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I am confident that existing arrangements will encourage local authorities to ensure that police authorities play an active part at committee when community safety matters are being discussed, particularly when the police are to be present. Given the early stage of implementation of overview and scrutiny of crime and disorder matters, I would not want to draw a conclusion as to whether local authorities are, in fact, engaging with police authorities. However, we will continue to monitor implementation. The effect of this amendment would be to prejudge the effectiveness of implementation of the current arrangements. It would also put a new burden on police authorities to put forward a member for each overview and scrutiny committee within their force area. In London, that would mean 33 committees. For those reasons, I ask the noble Baroness to withdraw her amendment.



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Baroness Henig: I thank my noble friend for that response. It will not surprise the House to learn that I do not share his confidence. Those of us who have a lot of experience of local government, particularly in two-tier areas, know all about the problems, rivalries, difficulties and dangers. The Government are just piling up legislation that rests on other legislation. At local level, you then find that accountabilities get blurred and all sorts of problems rear their heads. I hope that the Minister's confidence is justified and that this all works, but I have a great concern that it will not, that there will be problems and that they will continue into the future. With past legislation, I was in the position of raising the alarm and, lo and behold, after a few years it was necessary to revisit the legislation. I fear that this will be the case again here, but I do not wish to hold up the business of the House. I beg leave to withdraw the amendment.

Amendment 19 withdrawn.

Clause 14 : Paying for sexual services of a prostitute subjected to force etc: England and Wales

Amendment 20

Moved by Baroness Miller of Chilthorne Domer

20: Clause 14, page 17, leave out lines 33 and 34 and insert-

"(c) A is aware, or ought to be aware, that C has engaged in exploitative conduct of that kind"

Baroness Miller of Chilthorne Domer: My Lords, with this amendment, we move to Part 2 of the Bill, on sex offences and sex establishments, and prostitution in particular. Clauses 14 and 15 have presented the most difficult issues. We also found that to be the case in Committee. I appreciated very much the letter of 2 November from the noble and learned Baroness, Lady Scotland, as I did her usual clarity of position and her recognition of the fact that there are arguments for different approaches. She said that the Government's position is clear. However, I think that tussling with the different positions has been very difficult for everybody.

Since Committee there has been a considerable amount more evidence-letters, e-mails and testimonies. As Liberal Democrats we believe-and, as a woman, I believe-that there should be zero tolerance of coercion, violence or sexual abuse towards anybody working in the sex industry. Those who have been trafficked into this country and forced to work in the industry against their will should expect and receive full protection under the law. I am not speaking to defend men who buy sex. I am moving this amendment in response to concerns about the effect that this legislation will have on some of the most vulnerable women in our society, and that was very much the tenor of our debate in Committee. The Government explained the strict liability aspect of the offence, saying that it was likely to have the effect of reducing demand. The evidence on that issue and how it has been approached by other places in the world has also formed part of our thinking in retabling these amendments.

Those who support Clause 14 say that making men criminally liable for,

"Paying for sexual services of a prostitute subjected to force",



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will drastically reduce the demand for such services and reduce the incentive for traffickers to traffic women. That belief contains two assumptions that I do not believe are correct: first, that most prostitutes are trafficked women; and secondly and more importantly, that this legislation will make that trade lessen and disappear by further criminalising the sexual services trade. The supporters of the Bill do not accept that it will drive the trade underground and endanger the very vulnerable women that they seek to protect.

If I believed that the Government's assumptions were true I would support Clause 14. However, I have looked carefully at the evidence and it does not support those two assumptions. First, there is the evidence on trafficking, which we have had a lot more of since debating this in Committee. The Home Office figures on the number of people working in the sex trade who have been trafficked have themselves been widely challenged. That was no surprise to us because we quoted in Committee the work that was just being published by Dr Mai and that had been funded by the ESRC. The Guardian report of 20 October also produced many more questions about the veracity of the Home Office figures.

Be that as it may, let us suppose for a moment that the Home Office is right about the figures. The next question to answer is whether as a result of the provisions the sex trade will disappear, or whether it will continue to exist but as a less dangerous place for women to work. There is lots of evidence on that from countries all over the world, including the US, which, with the exception of one or two states, has a highly criminalised system. For us, however, the most persuasive evidence came from those who work with women in the sex trade and those who work with the women themselves. I want to share with the House some of what I have heard since we debated this in Committee.

