Committee (3rd Day)
Clause 18 : Soliciting: England and Wales
Debate on whether Clause 18 should stand part of the Bill.
Clauses 18 and 19 will create an offence of soliciting—that is, by potential clients of street prostitutes in England, Wales and Northern Ireland respectively. We fully recognise the negative impact that kerb-crawling can have in some areas, and the concerns that local residents might understandably have about it, but we do not support the creation of these offences. We feel the criminalisation of kerb-crawlers will do nothing to deter those with little respect for the law and is likely to lead to an increase in violence against sex workers. Like other prohibitory measures, it is likely to push street prostitution into more isolated areas.
We have talked about the need to make prostitutes safer and we feel that these provisions will make them less safe. We also emphasise that the measure against brothels in this Bill, which we will discuss shortly, will make prostitutes more likely to engage in street sex work. There are likely to be more street workers as a result of the Bill so these provisions are particularly crucial to get right. We are therefore suggesting that Clause 18 should not stand part of the Bill. We think that decriminalisation should be accompanied by the powers to enforce appropriate zoning so that street prostitution and kerb-crawling could take place only in designated areas. That is a very difficult issue which we need to debate. I know that some brave local authorities have already grappled with it.
We could be guided by the example from Scotland of the Scottish Prostitutes Education Project. When we asked what the effect of the kerb-crawling legislation in Edinburgh had been, we were told that women are working in isolation more, which is more dangerous for them, and that there are not as many clients around, but that the ones who are there are the more difficult and dangerous ones. The women felt that an alternative approach would be to get rid of the offence of loitering and replace it with an offence of breach of the peace—causing fear or alarm, for example. They were certain that the legislation had had a negative impact on the women they work with, but they did not feel the number of women on the streets had decreased significantly. We were told that there is more competition among the women and, crucially, they are often out for longer. Naturally, they need to make the same amount of money. In our debates about rehabilitation we have talked about why they need to make that money—whether they have a drug habit or they lack the education to get better jobs and so on. The fact is that the women who do that need the money and will keep on doing it. The critical thing is to make them safer.
Traditionally, there has not been a huge amount of pimping on the streets of Edinburgh, and that has not changed, but the project feels that the streets are much more deserted than when the legislation first came in. It also feels that legalising brothels will not get women off the streets, because two totally different groups of women are involved. But doing what the Government are proposing in the Bill is likely to close down more brothels and will push more women onto the streets.
How many prosecutions have there been? Thirty men were charged in Edinburgh over the course of the year since the legislation was introduced. There have been only six complaints from residents in the year. Is the legislation enforceable there? There are no jury trials in Scotland; there are sheriff's reviews only. One woman was given an ASBO on no more evidence than that she was seen getting out of a car driven by a man. She was banned from entering the area, including access to the Scottish Prostitutes Education Project advice centre. Another woman, in front of a different sheriff for shouting in an area, was given an ASBO preventing her from shouting in the area, which was much more specific. I make the point that this is a particularly difficult area of the law in which to impose quite brutal criminal charges on women when they are not even entitled to a jury trial.
Clients are unlikely to get a jail sentence. Even in Sweden, from which the Government have taken their example, no one has been jailed. People have just been fined. We feel that the clauses are moving in entirely the wrong direction. We need to protect women better, encouraging them to go to advice centres and remaining visible where they are not in danger. If the Government say that much of the motivation for the clauses came from the Ipswich murders, they are moving in the wrong direction.
We support the noble Baroness, Lady Miller. We agree that the effect of the Bill is very likely to be to take women on to the streets from reasonably safe places, as the provisions that we shall debate later emphasise. What is the definition of a public place?
