David Corker’s comments published in The Guardian

Appeal court ruling on Max Clifford shows how far defendants can go

Joshua Rozenberg

Should Max Clifford have received a heavier sentence for maintaining his innocence and “clowning” outside court? No, said the court of appeal last week. The celebrity publicist was not in the same category as Stuart Hall.

Their ruling has been little reported, perhaps because the appeal judges decided to uphold Clifford’s eight-year sentence for eight charges of indecent assault on four victims. But it is a useful indication of just how far defendants can safely go.

Passing sentence on Clifford in May, Judge Leonard had said he would take account of the “additional element of trauma” caused to Clifford’s victims by his “contemptuous attitude”. The appeal judges noted three examples.

Outside the magistrates court for his first appearance last year, Clifford had told reporters: “This has been a total nightmare. I am totally innocent of these allegations … These allegations are without foundation.”

Appearing at the crown court later in the year, Clifford continued to maintain his innocence while complaining that his accusers had not been named. He claimed that he had been punished by the very public nature of his arrest while his accusers remained anonymous.

But those remarks were not comparable with comments made by Stuart Hall, the judges said. The former BBC presenter had publicly denounced his victims, accusing one of seeking “instant notoriety”. Hall’s 15-month sentence was doubled by the court of appeal last year. By contrast with Hall’s remarks, said a panel of appeal judges headed by Lord Justice Treacy, Clifford’s claim of innocence did not directly impugn his victims. Nor, the judges added, did his comments on anonymity for defendants and victims – which was a matter of public debate:

Whilst we readily understand that victims who were eventually vindicated would find such comments upsetting, we think that great care needs to be taken by sentencing courts not to elevate denials, albeit vehement, into something deserving of further punishment in the absence of some more explicit traducing of the victim. The court, of course, is perfectly entitled to reflect these matters in withholding available mitigation since the offender has shown no sign of remorse … We think that these remarks, properly considered, would of course justify a withholding of mitigation, but they should not have been used by way of positive aggravation.

Nor should the trial judge have taken into account – at least without making a formal finding – press reports that Clifford was laughing and shaking his head at the evidence while he was sitting in the dock, the appeal court said.

And the third factor that should not have affected the sentence was a bizarre television recording that the judge had seen. During the trial, Clifford emerged from court and saw a Sky News correspondent reporting to camera. Clifford positioned himself just behind Tom Parmenter, mimicking his hand gestures. The recording was not shown during the trial but Clifford would not have known whether it was being broadcast live.

Leonard had regarded Clifford’s behaviour as an attempt to trivialise the trial. “While many would describe such antics as ridiculous,” the appeal court said, “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.”

Leonard might reasonably argue that he was doing no more than that. He said the clowning was a “further indication” that Clifford showed no remorse. Expressions of remorse are seen as mitigation. Indeed, remorse is sometimes regarded as essential before a life prisoner can be released on licence.

Commenting on the Clifford ruling, a senior criminal defence solicitor told me he thought the appeal judges had been right to draw a distinction between Clifford and Hall. “People accused of crimes are entitled to claim their innocence both in and out of the courtroom,” said David Corker, a partner at Corker Binning. “Nothing Clifford did resembled the disastrous approach taken by Stuart Hall who, prior to pleading guilty to abusing them as girls, denounced his accusers as gold-diggers and liars.”

If Clifford had still been working as a publicist, he would have learned some valuable lessons from the appeal judges’ ruling. Defendants have every right to proclaim their innocence on arrest. They may continue to do so at trial, although if convicted they will lose the reduction in sentence normally given for a guilty plea. It is only if they traduce or impugn their accusers that they will risk receiving a heavier sentence on conviction.

But that was no help to Clifford. As the court of appeal tried to explain, “although the judge below fell into error, it does not affect what was in fact a just and proportionate sentence”.

That may not seem very logical. But sentencing has always been more of an art than a science.

Read the original article here.