Sex trade regulation in England & Wales: Property, hypocrisy and the ballot box

By Esther

In England and Wales performing sexual services for a financial reward is legal, as is paying for them, but many related activities are criminal offences. Policy and legislation concerning prostitution in Scotland and Northern Ireland are devolved matters for which their governments can legislate separately.

A report by the House of Commons home affairs select committee published in July 2016 included the estimate that there are between 60,000 and 80,000 sex workers in the UK, a majority of whom are women, with most now working in a variety of indoor environments rather than on the streets.

Activities related to prostitution which are criminal offences in England and Wales include:

Loitering or soliciting in a street or public place for the purposes of prostitution;
Kerb crawling;
Intentionally causing or inciting another person to become a prostitute in any part of the world, or intentionally controlling any of the activities of another person relating to that person’s prostitution in any part of the world for, or in expectation of, gain for oneself or a third person;
Paying for the sexual services anywhere in the world of a prostitute who has been subjected to force, threats, any other form of coercion or deception by a third person (It is irrelevant whether the person paying is, or ought to be, aware that the person they are paying is being exploited by another person);
Keeping, managing, acting or assisting in the management of a brothel to which people resort for practises involving prostitution, whether or not they also go there for other practices;
Human trafficking, which is defined in the Modern Slavery Act 2015 to mean arranging or facilitating the travel of another person into, within or out of any country with a view to that person being exploited.

The definition of a “brothel” comes from case-law, rather than statute. Premises generally only become a “brothel” when used by more than one woman for the purposes of prostitution, either simultaneously or one at a time.

The 2016 report of the House of Commons home affairs select committee commented that police forces:

“often have to choose whether to enforce offences for soliciting or brothel-keeping in order to reduce negative impacts on the local community, or to focus on building up the confidence and cooperation of sex workers in order to protect them from crime, and to help identify and convict criminals. While it is right that communities choose their policing priorities, it is not right that the police have to choose which laws to enforce and which to overlook.”

The existence of the individual police constable’s discretion and the equally important principle that forces in England and Wales police by consent, along with the need to prioritise the use of resources, mean that the police do in fact make some choices about enforcing the criminal law and not only where prostitution is concerned.

Police officers in England and Wales have discretion over what they consider to be the most appropriate action to take to fulfil their function as sworn officers of the Crown in respect of criminal activity they observe, or which is reported to them. As the Police Federation’s booklet, The Office of Constable, notes:

“Police officers have authority under the Crown for the protection of life and property, maintenance of order, prevention and detection of crime and prosecution of offenders against the peace.”

Loitering and soliciting, kerb crawling, paying for sexual services, keeping a brothel and advertising prostitution can only be dealt with in magistrates’ courts and have lower maximum penalties. Where these offences are concerned the police have discretion not to arrest or report to the Crown Prosecution Service (CPS) someone suspected of committing an offence, or they can charge the offence without referring the case to a prosecutor, regardless of whether the suspect intends to plead guilty or not guilty.

Where an offence can be dealt with either in magistrates’ courts, or by a trial by jury in the Crown Court or can only be dealt with by a trial by jury, the decision on whether to prosecute someone suspected of committing a criminal offence will be made by the CPS. The CPS decides which cases referred to it should be prosecuted and determines which charges would be most appropriate based on two questions:

Is there enough evidence against the defendant?
Is it in the public interest for the CPS to bring the case to court?

The CPS has a Code for Crown Prosecutors and other guidance to help prosecutors reach decisions on these questions. Noting that where prostitution is concerned the context is frequently one of abuse of power used by those who incite and control prostitution to control the sellers of sex, the CPS guidance on the prosecution of offences connected with prostitution includes these paragraphs about the overall approach to be taken by prosecutors:

“The CPS focuses on the prosecution of those who force others into prostitution, exploit, abuse and harm them. Our joint approach with the police, with the support of other agencies, is to help those involved in prostitution to develop routes out…
The CPS charging practice is to tackle those who recruit others into prostitution for their own gain or someone else’s, by charging offences of causing, inciting or controlling prostitution for gain, or trafficking for sexual exploitation. In addition to attracting significant sentences, these offences also provide opportunities for seizure of assets through Proceeds of Crime Act orders and the application of Trafficking Prevention Orders.”

The CPS guidance adds that prosecutors should be aware that there is autonomy as to how police forces police prostitution within their geographical areas. Guidance given to the police about the approach officers should take is intended to ensure consistent levels of service, while balancing the need to protect people involved in prostitution from crime. The CPS guidance notes that:

“The strategic principles for policing prostitution emphasise that those who sell sex should not be treated as offenders but as people who may be or become victims of crime. Prostitution should be tackled in partnership with other organisations and projects offering support services.”

