Clause 13
Policing and Crime Bill
1:00 pm
Evan Harris (Oxford West and Abingdon, Liberal Democrat)
It is a pleasure to be more actively engaged in scrutiny of the Bill. I am delighted that the Committee has made such good progress, and I hope not to stand in the way of progress this afternoon.
There are clearly disagreements about the provisions, but we can all agree that the intention behind the Government’s proposals is a good one. However, there are many issues about the impact, effectiveness and unwanted side effects of the provisions, as well as the evidence and consultation behind them. Those are matters for a stand part debate and, given that you will look kindly on a request for one, Sir Nicholas, I intend not to raise questions in this part of the debate about the general approach of a clause 13 offence seeking to tackle demand, or about the impact, effectiveness and side effects of the clause, as well as about consultation and the evidence base. We can talk about the large number of amendments that seek to probe the intentions behind the clause or, in some cases, to improve it. I understand that the Minister and the hon. Member for Bury St. Edmunds agree with that divide, which will hopefully enable us to have a more constructive first debate, followed by one in which there is clear division on the second point. I shall only raise general points now if they are strictly necessary for the discussion of the amendments.
The amendments fall broadly into three groups. Although there is large number of them, they overlap. Rather than go through the amendments in my name and that of my hon. Friend the Member for Chesterfield in order, I thought I would discuss them in groupings. I am more than happy to accept interventions when I describe the impact of the amendments, if hon. Members think that I have got it wrong or missed something. First, the amendments are broadly on the question of strict liability—that is, whether there is intention or not. Secondly, the definition of “controlled for gain”, which constitutes part of the offence, and is probably the most important issue, although they are all important. It is the issue on which there may be some common ground. Following the evidence session, we understand that the Government may be prepared to look at whether there are ways of making absolutely clear what we are talking about.
Included in this group is a series of amendments that tackle miscellaneous issues, such as what the penalty should be, particularly if the offence is not a strict liability one; whether the offence is committed by the person who pays or by the person who uses the paid-for sexual services; and issues related to the geographical scope and jurisdiction of the offence. I accept that not all the amendments in my name are perfect—I speak only for myself—or legislation-ready. They are probing amendments, as this is the first of many stages in which this part of the Bill will come under serious scrutiny. May I say at the outset that regardless of how dismissive the Government are of the amendments, they will not provoke me into seeking to divide the Committee. I hope that that is helpful, because we are seeking to establish the intention behind the provisions.
As I say, I recognise that the intention behind the clause is honourable, as it claims to deal with the question of prostitution involving trafficked women and coerced women, forced prostitution, and exploitative prostitution. There is no difference, I think, between any of the parties represented in Committee about how much we want to abolish such forms of prostitution and get rid of them. They are a breach of human rights—I serve on the Joint Committee on Human Rights—and it is very clear that we should have little tolerance of any coercion, where there is no willingness on the part of the prostitute. Part of the argument we can have on clause stand part is whether an offence like this effectively deals with that problem. We will touch on that when we discuss strict liability. I hope that that is understood and that we are not in the business of debating whether there is a commitment on anyone’s part to deal with, get rid of and punish those responsible for forced prostitution in all its forms.
Turning to the amendments dealing with strict liability, which include amendments 67 and 83 in my name, and amendment 29 in the name of the hon. Member for Bury St. Edmunds. These amendments try to argue with the point raised in subsection (2 ) of proposed new section 53A, which states that it is irrelevant
“whether A is, or ought to be, aware that any of B’s activities are controlled for gain.”
Amendment 29 seeks to remove those words.
Amendment 67 contains the words:
“A knows or is reckless as to whether”.
I accept that the amendment might read better—and this is why I do not think that it is perfect—if it contained the words, “known or ought to have known”. That is probably a better way, in this sort of legislation, of considering the question of whether we should have something that is either strictly intentional and includes a degree of recklessness, or is an issue of strict liability.
In her evidence, Shami Chakrabarti from Liberty helpfully set out the hierarchy of intention down to strict liability. Essentially—I am not quoting her directly—at the top end, it was a strict intentional offence. Coming down the scale, it was an intentional offence including a situation in which the perpetuator blinds themselves to the consequences of their action. Further down, there are forms of subjective recklessness: we are not doing a reasonableness test, so it is harder to commit the offence. In a case of subjective recklessness, someone does not think rationally about the consequences of what they are going to do—for example, if they throw a stone over a wall, knowing that there is a greenhouse on the other side, they do not intend to break the glass, but just do not consider the consequence of what they are going to do.
In cases of objective recklessness, which is similar to a form of negligence, a reasonable person would have foreseen the action. Further down the line, there is strict liability. The amendments are aimed at getting rid of strict liability, because there are real problems with it. First—and we heard from lawyers who gave evidence to us—it is wrong in principle to have strict liability offences outside the narrow area of regulatory offences, in which regulatory bodies say that if these are the facts, regardless of whether somebody intended to commit an offence, an offence has been committed. In principle, that is an inappropriate measure for matters to do with sexual offences or personal matters of this nature.
