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The level of the fine clearly demonstrates that, as currently drafted, the offence will fail. Despite all the arguments used by the Minister, he must appreciate the damage that such a desultory fine, as well as the strict liability aspect, would do to the reputation of our justice system. We will need to look again at the level of sentence if we end up with strict liability, which I hope we will not. In the mean time, it will be interesting to hear from the Minister why this level of fine has been set. I beg to move.
Baroness Miller of Chilthorne Domer: Our Amendments 54 and 63 are in this group. The logic of the noble Baroness, Lady Hanham, is absolutely correct: until we have settled the issue of strict liability, it is probably not desirable to debate this matter at great length. We tabled our amendments on the premise that we had got rid of the idea of strict liability. There needs to be a tariff to reflect the seriousness of the offence, whereby the accused would be able to have a normal court hearing, a normal defence and, if found guilty, pay the sort of penalty that such an offence would merit. The main debate about the level of the offence would be better held on Report, when we have resolved the issue of strict liability.
The Earl of Onslow: My name has been added to this amendment, which seems to help the Government in their absolutely justifiable attempt to deter people from paying for sex with trafficked women. If a defence is available, the punishment for finding someone guilty should be much higher than it is in the Bill. That, I suggest, would be a bigger deterrent from playing about with trafficked women than the Government's
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Lord Brett: As has been said, Amendments 53, 54 and 63 would increase the maximum penalty for the offences created by Clauses 13 and 14 from a fine of £1,000 to 14 years' imprisonment. This issue was debated in another place, where, as here, it was linked with other amendments which sought to remove the strict liability element of the offence and to replace it with a requirement to prove that the defendant knew that he had been with a prostitute who had been subject to force or deception. These amendments are therefore based on the new mental element that, in the view of the Official Opposition, should be introduced into the offence, which is why they wish to increase the maximum penalty for such an offence.
In the other place, it was also argued that the offence of having sex with someone who had been forced in some way was the equivalent of rape and should be treated as such. However, this offence is distinct from rape because there is no requirement to show that the defendant knew or ought to have known that the prostitute was threatened or deceived; hence, under strict liability we intend to give what we consider to be an appropriate penalty of a fine. That would be consistent with the penalties for similar offences, such as kerb-crawling, and in our view it would tackle the demand for prostitution. If someone has sex with a person who does not consent and they do not reasonably believe that that person has consented-
Baroness Butler-Sloss: Perhaps the Minister will be kind enough to give way. I apologise for interrupting. As I understand it, the only purpose of both the amendments put forward by the noble Baronesses, Lady Hanham and Lady Miller, is if there is no strict liability element. Therefore, perhaps I may respectfully ask whether it is necessary to go through all this, because the issue arises only if the Government accept that there should not be a strict liability element.
Lord Brett: The noble and learned Baroness is correct. I was trying to explain how this measure developed during the discussions in the other place. As such, we do not believe that it would be appropriate to amend the offence in this way. However, I recognise that it is dependent on strict liability and I therefore ask the noble Baroness to withdraw the amendment, as we will return to it later if events unfold.
Baroness Hanham: We will certainly return to it later, depending on how Clause 13 goes. First, I am now a little more concerned that we have an educational campaign going here, one way or another, with offences and fines, and, secondly, I am even more puzzled that the offence should be equated to kerb-crawling. The Minister has made such an effort and has gone into such detail on the whole strict liability area and on the seriousness of the offence that it seems to have been
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Baroness Miller of Chilthorne Domer: We had an extremely good debate about Clause 13 on the first two groups of amendments and I do not propose to weary the Committee by rehearsing any of that debate. The cavalry also arrived in the person of the noble and learned Baroness, Lady Scotland of Asthal, who I know caught up a little with where we had got to in our debate and consulted the Minister and those in the Box. However, she is not in her place at the moment. Given what the Minister has said, it would probably be more constructive if I were to read Hansard and, between now and Report, see what the Minister comes back to us with. I hope that the Government will think about withdrawing the clause. They have heard from all Benches around the Committee the extreme disquiet that exists about this clause and at this point I do not think that it would be to the Committee's advantage if I were to extend the debate.
