Being Outside - Constructing a Response to Street Prostitution

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Being Outside: CONSTRUCTING A RESPONSE TO STREET PROSTITUTION

Chapter Eleven: JUSTICE ISSUES

11.1 Introduction

This section examines the application of the criminal law to street based prostitution in Scotland and compares this with the legal approach in other jurisdictions. It seeks to consider the effectiveness and the equity of the law in its approach to prostitution. The section also recognises that a number of recent proposals have been made to contribute to effectiveness and equity in the law in this field - including the penalisation of 'kerb crawling' and the controlled introduction of 'managed' zones where street based soliciting for prostitution could take place without criminal enforcement, and assesses the potential role for such measures. The section makes recommendations for changes in law based on the conclusions of these considerations.

11.2 Background

The approach, in law, to prostitution, and street-based prostitution specifically, varies significantly between the legal systems in European and Commonwealth countries with which Scotland might appropriately be compared. Whilst such comparison can be helpful by indicating how other countries respond to the phenomenon of prostitution, and whether the approach is effective in achieving its objectives, the Group is convinced of the need for caution in interpreting the relevance of such comparisons to the Scottish situation. The legal and social approach to prostitution in a country is likely to mirror the approach of that country in law and social policy to other aspects of social or sexual behaviour. Whatever approach is adopted for Scotland needs to be appropriate to the culture, traditions and social attitudes of this country and be the outcome of the country's political processes. Transplantation of culturally inappropriate approaches will be unhelpful to the achievement of objectives defined as desirable and acceptable for Scotland. It must also be borne in mind that, whatever is the stated legal position in a country, the degree to which the law is applied and enforced may be subject to significant variations in time and place within the country according to local circumstances and perceived local prioritisation of law enforcement. This is not dissimilar to the position which has been observed in current practice within Scotland.

11.3 The international criminal law approaches are located on a broad spectrum, ranging from criminalisation of the offer to purchase or the purchase of, sexual services, as in Sweden, which effectively prohibits the purchasing activity (though not criminalising the sale of sex), to absence of legal controls on non-coerced prostitution activity (albeit with legal prohibition of coercion and exploitation of vulnerable people) as in Germany. Within this spectrum there tends to be common ground with regard to:

i) prohibition of coercion and duress to become involved in prostitution,
ii) prohibition of pimping or promotion of prostitution; and
iii) protection of those deemed to be vulnerable on grounds of youth or incapacity.

However, there is a range of attitudes and approaches with regard to the extent to which prostitution is regulated. This ranges from toleration without active intervention to active 'regulation' including requirements to register (e.g. Switzerland, Austria), to work in specified locations (e.g. The Netherlands) or avoid working in certain designated areas (e.g. Germany), to undergo health monitoring (e.g. Greece) and to pay taxes on income and comply with normal employment legislative requirements (e.g. New Zealand). The picture therefore is variable, but a majority of jurisdictions adopt a pragmatic approach, penalising prostitution and related activities where they impinge on public order or where exploitation may be involved, and protecting minors and vulnerable adults from involvement, but otherwise taking an approach of regulated harm reduction or no action.

11.4 Broadly speaking four types of approach can be identified: Criminalisation, Decriminalisation, Legalisation, Regulation.

Criminalisation

This expressly creates prohibitions on prostitution and related activities in the criminal law. The Scottish approach has not been to criminalise prostitution as such. The approach is to criminalise various activities associated with prostitution such as loitering, soliciting and importuning, but not to criminalise either the seller of sex or the purchaser. The criminal offences that are in place apply to soliciting activities that might be regarded as preliminary to, but not a part of the sexual transaction itself. There is also a range of offences to strike at those who profit from prostitution and at the exploitation of young or vulnerable women. By contrast Sweden has an approach which is to state clearly in the law that purchase of (but not sale of) sex is illegal, from which it follows that prostitution cannot be legal.

Decriminalisation

This describes either entire or selective non-application of the criminal law to activities involved in prostitution (without removing the law itself). The law is either tacitly, or expressly not applied in certain circumstances. In practice some examples of tacit decriminalisation can be found in Scotland, through the non-prosecution of those soliciting at certain times and in certain places. The setting up of 'managed zones' in which the normal criminal law on soliciting is not enforced would be a more systematic example of this approach.

