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starman

Committee meeting today 5 feb

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I have not listened to it, but I do believe the first meeting was about clause 5-9, thus not anything about prostitution:

Meeting started at 9am ended at 10.27am

http://www.parliamentlive.tv/Main/VideoPlayer.aspx?meetingId=3380&rel=ok

That means that the next meeting, which starts at 1pm, will be the interesting one - listen to it here:

http://www.parliamentlive.tv/Main/VideoPlayer.aspx?meetingId=3381

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thanks for that starman,will watch bbc parliament in case its on there.

its good there are people who are politically aware unlike some other forums

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The 1pm meeting was all about clause 13 and went on till 4pm.

Dr Evan Harris (LD) spoke very well against the clause as it stands and particularly in the areas of a strict liability offence and that the control for gain clause should not include maids or when girls are working together they have some other person there as security. Nor should control include people who do advertising / arrange rotas for the girls or where the girls and parlour owners are working in a mutually benificial arrangement.

Later in the meeting he also questioned the sources of information used by the home office as being inaccurate and on one occasion referred to information that came from punters websites. From what he understood from reading such sites punters are more than willing at the moment to report suspicions of trafficking and that criminalising them will stop this valuable source of information.

The debate on this clause is far from over and continues next week. Certainly a lot of the anomalies are being teased out during the discussion process but I think it's too early to predict a final outcome

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The 1pm meeting was all about clause 13 and went on till 4pm.

Dr Evan Harris (LD) spoke very well against the clause as it stands and particularly in the areas of a strict liability offence and that the control for gain clause should not include maids or when girls are working together they have some other person there as security. Nor should control include people who do advertising / arrange rotas for the girls or where the girls and parlour owners are working in a mutually benificial arrangement.

Later in the meeting he also questioned the sources of information used by the home office as being inaccurate and on one occasion referred to information that came from punters websites. From what he understood from reading such sites punters are more than willing at the moment to report suspicions of trafficking and that criminalising them will stop this valuable source of information.

The debate on this clause is far from over and continues next week. Certainly a lot of the anomalies are being teased out during the discussion process but I think it's too early to predict a final outcome

alan campbell (lab) or was it Coaker? said that the meaning of the "irrelevant where in the world it takes place" was that if you pay in England/wales and fuck the girl somewhere (eg Scotland) else you're committing an offense in England/wales, it was essential that the payment took place in England and if you paid and fucked a girl in the Netherlands Dutch laws applied if she was controlled. Someone raised the issue, but what if you pay for your punt in the Netherlands with a British credit card, technically the payment will take place in England - to that there was no answer.

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The 1pm meeting was all about clause 13 and went on till 4pm.

Dr Evan Harris (LD) spoke very well against the clause as it stands and particularly in the areas of a strict liability offence and that the control for gain clause should not include maids or when girls are working together they have some other person there as security. Nor should control include people who do advertising / arrange rotas for the girls or where the girls and parlour owners are working in a mutually benificial arrangement.

Later in the meeting he also questioned the sources of information used by the home office as being inaccurate and on one occasion referred to information that came from punters websites. From what he understood from reading such sites punters are more than willing at the moment to report suspicions of trafficking and that criminalising them will stop this valuable source of information.

The debate on this clause is far from over and continues next week. Certainly a lot of the anomalies are being teased out during the discussion process but I think it's too early to predict a final outcome

alan campbell made it clear that those people mentioned were excepted, on the issue of a Madam however he couldn't give an answer and said he'd come back to that. However, I can't see that he will come back with a defintion which excludes the Madam, because then effectively it would legalise brothels - at least that is my interpretation? Now let's hear from the legal eagles.

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Here is the transcript:

Clause 13

Paying for sexual services of a controlled prostitute: England and Wales

Dr. Harris: 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.

Column number: 243

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 Column number: 244think 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.

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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.

Dr. Roberta Blackman-Woods (City of Durham) (Lab): The hon. Gentleman is making an interesting argument. Will he reflect on the fact that the Bill tries to shift the responsibility for using the services of a prostitute who has been forced into prostitution, for which there might be a range of reasons, from the prostitute to the man who purchases her services? It tries to do that in a way that is not overly complex, but what he is arguing for would introduce an area of complexity in relation to what is and is not “reckless”.

Dr. Harris: I accept the hon. Lady’s point. Providing a defence, and providing extra criteria that must be met before an offence is committed, would change the offence from a simple one of strict liability, as the Bill proposes, to one that, for the reasons I have given, I might consider supporting. Her point about transferring some of the onus for dealing with the problem on to men is an issue to be discussed in the stand part debate, so I shall not respond directly to it now, except to say—this is relevant to the amendments—that the Government have advertised this offence as dealing not only with trafficking, but with the wider exploitation of women through the use of force or intimidation.