Baroness Stern: I support the noble Baroness, Lady Miller, in her opposition to Clause 13. Although I accept her proposal that we should look forward to some changes, together with the fact that we have discussed most of this issue, I should be very much happier if I were able briefly to put on the record some of the research findings on this matter. There have been moments when we have not seemed entirely clear what we are talking about when we have discussed the difference between people who have been forcibly trafficked and held against their will-for example, in the sort of conditions suffered by the young woman from the Czech Republic, as described by the noble and learned Baroness, Lady Butler-Sloss-and women who do not have British nationality, who are perhaps in London, either legally or illegally, and who have chosen to make their money by working in the sex industry rather than in some other low-paid job that might be available.
Therefore, I want briefly to put on the record the findings of the ESRC project on migrants in the UK sex industry. Those findings are to be published shortly and are based on in-depth interviews with 100 individuals without British nationality working in the sex industry in this country. The conclusions are that, for many of them, working in the sex industry is preferable to other very low-paid jobs that they might be able to do, mainly working in restaurants. Many of them are able to earn substantial amounts of money in this country, which helps them to keep their families alive in their own countries. In Soho, the noble Baroness,
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Another piece of research, with which I am sure the Home Office is familiar, was carried out by Teela Sanders and Rosie Campbell. Their report, "Designing out vulnerability, building in respect: violence, safety and sex work policy", is based on extensive fieldwork in two cities in the UK outside London. They make the point that the people most at risk of violence are those working on the street and that those working on the street are those who already come from backgrounds of violence and abuse. They also found that,
There is considerably more research available than that, but it seemed that it might be helpful to the Committee if some of the information were at least on the record so that we could be clear that it exists and that it is helpful to use research when it is available.
Baroness Hanham: I want to comment briefly on what has been said by the noble Baroness, Lady Miller. The Government need to decide what they are doing with Clause 13. The problem is whether the Government are involved in supporting a crusade against prostitution or whether they are trying to define a particular aspect of an area that is difficult for us all to understand or accept. Are they going outside the normal areas of law and justice to pursue, or help to pursue, a campaign that we have identified today? I very much hope that we can have some discussions before coming back on Report, which is a long way off. It may be helpful to exchange views, but if we do not and things do not change, Clause 13 will receive a pretty rough ride when it reappears.
Lord Brett: The noble Baroness could say that Clause 13 has received something of a rough ride already. I could make a long contribution but I take the point made by the noble Baronesses, Lady Miller and Lady Hanham, about returning to this on Report so that the Committee might make some progress. I shall therefore restrict my comments to saying that I acknowledge that some people freely choose to sell sex. I also know that many involved in prostitution have little choice about their involvement and would leave it if they could. We cannot ignore them and we must do all that we can to protect these victims of exploitation and abuse.
I hope that the Committee can accept the important principle that coercion and threats of a non-physical nature could become a definition of exploitative conduct. I shall not rehearse the discussion we had on strict liability, but I hope that we can make progress and not divide today on the Question of Clause 13 standing part of the Bill.
(a) C uses force, threats (whether or not relating to violence) or any other form of coercion, or
(b) C practises any form of deception."
Baroness Miller of Chilthorne Domer: The amendment has been proposed by the Standing Committee for Youth Justice, the Joint Committee on Human Rights and Justice. It would exempt children from the offence of loitering or soliciting for the purposes of prostitution. The Government have repeatedly stated that involving children in prostitution is a form of child abuse, so it would be regrettable if they did not abolish the power to prosecute a child over the age of 10 for offences under Section 1 of the Street Offences Act 1959, which the Bill amends.
We are not convinced by the Government's explanation of the continuing need for the criminalisation of children involved in prostitution. I shall give the Minister an example of that in a moment. That explanation is in direct opposition to the conclusions of the UN Committee on the Rights of the Child. In particular, we are not persuaded by the assertion that the criminal justice system may be needed to enable children to access support. The provision of revised guidance is insufficient
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We certainly think that children and young people have the right to be protected from all forms of sexual exploitation, and we heard earlier from the right reverend Prelate about the sexualisation of children. We have heard several times in briefings about the increase in all forms of exploitation of children, paedophile rings and many worrying things. Surely the answer is not to leave the victims-the children-criminalised, which is what the Bill proposes.
In 2005-06, Barnardo's sexual exploitation services worked with 2,148 young people aged between 12 and 24. Research undertaken in 2005 indicated that as many as 1,000 young people in London alone were at risk of, or involved in, exploitation. We accept that it is a big problem. Research shows that children likely to be most at risk of sexual exploitation are those who have had a disrupted family life, have been in care, which is certainly a risk, have had a history of abuse or disadvantage, or are runaways.