Legalisation

This involves removing all aspects of the criminal law that apply expressly to prostitution, and leaving the situation to be regulated by the general law. For example, offensive behaviour or conduct whether by a seller or purchaser would be subject to the same legal restrictions as offensive behaviour or conduct in other circumstances. The fact that money was changing hands for sex would not change the general position. Prostitution therefore takes the form of self-employment or employment like any other and employment laws would apply and the income would be treated in the same way as other income for tax purposes. Several jurisdictions, including a number within the E.U. have features of this approach, including France, Spain and Portugal

Regulation

This involves recognising prostitution as not only being within the law but also as having a special status and subjecting it actively to a special regulatory regime, such as licensing, compulsory health checks, conditions on where and when it could be carried out (e.g. not near a school). This broadly defines the approach in The Netherlands, Germany, Switzerland and New Zealand.

11.5 UK Approach

Historically, the UK has not made prostitution itself an offence. The approach has been a pragmatic one, and is one of partial criminalisation, which penalises soliciting and living off the earnings of prostitution. It also penalises involving children in prostitution, and trafficking in human beings for the purposes of prostitution. Prostitution is not a recognised form of work and there are no regulatory mechanisms applying to the sale of sex. The UK approach is restrictive by comparison with other jurisdictions, without penalising the buying and selling of sex as such (except for the buying of sex from a 16 or 17 year old in England and Wales). There is stronger statutory regulation in England and Wales than in Scotland. For example the law in England & Wales, as well as prohibiting purchasing sex from a young person under 18, expressly prohibits 'carding' (advertising prostitutes through cards left in public places) and kerb crawling.

Considering the existing range of offences under Scots law, one specific offence mainly applies to street prostitution. (Other offences affect procuring and brothel keeping and the Group has elected not to examine these offences in detail at the present time but to reserve this for a later stage of the work.)

Civic Government (Scotland) Act 1982

Section 46 Soliciting and importuning by prostitutes

(1) A prostitute (whether male or female) who for the purposes of prostitution:

(a) loiters in a public place;

(b) solicits in a public place or in any other place so as to be seen from a public place; or

(c) importunes any person who is in a public place, shall be guilty of an offence and liable, on summary conviction, to a fine not exceeding level 2 on the standard scale (maximum 500).

(2) In subsection (1) above, 'public place' has the same meaning as in section 133 of this Act but includes:

(a) any place to which at the material time the public are permitted to have access, whether on payment or otherwise; and

(b) any public conveyance other than a taxi or hire car within the meaning of section 23 of this Act.

Section 12 of the Sexual Offences Act 1976 also creates an offence where a man solicits a woman for purposes of prostitution, but it has not been possible to find evidence of enforcement of this section - perhaps because of anticipated difficulties in establishing proof of the man's motivation.

11.6 Method Adopted by the Group

The Expert Group decided, before looking at the specifics of the criminal law, to define aims and objectives for what the law should seek to achieve specifically in relation to street prostitution. Having determined these aims and objectives, the Group then applied them as criteria for evaluating the role of the criminal law currently. Having drawn conclusions on this, the Group assessed proposals regarding changes to law to ascertain whether these would bring the law into line with these key aims and objectives. The Group was also careful to assess the impact of any such changes to law in respect of street prostitution in the wider context of community safety and quality of community life, to arrive at a view which balanced the needs of those involved in prostitution and the needs of the wider community. Aspects such as kerb crawling and managed zones could then be evaluated within this wider context before reaching recommendations on these specific proposals.

11.7 Aims and Objectives of the Criminal Law Affecting Street Prostitution

The Group concluded that any changes in the law should:

  • not criminalise on a moral basis;
  • address the imbalance between men and women arising from the present emphasis on the person soliciting, with little comparable legal impact on the potential purchaser of sexual services;
  • seek to reduce stigma which attaches disproportionately to the person soliciting as against the potential purchaser;
  • minimise the use of imprisonment for women involved in prostitution;
  • ensure continued protection to vulnerable groups, including young people and vulnerable adult men and women, from exploitation;
  • provide effective protection to the general public from offensive behaviour or conduct;
  • avoid any tendency to increase risk to vulnerable people and to communities through unplanned displacement; and
  • provide a constructive legal framework to support the achievement of broader strategic obligations for tackling prostitution in Scotland, as set out in section 6.

The Group concluded that it was difficult to see consistency in the present state of the criminal law on prostitution. Section 46 of the 1982 Act is a part of consolidation legislation which has its origins in much older laws and a different social climate. It has, therefore, evolved over time and is not necessarily reflective of present day social attitudes - although sensitivity to rights of children and other vulnerable people, and to decency issues, remain powerful considerations. Growing, but sometimes competing considerations, such as public sensitivity to rights of equality and personal freedom, and to quality of life issues and the impact on residential communities, are sometimes difficult to reconcile satisfactorily.