All I ask is that a distinction be made between that sort of prostitution, when men know that it is happening, and cases in which men do not know that it is happening.

My final argument of effect is that we should rely more on men to report the fact that women are being coerced, intimidated or forced. The Minister for Security, Counter-Terrorism, Crime and Policing knows that I have made this point before, in previous exchanges on the Joint Committee on Human Rights, in which he did not take the position that he is taking now. There have been campaigns on this issue in other countries, and I suspect that if we had a proper campaign, using public money better to educate people about the fact that there is trafficking and exploitative prostitution, through which women are essentially being raped—I have no problem with using that terminology—more punters would be aware of the problem and would be prepared to report it. We know that from examining the websites of punters—men who use prostitutes.

Punters will feel less likely to report those situations if they are then prosecuted regardless of the circumstances. As far as I can tell, if they have paid, they have already committed an offence regardless of whether they have had sex. What if they pay and have sex, but find out the woman’s situation later, after she has got the money? That is often how prostitution works, particularly with women who are forced into it.

In order not to be intimidated or violated by their pimps, those women have to get the clients and the money, so punters might not find out about their situation until afterwards. By then, the punters will have committed an offence, unless the measure is changed to say that they knew or ought to have known about the situation. Do the Government propose to provide prosecutors and the police with a statutory guide saying that they should not prosecute cases in which such a report has been made? That might ameliorate the problem, but I have seen no sign, either on Second Reading or during our debates in the evidence sessions, that that is going to happen.

If we want men to report such cases, we have to give them a defence. Otherwise, they will not report, or trust that they can do so. If we want them to give evidence at some point, and make charges stick against the slippery pimps and traffickers who are prosecuted too rarely in this country, we do not want them to report anonymously, and we must encourage them to come forward.

Other countries have a hotline—not a general one, but a specific one—for men to report trafficked women. I have been to Italy to see that. Such a hotline could also be used to report other forms of controlled prostitution in which force, intimidation and coercion are used. I understand that 60 per cent. of the calls to that national 24-hour hotline come from men who use prostitutes, some of whom have fallen in love with a particular prostitute. That might seem curious to us, but it can happen when someone goes back to the same person.

Other men feel sorry for the women, feel guilty or want to help them for some reason. In the context of there being routes out of prostitution, given the residence permits and reflection periods in that country, it is highly attractive for men to do that because it enables them to keep in contact with the relevant woman, if she is willing to do so, although who knows how often she is willing? So, elsewhere, 60 per cent. of calls—thousands of calls—are from men, whereas in this country there are vanishingly few.

When we discussed this issue in the evidence sessions, the POPPY project claimed that 22 men—I think that meant as few as 22 men—had reported and therefore played a part in rescuing such women. I made the point that, by doing so, they were preventing those women from being raped several times a day for weeks and months. They were preventing huge numbers of offences and I do not think that that was properly taken on board, because our witness said that in all those cases it was alleged by the woman that the man had sex anyway, before making the report. I think that the Minister for Security, Counter-Terrorism, Crime and Policing made that point as well—certainly in debate, perhaps on Second Reading.

On the basis of those cases we do not know whether the men knew in advance or were told afterwards because, as reported in that evidence, they had sex and then made the report. In many cases, a man will suspect the situation only after they have had the service for which they have paid. A lot of prostitution is criminalised here, and exchanges, arrangements and liaisons are furtive, and there is not that opportunity for negotiation

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and discussion—one of the problems with the Government’s approach—so that is likely to happen. I hope that I have responded to the point raised by the hon. Member for City of Durham as to why strict liability would be counter-productive in helping to track down this mischief.

There is an interesting debate to be had around the definition of “controlled for gain”. In a sense, it is a separate issue from the one of strict liability and I hope that we can isolate it in our discussions accordingly. As set out in the clause, there is a lack of definition of the term “controlled for gain”. There is no definition of “control” in statute, and the meaning of “for gain” comes from section 53 of the Sexual Offences Act 2003, as it amends the Street Offences Act 1959. We do not have a difficulty with understanding what the “for gain” aspect of the phrase means.

Section 53 of the 2003 Act, under the heading “Controlling prostitution for gain”, states:

“A person commits an offence if—

(a) he intentionally controls any of the activities of another person relating to that person’s prostitution in any part of the world, and

(B) he does so for or in the expectation of gain for himself or a third person.”

Section 54 defines “gain” as:

“(a) any financial advantage, including the discharge of an obligation to pay or the provision of goods or services (including sexual services) gratuitously or at a discount; or

(B) the goodwill of any person which is or appears likely, in time, to bring financial advantage.”

There is little debate and contention over the definition of “gain”, but “control” is simply undefined. That leaves it, first, to case law, and, secondly, to policing practice. Into that, it leaves it to the jury.

