Mr.
Campbell: There is no point of principle to which I am
objecting. I am saying that there are two parts to my response. First,
I have undertaken to look at this measure. The advice I have received
is that the matter is covered. I am happy to explain what we find from
that investigation to the Committee. If we find that there is a
problem, as the hon. Gentleman suggested, we would seek to address it.
It is in no one’s interest to have an offence that creates
loopholes and opportunities for people to get round
it. Dr.
Harris: I urge the Minister to be cautious. May I
tell the hon. Member for Bury St. Edmunds that if the offence remains
one of strict liability and the criteria for its being committed are
too broad, I would not like it to be said that I urged that the net be
cast wider to include a party who had no knowledge of the payment being
made, or if they had knowledge, should not be found guilty on the
strict liability test that the person is making the payment. Arguably,
that is the operative moment of the case. It may not be aiding and
abetting that can be prayed in aid here. It may be
conspiracy—“will you pay for me?”—but that
is a separate matter. I urge the Minister not to widen this clause any
further at my
behest. 3
pm
Mr.
Campbell: That is why we will look at it. I have given
that undertaking and, if necessary, we will bring forward some
proposal. I can assure the hon. Gentleman that in the process we will
not bring guilt on him.
Mr.
Ruffley: I take the point that the Minister is to take
this away, so my question seeks not to dwell on that, but rather to
understand the offence of aiding and abetting. What is the source in
law for that offence, as it is not in the
Bill?
Mr.
Campbell: That can be part of our coming back to the
Committee.
I appreciate
and understand the need to be clear about the circumstances covered by
the term “controlled for gain”. I hope that in our
lengthy deliberations, where we have had useful discussion backwards
and forwards, I have sufficiently persuaded hon. Members of the
advantages of the term that we are proposing to use over their
amendments. I also hope that I have stressed the importance we place on
the strict liability aspect of the offence and the need to retain the
ability to prosecute, even where sexual services are obtained outside
England and Wales. I hope that hon. Members, in accepting that
reasoning—albeit with the caveats we have agreed to and the need
to look again at some of these issues—are reassured sufficiently
not to press their
amendments.
The
Chairman: We have had a lengthy and useful debate.
Clearly, the hon. Member for Oxford, West and Abingdon will have an
opportunity to respond and no doubt will indicate what he wishes to do
with the lead amendment, but the general thrust of the clause and in
particular all the amendments have been dealt with in great
detail.
Dr.
Harris: I certainly agree that we have had a full debate
on these amendments, due in no small part to the willingness of the
Minister to engage with us in a meaningful way. I am grateful that he
has done so. He has taken interventions. He has tolerated my missing
one of my amendments in my opening remarks and he has offered to come
back to us entirely appropriately at the right moment. It does take
both sides for that to happen. That means that when we have a clause
stand part debate we can talk about the general issues and we do not
have to refer, except in passing, to the nature of strict liability and
so on.
I need to
respond to a few of the points the Minister has made and will do so
briefly. He answered the question raised by the hon. Member for Bury
St. Edmunds on the small number of prosecutions. It is a small number
and some may well have come from anti-trafficking measures where there
was not enough evidence to use the trafficking
offences—appropriately, I am not criticising—and
therefore “controlled for gain” section 52 offences have
been identified. Nevertheless, even in the most recent years, there
have been fewer than two dozen. I agree that information is not readily
available on how many of those prosecutions have relied on punters
tipping off the police or providing evidence, but that is one example
of where research could have been done to identify that information,
because the numbers are small. I shall come back to that in the clause
stand part debate.