As far as those who are trying to improve the life of women in the sex trade are concerned, I shall simply cite, for instance, Georgina Perry from the Open Doors project in the East End of London. This project has been going since 1993, and it sees about 1,200 women a year who work in indoor sex and about 300 who work on the streets. Many are migrant women. They do not believe that the percentage of those who are trafficked is significant at all, but that the women who they work with are there because of economics, not force. They believe that it is essential to tackle health issues, first and foremost, and to support the women. They are deeply worried by these clauses.

In theory, many academics who have studied these issues for years and years are, equally, deeply against the Bill-I am sure that Ministers are aware of their names. Perhaps most persuasive are those who see the really terrible side. Women Against Rape are also deeply worried by these clauses. When we debated the provisions in Committee, the Government stated that this new offence,

As these provisions introduce a lower tariff, there will be a temptation to prosecute under them even in cases where prosecutions should be directed at the offence

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of rape. It is extremely rare to successfully convict someone of rape, particularly in such cases.

However, the most persuasive case for my amendment is made by the women themselves through the English Collective of Prostitutes and the International Union of Sex Workers. I am aware that supporters of Clause 14 are somewhat dismissive of these women's comments and claim that they often represent the views of pimps and exploiters. However, that is not the case with the women I have met who have attended many meetings in Parliament. These women are very fearful that the trade will be driven underground.

9.45 pm

We need to look again at the evidence from the JCHR, which made its case forcefully. It referred to the likelihood of the measure having unintended consequences, including driving prostitution further underground and increasing the vulnerability of prostitutes. I do not think that the Government have provided new evidence to assuage the JCHR's fears. The Joint Committee further stated that legislation should be firmly based on evidence. It considered that it was particularly important when new criminal offences were proposed to show why the existing criminal law was inadequate to deal with the targeted conduct and how the proposed new offence tackled the behaviour in a proportionate way. In the committee's view that was even more imperative when the proposed new offence was one of strict liability. My noble friend Lord Thomas of Gresford will expand on that.

This matter was fully debated in the Commons, where some improvements were made to Clause 14. However, we are still left with the necessity of dealing appropriately and effectively with trafficking and rape. Given the many problems associated with the proposed new offence, we believe that the relevant clauses should be removed from the Bill and that the Government should instead consult on the creation of any new offence. I am sure the Minister will mention that consultation began with Paying the Price and that this measure is the end result. I believe absolutely in her sincerity in promoting her case, given her record on domestic violence, on which she has worked very hard. However, in this instance I am deeply worried that the Government are pursuing a line that will increase these women's vulnerability and will not solve the problem. We should be looking at better enforcement of existing law rather than creating this new offence. I beg to move.

Lord McColl of Dulwich: My Lords, I support the retention of Clause 14 because it begins to put the responsibility for prostitution onto the man who chooses to buy sex instead of on a seller who, because of exploitation, has no choice. Some people are concerned about the strict liability element of the clause and it has been claimed that there are no current examples of strict liability in similar offences in UK law. However, there are cases where strict liability has been employed; for example, in Section 5 of the Sexual Offences Act 2003, which makes it an offence to have sex with a child under the age of 13, regardless of whether it can be proved that the offender knew that the child was under age or whether the child consented to the sexual activity. This is in place because of the abhorrent

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harm inflicted through child sexual abuse. Secondly, Section 4 of the Road Traffic Act 1988 makes it an offence to drive or attempt to drive under the influence of drugs or alcohol, regardless of whether the driver is aware of this.

It is important to consider how effective Clause 14 would be without a strict liability element. The answer is to be found in Finland. The Finnish Parliament voted in June 2006 to pass legislation that criminalises the buying of sexual services from a victim of human trafficking or from someone who is a victim of procurement. In order successfully to prosecute a buyer of sexual services, evidence has to be provided that the man in question knew that he had purchased and sexually exploited a woman who was a victim of trafficking in human beings or who was under the control of a pimp. Due to the difficulty of enforcing the legislation, no convictions were secured until January of this year, when 16 people were convicted. Fourteen of the convictions related to the case of a severely mentally disabled young Estonian woman. The other two convictions related to a young Finnish girl who was held in a basement on the Russian/Finnish border.