11.8 Against these principles the present Scots law can be criticised for the following reasons:

1. Despite apparent gender neutrality the fact that the person selling sex is criminalised for soliciting or importuning, but the person buying sex is not generally criminalised, leads to an unduly penal impact on women compared with men.

2. A moral undertone is inferred about what is acceptable behaviour for women, stigmatising her, whilst taking a minimal position on the role of the male purchaser. Law based simply on moral condemnation may undermine civil rights, and does not deal with the vulnerability and protection needs of the person condemned. Indeed the stigmatisation which results may deter engagement with such assistance and protection which may be available.

3. Adopting a punitive approach to prostitution tends to exacerbate the woman's circumstances rather than provide a platform for amelioration and constructive work to find a route out of prostitution.

4. A structure of penalties on conviction encourages use of fines solely - thereby discouraging access to potentially rehabilitative sentences such as probation or Drug Treatment and Testing Orders (DTTO), and at the same time increasing the potential for custody for fine default, or increased frequency of re-offending through soliciting in order to pay outstanding fines. Whilst there needs to be caution regarding the use of more intensive sentences such as probation or DTTO in respect of what is seen as a relatively low tariff offence, there is a case for using 'rehabilitative' sentences instead of custody for persistent and intractable offenders, when the sentence is proportionate to the scale and frequency of offending. The Report of the Ministerial Working Group on Women's Offending ('A Better Way') which was published in 2002, noted that this reliance on fines could result in custodial sentences for women who defaulted on their fines. Short-term custodial sentences provide very little in the way of rehabilitation, and can have adverse effects such as homelessness. In its conclusions, that report recognises as a key objective that other options for dealing with fine defaulters should be exhausted before women are sent to custody. The Group endorses that view.

The use of Supervised Attendance Orders (SAO) as an alternative to custody for fine default; the introduction of SAO, on a pilot basis, as a mandatory alternative to custody for non-payment of fines; and the pilot introduction of SAO as a sentence of first instance for those deemed unable to pay a fine, are all of relevance to the objective of reducing un-necessary imprisonment for low tariff offending.

5. There appears to be insufficient capacity to protect even those defined as vulnerable in statute, such as women suffering mental illness or with learning disability, who regularly continue to engage in prostitution without protective legal measures being activated. This is, perhaps, less a deficit in the protective laws themselves as in the application of the law, but if the law is not applied protectively in the necessary circumstances, this is clearly a reflection of its lack of usefulness.

While there is a discernable tendency in the law to aim to protect the public from offensive behaviour and nuisance, and to protect under-age and other vulnerable people from exploitation (and the Group clearly sees this is an appropriate purpose for the law) it is far from clear that there is effective and equitable reconciliation of the full range of public interest requirements in the current law. These deficits, when they occur may not necessarily be best remedied through changes or additions to the law. Sometimes this may be the best way forward. The strength of current law should be retained where it protects children and vulnerable adults from exploitation and introduction to prostitution. Similarly legal proscription of offensive behaviour and conduct arising from prostitution transactions, whether caused by potential seller or potential purchaser, appears a reasonable public expectation. In other respects the necessary protection and support may come from access to service supports and a more active social policy approach. The criminal law alone cannot deal with the complex issues which relate to street prostitution - many of which require effective remedial services and a co-ordinated approach amongst a range of public service providers.

11.9 Prohibition

To assist evaluation of the options for criminal law in Scotland the Group considered whether they would see benefit in aligning with an approach such as the Swedish policy in adopting a ban on purchase of sex. The rationale to the Swedish approach places the protection of the woman and the meeting of her needs at the centre of the legal and policy objectives. It has parallel commitments to influence public opinion against sexual exploitation and the translation of sexual relationships into commodities. It also sets a clear objective for policy of working towards the elimination of prostitution. However the Group concluded that these positive factors would be best pursued through social policy means rather than through the use of criminal law and, based partly on the considerations set out above, concluded that the law is not 'gender neutral' in its effect, because it replaces the criminalisation of the (female) seller of sex, with the criminalisation of the (male) purchaser. Furthermore there is, at present, little clear evidence about the effectiveness of the Swedish legal provisions, and a number of examples of possible concerns:

  • The social policy context in Sweden differs from this country and there may not, therefore, be ready transferability of experience.
  • The street prostitution population in Sweden is smaller than Scotland's (half the size at the time Sweden's new laws were introduced - approximately 750 compared to 1,400) and may therefore be more manageable.
  • There is some evidence of displacement as a result of the legislation - with women moving to operate from less visible environments to avoid arrest of their clients.
  • In recent years a prominent reason for women's involvement in street prostitution in Sweden has been illegal immigration to the country, mainly from Eastern Europe. While there is a drug using population the numbers are smaller. This does not equate to Scotland.