There were attempts to make gross indecency—then a homosexual offence— and age-of-consent offences offences of strict liability. In even more conservative times than those we live in today, there were strong objections to there being strict liability offences in those situations because of the danger of someone being misled or blackmailed. Those two go together, of course, and I do not think the question of blackmail has been brought up in connection with the clause. It is quite possible for someone who is prepared to be exposed as someone who uses the services of a prostitute—and therefore not blackmailable in that sense—to be blackmailable on the basis that a third party later claims that they committed an offence, even though they were led to believe as part of the entrapment that they had definitely not done so, and they took care to establish that they were not committing that offence. It would help them if they could be confident that they had any kind of defence against those facts. Under the provision as drafted by the Government, there is no such defence, and therefore there exposure to blackmail is possible. Blackmail is an offence in itself, regardless of whether people think that those individuals deserve to be blackmailed. Blackmail is not to be encouraged or assisted by legislation, but the chances of blackmail may increase under the Bill.
The Bill does not allow for a penalty to be imposed that matches the offence. The position with strict liability offences is that it is impossible to impose a custodial sentence, as I understand it, because of human rights issues. There must be some form of fairness in the trial and possible defences, before someone can be locked up for strict liability offences. That means that the Bill will capture—and perhaps it is designed to capture—a man who knowingly have sex with a woman who has been forced into prostitution, and knowingly has sex with a woman who is not therefore giving consent to that act, as coercion completely vitiates consent. That is rape, and even if people do not feel that rape could easily be proven, it is certainly a serious matter if someone knowingly has sex with someone against their will because they have been coerced or intimidated. However, to punish that with a maximum fine of £1,000 does not fit the purpose. If one could have an offence that was intentional, or even objective recklessness—that is the provision that I am offering the Minister—one could have custodial sentences to match the offence. One would not be dealing with people who were misled or made a simple mistake or had no good reason to believe that there was coercion and that the consent was not valid.
That brings me on to another reason why strict liability offences are not appropriate in this area. They do not achieve what the Government would otherwise achieve by having a more directed, restricted offence. If the Government accept that prostitution is with us, and they are not criminalising all prostitution—all the buying and all the selling related to prostitution—it must be a public policy aim to direct as much demand as possible, and I will come onto enforcement in a moment, into the “acceptable” end of the prostitution marketplace, where there is no coercion, sexual enslavement, intimidation or exploitation by third parties such as pimps gaining from it. In those conditions, women who are engaged in prostitution receive no benefit from it, but are essentially forced by circumstances to do something for which they are not getting a return.
We do not have to get into a debate about whether all prostitution is always exploitative—I use that term in the sense that I have just described—and how to make a distinction between that and the type of prostitution where the woman is in charge of her arrangements, is making a return, has a choice about which clients she accepts, what she performs and the price she charges. There is clearly a distinction. If the Government intend—as I believe they should—to push the demand, such as it is, into that area and therefore reduce demand in the area that we all find unacceptable, it would be wise for the punter’s offence to be committed in the circumstance in which we want to diminish the market, and not the other. That is only logical. The Government will be frustrated in what they are seeking to do, and they have blinded themselves to that eventuality by not including such provision.
My proposals measure would also allow our precious enforcement resources to be directed towards the unacceptable, outrageous offences. I was going say the “mischief”—a term we use in law—but it does not describe the abominable nature of the offences. If there is such an offence—we are debating amendments in relation it, so it is clear we can envisage circumstances in which there will be one—we would like the police to chase after men who are going to end of the market where prostitutes are exploited as I have described and are forced, intimidated or coerced. I would be grateful if the Minister responded to the points of principle I have raised about the drawbacks of a strict liability offence.
As I have said, my amendment deals with recklessness and I am happy for that to be understood as “ought to have known”, which is common in other areas. That is pretty wide—it goes wider than simply strict intention—and would require men who use the services of prostitutes to be clear, and seek to be clear, that there is no intimidation, coercion or control for gain, particularly if they are going back to the same women. We will have a debate later about how we define that. If such men fail to take straightforward steps or find themselves giving money to a man rather than to the woman herself or if there is any sign that the woman in unwilling, the offence might have been committed.
The measure gives a man who is charged a defence, which is right according to the rule of law, but it also enables the penalty to be much more serious. What I have proposed in my formulation in amendment 80, as a consequence of its no longer being strict liability, is that the offence is triable on indictment, with a maximum penalty of £5,000 if it is heard in the magistrates court, and that it should have a term of imprisonment “not exceeding 3 years.” If the Minister were to say, “Well, if we’re going to have a strict intention offence, it should be seven years as some of these offences are,” I am happy to consider that. The point is that that would be a far greater deterrent to men, and therefore a far greater restraint on this evil trade, than that currently in place. The man would be genuinely deterred and the police could enforce the legislation in a directed way in these areas.