Approaches taken by police forces in England and Wales towards the policing of prostitution vary considerably. A report called Shifting the Burden, published in 2014 by the All-Party Parliamentary Group on Prostitution and the Global Sex Trade, showed that policing and enforcement was unevenly prioritised and resourced nationally, with a few exceptions only made possible through extraordinary political leadership at a local level. It commented that at its worst this could trap women in cycles of abuse and prevent them from exiting prostitution.

It is precisely because approaches taken by police forces in England and Wales vary that we can compare the outcome of the strategy led by Alan Caton, a former Suffolk Constabulary detective superintendent, following the murders of five prostituted women in Ipswich in 2006, which ended street prostitution there, supported women to leave the sex trade, has been praised by the local community and described as “innovative, effective and cost-effective”, with the ongoing disaster for the community in Holbeck in Leeds, West Yorkshire, following the establishment of a “managed area” for street prostitution there.

The National Police Chief’s Council (NPCC) with the College of Policing publishes national Policing Sex Work and Prostitution Guidance. The current edition has a review date of January 2021. It states that:

“This guidance offers practical advice to those dealing with sex work related issues. It recognises the need to address community concerns but also stresses as a priority the duty that police services have to enhance the safety of sex workers and to find practical ways to address crimes against, and exploitation of, those connected to prostitution.”

The guidance goes on to say:

“The presence of organised criminal activity within the sex industry is unquestionable and causes great harm to individuals and communities. Where such criminal activity is identified, it is our responsibility to robustly investigate and bring to justice those involved.”

There are few better ways of defeating the claimed joint objective of the police and the CPS of helping those involved in prostitution to find a way out than claiming that it is necessary to keep the criminal records of a woman arrested for loitering or soliciting who exited prostitution many years ago on the Police National Computer for that woman’s lifetime.

On 28 November 2020 new “filtering rules” about the disclosure of criminal records came into force. The changes in these rules came about because of a case brought by three women with the support of the Centre for Women’s Justice. All three women were pimped into prostitution as teenagers and their criminal records for offences of loitering and soliciting to sell sex under section 1 of the Street Offences Act 1959 were an ongoing blight on their lives. They successfully argued that the disclosure of their records was disproportionate, irrational and discriminated against them on the grounds of sex.

Provided that a woman convicted of the offences under the 1959 Act, which are punishable by fines, has not served a custodial sentence for a separate offence, and that the convictions are more than 11 years old, their criminal records for these offences will no longer be automatically disclosed to employers, even if they are applying for a position which requires an enhanced Disclosure and Barring Service (DBS) check.

Protected convictions are not immune from disclosure even after the passage of 11 years. They will be retained on the Police National Computer for the woman’s lifetime. A record about them could still be disclosed within the criminal justice system and for a limited range of other purposes. Enhanced DBS certificates may include information about them if the police consider that it is relevant to the workforce in which the person intends to work and ought to be disclosed.

The three women whose legal action brought about these changes in November 2020 went on to challenge the retention of their criminal records on the Police National Computer. They were opposed by the National Police Chiefs Council (NPCC) which is responsible for maintaining the database and the policy, and by the Home Office.

The court rejected the arguments made by the three women that keeping what were records of their abuse on the Police National Computer for the rest of their lives was an unacceptable interference with their privacy rights, and that it was disproportionate. While recognising that the women’s convictions were, in each case, over twenty years old, and that the impact of the retention of these records could be distressing and degrading, interfering with their ability to move on with their lives, the judges took the view that:

“the public interest in maintaining a comprehensive record of convictions far outweighs the personal interest of the Claimants.”

The court judgment set out the circumstances in which these records could be disclosed, mainly for criminal justice purposes, but also for a limited range of others, including these set out in the DBS filtering guidance:

“There are a small number of defined positions of utmost integrity where details of all convictions and cautions may be taken into account. Some examples are jobs or activities relating to national security, the police, judicial appointments and firearms certificates. These positions do not receive criminal record information through the DBS process. Instead, employers and organisations considering a person’s suitability are likely to have arrangements for direct access to the Police National Computer.”

As the Home Affairs select committee noted in its 2016 report, indoor prostitution forms the largest and least visible part of the sex industry in the UK. Young women who are persuaded by those who sanitise it to become involved with the sex trade while they are at university, for example, are more likely to be involved with indoor prostitution than with the street prostitution which might result in them ending up with criminal records. They are also more likely to be members of the social class which tends to occupy positions “of utmost integrity”.

