Mr.
Campbell: I understand the hon. Gentleman’s point
very well—and this is a fine line that we are seeking to
draw—but I would approach it from a different angle. In such
circumstances, it would be up to the Crown Prosecution Service to
decide whether it would prosecute. It is not impossible to envisage a
situation in which, had a man acted as the hon. Gentleman suggested, he
might be treated differently from someone who was, or should have been,
aware of the facts but carried on regardless. There is an element of
redress that could be available in those
circumstances.
Mr.
Campbell: I shall take one more intervention, but then I
must get
on. 2.15
pm
Dr.
Harris: I am conscious that I am intervening, but this is
helpful, rather than me coming back at the end, and then the Minister
coming back. I asked whether he might go further than what he has just
said, or whether he would leave open the option of going further and
offer some form of guidance to go with the Bill when it becomes an Act,
so that men would know the situation in advance. If he wants to
encourage men to come forward, it would help if there was a
backstop—if men knew, or at least had a good idea, that they
would not be prosecuted when they had done the right
thing.
Mr.
Campbell: I was intending to come back to the issue of
guidance. I hesitate, and would advise caution, because at the end of
the day we are talking about men who will have committed an offence,
albeit a strict liability offence—they will have committed an
offence if they have purchased and had sex with a woman who is
controlled for gain or who has been
trafficked. Whether
through guidance or anything else, we should not be sending out a
message that there is a way around this—that a man could, for
example, have sex with a woman who was trafficked or controlled for
gain and be allowed to reduce the severity of the offence he has
committed, as long as he points her in the direction of help
afterwards. We have to be careful before we go down that route. I take
the hon. Gentleman’s point, but I want to make some
progress.
Amendment 84
would not go quite as far as the other amendments in relation to strict
liability. It would remove subsection (2)(b), and thereby the strict
liability element of the offence. However, it would ensure that it was
irrelevant that the person paying for sex, A, knew the identity of the
person, C, responsible for controlling the prostitute, B. We are
clearly in agreement with that aspect.
We do not
think it should be necessary to establish whether the client was aware
of the identity of the person responsible for controlling the
prostitute. We believe that our clause already covers that; indeed, it
goes further. For the reasons that have been outlined, we do not wish
to limit the offence by accepting amendment 84 so that it would be
valid defence for someone to say that he or she did not know the
prostitute was being controlled for
gain. Amendment
79 also relates to the level of knowledge, on the part of the person
paying for sex, necessary for an offence to be committed. It would
ensure that an offence was committed only when someone had
intentionally paid or promised payment for the sexual services of a
prostitute. We have no difficulty in principle with that, but we do not
feel it necessary to add the word “intentionally”. It is
implicit in the wording of the new offence that the buyer must
intentionally pay for the sexual services of the prostitute. He cannot
pay for the sexual services if he does not intend to do
so. I
want to turn to amendments relating to “controlled for
gain”.
Dr.
Harris: That is the point I made in my first intervention,
rather than in my speech, and I apologise again for that. I would
accept that point normally, but what if the man intends to pay for
something else and does not realise that he has in fact paid because he
has paid for six lap dances or paid for something that he does not
realise is a sexual service, but accepts it when it is offered? Does
the Minister intend the clause to cover that? Is he confident that it
is covered? He may not be able to answer me now. If it is not his
intention that it will be covered, should he not include the word
“intentionally” to make it
clear?
Mr.
Campbell: No. We are of the view that the clause will
cover the circumstances we are talking about. We are confident of that.
We do not believe that the word “intentionally” ought to
be there and, apart from anything else, we believe that it would make
such a thing more difficult to
prove. I
want to discuss the issue of “controlled for gain”.
Moving away from strict liability and turning in particular to
amendment 68, which in addition to removing subsection
(2)(b) and the strict liability element would also remove subsection
(2)(a), clause 13 makes it an offence to pay for sex with a prostitute
who is controlled for gain, even if the sexual services are ultimately
provided outside England and
Wales. I
want to be clear on this point: we do not want people in this country
to pay in England and Wales for sex with a prostitute who is controlled
for gain, even if that prostitute is living elsewhere in the world. In
particular, we do not want people to get round the offence by making a
payment here and then travelling to, for example, Scotland to obtain
sexual services. That does not mean—I hope this goes some way
toward responding to the point that the hon. Gentleman has
made—that the police will target people who travel to, for
example, the Netherlands and pay for sex in that country, provided that
both the payment and services are obtained abroad, but it is important
that the potential loophole that the amendment would create is not
opened up. We fear that that would be the consequence of amendment
68.
The
hon. Gentleman went on to make a point that, in all honesty, I am not
sure I understood: what would happen if one procured the services of a
woman in this country, paid money and took her to Paris, where she was
somehow controlled for gain? The point is whether she is controlled for
gain when the payment or the promise of it is made. I cannot envisage a
situation in which that control for gain would be absent on this side
of the channel, but when they arrived in Paris circumstances would
somehow
change. Mr.