The nature of these cases makes it evident that unless the burden of proof is on the accused, it is almost impossible to obtain convictions. Would-be exploiters know this, and the law is, therefore, of very little deterrence. We know that a significant number of women in the sex trade are subjected to physical violence and rape, and are exploited by a third party. Such women are powerless to do anything about it. By contrast, the person who pays for sexual services does have a choice. If Clause 14 is passed, he will know in advance that he must satisfy himself that he has reasonable proof that the woman is not controlled for gain by a third person. If he has no such proof, he must desist or run the risk of prosecution under Clause 14. He has that choice. That is what strict liability means in practice in those circumstances.

I can see absolutely no injustice in this. To avoid any risk of conviction, the person intending to pay for sex should assume that the person he is about to pay is controlled by a third person and, therefore that he commits an offence for which he may be convicted. Thus, in practice, the benefit of doubt is given to the person who is in danger-the one who is powerless; the one who may have no choice. That is as it ought to be. Put another way, a man who wants to pay for sexual services must make sure that the person he is to pay is not being exploited by a third party. If he cannot be sure, he risks conviction. That is the message of Clause 14, and it is a message that this House should send loud and clear, because it is designed to protect those who most need the law's protection.

We need to do all we can to protect women and children who are subjected to commercial sexual exploitation. We must take this step to reduce exploitative prostitution and protect those who are currently unable to protect themselves. The human trafficking trade in the world is worth $44 billion. We must do something to reduce that.

Lord Pannick: My Lords, I support the amendments proposed by the noble Baroness, Lady Miller. Without the amendments, the customer will be guilty of a

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criminal offence however careful he may be to check whether there is exploitative conduct by another person, and even if it were not possible in all the circumstances for the customer to identify whether exploitative conduct has occurred.

Of course, as the noble Lord, Lord McColl, indicated, the criminal law is replete with examples of strict liability offences, some of which are sexual. However, I cannot think of any other example where the defendant can be guilty of a criminal offence on a strict liability basis when he is a secondary party; that is, when he is not responsible for the primary wrongdoing, which here is the exploitation. That is what distinguishes this case from the examples given by the noble Lord, Lord McColl.

To impose strict liability on the secondary party-that is, the customer-so that he has no defence however careful he is to ascertain whether the mischief of exploitation by another person has occurred, is to make the secondary party, the customer, liable for the wrongdoing, namely the exploitation, which he has not caused. That is simply wrong in principle. If the Government take the view-and there is some force in the argument-that exploitation is endemic to prostitution, and therefore any customer bears a responsibility and should be liable, let them come forward with a clause that makes it a criminal offence to purchase the sexual services of a prostitute. However, if they are not prepared to do that, they should not put before this House and Parliament a clause in the form that we currently see.

Lord Thomas of Gresford: My Lords, I disagree with the noble Lord that the law is replete with examples of the extension of strict liability to acts of a criminal character. Strict liability is usually to be found in enactments that apply to particular trades-for example, the sale of food, drink or medicines-where it is in the public interest to enforce regulatory standards.

The Law Commission, in its Working Paper No. 31, considered the mental element in crime and said:

"To make a person liable to imprisonment or criminal sanction for an offence which he does not know he is committing ... is repugnant to the ordinary man's conception of justice and brings the law into contempt".

Lord Reid-a very wise man, and very frightening to appear before-said, in the leading case of Sweet v Parsley in 1970:

"It does not in the least follow that when one is dealing with a truly criminal act it is sufficient merely to have regard to the subject matter of the enactment. One must put oneself in the position of a legislator".

We are the legislators. Lord Reid continued:

"It has long been the practice to recognise absolute offences in this class of quasi-criminal acts"-

that is to say, regulatory offences-

the legislator-



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said Lord Reid,

So the extension of strict liability to acts of a truly criminal character is extremely limited.

10 pm

The noble Lord, Lord McColl of Dulwich, referred to Section 5 of the Sexual Offences Act 2003 concerning the rape of a child under the age of 13. The offence requires merely proof of an intentional penetration with the penis but does not require knowledge that the child is under 13 and does not permit any defence of reasonable mistake as to age. It is not a question of changing the burden of proof; there simply is no defence.

