Passing sentence

Both the sentencing remarks of the trial judge in the case of R v Maxwell Clifford [2014] and those of Lord Justice Treacy in Clifford’s appeal should, ironically, be essential reading for anyone who works in crisis PR, as well as for criminal practitioners.

Clifford was sentenced to eight years’ imprisonment for a string of historic sexual offences committed on minors between 1977 and 1984. Before the sentence was passed, there was much media speculation over how His Honour Judge Leonard would negotiate the two competing sets of statutory sentences: those that are currently in force and those that were in force at the time Clifford committed his crimes. Appendix B to the Sentencing Council’s guidelines for historic sexual offences instructs judges to sentence in accordance with the contemporary sentencing regime, while capping the sentence at the statutory maximum at the time of the offences’ commission. Under the old guidelines, crimes such as sexual assault (known at the time as indecent assault) would only have attracted a sentence of two years. Today, the same crime could lead to imprisonment for up to ten years.

Clifford’s behaviour during the trial was also potentially relevant: he was reported to have laughed and shaken his head while victims were giving evidence, and was accused of ‘clowning around’ outside the court. HHJ Leonard, in his sentencing remarks, made clear that Clifford’s “contemptuous attitude is something that I shall take into account in sentence” (paragraph 20).

This ruling gave criminal practitioners serious cause for concern, given that such behaviour is not surprising during a contested trial. To punish Clifford for his public denials and visible displays of disbelief appeared to give undue weight to public outrage and his victims’ feelings, and to ignore the rights and freedoms of the defendant.

Following the expected appeal against sentence, the Court of Appeal held that HHJ Leonard was wrong to have treated Clifford’s behaviour on the steps of the court as an aggravating factor, and yet refused to reduce the overall sentence.

Treacy LJ said: “The judge had regarded this behaviour as something designed to trivialise the trial. Whilst many would describe such antics as ridiculous, there was no evidence that the victims were aware of this conduct and the matter had not been dealt with as a contempt of court.

In the circumstances we do not think that this clowning should have been reflected in sentencing save in relation to withholding mitigation [...] Although the judge below fell into error, it does not affect what was in fact a just and proportionate sentence; taking account of considerations of harm and culpability together with aggravating factors and such mitigation as was available to the appellant,” (paragraphs 60-61 and 67).

In sum, it was held that Clifford’s extra-trial behaviour should have no impact on the sentence, save as to remove the opposite behaviour as a potential mitigating factor. This was received by many as a logical decision, and yet it raised questions as to why the overall sentence was not reduced, given the removal of an aggravating factor.

Clifford’s celebrity status was a prominent feature of the prosecution case: he abused his position to access vulnerable victims and relied upon it to ensure they kept quiet. In addition, Clifford’s fame gave him a platform from which to make pronouncements about the trial, which the non-celebrity defendant just would not have. It seems that Clifford, who frequently advised those accused of serious crimes during his lengthy PR career, could have done with some of his own advice.

New domestic violence offence

In December 2014, the home secretary, Theresa May, announced the government’s intention to introduce a new offence of ‘coercive and controlling behaviour’. This is the first piece of legislation to explicitly address the non-physical elements of domestic abuse; before now prosecutions had relied on existing offences such as harassment or stalking. The offence aims to cover instances of emotional and financial control, as well as limits on a partner’s socialising or contact with others. On conviction, an offender could face up to five years’ imprisonment and a fine.

The proposal follows a report produced by Her Majesty’s Inspectorate of Constabulary (HMIC) in March 2014, which concluded that police treatment of alleged domestic violence victims was ‘alarming and unacceptable’. All too often, victims were not believed, police units did not have the appropriate resources to handle their complaints, or there were vast disparities in the charging of perpetrators. According to research by Lancaster University, since 2010 one in six specialist domestic violence refuges has been lost due to funding cuts and 48 per cent of the 167 domestic violence services in England are running their services without government funding. It is clear that action is required, but is new legislation the answer?

The government’s own website on the proposed legislation states as follows: “The new law will help protect victims by outlawing sustained patterns of behaviour that stop short of serious physical violence, but amount to extreme psychological and emotional abuse”.

Under this definition, it is difficult to see a clear distinction from the existing crime of harassment. Both offences fall short of physical violence, both are intended for their psychological effect (to ‘produce alarm or distress’ which is ‘oppressive and unreasonable’ in the case of harassment, following Thomas v News Group Newspapers Ltd [2001]), and both require repeat behaviour on the part of the perpetrator (Pratt v DPP [2001]). If anything, the new offence is a more nebulous concept; while the government envisages its use as a tool against the tyrant spouse who controls his or her partner’s bank account, controls when the victim sleeps and eats, or denies them the opportunity to meet friends or engage in hobbies, it may very well be adopted by petty-minded litigants claiming that any kind of unsatisfactory domestic scenario meets the elements of the offence. On the other hand,
it may be useless for those in whom these aspects
of an imbalanced and unequal relationship are ingrained, who are unable to identify their victimhood with the language of the offence.
It remains to be seen how the legislation will be drafted, but such an offence will need to be extremely carefully considered to ensure that it does not duplicate existing legislation and that it has the intended effect.

Dishonest behaviour

On 15 December 2014, it was announced that the notorious fare-dodger Jonathan Burrows, a former Blackrock investment manager, had been banned by the Financial Conduct Authority (FCA) for dishonest conduct in his personal life. Burrows admitted that he had “evaded his train fare on numerous occasions and had done so in the knowledge that he was breaking the law”. This is only the second time that the FCA has banned someone from working in the financial services for behaviour not related to their job – the first was Anthony Verrier, who was banned after the High Court ruled in Tullett Prebon plc v BGC Brokers LP [2010] that Verrier had deliberately lost Blackberrys which might contain inconvenient material, and that “in his evidence Verrier stuck to the truth where he was able to, but departed from it with equanimity and adroitness where the truth was inconvenient”. 

Both of these cases show that the FCA will take a broad view when determining what it should take into account when establishing the fitness and propriety of an approved person. The Fit and Proper Test for Approved Persons (FIT) criteria 2.1.3 G sets out 13 areas to which the FCA will have regard, including whether someone has been convicted of a criminal offence, the subject to an adverse finding in civil proceedings, or the subject of, or interviewed in relation to, an investigation. However, importantly, a criminal conviction does not necessarily mean that the FCA will not approve a person as fit and proper. Verrier made representations to the FCA that the matters which were the subject of the civil proceedings did not cause any detriment to consumers and were not related to a regulated activity, but the FCA rejected this, making clear that they were entitled to take into account ‘all relevant matters’. In Burrows’ case, the FCA took into account the fact that he had not disclosed the initial investigation by a revenue protection officer into his fare evasion to his employer when deciding what action to take.

Following the announcement of Burrows’ ban, the FCA’s director of supervision and authorisations, Tracy McDermott, said: “Approved persons must act with honesty and integrity at all times and, where they do not, we will take action.”

What these cases demonstrate is the importance of regulated persons, or formerly regulated persons, seeking legal advice from specialist lawyers if they become the subject of any investigation, or any activity which could be regarded as affecting their fitness or propriety, even if it is entirely unrelated to their job in the financial sector. Early advice on whether and how such activities should be disclosed to the regulator and employers could mean the difference between a ban and some other lesser sanction.SJ

Catherine Fischl, pictured, is an associate and Kate Parker is a paralegal at Peters and Peters