The Minister
defended strict liability by saying that that is the best way of doing
things because it places the risk on the people who are responsible for
the demand. I think it would be more effective, as well as better
public policy and better law, to place the responsibility on men in
relation to having sex with someone against their will, where they are
controlled or coerced, even within the wider definition, rather than
just placing on them the risk of being guilty of an offence when they
are ignorant of the circumstances or have been deceived regarding
control of the prostitute. I shall come back to that point in the stand
part debate, but I wanted to point out that I do not accept his
analysis. We will also come back to whether the proposals would be less
effective if the offence were not one of strict liability. I accept
that that is another issue for the stand part
debate. On the
Minister’s argument that there is a precedent for strict
liability in the offence of having sex with a child under the age of
13, may I say that he has not given the full story? Section 47 of the
Sexual Offences Act 2003
states: “A
person (A) commits an offence if...he intentionally obtains for
himself the sexual services of another person
(B),” and
“before
obtaining those services, he has made or promised payment for those
services to B or a third person, or knows that another person has made
or promised such a
payment,” and
either “B
is under 18, and A does not reasonably believe that B is 18 or
over,” or “B
is under
13.” That
is how strict liability is affected when there is a five-year
error—I do not use that term to exculpate anyone who has
committed that offence—in the reckoning of the girl’s age
if the defence is wheeled out that she looked 19. So, it is reasonable
to say, when there is a difference of five years, between the ages of
13—so it is 12, actually—and 17 years, 11 months and
however many days, that the offence is not one of strict liability but
one of a form of recklessness. The same thing occurs in other parts of
the legislation.
That is the
case with child prostitution, and I should think that there is a
stronger case for having a strict liability offence for child
prostitution, if one has to rely on it in recognising that there is
limitation in sentencing, although I note that when B is under 13, the
offender is not faced only with a fine—so that is considered
proportionate. If strict liability is not appropriate for an offence of
having sex with a child prostitute, I am not convinced that it is
appropriate for an offence of having sex with someone who is controlled
for gain—at least in more marginal cases, such as Massey and
beyond, in which force, intimidation and coercion are not used. I do
not accept that argument, but I do not want there to be unpleasantness
between the Minister and me on that point. We will come back to the
hotline and crime busters in the clause stand part debate.
I asked the
Minister whether the CPS could have discretion, to which he replied
that that would send out the message that—I hope that I am not
misquoting him, because he makes a fair point—as long as men who
commit an offence point people in the direction of help, they get off
the hook. That would be the effect of putting that into statutory
guidance, but it would be worth it because it is far more important to
prevent multiple rapes from occurring every day. We could do
almost anything to get that advantage, even if it meant that men were
encouraged to come forward on the basis that if they co-operated, they
would not be prosecuted for this, more minor, offence. I would rather
stop the gang rapes and prosecute the pimps and traffickers than
prosecute one person for this minor—in terms of
penalty—offence. We would still have the aim, because the law
would be in statute, of having the deterrent effect which the Minister
believes works but which I do not. However, I will come back to that in
the clause stand part debate. On amendment
79, the Minister said that he felt that the word
“intentionally” was unnecessary in respect of the
payment. His also argued that he did not want to make the case more
difficult to prove. However, I am still concerned about the measure in
the context of the example I gave in which someone who is not paying
for sex is penalised. We could discuss whether lap dancing and table
dancing constitute sexual services—they do not do so under the
Bill—but what happens if someone is paying for those services
and does not intend to pay for sex with a prostitute, but nevertheless
gets it as a good customer? That should be addressed.
The Minister
went on to deal with the question of anywhere in the world. I think I
understand his position, but I would be grateful if he could confirm my
understanding, which is this: for the offence to take place, the
payment has to occur here—that is the root of the
offence—regardless of where the sexual services take place.
Therefore, clearly, paying here and taking a prostitute abroad would be
covered under the provisions. I do not object to that. I also accept
that if a person pays on a credit card from here to another country, an
offence has taken place regardless of whether the services are ever
delivered, as long as it comes under “controlled for
gain”.
However, my
concern is a situation in which an activity that comes under our
definition of “controlled for gain”, be that relating to
a pimp or madam, is legal in another country such as Holland. The
payment is made here and the services obtained there. The Minister went
as far as to say that it would not be a high priority for the police to
enforce that sort of thing, but I would be grateful if he could confirm
whether it would be an offence. If it is not illegal to have sex with a
prostitute who has a madam in, say, Holland, should it be an offence,
on strict liability, to pay for it in this country? I accept that the
Minister has already made his contribution, but I would be grateful if
he could deal with that question in correspondence, even if it is to
say that I have got it completely wrong.
Mr.
Burns: Something else just occurred to me. If the hon.
