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Clifford’s sentence has little to do with justice

Clifford’s sentence has little to do with justice

Max Clifford’s jail term can’t disguise the fact that historic sex cases are not tried fairly.

A judge has sentenced celebrity publicist Max Clifford to eight years in prison for eight proven charges of indecent assault against four women, contrary to the Sexual Offences Act 1956. The jury rejected the evidence of two other complainants, and could not agree on that of a third.

The maximum sentence available by law for such historic offences is two years, so Clifford has obviously been sentenced to consecutive rather than concurrent sentences. It is more usual to impose concurrent sentences, so it appears that the court was seeking to give the public a message about being tough on this sort of crime.

Clifford’s stance throughout the trial clearly did him no favours. He was antagonistic, boastful and obnoxious, calling his accusers liars and fantasists. This high-risk tactic predictably backfired. Clifford has made a lot of enemies during his career as a ‘kiss and tell’ story broker, and the jury obviously found him deeply unattractive. The rejoicing at his downfall was universal.

Britain is peculiarly addicted to sex scandals, and has been for centuries. But for this national trait, Clifford’s lucrative PR career would not have been possible. However, the fact that he was found rightly guilty of some crimes doesn’t disguise the fact that the system that was used against him is unbalanced in the way it deals with allegations of historic sex crime. Should we also rejoice because the present system is loaded against defendants in such cases? I think not.

Unusually, Britain does not have any statute of limitations for dealing with crime. This has led to a situation where a great many non-famous old men are doing time for sex offences committed as long ago as the 1940s. Human-rights law dictates that you cannot prosecute people under laws that were not in force at the time of the offence of which they are accused. Article 7.1 of the European Convention on Human Rights (‘No punishment without law’) states:

No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the criminal offence was committed.

The problem with historic accusations, which the people who wrote the European Convention could never have envisaged, is the wholly artificial exercise inherent in judging such crimes by modern standards instead of the values society held at the time they were committed. Serious crimes such as rape, murder, armed robbery and organised prostitution have always been treated as very grave, for obvious reasons.

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But when historic sex offences are tried in an atmosphere of moral crusading about historic child abuse, there is a risk of going over the top. This is what may have happened here in terms of the sentence given.

Thanks to prolonged campaigning by feminists, the sexual-offences regime, which Labour introduced in 2003, is much more draconian. Sentences have got longer, and if a judge goes against the prevailing popular mood, there will be an angry campaign to get the sentence lengthened. We now have a modern ‘social purity’ movement that drives the debate about sex crime, prostitution, pornography, and how the state should regulate sexual conduct generally. It is intolerant of the idea that one might apply a gradated approach to such offences, depending on the specific facts, and prefers a much more draconian approach. 

It continually deploys the rhetorical device of ‘paedophile’ to sexual offending against teenagers, though this is wrong. Strictly, ‘paedophilia’ is a psychiatric disorder in a person aged 16 years of more, who is predominantly or exclusively sexually interested in prepubescents. But the continual misuse of the word whips up a mood of public anger and revulsion against those accused of historic sex abuse.

Leaving aside this specific case, it is worth reflecting on the wider issues posed by these historic cases. The problem is two-fold: one, the social climate in which defendants are tried is especially hostile to sex crime; and two, the courts have dismantled certain procedural safeguards that previously were in place to protect an accused, so the dice is now loaded against the accused in a way that it would not have been at the time of the offence. Thus, the requirement for independent corroboration in sex cases has been removed.

The most radical shift in criminal procedure is the abolition of what used to be called the ‘similar fact’ evidence rule. In a case called DPP v Boardman in 1975, the House of Lords acknowledged that offences could ordinarily only be tried together if the offender’s modus operandi showed a ‘strikingly similar’ method, such as a rapist who always wore a Batman costume. This enabled the defence to keep out evidence that might be prejudicial, such as cases where witnesses have colluded to give false evidence, or cases where one witness has simply been influenced by contact with another witness.