With such a broad offence, including strict liability, is it wise for Parliament not to be clearer at this point? That is not a criticism of what the Government did in 2003. However, we are where we are with this offence, which, if it is enforced, is going to capture many people. Is there not an opportunity for us to set Parliament’s intention out, here in statute, to guide juries and the higher courts on appeal? That is good practice and I hope the Minister will consider doing it, even if he does not agree with my prescription.

What does case law say about what “controlled for gain” means in that situation? The one case, which may be the only one so far of an offence of controlling a prostitute “for gain” under the 2003 Act that has gone to appeal on the grounds of that definition, is Massey, which has been referred to already. The question there was what “control” meant. There was some criticism of the judge in the first instance case in relation to his direction to the jury, but that is not material to the outcome of what the Court of Appeal said. What the Court of Appeal said is important because it is where I hope we will find common ground:

“‘Control’ includes but is not limited to one who forces another to carry out the relevant activity.”

So, if we want to stick to Massey—I am not sure that we do, and there are various amendments that do not stick to Massey—I accept that we do not have to stick to forcing. It could go wider than that.

The Court of Appeal said:

“It is not necessary or appropriate for us to seek to lay down a comprehensive definition of an ordinary English word.”

Column number: 249

I think that the inference is that it might be for someone else to do that, and we are that party.

The Court of Appeal went on to say:

“It is certainly enough if a defendant instructs or directs the other person to carry out the relevant activity or do it in a particular way... There may be a variety of reasons why the other person does as instructed. It may be because of physical violence or threats of violence. It may be because of emotional blackmail, for example, being told that “if you really loved me, you would do this for me”... It may be because the defendant has a dominating personality and the woman who acts under his direction is psychologically damaged and fragile.”

It goes on to talk about the person being controlled being younger and “immature” and the other person being “older”.

So, we must consider the question whether that definition, as the Court of Appeal has it, always covers an exploitative situation, as I hope we would want it to cover an exploitative situation if we were to have such an offence. The Court goes on to say:

“The Concise Oxford Dictionary defines ‘in control of’ as ‘directing an activity’. It defines the noun ‘control’ as ‘power of directing, command’. By contrast, it does not include the words ‘compel, force or coerce’, although they would doubtless be forms of control.”

So, the question is whether the guidance in Massey is enough for us to rely on in terms of our intention that this new offence will be policed, whether it is enough in relation to the police and men who might want to seek to avoid committing the offence knowing what to do, and whether it is enough for prosecutors and for judges in directing juries. I suggest that it is not enough, and I have already said that I think that the guidance should be defined. Also, I would like to talk through the three versions that have been tabled in amendments.

Amendment 28 was tabled by the hon. Member for Bury St. Edmunds. I hope that he will not mind if I comment on it now, because it is convenient to do so and I do not wish to misinterpret what he is seeking to do. It has significant merit because it says that if the Government want to tackle trafficking—a lot of this debate has been about the disgraceful and abominable crime of trafficking women for sexual exploitation—why not have the trigger of the offence being circumstances or facts that would amount to an offence of trafficking, as well as “the use of or threat of the use of force or coercion”.

So that version is wide, it deals with trafficking, force and coercion, and I like what it seeks to do in that regard.

There is a good argument for that version. I am sure that the hon. Gentleman will make this point too, but in response to that the Government needs to explain what they seek to capture that is not captured beyond that definition. We can then have a useful debate.

In order to frame other alternatives, I thought it worthwhile to table two other versions. One came from Justice, which is a respected legal human rights organisation that gave evidence to us, and is in amendment 85. It requires that

“An activity is ‘controlled’ by a third person © if—

(a) B participates in the activity because of the use or threat against B or another person of one or more of—

(i) violence,

(ii) blackmail,

(iii) unlawful detention, or

(iv) other reprisal;

(:) C intentionally exercises control over the activity; and

© C is aware, or ought to be aware, of a relevant circumstance in paragraph (a) above.’.

That version also has merit, partly because it has clearly been drafted by someone who can draft, unlike, I suspect, my own attempt, which I will come on to. It covers that part of trafficking without requiring that any trafficking offence be covered that involves (i) violence,

(ii) blackmail,

(iii) unlawful detention, or

(iv) other reprisal;”

Of course, “other reprisal” could include—in my view, it must include—the threat to report someone to immigration officers if they are in the country illegally, or the threat to withhold their fix of drugs if they are a drug-dependent prostitute. So “other reprisal” can cover many areas, short of threats of violence or threats of blackmail. The reprisal might be emotional blackmail. The definition is wider than it might first appear. It takes a different approach from requiring the circumstances to be those where a trafficking offence may be committed. Perhaps a combination of these two might capture even more than this does, without capturing what we would not want it to

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Ms Sally Keeble (Northampton, North) (Lab): In my constituency there have been a number of incidents of trafficked women

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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

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