The sexual exploitation of children takes many forms that may include formal prostitution, but it has only relatively recently been recognised that children and young people who would once have been referred to as child prostitutes should be seen and treated as abused children in need of care and protection. Our amendment seeks to build on that recognition by removing the fact that children can still be prosecuted. The Minister will say that the number of children aged under 18 who have been prosecuted under Section 1 of the Street Offences Act is extremely low-just one prosecution and two cautions in 2005-but that is an argument to remove it from the statute book. If it is not much used, but it still criminalises children for something when they should be seen as the victim, that is a stronger argument for removing it.
Britain had an appalling report from UNICEF on the state of children in this country. We must constantly bear it in mind that we should be improving their position. When the Bill was discussed in the other place, the Minister, Alan Campbell, in refuting the idea of decriminalising under-18s, said that,
We refute absolutely that that is a logical or reasonable position to take. It demonstrates a completely flawed understanding of the situation in which children who are sexually exploited find themselves. They do not choose to be involved; they have landed in a situation because they are vulnerable, have no money, are homeless or people have preyed on them. They need care. We cannot continue criminalising in this way those who are under 18. I beg to move.
Baroness Hanham: I support the noble Baroness, Lady Miller, in her amendment. It is entirely wrong that any child should be criminalised and taken to the
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We should be looking at much better ways of rehabilitation for such people or more diversionary ways to deal with the problem. As the noble Baroness said, there are many reasons behind what is happening. I support the amendment and hope that there are other ways to deal with the problem.
The Earl of Onslow: If a child is involved in prostitution, that child is deeply damaged, deeply hurt and in great danger. To make a child like that into a criminal strikes me as cruel in the extreme. Surely, it is a question of "suffer little children". We should look after them and ensure that they are given care and help, rather than putting them into the criminal system. It is mad to put them into the criminal system.
Lord Borrie: The noble Baroness, Lady Miller, who introduced the amendment, and the noble Baroness, Lady Hanham, have spoken with reasonableness and concern for the children involved. So has the noble Earl, Lord Onslow. "Suffer little children", he said. There may be a paradox, in that to continue to bring the child into the criminal system sounds terrible, but it may result in benefits. There is not a great deal of advantage in pretending something that is not. The child concerned, who is loitering for prostitution, is a child prostitute-although you may wish to label it something else. There may be advantages in continuing with the system so that help shall be given and the child shall be taken away from prostitution, but I am not sure that the amendment helps.
Baroness Stern: I support the amendment to which my name is attached and thank the noble Baroness, Lady Miller, for moving as she did. The United Kingdom's human rights obligations make it absolutely clear that children who are involved in sexual exploitation should not be deemed as committing criminal acts. It is difficult to understand why the Government resist the amendment in the light of the efforts that they have made over the years to safeguard and protect children.
There have been two arguments. The first is the one echoed by the noble Lord, Lord Borrie, that there may be exceptional cases where criminal justice intervention is necessary to prevent a harmful situation and allow a child to access support. That was the point made by the Minister in the Public Bill Committee in the other place. Indeed, the Government have from time to time tried to assert that criminalising people is not a bad thing but a helpful way to get them access to the services that they need. As I understand it, that was the approach taken by the noble Lord, Lord Borrie. I oppose that position. It is important to state that criminalisation is not an acceptable way to help people. The Joint Committee on Human Rights stated:
"We find it surprising that the Government proposes to rely on the criminal justice system to address institutional or individual failures within the services available to children and young people. It appears to us to be more appropriate to strengthen their duties and capabilities of children's services to respond to children involved in prostitution".
The confidence that the Government have in the benefits of criminalisation alarms me. Criminalisation gives people a criminal record, which limits their chances and choices for the rest of their lives. That is particularly important when we are talking about people aged under 18, who we hope will be able to live their lives without some things that they have done in their youth being held against them.
The second argument made by the Minister has already been referred to by the noble Baroness, Lady Miller: that by decriminalising we shall be sending out a message that it is somehow acceptable. With enormous respect to the Minister who made that suggestion, that is an absurd misunderstanding of the nature of deterrence. The young people going into that form of exploitation are not asking themselves what is the law in this country regarding prostitution.
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