Unfortunately, in 1991 and 1995, the Lords took a different approach, and relaxed this rule. That has led to the current practice of ‘bundling’ of multiple sex allegations in the same trial. It’s called ‘corroboration by volume’, or ‘no smoke without fire’. And it is hugely effective, which is why it has become the prosecution’s favourite tactic.

This development coincided with the practice of police ‘trawling’ for complainants, which unfolded as a result of the ‘paedophile ring’ theory of abuse that police and social workers were following when investigating children’s care homes in the 1990s. The consequences for our justice system have been very serious. Time after time, juries are faced with extremely grave accusations of an historic nature, where there is no supporting independent evidence (such as medical evidence), but which turn simply on one person’s word against another’s.

As the historian Richard Webster pointed out in his Memorandum of Evidence to the Home Affairs Select Committee, which examined this problem in 2002: ‘When defendants are compelled to face large numbers of allegations of sexual abuse made by different complainants in a single trial, the presumption of innocence is almost inevitably destroyed.’

The emotional impact on a jury of a whole sequence of tearful complainants speaking of sexual violation cannot be underestimated. The obscenity and, sometimes, violence involved makes their stories extremely powerful, even where the vague nature of historic allegations (usually without any specific dates) make them well-nigh impossible to rebut convincingly, unless by chance some contemporaneous document is unearthed, which gives the accused a convincing alibi.

To make matters more complicated, it is now received wisdom among the victim/ survivor movement and the therapy industry that rape and other forms of sexual assault invariably scar victims for life, causing them years of torment. This reflects decades of feminist campaigning.

But the standard use of the ‘trauma model’ is problematic in some ways. It means that such offences are seen as uniquely heinous, because they involve a kind of ‘murder of the soul’. So both lawyers, and the public, feel honour-bound to demand that the accused be dealt with very severely indeed.

Now, no one would deny that some forms of sexual assault are profoundly damaging, and will cause the victim a great deal of suffering for a long time afterwards; but the default assumption that lifelong trauma is inevitable is not invariably correct (1). Ironically, what may cause more damage is the response of shock and moral outrage by those in whom, later on in life, victims of abuse confide.

However, many therapists and anti-abuse campaigners sincerely believe that child abuse is the cause of a whole range of problems in later life and, according to some critics, they instil such beliefs into those who have been abused. This approach may be far too simplistic, given that a whole range of factors invariably affects people’s lives over time.

Whether the process of viewing one’s past as invariably conditioned by a childhood event may be counter-therapeutic is a matter that has not received much public discussion. However, some psychologists are concerned by it (2). The public is accustomed to the ‘trauma model’, however, and judges, police and prosecutors are all schooled in it. Not surprisingly, current sentencing practice reflects the prevailing orthodoxy.

So it’s easy to see why defendants in these historic sex cases face particular hostility, somewhat reminiscent of that which faced those accused of terrorist crime, in the days when the Provisional IRA bombed mainland Britain. Society has a strong and understandable desire to see that those who commit such terrible deeds are punished. When accompanied by inflammatory language such as ‘predator’ and ‘paedophile’, it is unsurprising that many juries prefer to err on the side of caution. Who wants to be responsible for a predatory paedophile walking free from court?

This is not to say that everyone prosecuted for such offences is innocent: that would be ludicrous. I am not, of course, suggesting that Clifford is innocent. A jury of his peers has convicted him.

But no matter how guilty a party is, he (or she) is still entitled to a fair trial. The present system, coupled with the present social climate, does not guarantee that. Is this acceptable ‘collateral damage’ in the noble cause of putting sex offenders behind bars? Not everyone would agree.

Barbara Hewson is a barrister. This article was written in a private capacity, and represents her personal views.

(1) See The Trauma Myth: the truth about sexual abuse of children – and its aftermath, by Susan A Clancy, Perseus, 2009

(2) Abused by Therapy: how searching for childhood trauma can damage adult lives, Katharine Mair, Matador, 2013

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