They will not have their attempts to move forward with their lives held back by time limits, relatively long in a person’s working life, within which convictions and cautions will be unprotected and liable to be disclosed to an employer, and be prevented by the possible disclosure of their records from accessing work in alternative occupations, particularly those where their lived experience would be useful and bring insights not available to those, including many in academia, who, from a position of enormous privilege, sanitise the sex industry and how women and girls are recruited into it.

Records of a much smaller subset of women whose exploitation is visible and unaddressed, who are subject to the exercise by individual constables of their discretion over whether to take any action at all – a discretion which may be influenced by a multitude of factors and biases not mentioned on the record – do not amount to meaningful “intelligence” about prostitution. They are intelligence about massive societal and safeguarding failures.

Contrast the position of these women with how having been convicted of participating in the violent robbery of a client who later died can have you feted as a “sex worker activist” in the mainstream media and given a book publishing deal. The irony, when a major factor in aggression and threats levelled against me by some clients was the perception or experience of being robbed, or of being greeted with violence or the threat of it themselves.

No one involved in the long, ultimately successful campaign to have men convicted of consensual homosexual offences pardoned has stepped up in support of these exited women either. The threat of persecution for these consensual offences hung over the head of a relative of mine for most of his life and contributed to his early death because he could not reveal himself. Having been an ally of this campaign I find the lack of reciprocity towards others in similar circumstances very disappointing.

On 16 February 2021 the European Court of Human Rights found against the UK Government in a case involving the prosecution of Vietnamese nationals who were minors when they were found working in cannabis factories and charged with being in possession of a controlled drug. The Court considered that the UK had failed to take operational measures in line with international standards to protect minors who were prosecuted despite credible suspicion that they were trafficking victims.

It also found the UK Government in breach for failing to investigate whether the applicants’ status as potential trafficking victims affected the overall fairness of criminal proceedings. This judgment may well have implications for the UK where the treatment of women and girls who have been trafficked into prostitution is concerned.

Criminal records of a much smaller subset of women whose exploitation is visible and unaddressed […] do not amount to meaningful “intelligence” about prostitution. They are intelligence about massive societal and safeguarding failures.

The Labour MP Peter Kyle has been campaigning for several years against unscrupulous landlords who use websites to offer rooms in return for sex to vulnerable, homeless women and noted the failure to prosecute men who make these offers. In January 2021 newspapers reported what is thought to be the first instance of a man being charged in these circumstances with inciting prostitution for gain and controlling prostitution for gain.

Websites in the UK which enable women involved in prostitution to interact with clients claim that they are merely enabling people to contact one another and that what they then do is not something they control. They do, however, take money for sexual services provided by women on those sites in multiple ways.

It will be interesting to see whether case law following the recent UK Supreme Court judgment against Uber, with its implications for the gig economy, has an impact on some of the companies which run these websites. Their existence, which enables clients to access women involved in prostitution directly, is one way in which the buying of sex in the UK differs from some other countries.

Many of the profiles on these sites are written by the men who control prostituted women. This became clear to me, as did the fact that men seeking sex through these sites were aware that the women they access were controlled by others, as clients who contacted me through the telephone number on my profile frequently expressed surprise that I spoke English.

Enforcement by the police of laws relating to soliciting on the street differs in affluent neighbourhoods where residents who fear the impact on the value of their property investments also have the political and social connections to take successful action to prevent this. The same is true of the enforcement of the law concerning brothels.

I lived in a London neighbourhood which for many years had been notorious for street prostitution. Effective police action to deal with kerb-crawlers and end the constant harassment of women and girls on the street and the accumulation of syringes and used condoms in garages and other spaces coincided with increased property development and an influx of people prepared to exercise political power through the ballot box.

The Home Office published a consultation paper in 2004 called Paying the Price. The question of who pays the price for having street prostitution or a brothel on their doorsteps can have electoral consequences at both local and national elections.

The 2004 paper anticipated problems which have subsequently arisen in Holbeck, the area of Leeds already experiencing disadvantage which was chosen as the site of a “managed area”, particularly the impracticability of keeping the area free from problematic substance use, the control of pimps and associated criminality.

The idea that the “managed area” in Holbeck increases community safety in Holbeck is not shared by many people living and working there. The presence of the “managed area” there is in fact a signal to others that the neighbourhood has been abandoned.

Areas in the UK which the 2004 paper noted had expressed enthusiasm for managed areas were cities in the north of England which have effectively been under the control of the same political party for many years. Residents of disadvantaged neighbourhoods are unlikely to be able to vote out and remove from office those who increase and amplify their disadvantage.

