’.

But in Clifford’s appeal the court held that the sentencing judge was wrong to have adopted the approach taken with Hall. It said ‘great care needs to be taken by sentencing courts not to elevate denials… into something deserving of further punishment in the absence of some more explicit traducing of the victim’.

One can easily see the court’s distinction between Hall’s attack-dog PR strategy and Clifford’s approach which did not impugn his victims. The court was correct to recognise this. But it then held that while his sentence ought not to have been increased because of his conduct, this ‘would of course justify a withholding of mitigation’ because his claims of innocence and clowning behaviour showed a lack of remorse. On this basis it refused to reduce Clifford’s sentence.

Is there a difference between deeming something an aggravating feature or holding that it justifies a smaller reduction in the sentence which otherwise would have been lower? In terms of the final outcome, actual jail-time, it is likely to be immaterial.

So, despite the court apparently distancing itself from the cynicism of the sentencing judge stemming from his perception that Clifford had shown a lack of respect to him, his court and the victims, it established this precedent: if an accused, despite the welter of character-destroying allegations made against them, which may then have been endlessly paraded by the media, does anything more active than maintaining a ‘dignified silence’ then they may properly be punished for this if they later plead guilty or are convicted by a jury.

Some may regard with alarm the establishment of this sentencing principle; essentially whether the defendant showed adequate respect for the criminal justice system. Bearing in mind the presumption of innocence, it seems inapt to hold that those who reiterate that by claiming to be so should be exposed to the risk of punishment.