I, too, support the proposal of the noble Baroness, Lady Miller, and the observations that she made in her powerful speech. Clause 18 would remove the criterion of persistence from the offences of kerb crawling and soliciting as currently defined in Sections 1 and 2 of the Sexual Offences Act 1985? The criterion of persistence serves a valuable purpose. That is not because there is any right to solicit for the purposes of prostitution; it is because the criterion of persistence helps to ensure that there is no room for misunderstanding or doubt about the defendant’s intentions. After all, this is an area of human conduct where there is ample room for ambiguity and a real danger of miscarriages of justice. I would welcome the Minister's explanation of why, in the light of that, it is thought appropriate to remove the criterion of persistence.
I, too, support the noble Baroness, Lady Miller, and thank her for the amount of information that she has put on record.
The Minister will know that the United Kingdom Network of Sex Work Projects, which represents 63 projects offering front-line services to sex workers, gave evidence to the Public Bill Committee. It seemed to me that it would be worth having that on the record. The UK network said of Clause 18:
“Research evidence and reports of projects working with street sex workers demonstrate that rigorous enforcement of legislation against both soliciting and kerb-crawling results in street sex workers operating in more isolated, unfamiliar and unsafe areas to avoid police surveillance, and less time to assess or negotiate with clients”.
It went on to say that these measures mean that sex workers have to work longer hours to get their money, which brings them into more conflict with the residents of the area, and exposes them to more risks in health and personal safety. It pushes them toward dispersing; they are therefore more isolated and unable to call on others for help. It also pushes them out of the orbit of organisations that go around trying to encourage them to seek help. Altogether, it makes the life of the street sex worker much more dangerous. I very much support what the noble Baroness said.
I appreciate the contributions from noble Lords to this debate on whether Clause 18 shall stand part of the Bill. Clause 18 replaces the two offences of kerb-crawling and soliciting found in the Sexual Offences Act 1985. Kerb-crawling is therefore already a criminal offence and, as the noble Lord, Lord Pannick, pointed out, we are removing the requirement for persistence rather than creating a totally new offence. Unlike the existing offence, the new one will allow the police to prosecute an offender on the first occasion that they are found to be kerb-crawling or soliciting, without the need to prove persistent behaviour or, in the case of kerb-crawling, that the behaviour is likely to cause annoyance to the person solicited or to others in the neighbourhood.
Responses to Paying the Price, the Government’s consultation paper on prostitution published in 2004, highlighted that kerb-crawling was a considerable source of nuisance to many communities. Issues of concern ranged from unwanted propositioning of local residents, including young people, to congestion caused by slow-moving traffic. Building on what was learnt from that consultation, the prostitution strategy acknowledged the impact of street prostitution and made enforcement against kerb-crawling a key priority. In addition, based on responses to the consultation, the strategy emphasised the need to tackle demand in order to achieve an overall reduction in street prostitution. Subsequently, the Government’s Tackling the Demand review recommended that, as part of the wider package of measures to target those who pay for sex, kerb-crawling or soliciting for prostitutes should be made punishable on the first occasion when it occurs.
I respect the view of the noble Baroness, Lady Miller of Chilthorne Domer, on decriminalising prostitution. That does not, of course, conform to the views of the UK Government or with what we are seeking to achieve in this clause or, indeed, in the Bill. We have looked at the question of managed areas, which is an option. The fact is that there is no real evidence that formally managed areas can deliver what we want; to improve the safety of those involved in prostitution and the safety of communities. We believe that we should challenge the existence of street prostitution, not imply through the development of managed areas that it is acceptable or that its existence should be tolerated.
The question was also raised of the definition of a public place. Whether a place is public is a question of fact and degree; cases have defined it as a place where the public go, whether or not they have a right to go there. There may also be a public place even where there is a right to exclude particular members of the public. We believe, therefore, that this clause moves in the direction of the Government’s general intent in looking at the prostitution and curbing demand. On that basis, we believe that it is a message which we want to carry forward. Therefore we believe that the power to prosecute kerb-crawlers and those who solicit on the street or in a public place without the need to prove persistence will make the offence easier to prosecute and send a strong message of deterrence to offenders, who are of course the kerb-crawlers.