In Holbeck the disadvantage has been compounded by an influx of men travelling considerable distances to seek the services of street prostitutes there, an influx of women trafficked into the area by organised crime groups, persistent harassment of young women and girls walking on the street, the commission of serious assaults and the murder of a prostitute working there.

The police guidance stresses as a priority the duty police services have to enhance the safety of sex workers. It is clear from evidence from residents of Holbeck that the men who travel there perceive almost any woman or girl walking on the street there as someone involved in prostitution precisely because it is a “managed area”. Does the police duty extend to enhancing the safety of perceived sex workers, as well as women actually selling sex? The effect of the existence of the “managed area” in Holbeck is that almost every woman and girl is vulnerable there.

The presence of the “managed area” in Holbeck is in fact a signal to others that the neighbourhood has been abandoned.

The public sector equality duty requires public authorities to consider the effects of their policies and decisions on people protected under the Equality Act 2010 because they have protected characteristics, which are age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex and sexual orientation.

The police guidance refers to the importance of maintaining relationships with “relevant stakeholders” and to the need to consult with them. Where prostitution is concerned it is an unstated fact that communities where those who wish to purchase sex live are excluded from the ambit of “relevance”.

This exclusion demonstrates bias itself. “Pas devant les enfants” and “You wouldn’t want your wife or servants to read this” are taken as legitimate considerations. Other people’s children and female relatives are fair game in this highly political construction. It is rhetoric which, as Doris Lessing once noted, is “words designed to stop people thinking”.

A managed area would not have been imposed on a wealthy neighbourhood, or in wealthy towns in Yorkshire and much further afield, where some of the men who travel to Holbeck to exploit the vulnerable women there come from, because residents in those neighbourhoods have political power, connections, and influence. They would fear, with reason, that the value of their home, which for many British people is their main or largest capital asset, would depreciate.

Residents in wealthy neighbourhoods and towns would be more likely to have financial resources to pursue litigation in an economic environment where access to justice has been severely diminished by reductions in legal aid spending, and where those without means need to match the wider political objectives of organisations who might otherwise take cases on their behalf.

It would not have been imposed in an area where its presence might threaten the result of a local or national election in our first-past-the-post voting system. Local councillors and Members of Parliament are seen, and see themselves as, representing geographical locations or communities, rather than being politicians elected from party lists. It is possible for local issues to make a difference, even at a national election.

The flip side of the political stability which voting systems involving proportional representation and frequent coalition governments can bring to some countries is that it may be harder for a disgruntled electorate to punish an elected representative so directly for their actions.

In the area around Soho in central London, which was well-known for street and off-street prostitution, many commercial properties have been replaced with residential ones. The buyers the developers doing this seek to attract do not regard proximity to a managed area of street prostitution, or to a brothel, licensed or otherwise, as a desirable feature, whether they use the services of prostituted women themselves or not.

They also have pockets deep enough to bring legal action against local authorities whose actions threaten the value of their investments, as they have done with noise nuisance and anti-social behaviour, over which local authorities in England and Wales have significant enforcement powers.

The use of local authority powers, along with police action, resulted in the closure of swingers’ clubs which were found to be paying women to attend at weekends to create the illusion that women engage in these activities in large numbers for free. “Sex clubs” which claim to cater for elite patrons often restrict access to “couples”. I was paid to accompany men who were members of these clubs and encountered other prostituted women there, most of whom were migrant women. As far as I am aware the companies running these clubs while feigning ignorance of the nature of the connection between “couples” who attend them do not attract police action for “keeping, managing, acting or assisting in the management of” brothels.

There is off-street prostitution in the south of Kensington & Chelsea and Westminster, London’s richest boroughs, mainly in flats in apartment blocks with high levels of owner non-occupancy for much of the year and many older residents who are asset-rich but income poor. The proximity of Harrods, Harvey Nichols and other high-end stores makes it highly unlikely that a brothel would be licensed, or that street prostitution would operate openly there because of the consequences for the neighbourhood.

The 2004 Home Office consultation paper also discussed a proposal that two women and a “maid” should be able to provide sexual services without coming within the definition of a “brothel”. Under our planning system this would mean that an application would have to be made to change the use of the premises from “residential” to “commercial”. The application would be publicly available. A council which approved it would be likely to face significant political opposition from other residents and property owners. It would be a signal to others that a neighbourhood was significantly politically and economically disempowered if it were successful.

The dissonance exhibited by many of those who speak approvingly of “managed areas”, or of the licensing of brothels in England and Wales, is well summed up in Jarvis Cocker’s lyric in his song “Running the World”: