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R v Clifford
Factual and Procedural Background
The Appellant was convicted after a trial at Southwark Crown Court for eight counts of indecent assault contrary to section 14(1) of the Sexual Offences Act 1956, involving four victims anonymized as B, C, D, and E. The offences occurred between 1977 and 1984. The Appellant was sentenced on 2nd May 2014 to a total of 8 years imprisonment, with individual sentences for each count running consecutively or concurrently as detailed. The Appellant sought leave to appeal against the sentence, which was granted by the full court upon referral by the Registrar.
Legal Issues Presented
- Whether the overall sentence of 8 years was manifestly excessive given the statutory maximum sentences applicable at the time of the offences.
- Whether the sentencing judge erred in applying modern sentencing guidelines and principles to historic offences with lower maximum penalties.
- Whether the judge improperly took into account bad character evidence not forming part of the charges proved against the Appellant in aggravation of sentence.
- Whether the Appellant’s conduct surrounding the trial was appropriately considered in sentencing.
- Whether there was a breach of Article 7(1) of the European Convention on Human Rights by imposing a sentence reflecting a higher maximum penalty than that available at the time of the offences.
Arguments of the Parties
Appellant's Arguments
- The Appellant's counsel submitted that the 8-year sentence was manifestly excessive, noting the maximum sentence for indecent assault at the time was 2 years per count.
- It was argued that the judge erred by treating certain counts involving oral sex as equivalent to rape offences under modern guidelines, which carry much higher maximum penalties, thus leading to disproportionate sentencing.
- The Appellant contended that the sentencing judge improperly referred to modern sentencing guidelines without sufficient regard to the statutory maximums at the time of the offences.
- It was submitted that the judge wrongly took into account bad character evidence not charged or convicted, in breach of established principles restricting sentencing to proved offences.
- The Appellant challenged the judge’s consideration of his conduct surrounding the trial, including public statements and alleged courtroom behavior, as aggravating factors.
- A tentative submission was made that the sentence breached Article 7(1) ECHR, either in letter or spirit, by reflecting heavier penalties than those applicable at the time of offending.
Crown's Arguments
- The Crown submitted that the judge was entitled to refer to modern sentencing guidelines as a reflection of contemporary attitudes, provided the maximum penalties at the time were not exceeded.
- The Crown argued the judge properly considered the seriousness of the offences and the harm caused, and structured consecutive sentences to reflect overall culpability.
- Regarding bad character evidence, the Crown contended that the judge lawfully used it as context and background to inform sentencing of the offences for which the Appellant was convicted, without sentencing for unproven offences.
- The Crown maintained that the Appellant’s public denials and conduct surrounding the trial could justify withholding mitigation but should not be treated as positive aggravation unless traducing victims explicitly.
- The Crown denied any breach of Article 7(1) ECHR, citing case law supporting the use of modern guidelines at sentencing provided statutory maxima are respected.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| R v H & Others (2012) 2 Cr App R (S) 21 | Clarification that sentencing is imposed at the date of sentencing, with measured reference to relevant guidelines, respecting statutory maxima at the time of the offence. | Used to interpret Annex B of the Sentencing Council’s definitive guideline and to reject the argument that the judge erred in applying modern guidelines to historic offences. |
| R (Uttley) v Secretary of State for the Home Department [2004] 1 WLR 2478 | Support for the principle that sentencing guidelines applicable at the time of sentence may be considered without breaching Article 7 ECHR. | Supported the court’s conclusion that no breach of Article 7 occurred in applying modern sentencing principles. |
| R v Bao [2008] 2 Crim App R (S) 10 | Addressed Article 7 and the use of sentencing guidelines becoming applicable by the date of sentence. | Reinforced the court’s approach to sentencing historic offences in line with modern guidelines. |
| R v Canavan, Kidd and another [1998] 1 Cr App R (S) 243 | Established that a defendant cannot be sentenced for conduct not charged and proved against him, except where counts are representative of a longer course of conduct. | Applied to assess whether bad character evidence improperly aggravated sentence; court found error in judge’s approach but limited impact on sentence. |
| R v BDG [2003] 1 Cr App R (S) 26 | Exception to Canavan principle where defendant consents to counts representing a longer course of conduct. | Considered in evaluating the scope of bad character evidence use in sentencing. |
| R v Twisse [2001] 2 Cr App R (S) 9 | Permitted a sentencing judge to reject unrealistic mitigation based on evidence at trial. | Referenced to support the judge’s entitlement to consider trial evidence in sentencing. |
| R v Oakes and Others; R v Restivo [2013] 2 Cr App R (S) 22 | Confirmed a sentencing judge cannot sentence for unproven offences of which the defendant denies guilt, even if evidence suggests commission. | Applied to find the sentencing judge erred in taking bad character evidence as aggravating the sentence beyond the proved offences. |
| Attorney General's Reference No. 38 of 2013 (Stuart Hall) 2014 1 Cr App R (S) 61 | Public denouncements of victims may constitute serious aggravating factors in sentencing. | Distinguished from the present case where the Appellant’s statements did not explicitly traduce victims and thus did not justify positive aggravation. |
| Carroll [1995] 16 Crim App R (S) 488 | Principle that maximum sentence for an offence should be reserved for the most serious offences of that kind. | Considered and rejected as inapplicable due to concurrent sentencing structure adopted by the judge. |
Court's Reasoning and Analysis
The court first acknowledged the statutory maximum sentence for each count was 2 years at the time of the offences and that the judge was aware of this limitation. The court emphasized that sentencing must be imposed at the date of sentencing, with measured reference to modern sentencing guidelines reflecting contemporary attitudes, but without exceeding the statutory maxima applicable at the time of offending.
The court found that the judge was entitled to observe that some offending would now be charged as serious offences such as rape or assault by penetration, and to use this to highlight the gravity of the offences. The judge's use of consecutive sentences to reflect multiple offences against different victims was consistent with the Sentencing Council’s guideline on totality and was appropriate to reflect overall culpability and harm.
Regarding the Appellant’s argument that the judge erred in equating certain counts with rape offences under modern guidelines, the court rejected this, noting the limitation imposed by the statutory maxima and the judge’s discretion in structuring sentences.
On the issue of bad character evidence, the court found that the judge erred in apparently taking such evidence into account as aggravation beyond the offences proved. However, the court concluded the error was not significant enough to render the sentence manifestly excessive, as the judge’s wording indicated limited weight was given to this evidence.
Concerning the Appellant’s conduct surrounding the trial, the court held that while the judge was entitled to withhold mitigation due to lack of remorse and contesting the trial, the judge was not entitled to treat the Appellant’s public denials and alleged courtroom behavior as positive aggravating factors without explicit evidence of traducing victims.
The court also rejected the submission that the sentence breached Article 7(1) ECHR, affirming that imposing a sentence within the statutory maximum but informed by modern guidelines does not constitute a breach.
Ultimately, the court undertook a fresh assessment of sentence excluding the improperly considered factors and found the overall 8-year sentence justified and proportionate when considering harm, culpability, aggravating features, and available mitigation.
Holding and Implications
The court DISMISSED the Appellant’s appeal against sentence.
The decision confirms that sentencing for historic offences must respect the statutory maximum penalties in force at the time of the offences, but courts may have regard to modern sentencing guidelines and attitudes to reflect the seriousness of offending. The ruling clarifies the limited role of bad character evidence in sentencing, emphasizing it must not be treated as aggravation beyond proved offences. The court also delineated appropriate consideration of an offender’s conduct surrounding trial, restricting positive aggravation to explicit traducing of victims.
No new precedent was established beyond the application of existing principles to the facts of this case. The direct effect is the affirmation of the original sentence as just and proportionate despite the identified sentencing errors.
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