There was a very high-profile case in Manchester a few years ago of someone stopping to ask the way to a perfectly legitimate address on the edge of what he was not to know was a known red light district in a city of which he had no knowledge. He just happened to ask a prostitute. What would happen in those circumstances if it was the very first time that that had happened?
I thank the noble Baroness for that question. The answer is that it would be for the police to seek to prosecute and to bring the issue before the courts. It would be evidential and it would be for the courts—in this case, the magistrates’ court—to decide. We are not talking about on-the-spot fines or the individual being unable to challenge the decision to prosecute.
The noble Baroness presumes that a constable would decide of their own volition that this was not an innocent question. We are talking about an offence and removing the persistence element. We are not suggesting that innocent people will be prosecuted for an offence; we are suggesting that the person who is being charged is soliciting. The person in the case which the noble Baroness mentioned is not soliciting and is therefore not committing an offence. Therefore, I cannot see why, in those circumstances, the noble Baroness should be so concerned that the individual will be subject to prosecution.
As I was saying before the noble Baroness intervened, removing the need to prove persistence will make the offence easier to prosecute and will send a strong message of deterrence to offenders—that is, kerb-crawlers—thereby contributing to a reduction in demand for street prostitution. I therefore recommend that Clause 18 and Clause 19, which simply replicates Clause 18 so that these charges will apply in Northern Ireland, stand part of the Bill.
Will the Minister confirm that it is overwhelmingly probable that no prosecution will be brought in this difficult and sensitive area unless there is evidence of persistent conduct? If that is right, surely it is inappropriate for the Committee to be asked to remove the element of persistence from this offence.
It is with great trepidation that I question the noble Lord, whose knowledge of the law is infinitely greater than mine. To my simple mind, there are occasions when a constable or other police officer knows that a person is making a soliciting comment because he can be seen and overheard and is judged because he can be seen and heard, not just seen without being heard. It is not a question of someone making a presumed judgment from a distance, so I see no reason why, if a prosecution was brought, someone would not be judged and found, fairly, to be innocent or guilty by a magistrates’ court.
Does the Minister accept that this will inevitably push women to places where there are fewer CCTV cameras and where the police patrol less? To follow on from the interesting point made by the noble Baroness, Lady Morris of Bolton, what happens when every client starts their conversation with, “Can you tell me the way to X?”? That will make it very difficult. It will be like a code, but on the other hand how can you possibly prosecute?
The noble Baroness seems to be going to great lengths to protect the person who under previous laws could be caught for persistently soliciting and now, for the first time, can be caught for soliciting on the first occasion. That is the key; if they are asking an innocent question, they are not soliciting and there is no basis for a prosecution. We also have to take account of the feelings of people whose lives are interrupted by people kerb-crawling down streets in their locality and propositioning young people, wives, sisters, mothers and others who live in that community. We have to take a more balanced approach.
There is no reason to think that there will be prosecutions where there is no persistence. The prosecutor will have to prove each case of kerb-crawling. Unless we have a total lack of faith in our magistrates’ courts, that should be a sufficient defence. We have to strike a balance between the safety of sex workers, who for whatever reason indulge in street prostitution, and the people who live in the locality. The proposal in the clause takes a correct view of that balance.
The Minister did not comment at all on the evidence from Scotland that I raised. I am sure that he has had some comment, given that there has been some time to look at the change in the law. I gave a number of examples of where the education project in Scotland found that this approach had not worked well. Would he look more closely at that?
I am unaware of the cases that the noble Baroness cites. I am more than happy to look at them, but I see no reason why they would fundamentally change the situation at the moment, which is that if there is an offence, it goes to prosecution; if there is a conviction, it goes to a fine. In the mean time, if we manage by this to deter both kerb-crawling and the imposition that that puts on local communities, we will be moving in the right direction.
Clause 18 agreed.
Clause 19 agreed.