Clarke v R

Historic offences must be sentenced under the legislative provisions and relevant guidelines in force when sentence is passed, subject to the maximum penalty applicable when the offence was committed. The offender’s age and maturity at the time of the offence remain important mitigating factors.

A conviction for indecent assault cannot stand where the count charges an assault on a male under a statutory provision confined to assaults on females. Evidence of previous convictions may properly be admitted to show propensity where it is probative of a live issue and its admission is a proper exercise of discretion.

Clarke v R concerned a 1984 aggravated burglary in which two tenants were sexually assaulted and detained. A palm print recovered at the scene was matched to the appellant in 2009 after improved fingerprinting techniques became available.

Following a retrial at the Crown Court at Southwark, the appellant was convicted on 2 March 2011 of two rapes, indecent assaults, aggravated burglary, false imprisonment and incitement to commit indecent assault. He received concurrent sentences producing a total of 16 years’ imprisonment.

He appealed against conviction and sentence. The issues included the validity of one indecent-assault count, the admission of previous convictions as bad-character evidence, the fairness of the summing up, and the correct approach to sentencing historic sexual offences committed when the appellant was under 17.

1. The appeal was allowed in part. The conviction on count 4 was quashed because it charged indecent assault on a male under section 14 of the Sexual Offences Act 1956, a provision concerning assault on a female. The proper provision was section 15. The defect was substantive: the particulars could not sustain the count, even though a properly framed charge would inevitably have resulted in conviction. The court followed McKenzie [2011] EWCA Crim 1550.

2. The sentence on count 3 exceeded the two-year statutory maximum and was reduced to two years. It was concurrent and did not itself alter the overall term.

3. The judge properly admitted the previous convictions under section 101(d) of the Criminal Justice Act 2003. They were probative of whether the palm print could have been innocently left at the flat. The 1985 aggravated-burglary conviction was particularly relevant. The evidence did not merely bolster a weak prosecution case, since the palm print was undisputed and the occupants strongly denied any innocent opportunity for the appellant to have been in the bedroom.

4. The summing up was fair. The judge was not required to construct a defence for an appellant who had made no-comment interviews, given no evidence and called no witnesses. He adequately addressed the suggested innocent explanation for the palm print, the difficulties created by the age of the case, missing evidence and the evidence about the appellant’s scar.

5. On sentence, R v H [2011] EWCA Crim 2753 required sentencing by reference to the current legislative regime and relevant current guidelines, rather than an attempt to recreate the historic tariff under R v Billam [1986] 1 WLR 349. The appellant’s age, being not yet 17 at the time, required substantial mitigation. His later offending prevented reliance on an unblemished life, but the absence of subsequent sexual offending was relevant mitigation. A 16-year term was manifestly excessive; the concurrent rape sentences were reduced to 12 years, producing a total sentence of 12 years.

• Court of Appeal (Criminal Division) — allowed the appeal in part, quashed the conviction on count 4, reduced the sentence on count 3, and reduced the total sentence to 12 years: [2012] EWCA Crim 9.
• Crown Court at Southwark — after a retrial before HHJ Robbins, convicted the appellant on 2 March 2011 and imposed concurrent sentences totalling 16 years.
• Earlier trial — the jury could not agree.