Appendix 1: Home Office overview of existing legislation in England and Wales
[Taken from Home Office written evidence (PRO0236), Annex A]
In summary, the acts of buying and selling sex are not in themselves illegal in England and Wales. However, many activities that can be associated with prostitution are offences. This includes activities linked to exploitation, such as controlling prostitution, or managing a brothel, and activities that can present a public nuisance, such as buying or selling sex in public.
The relevant legislation is spread over several Acts, with the most recent significant changes made via the Policing and Crime Act 2009 and the Sexual Offences Act 2003, which introduced offences related to the exploitation of those involved in prostitution. Most recently, the Serious Crime Act 2015 replaced references to ‘child prostitution’ in statute with ‘sexual exploitation of a child’.
Prostitution policy and legislation are devolved matters, and it is open to both Scotland and Northern Ireland to legislate separately. Most distinctly, as of 1st June 2015, it is illegal to pay for sex in Northern Ireland.
All prostitution legislation is gender-neutral.
Controlling and trafficking
The offences principally directed against those who exploit others through prostitution include controlling prostitution for gain and causing or inciting prostitution for gain both of which have a maximum penalty of seven years (s53 and s52, Sexual Offences Act 2003).
It is illegal to keep a brothel, i.e. a venue where more than one prostitute works (not necessarily at the same time). The main offence is keeping a brothel used for prostitution, the maximum penalty for which is 7 years (s33 Sexual Offences Act 1956, with the maximum penalty amended by Sexual Offences Act 2003). It is also illegal for a landlord to let premises to be used as a brothel, or a tenant to permit premises to be used as a brothel or for prostitution, maximum penalty of six months (s33–36, Sexual Offences Act 1956)
The 2003 Act introduced the offences of trafficking into, within and out of the UK for sexual exploitation (s57–59). These offences cover both adults and children and carry penalties of up to 14 years.
The Policing and Crime Act 2009 amended the 2003 Act to introduce closure orders. These allow a police constable to apply to a court for an order closing premises associated with specified prostitution or pornography related offences for up to three months (which can be extended by up to three months if the court deems it necessary. However the total period for which the order has effect must not exceed six months).
Children
It is always illegal to buy sex if the seller is under 18. The 2003 Act introduced an offence of paying for the sexual services of a child (s47), for which the maximum penalty is life when the child is under 13; otherwise 14 years when the child is under 16, or seven years if the child is 16 or 17.
The 2003 Act also introduced offences specifically in respect of the exploitation of children and young people through prostitution or pornography. These were amended by the Serious Crime Act 2015 to remove references to ‘child prostitution’ and ‘child pornography’. The offences of causing or inciting sexual exploitation of a child, controlling a child in relation to sexual exploitation, and arranging or facilitating sexual exploitation of a child (s48–50) carry a maximum penalty of 14 years.
The Serious Crime Act 2015 also amended s1 of the Street Offences Act 1959—loitering or soliciting for the purposes of prostitution (see below regarding street-based prostitution), so that it applies only to adults, i.e. children involved in prostitution are not criminalised.
Paying for sex
Soliciting a person in a street or public place for the purpose of obtaining sexual services from a prostitute is illegal under the Sexual Offences Act 2003 (as amended by the Policing and Crime Act 2009). This replaced the old offences of ‘kerb crawling’ and ‘persistent soliciting’ (Sexual Offences Act 1985) and includes a person soliciting from a vehicle in a street or public place. The maximum penalty is a level 3 fine.
The 2003 Act was amended by the Policing and Crime Act 2009 to introduce an offence which made it illegal to pay for the sexual services of a prostitute subjected to force, threats (whether or not relating to violence) or any other form of coercion or any form of deception of a kind likely to induce or encourage the prostitute to provide those services. It is a strict liability offence, i.e. it is not a valid defence for a defendant to argue that he did not know the prostitute had been subject to force etc. The maximum penalty is a level 3 fine.
Men and women involved in street-based prostitution
The Street Offences Act 1959 (as amended by the Sexual Offences Act 2003, the Policing and Crime Act 2009, and the Serious Crime Act 2015) criminalises loitering or soliciting for purposes of prostitution. It is an offence for an adult to persistently solicit or loiter in a street or public place for the purposes of prostitution. Conduct is persistent if it takes place at least twice in three months. The maximum penalty is a level 3 fine or an Engagement and Support Order.
In terms of exiting and support, the Policing and Crime Act 2009 introduced Engagement and Support Orders. These orders provide the courts with an alternative to fining those convicted of loitering or soliciting, and instead requires attendance at meetings with a court appointed supervisor. This helps provide support and access to services that might otherwise be out of reach, including medical care, housing and drug/alcohol dependency programmes.
Advertising prostitution
The Criminal Justice and Police Act 2001 made placing of advertisement relating to prostitution an offence. This only applies to public telephones (although the Secretary of State may, by order, apply the offence to any specified public structure). Maximum penalty is six months imprisonment and/or an unlimited fine.
© Parliamentary copyright 2015
16 June 2016