Gentleman’s analysis is right and if it is confirmed by the
Minister, would an individual who pays for sex in Amsterdam using a
British credit card fall foul of the law, considering that the actual
physical payment will be made in this
country?
Dr.
Harris: I do not know the answer to that question, and
neither does the Minister. Hopefully an answer will come, either later
in the debate, in correspondence, or during the next debate. He should
answer that question especially if there is no easy answer.
On
“controlled for gain”, I am grateful for the
Minister’s engagement in the debate and that he understood the
spirit in which hon. Members tabled amendments. It is
important that he has clarified that, in his view, mere receptionists,
maids and security guards, who undertake no controlling activities, are
not covered. I think we agreed in an earlier exchange that the role of
a madam could vary, so the facts could lead the question because the
madam could be aggressive and
intimidating. We
all accept intimidation, force and coercion, but the question of
direction and instruction remains, because to run a tight shop doing
something that is unlawful, people have to be quite brusque sometimes.
I think the test is whether the prostitute agrees to the structure and
arrangement of the control. That does not mean that there is carte
blanche or that control is always acceptable, but it takes account of a
situation in which a prostitute is agreeable to the structure, and has
consented by saying, “Yes, I understand that I will be taking
these instructions.” As long as there is provision to deal with
trafficking, or force and coercion and forms of reprisal, that test
could be a way forward. Liberty has made such a proposal, but we will
not be able to deal with it
today. Mr.
Peter Lodder QC gave evidence to the Committee. An offer was made to
him to consult, and he told me that he is more than willing to meet or
write to any of us to offer his thoughts as a practising criminal
barrister with an interest in such things. He did not agree with
everything that I asked him in the evidence session, so he is not
necessarily on my side of the argument.
The Minister
objected to amendment 27, which was moved by the hon. Member for Bury
St. Edmunds, because he said that trafficking is a “was”
situation. He recognised that there may be circumstances—bizarre
though it seems—in which, the trafficking having been done, the
person was no longer controlled. That problem could be remedied if the
amendment was redrafted to say that the offence is still extant.
Perhaps that might be
tackled. I
am prepared to recognise that Massey did not require that due consent
was not given. My instruction and direction were an attempt to
recognise that. I would be grateful if a way could be found to deal
with the “madam” point to protect women whom we should
encourage to work together to get rid of drug pushers and pimps from
their business.
The hon.
Member for Northampton, North said that even if the arrangement is
purely consensual and the prostitute is happy to have an employer who
can sort out the finances and organise the security and business, they
cannot be instructed to have sex with someone because that gets rid of
their consent. I accept the point. The instruction I was talking about
was a person perhaps being allocated to someone if they were willing.
It is essential in prostitution that, up to the very last point, women
should have the freedom to
consent. 3.15
pm I
am grateful to the hon. Lady for giving me the opportunity to clarify
the fact that what I was referring to was instruction around the
arrangement of the business, not the instruction—regardless of
whether they like it or not—to have sex. I entirely agree with
her about the nature of
consent. One
question that was not addressed was whether, in any circumstances, the
prostitute, in negotiating the payment, would be guilty of aiding and
abetting. The old language of “assisting” and
“encourage” was used,
I think from the Criminal Justice Act 1967, although I do not know as I
am not a lawyer. I would be grateful if that was clarified.
Potentially, the prostitute is guilty of such a charge, but I can
understand why the Minister does not want that prosecuted.
Nevertheless, if the police see such an offence, they might want to get
the numbers up, which is a
worry. Finally,
there is the question of “for gain”. The Minister
explained why he did not want to lose those words and gave one example
of a friend who says, “You have sex with that person,”
even though they were not doing it for
gain. There
are other circumstances that I raised to which the Minister did not
respond—for example, a boyfriend who, just for the hell of it,
is making someone have sex and payment is given to someone else. I
think that it is necessary to capture that behaviour, even under
section 52 of the 2003 Act, because that talks about “for
gain”. Therefore, even though this whole construction of
“controlled for gain” was not recognised by my party in
2003, it could do with revisiting now, especially given the
Government’s determination to crack down on abusive prostitution
situations. I ask him to reflect on
that. We
have had an extensive debate and I am grateful to the Minister for the
points that he made and his offer to communicate with us
further.
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