Simon Burns (West Chelmsford) (Con): I want to get this
straight. The Minister might know that in Nevada prostitution is legal
and, I think, there are some state-run brothels, which means by
definition that the people working in them are controlled. Does that
mean that if someone from England or Wales goes on holiday to Nevada,
visits one of those establishments and pays at the time for sexual
services, they will not be covered by the Bill and will not be
committing a criminal
offence?
Mr.
Campbell: The answer is no. The issue is prostitutes who
are controlled for gain, and I am not sure that that is the situation
in Nevada. Presumably state brothels there do not condone control for
gain and do not traffick women in.
Mr.
Burns: I am not a lawyer, so I may be confused. What I
mean about controlled for gain is that if prostitutes are working for
the state of Nevada, one might argue that they are in effect controlled
by another body. If, then, one was paying them, although that is legal
in Nevada, would one be committing an offence under the
Bill?
Mr.
Campbell: I think the answer is that we are confusing two
issues. The situation to which the hon. Gentleman refers is more akin
to having a receptionist or maid, or someone who caters for the
prostitute’s safety. We do not believe that those people will be
caught up in this offence, so that situation will not arise. I will
return to
that.
Dr.
Harris: It is clear that if someone pays here and takes
the woman who is controlled for gain here to Paris, that should be
covered by the offence, however we define it. In Nevada, there is
someone running the brothel and making a profit by controlling the
women—they are employees. Even in Holland, where things are less
formal than that, there is control for gain. I think the Minister means
that if someone pays here and has sex there, it is covered but will not
be enforced—it will not be a police priority. Also, under the
Bill, if people pay there, have sex there and the “controlled
for gain” provisions are met, they will be covered, even if for
practical or policy reasons that is not a priority. If that is not the
case, will he
explain?
Mr.
Campbell: The point about paying or promising payment here
and then travelling abroad to secure sexual services is to avoid people
using a loophole to get round our legislation. Clearly, if people do
such things in this country and not abroad, they are committing an
offence. What is the difference, then, if they pay or promise to pay in
this country and then go abroad intending to do it anyway?
I do not want
wrongly to recall what the hon. Member for West Chelmsford said, but he
cannot have it both
ways. I think he referred in the evidence sessions to different
jurisdictions and different laws relating to prostitution abroad. He
cannot now say that we should have a legal system here that penalises
people who go abroad to procure sex and who make or promise payment
while they are in another country. That is not what we mean. We are
referring to when people pay or promise to pay in this country and then
go abroad and access the service, knowing that that is how they will
avoid the law. If there are
trafficked women in a Dutch brothel, and someone from this country is
on holiday in Amsterdam and pays for and procures sex there, that and
the issue of the trafficked women in those brothels is a matter for the
Dutch authorities, not for this
offence. I
now turn to amendments 28, 30, 32, 34, 80, 81, 82 and 85
relating to the definition and scope of the term “controlled for
gain”. They clearly recognise that the aim of the new offence
under clause 13 is to ensure that those paying for sex with vulnerable
people involved in prostitution, through trafficking or other forms of
exploitation, either desist from such activities or face criminal
sanctions. That is the right approach and it will help to protect those
vulnerable people who, under the control and direction of another, have
little choice but to continue their involvement in
prostitution. 2.30
pm “Controlled
for gain” is the most appropriate term to cover the
circumstances that we want the offence to deal with and which would
allow its most effective enforcement. The term is used already under
the Sexual Offences Act 2003 and, as such, there is already
case law that helps to define the term. As has been referred to, the
Court of Appeal in R v. Massey explained that the term should be
given its ordinary dictionary
meaning. There
is no doubt that the word “control” covers those who have
been forced, coerced or compelled to provide sexual services as a
prostitute. We also accept that the term goes wider than that. In the
Massey case, for example, there was no need to show that the boyfriend
accused of controlling prostitution for gain used physical violence to
control his girlfriend’s work as a prostitute, although the
girlfriend had made that allegation. The Court accepted that sex
workers are often vulnerable young women with disturbed backgrounds who
have never known a stable relationship or respect from others, and are
therefore prey to pimps and those who seek to exploit them, albeit such
exploitation may not necessarily involve intimidation or force. It is
those people whom we want to protect, but the amendments would be in
danger of excluding
them. On
the other hand, it is important to make it clear that the offence will
not go as wide as some are claiming. For example, we do not believe
that a prostitute who employs a receptionist to arrange her
appointments will be considered controlled for gain, as some have
suggested, nor do we consider that a prostitute who arranges for a
security guard to protect her will be controlled for gain. That does
not accord with the ordinary meaning of
“controlled”.
