Dr.
Harris: I accept the hon. Lady’s point. Providing a
defence, and providing extra criteria that must be met before an
offence is committed, would change the offence from a simple one of
strict liability, as the Bill proposes, to one that, for the reasons I
have given, I might consider supporting. Her point about transferring
some of the onus for dealing with the problem on to men is an issue to
be discussed in the stand part debate, so I shall not respond directly
to it now, except to say—this is relevant to the
amendments—that the Government have advertised this offence as
dealing not only with trafficking, but with the wider exploitation of
women through the use of force or
intimidation. All
I ask is that a distinction be made between that sort of prostitution,
when men know that it is happening, and cases in which men do not know
that it is happening.
My final
argument of effect is that we should rely more on men to report the
fact that women are being coerced, intimidated or forced. The Minister
for Security, Counter-Terrorism, Crime and Policing knows that I have
made this point before, in previous exchanges on the Joint Committee on
Human Rights, in which he did not take the position that he is taking
now. There have been campaigns on this issue in other countries, and I
suspect that if we had a proper campaign, using public money better to
educate people about the fact that there is trafficking and
exploitative prostitution, through which women are essentially being
raped—I have no problem with using that terminology—more
punters would be aware of the problem and would be prepared to report
it. We know that from examining the websites of punters—men who
use
prostitutes. Punters
will feel less likely to report those situations if they are then
prosecuted regardless of the circumstances. As far as I can tell, if
they have paid, they have already committed an offence regardless of
whether they have had sex. What if they pay and have sex, but find out
the woman’s situation later, after she has got the money? That
is often how prostitution works, particularly with women who are forced
into it.
In order not
to be intimidated or violated by their pimps, those women have to get
the clients and the money, so punters might not find out about their
situation until afterwards. By then, the punters will have committed an
offence, unless the measure is changed to say that they knew or ought
to have known about the situation. Do the Government propose to provide
prosecutors and the police with a statutory guide saying that they
should not prosecute cases in which such a report has been made? That
might ameliorate the problem, but I have seen no sign, either on Second
Reading or during our debates in the evidence sessions, that that is
going to
happen. If
we want men to report such cases, we have to give them a defence.
Otherwise, they will not report, or trust that they can do so. If we
want them to give evidence at some point, and make charges stick
against the slippery pimps and traffickers who are prosecuted too
rarely in this country, we do not want them to report anonymously, and
we must encourage them to come
forward. Other
countries have a hotline—not a general one, but a specific
one—for men to report trafficked women. I have been to Italy to
see that. Such a hotline could also be used to report other forms of
controlled prostitution in which force, intimidation and coercion are
used. I understand that 60 per cent. of the calls to that national
24-hour hotline come from men who use prostitutes, some of whom have
fallen in love with a particular prostitute. That might seem curious to
us, but it can happen when someone goes back to the same
person. Other
men feel sorry for the women, feel guilty or want to help them for some
reason. In the context of there being routes out of prostitution, given
the residence permits and reflection periods in that country, it is
highly attractive for men to do that because it enables them to keep in
contact with the relevant woman, if she is willing to do so, although
who knows how often she is willing? So, elsewhere, 60 per cent. of
calls—thousands of calls—are from men, whereas in this
country there are vanishingly
few. 1.30
pm When
we discussed this issue in the evidence sessions, the POPPY project
claimed that 22 men—I think that meant as few as 22
men—had reported and therefore played a part in rescuing such
women. I made the point that, by doing so, they were preventing those
women from being raped several times a day for weeks and months. They
were preventing huge numbers of offences and I do not think that that
was properly taken on board, because our witness said that in all those
cases it was alleged by the woman that the man had sex anyway, before
making the report. I think that the Minister for Security,
Counter-Terrorism, Crime and Policing made that point as
well—certainly in debate, perhaps on Second Reading.
On the basis
of those cases we do not know whether the men knew in advance or were
told afterwards because, as reported in that evidence, they had sex and
then made the report. In many cases, a man will suspect the situation
only after they have had the service for which they have paid. A lot of
prostitution is criminalised here, and exchanges, arrangements and
liaisons are furtive, and there is not that opportunity for negotiation
and discussion—one of the problems with the Government’s
approach—so that is likely to happen. I hope that I have
responded to the point raised by the hon. Member for City of Durham as
to why strict liability would be counter-productive in helping to track
down this
mischief. There
is an interesting debate to be had around the definition of
“controlled for gain”. In a sense, it is a separate issue
from the one of strict liability and I hope that we can isolate it in
our discussions accordingly. As set out in the clause, there is a lack
of definition of the term “controlled for gain”. There is
no definition of “control” in statute, and the meaning of
“for gain” comes from section 53 of the Sexual Offences
Act 2003, as it amends the Street Offences Act 1959. We do not have a
difficulty with understanding what the “for gain” aspect
of the phrase means.
Section 53 of
the 2003 Act, under the heading “Controlling prostitution for
gain”,
states: “A
person commits an offence
if— (a)
he intentionally controls any of the activities of another person
relating to that person’s prostitution in any part of the world,
and (b)
he does so for or in the expectation of gain for himself or a third
person.” Section
54 defines “gain”
as: “(a)
any financial advantage, including the discharge of an obligation to
pay or the provision of goods or services (including sexual services)
gratuitously or at a discount;
or (b)
the goodwill of any person which is or appears likely, in time, to
bring financial
advantage.” There
is little debate and contention over the definition of
“gain”, but “control” is simply undefined.
That leaves it, first, to case law, and, secondly, to policing
practice. Into that, it leaves it to the
jury. With
such a broad offence, including strict liability, is it wise for
Parliament not to be clearer at this point? That is not a criticism of
what the Government did in 2003. However, we are where we are with this
offence, which, if it is enforced, is going to capture many people. Is
there not an opportunity for us to set Parliament’s intention
out, here in statute, to guide juries and the higher courts on appeal?
That is good practice and I hope the Minister will consider doing it,
even if he does not agree with my
prescription. What
does case law say about what “controlled for gain” means
in that situation? The one case, which may be the only one so far of an
offence of controlling a prostitute “for gain” under the
2003 Act that has gone to appeal on the grounds of that definition, is
Massey, which has been referred to already. The question there was what
“control” meant. There was some criticism of the judge in
the first instance case in relation to his direction to the jury, but
that is not material to the outcome of what the Court of Appeal said.
What the Court of Appeal said is important because it is where I hope
we will find common
ground: “‘Control’
includes but is not limited to one who forces another to carry out the
relevant
activity.” So,
if we want to stick to Massey—I am not sure that we do, and
there are various amendments that do not stick to Massey—I
accept that we do not have to stick to forcing. It could go wider than
that.
The Court of
Appeal
said: “It
is not necessary or appropriate for us to seek to lay down a
comprehensive definition of an ordinary English word.”
I think that the
inference is that it might be for someone else to do that, and we are
that party.
The Court of
Appeal went on to
say: “It
is certainly enough if a defendant instructs or directs the other
person to carry out the relevant activity or do it in a particular
way... There may be a variety of reasons why the other person does
as instructed. It may be because of physical violence or threats of
violence. It may be because of emotional blackmail, for example, being
told that “if you really loved me, you would do this for
me”... It may be because the defendant has a dominating
personality and the woman who acts under his direction is
psychologically damaged and
fragile.” It
goes on to talk about the person being controlled being younger and
“immature” and the other person being
“older”. So,
we must consider the question whether that definition, as the Court of
Appeal has it, always covers an exploitative situation, as I hope we
would want it to cover an exploitative situation if we were to have
such an offence. The Court goes on to
say: “The
Concise Oxford Dictionary defines ‘in control of’ as
‘directing an activity’. It defines the noun
‘control’ as ‘power of directing, command’.
By contrast, it does not include the words ‘compel, force or
coerce’, although they would doubtless be forms of
control.” So,
the question is whether the guidance in Massey is enough for us to rely
on in terms of our intention that this new offence will be policed,
whether it is enough in relation to the police and men who might want
to seek to avoid committing the offence knowing what to do, and whether
it is enough for prosecutors and for judges in directing juries. I
suggest that it is not enough, and I have already said that I think
that the guidance should be defined. Also, I would like to talk through
the three versions that have been tabled in
amendments. Amendment
28 was tabled by the hon. Member for Bury St. Edmunds. I hope that he
will not mind if I comment on it now, because it is convenient to do so
and I do not wish to misinterpret what he is seeking to do. It has
significant merit because it says that if the Government want to tackle
trafficking—a lot of this debate has been about the disgraceful
and abominable crime of trafficking women for sexual
exploitation—why not have the trigger of the offence being
circumstances or facts that would amount to an offence of trafficking,
as well
as “the
use of or threat of the use of force or
coercion”. So
that version is wide, it deals with trafficking, force and coercion,
and I like what it seeks to do in that regard.
There is a
good argument for that version. I am sure that the hon. Gentleman will
make this point too, but in response to that the Government needs to
explain what they seek to capture that is not captured beyond that
definition. We can then have a useful
debate. In
order to frame other alternatives, I thought it worthwhile to table two
other versions. One came from Justice, which is a respected legal human
rights organisation that gave evidence to us, and is in amendment 85.
It requires
that “An
activity is ‘controlled’ by a third person (C)
if— (a)
B participates in the activity because of the use or threat against B
or another person of one or more of—
(i)
violence,
(ii)
blackmail,
(iii) unlawful
detention,
or (iv)
other
reprisal; (b)
C intentionally exercises control over the activity;
and (c)
C is aware, or ought to be aware, of a relevant circumstance in
paragraph (a)
above.’. That
version also has merit, partly because it has clearly been drafted by
someone who can draft, unlike, I suspect, my own attempt, which I will
come on to. It covers that part of trafficking without requiring that
any trafficking offence be covered that
involves: (i)
violence,
(ii)
blackmail,
(iii)
unlawful detention,
or (iv)
other
reprisal;” Of
course, “other reprisal” could include—in my view,
it must include—the threat to report someone to immigration
officers if they are in the country illegally, or the threat to
withhold their fix of drugs if they are a drug-dependent prostitute. So
“other reprisal” can cover many areas, short of threats
of violence or threats of blackmail. The reprisal might be emotional
blackmail. The definition is wider than it might first appear. It takes
a different approach from requiring the circumstances to be those where
a trafficking offence may be committed. Perhaps a combination of these
two might capture even more than this does, without capturing what we
would not want it
to. Ms
Sally Keeble (Northampton, North) (Lab): In my
constituency there have been a number of incidents of trafficked
women—or of women whose route into prostitution and into the UK
was blurred. Does the hon. Gentleman accept that if he defines this too
closely, particularly regarding trafficked women, he could exclude a
number of women whose activity is controlled? They may have entered
into prostitution by another route; they may have come in for
servitude, or as unaccompanied minors, or thinking that they are going
to work in a massage parlour—that was a notorious case in my
constituency. Therefore, it is important that the definition be left
reasonably wide in order to catch the issue of controlling a woman for
gain.
Dr.
Harris: I agree and I think amendment 28 does that. If the
hon. Lady reads its wording—the hon. Member for Bury St. Edmunds
can defend his own amendment, I am sure—it is not just
“B has been the
subject of trafficking arrangements by a third person which would
constitute an offence by such third person under section 57
(trafficking into the UK for sexual exploitation), section 58
(trafficking within the UK for sexual exploitation) or section 59
(trafficking out of the UK for sexual exploitation)”.
There is an
“or” before that. Those services have been procured
by “a
third person through the use of or threat of the use of force or
coercion”. The
definition is already wide.
I understand
that the hon. Lady would want it to be even wider because we want to
capture things that are not direct force, coercion or trafficking
offences. There may be merit in that. That is why I explained that
amendment 85 would appear to be wider because if women are being
exploited in prostitution it implies that if they do not do what they
are told there will be a reprisal. That is covered by subsection
(3)(a)(iv) of
amendment 85. I agree with her and I saw the Minister nodding. I am
prepared to accept that we need to have a wide definition of controlled
or controlled for
gain. Also
regarding amendment 85, there are two reasons why “for
gain” has been deleted. One could argue that we want to make
this an offence even if there is no financial gain; some people control
prostitution in an exploitative way just for the sake of it because
they are evil characters. It is unfortunate, then, that the
Government’s approach requires there to be the financial
element. One could argue that that is the case in the 2003 offence.
While they are concerned about circumstances where there is not obvious
financial gain, why is it tied to profit? Why is it not tied to the
unacceptable, criminal, evil behaviour of coercion? There are some bad
people and some mad people involved in this business and profit may not
always be a factor.
The other
reason for taking out the “for gain” in one of the
preparatory amendments to this one, is to prevent confusion between the
2003 offence—which deals with controlling for gain and also
controlling child prostitutes—and a new offence. It would be
awkward if “controlled for gain” was the same wording in
each offence but defined differently for that particular Act, part or
section.
If there is
common ground and the Government accept that there is merit in amending
the definition used for controlling prostitution in sections 52 and
53 of the 2003 Act, do we use another word instead of
“control” so that it is clearly made
separate?
1.45
pm The
final option on redefinition of “controlled for gain” is
that set out in amendment 80. My amendment tries to make the Massey
position statutory—I do not think it would, frankly, so I am not
claiming that it is brilliant, but the Committee will see the direction
of travel. The amendment says that
an “activity
of B is
controlled”, meaning,
again, that the definition does not require the profit element to be
met, “by
a third person (C) if...C’s behaviour in relation to that
activity involves...compulsion, coercion, intimidation or force
directed against B or any other
person”— clearly,
families can be intimidated or have force threatened against them,
requiring person B to act in the way
desired— “or...regular
instruction or
direction”. No
one will be happy with that, because of people who do not want the
legislation to include women working
together. I
want to make it absolutely clear that I am desperate not to include
women working together. My aim is to make this offence not deal with
women working together, perhaps in a co-operative, with one person
organising them, saying, “You go with this person,”
“We have this one,” “You go with that one,”
“This is the time that you will do it” or “This is
your shift.” That person could be a madam, if you like, who may
well be paid for the work and may be responsible for dispersing the
total income. I do not have a great knowledge of how the business works
in this area, so I hope that hon. Members will forgive me if I do not
describe every particular situation, but that is what I want to
avoid.
I was rather
hoping that “regular instruction or direction” could be
read as “to be exploitative”, but we may need further
amendment. We are talking about a pimp, boyfriend or drug pusher who is
saying, “You do this. That is where you are going tonight, with
him. I’ll pick you up in due course. There we are.” That
is what I am prepared for the legislation to capture. That was clearly
felt in the Massey case—the defendant, the prostitute, alleged
that she was in that position. She was found by the jury and by the
Court of Appeal to be in that situation, with the boyfriend acting in
that
role. I
am told by representatives from the GMB, the International Union of Sex
Workers and the English Collective of Prostitutes, and individuals who
e-mailed us or made specific submissions through the scrutiny
unit—that the current lack of definition of “controlled
for gain” means that the section 53 definition is currently
being used against women in brothels working together with a madam,
maids and security. I am not suggesting that the current definition
includes maids and mere security—employees of the prostitutes,
essentially—although I know it has been claimed. I am claiming
that the current definition is being used to arrest and could be used
to close brothels—we shall come on to debate those later
clauses—and that is not satisfactory. The definition fails the
critical test that the Government ought to be setting for themselves of
finding ways to make the market, as it exists, as safe and
non-exploitative as possible, and to make as small and as deterred as
possible the exploitative, unpleasant, unacceptable and worse end of
the market. I am inviting the Government, by tabling my amendment, to
have a look at my proposed subsection (3)(a)(ii), to see if there is
another way of describing “controlled for gain” that
would specifically exclude women working
together. I
want to finish by making two suggestions. Statute could exclude women
working together, as long as all the people involved are providing the
service and that there is not someone who is not doing it—a
pimp, who is getting someone else to do the sex and just taking the
money. One could capture that, specifying it as an exception. The
Minister could even come back and consider guidelines for police and
prosecutors dealing with such a situation. We want to hear something so
that we can, at least, have an
exchange. An
alternative is to recognise that in Massey we would not have had that
conviction without the prostitute herself making the complaint and
giving evidence. The problem with this offence, because it is strict
liability and because of the undefined nature of
“control”, is that it does not require B to make any
complaint against C. In a situation in which women are working together
for mutual security and protection, including having someone in charge
of the money to dole it out and make the arrangements, they are
unlikely to complain. If we could find a formulation that would require
there to have been a prosecution or an affidavit from B, we could argue
that the demand offence would be met. Even though I do not like the
approach, as you will hear me argue under the clause stand part debate,
the Government are determined to find a way in which to deal with the
matter, a problem that I am struggling
with. I
wish now to deal with the miscellaneous issues that I mentioned
earlier. I am grateful to the Committee for bearing with me. I have
dealt with the penalty. It is
wrong to be limited to a fine, when the offence would catch men who
knowingly rape women because they do not give consent, and the men know
that they are not giving valid consent. A penalty is unacceptable. It
would be okay if the Government were to say, “Don’t
worry, we will use the crime of rape more. We are confident that we can
do that and that there will be more rape convictions, as a
result.” However, in our exchanges, Ministers have been honest
and said that it is extremely difficult to use rape. It is hard enough
to use rape and increase the conviction rates, and I share the
Government’s commitment to improve the situation. The fact that
it is difficult means that they are not getting the real mischief,
which is men who cannot be prosecuted for rape and who escape with
£1,000 fine. That would not even meet the Harman test, if I can
call it
that. While
going over matters and the representations that I have received with
some advisers, I was interested in who the clause will actually affect.
It seems to cover the person who makes the payment, not the person who
has the sex, so A commits the offence if they make or promise payment
for the sexual services—not to him or her, but in general. If
someone pays for me to have sex with a woman, is it the person who pays
on the telephone with a credit card who is liable rather than the
person who has sex? I presume that that is the case by design. If so,
it will not be an effective deterrent if it is known that, as long as
the person who has sex is not paying in cash, but someone else pays by
card over the telephone in advance, that person will not guilty ab
initio of the offence. The Government are creating a loophole that
undermines the design of the provision. I would be interested in the
Minister’s response. As long as he has understood my argument, I
shall not labour the
point. I
am interested in what the Minister is getting at in respect of
jurisdiction. New section 53A states that
“where
in the world the sexual services are to be provided and whether those
services are
provided” is
irrelevant. Will he explain the purpose behind those words and say why
the provision is drafted in such terms? It could be possible, by virtue
of amending the schedule 2 offences of the Sexual Offences Act 2003
under section 72, to list the offence as one that has wide
jurisdiction. At present, section 53—the controlling
provision—does not fall under section 72 of the 2003
Act, so it does not mean that a UK resident or citizen can be
prosecuted for committing the offence anywhere in the world. I am sorry
if I have not made myself clear. The problem is due not to my briefing,
but my own writing—it is a doctor’s
issue. I
should be grateful if the Minister would explain why he has taken the
unusual step of stating that something is irrelevant? If something is
irrelevant, it need not be stated, but should be part of the offence.
What is he trying to capture? If someone from this country pays by
credit card on the telephone for a service to be provided, even to them
in another country where prostitution is lawful, even if it is
controlled for gain in a modest sense—let us take Holland, where
force and coercion is not tolerated—would that be an offence
here? If so, strange as it may seem, is that compatible with our
obligations to free commerce in the European economic area?
Secondly, how
does the Minister envisage this operating? I presume he is envisaging
preventing me from paying a prostitute and then taking her to
Paris—if one has
money and it is that sort of prostitute, I suppose—where that
prostitute is subject to control for gain. I presume that is what the
Minister is trying to capture. If so, that is legitimate: one should
not be able to buy it here and then commit sex—if hon. Members
will excuse the expression—outside the country. But I am not
sure whether the provision he sets out in new section 53(2)(a) goes
further than that. More could be
said about the framing of these clauses, but I have had a good innings
and am grateful to members of the Committee for their patience. I hope
that the way in which I have tried to separate out the issues has been
helpful. I very much look forward to the contribution from the hon.
Member for Bury St. Edmunds and, indeed, the Minister and other hon.
Members. Several
hon. Members
rose—
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