Clause 13
Policing and Crime Bill
1:30 pm
Evan Harris (Oxford West and Abingdon, Liberal Democrat)
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?
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—