For these reasons, the Group, whilst attracted to aspects of the Swedish approach (e.g. the programme of public education) sees insufficient evidence to support the totality of the approach and would not chose the Swedish way forward for this country at this time.

11.10 Legalisation/Regulation

The Group also considered options such as the Dutch approach with regards to prostitution. Often described as pragmatic tolerance, The Netherlands follows a social policy tradition that prefers using regulation to criminalisation (with its negative consequences) to deal with social problems. The Dutch approach therefore should be seen as a more deliberate and pro-active approach than simply laissez-faire which it has often portrayed as being. In fact the repeal of the 'Brothel Ban' in 1999 was the result of nearly two decades of political consideration as to how best to approach these complex issues. This process, for the first time, included representations by prostitutes' rights groups and a number of feminist organisations and resulted in a distinction being drawn between forced and voluntary prostitution with the state's role seen to be to eliminate forced prostitution and to control exploitation through regulating the conditions of 'voluntary' involvement in prostitution.

In terms of street prostitution, the Dutch, even with the licensing of indoor premises, still have to deal with a population who for various reasons do not or cannot register. One of the strategies that was looked at in this regard was their attempt to regulate street-based prostitution through zoning.

A managed zone is a zone within whose borders prostitutes are not arrested for certain offences associated with prostitution, typically soliciting. This may be by a formal measure suspending the normal operation of the criminal law as it relates to prostitution or it may be by an informal agreement with the enforcement authorities. The arrangement has advantages of discouraging prostitution in other less suitable locations, of facilitating access to health and social services, and of promoting protection by allowing security measures to be in place. Enforcement of other laws - such as those connected to drug misuse, would normally continue without being affected by the zone.

The history of zones in The Netherlands has been far from wholly positive in their effect. The problems that some zones have faced show that there is no easy solution which can be transferred from another jurisdiction. The Group sought to learn from the Dutch experience and meetings in The Netherlands revealed that some of the problems had stemmed from a lack of consultation, the placing of zones too far from the city-centre and from services, and in some cases from insufficient policing and poor maintenance of zones. Infiltration by organised criminal interests has also been a problem.

11.11 In both Sweden and The Netherlands, establishment of their current position with regard to law, policy and practice was preceded by extensive political and public debate not paralleled currently in Scotland. It would be helpful to promote a discussion of this nature in order to explore the issues in a Scottish context. Despite the extensive debate in both Sweden and The Netherlands, however, the Group recognises that there are still ambiguous and, in some respects, under-researched outcomes in the contrasting approaches of the two countries. This leads to limited reliability of these 'precedents'. Similar comment can be made about the experience of other countries such as Australia and New Zealand where innovative approaches in policy and law are being pursued, but where it is too early to see definitive outcomes in this complex field. Nevertheless, valuable lessons have been drawn from both of these ends of the spectrum which could inform policy and law in Scotland.

11.12 Current Law (Section 46) - Analysis Of Issues

The Group considered that the soliciting offence did not pass the tests set out in paragraph 11.7.

1. It is not clear on what basis the offence criminalises loitering, soliciting or importuning other than moral condemnation, with associated negative connotations. It is the mere fact of carrying out these activities in public or where they are visible to the public that creates the offence, even if no offensive behaviour or conduct takes place. Therefore it appears to criminalise on a moral basis.

2. The Group noted that section 46 is gender neutral in language but applies predominantly to women, as street prostitutes are mainly female and are much more likely than men to be involved in loitering, soliciting or importuning. Therefore it does not meet the requirements of equal treatment in law, since men involved in the sexual transaction are not routinely criminalised in this manner. The language of this section contributes to the stigma which women experience and which attaches disproportionately to women.