That was so far beyond the ordinary principle that it was subject to an appeal to the House of Lords in the case of G in 2008. It was contended that Section 5 of the 2003 Act was incompatible with a presumption of innocence guaranteed by Article 6.2 of the European Convention for the Protection of Human Rights and Fundamental Freedoms. That was considered but rejected by their Lordships in this House. They held that proof of the intentional penile penetration of a child under 13 years of age was all that was required for a conviction under Section 5 of the 2003 Act. So, to the extent that there was no defence but that the accused believed the other person to be aged 13 or over, it was an offence of strict liability. However, their Lordships said that the policy of the legislation was to protect children and there was nothing unjust or irrational about a law which provided that a male who so penetrated a young person who was in fact under 13 years of age had committed an offence. The focus was on that policy. The noble and learned Lord, Lord Hope of Craighead, who is very familiar to your Lordships, said:

"There is no doubt that when section 5 of the 2003 Act was enacted the protection of children was one of the primary concerns of the legislature. Furthermore, as Rose LJ said in R v Corran ...its purpose is to protect children under 13 from themselves as well as from others who are minded to prey upon them".

The important point is that, by contrast, under Section 9 of that Act sexual activity with a child between the ages of 13 and 18 requires the prosecution to prove not merely intentional penile penetration of a child but also that the defendant does not reasonably believe that the child is 16 or over. In other words, when a child is 13, the Sexual Offences Act 2003 does not impose strict liability for that criminal offence, and the person who is a defendant for having sex with a girl over 13 and under 18 has a defence to say that he thought she was over 16.

Why, then, should the concept of strict liability be introduced into the offences of paying for sexual services of a prostitute subjected to exploitative conduct? I am grateful to the noble Lord, Lord Pannick, who pointed out that it is at one remove at any event, and that a very considerable amount of harm and damage is being done by the exploiter.



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The offence put forward by the Government is not considered serious enough even to be an indictable offence. It can be prosecuted only in the magistrates' court. The maximum penalty in the offence before your Lordships is a fine not exceeding level 3-that is, up to £1,000. Therefore, there is a defence to having sex with a girl between the ages of 13 and 16, which is that you thought she was over 16. However, the Government have put it as a magistrates' court offence with only a fine but they wish to impose strict liability. It is a huge leap in principle. Is the use of prostitutes so great a social evil as to be compared with having sex with a child over 13 and more serious than non-consensual sex with a child between the ages of 13 and 18?

The amendment tabled by my noble friend does not attempt to minimise the need to protect prostitutes who are subject to exploitative conditions. To be proportionate, the defendant must surely be able to say, when he is brought before the magistrates, that he did not know or have reason to know that a third party was exploiting that prostitute. Why do the Government say that, unlike the whole calendar of criminal law, including murder, rape, terrorist crime, armed robbery, and fraud, all of which require mens rea-an intention and knowledge in the head of the person-this new offence of strict liability, this magistrates' court offence, is punishable by a maximum fine of £1,000? Why is this suddenly to become strict liability so that a defendant has no defence? Is it to send a message? We could abolish the need to prove intent or knowledge to send a message about murder or rape. Abolishing mens rea in all serious criminal offences would send a message. I suggest that the only message to be sent is that the Government have lost a sense of proportion in considering this offence.

Lord Morrow: My Lords, I wish to express opposition to Amendments 20 to 25, particularly to Amendments 23, 24 and 25, as they impact directly on Northern Ireland. I wish to express my support for Clause 15 of the Policing and Crime Bill, which makes it an offence in Northern Ireland for someone to buy sex or try to buy sex from someone subjected to force. Increasing demand for paid sex is a matter of national shame. Not only does it result in more women being drawn into forced prostitution from within these islands but also in women being trafficked and, yes, trafficked into Northern Ireland.

In March this year, the Police Service of Northern Ireland announced that 11 trafficked women had been rescued from sexual slavery in the previous 12 months and since then another six had been rescued in Belfast and Londonderry. In March, the assistant chief constable, Drew Harris, explained that traffickers were targeting females from sub-Saharan Africa, eastern Europe or the Far East with the promise of a far better life. He said:

"When they are actually brought here they are forced into prostitution ... We can expect that this will be a continuing problem for us because the profits involved and the criminal networks that are involved see this as a very lucrative business ... People could have a brothel quite close to them and they should be aware of that, that it could actually be one of these brothels with women in it in the most awful circumstances in sexual servitude".



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