Dr.
Harris: What the Minister said about scope is helpful,
although not a surprise. It was made clear on Second Reading that the
Bill is trying to capture not receptionists or maids, but traffickers
and pimps—even
pimps who are not overtly violent or threatening, as in the case of
Massey. I accept that, but what about a madam? I have asked that key
question before and I shall go on asking it until the Bill receives
Royal Assent. With a madam, women can work together and be together for
security. Is it the Minister’s intention that the police should
go for the person who is taking money, making a profit and organising
with the willing co-operation of the women in such arrangements? We
need
clarification.
Mr.
Campbell: I want to come back to the issue of women
working together, which the hon. Gentleman has raised on two occasions,
after which we can perhaps discuss
madams. I
want first to talk about enforceability. We have looked at several
examples of how the current offence of controlling prostitution for
gain is used, and it is clear that, in practice, it is being used as
part of anti-trafficking operations and against those complicit in a
level of coercion. We shall continue to work with the Association of
Chief Police Officers and the Crown Prosecution Service to ensure that
they are aware of the “mischief” that the new offence is
aimed at, but the term “control” does not need to be
explicitly restricted in the way suggested by the amendments.
I recognise
the concerns about the use of the term “controlled for
gain” as a means to define which prostitutes the offence is
specifically aimed at protecting. I regard the amendments as a
constructive attempt to address such concerns and I am grateful to
members of the Committee for their approach to such issues, but we do
not believe that the amendments are the most effective way to ensure
that the offence targets those who pay for sex with those particularly
vulnerable prostitutes whom we wish to
protect. Amendments
28, 32 and 85 would require the prosecution to prove that force or
coercion was necessary to make the prostitute engage in a specific
transaction or, in the case of amendments 28 and 32, that the
prostitute was trafficked. The term “control” is wider
than the circumstances covered by most of the alternatives that have
been suggested by way of amendment, in that it does not require the
prosecution to prove an absence of free will on the part of the
prostitute. This is to ensure that we cover those who may have
initially agreed to be trafficked into the country or have submitted to
a certain degree of direction or management by their pimp, but only
because they have very limited choices—for example, because the
pimp also supplies them with drugs, on which they are dependent. My
hon. Friend the Member for Northampton, North made a valuable
intervention in regard to this and I thank her for
that.
The problem
with using the term “trafficked” to try to cover the
voluntarily trafficked prostitutes, is that if a woman was trafficked,
it would forever more be illegal to pay to have sex with her, even if,
however unlikely such a scenario may be, she escaped the traffickers
and found work outside of prostitution, but at some point in her life
decided to return to work as a prostitute. By putting
“trafficked” in there as a label, it is our view that it
would forever more be illegal to pay to have sex with that woman and
therefore would fall out of the original intention of what we are
trying to do.
Amendment
85 tries to broaden the offence by using the term “other
reprisal”. However, we are not clear what would count as a
reprisal. Having tried to tighten up the definition, our concern is
that a term such as “reprisal” would open up the door
again. For example, is a “reprisal” intended to cover a
prostitute who knew she would be refused drugs by her pimp if she did
not engage in prostitution according to the instructions he gives her?
There is a lack of clarity on that point, and, given that we do not
believe that we need to define “control” or
“controlled for gain” more than we have done, we are
inclined to reject the amendment.
In tabling
amendment 80, the hon. Member for Oxford, West and Abingdon appears to
recognise the need to cover circumstances beyond coercion and
compulsion. In defining “control” as activity
involving “compulsion,
coercion, intimidation or
force” or
“regular instruction or direction”, the amendment covers
most of the activity that we believe would be within the scope of the
term “control”. However, we do not believe that the
requirement for “regular instruction or direction” is
helpful. What matters is whether the prostitute is being directed to
such a degree that she would be viewed as controlled in relation to the
provision of the sexual services to the particular buyer, whether or
not this occurs with any degree of
regularity. I
return here to the point that the hon. Gentleman made about women who
work together. We accept that, for safety, prostitutes sometimes work
together. I re-emphasise the point that he allowed me to make earlier,
which is that the measure is not directed at the receptionist, the
maid, the security person, or any other woman working with another
prostitute, where they are working together for reasons of safety. It
is difficult to envisage a situation where a madam—I am not sure
what the hon. Gentleman’s definition of a madam is—would
fall under the definition of “controlled for gain” that
this offence would be based upon. If we are talking about someone who
arranges the appointments, shares the venue, ensures that the
prostitutes are safe—the things that we are talking about that
we are confident are not covered by this offence—we believe that
the definition “controlled for gain” would not extend to
include the situation that he is talking about. However, he has asked
whether or not there would be further guidelines and explanation on
this. Let me take this away and look at it. I suspect that the hon.
Gentleman will continue to have concerns about
this.
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