3. The criminalisation of soliciting, of itself, does not contribute to protecting vulnerable people or address community concerns. Its effect in fact is, through criminalisation and the consequences of involvement in the criminal law system, to increase the vulnerability of the large proportion of women drawn to prostitution by factors such as addiction, mental disorder and poverty. The dimension of community needs has resulted in separate legislation in England and Wales such as that relating to kerb crawling because criminalisation of soliciting does not contribute to the community safety objectives. In Scotland there is no legislation specifically to address the needs of communities affected by street prostitution. There are a number of other statutory provisions relating to child protection and protection of vulnerable adults that are relevant to the needs of vulnerable people, although not specifically in relation to street prostitution.

4. The offence, by criminalising the behaviour, can lead to displacement, as women will seek to avoid apprehension by using covert means to make contact, keeping their transactions on the street brief, by getting into cars, and carrying out transactions away from likely surveillance, thus avoiding being caught, but also heightening risk by missing out on the protection that might be offered by police patrols or C.C.T.V. Criminalisation and displacement also work against the potential for service engagements with women involved in prostitution. Such services can safeguard, prevent escalation of involvement in prostitution and can engage with women in ways which will open up routes out of prostitution.

The current law therefore appears unsuitable - both in terms of fairness and equity, and in terms of its capacity to contribute helpfully to the operational objectives of tackling prostitution.

11.13 Enforcement and Prosecution Issues - Section 46

Adding to the concern about the law is the apparent variation in the application of the law across the country. Evidence from the four cities suggests that patterns of enforcement and reporting vary significantly, with implications for the sustainability of prosecutions. This appears to go beyond what might be seen as a legitimate reflection of local circumstances, and amounts to inconsistency and uncertainty of purpose. This is also perhaps indicative of a law which is unable to meet the specific circumstances experienced within the four cities. The Group sees a solution to this in two ways: clarification of the law (see below) and placing the policing of street prostitution in a clearly defined local operational process, within a national strategic framework (see above). This defines, on a multi-agency and community-orientated basis, how prostitution, where it exists, is to be tackled, both to manage its impact and effects in the short term and to reduce its incidence in the longer term.

11.14 Legislation: An Alternative Approach

It is the Group's view that the role of the criminal law is best confined to protection of the vulnerable, tackling coercion, promotion of community safety and prevention of public alarm and offence. That apart, the focus should be on reducing the harm which can arise for those involved in prostitution and helping those who wish to move on from that involvement, through appropriate social welfare policy interventions. Nor should the law exacerbate the harm which those involved in prostitution already experience, by, for example, additional stigmatisation, disruption of stability and unnecessary imprisonment for low tariff offending.

As indicated above, the Group has identified as desirable a number of criteria to underpin the legitimate intervention of criminal law in this area, against which it has measured existing offence provisions, notably Section 46. There is a gender imbalance to the operation of Section 46 which the Group would wish to remove and the Group would wish to see criminal law offence provisions which are explicit that the mischief they target is public alarm and offence, rather than criminalising the sale or purchase of sex per se (with the moral assumptions this implies). For these reasons the Group is not persuaded that there is a case for retaining Section 46. The Group has considered whether an alternative crime or offence provision exists - or should be created - to tackle the public concerns which may result from street prostitution.

The Common Law

The Group examined the existing common law, and in particular the crime of breach of the peace and the scope it provides to tackle conduct which encroaches upon members of the public, causing alarm. Conduct of a sexual nature could be prosecuted as breach of the peace if it causes alarm, distress, embarrassment or offence to others or is calculated to, or capable of causing alarm, distress, embarrassment or offence to others. There have been a number of examples of cases involving what might be termed sexual offensiveness being prosecuted as breach of the peace. It is also possible (see the 5 Judge decision in Webster v Dominick, 2003 SLT975) that the common law offence of public indecency would be relevant to prostitution-related activities that involved explicitly sexual public presentation or offensive sexual conduct in a public place. However, that might not apply to the preliminary activities of soliciting and importuning which are currently covered by a separate statutory offence (Section 46). If that offence were to disappear, breach of the peace would cover such activities where they cause alarm etc.

11.15 The Group accepts that there may be drawbacks in relying on breach of the peace where circumstances have been untested before the courts: there may be a lack of confidence on the part of the police in tackling the behaviour and lack of certainty about the outcome of any prosecution. The Appeal Court reviewed the law around breach of the peace in a 5-bench decision in May 2004 ( Jones v Carnegie, 2004 SLT 609). That judgement turned on an E.C.H.R. (European Convention on Human Rights) challenge on a number of fronts, including, broadly, whether an objective test of what was genuinely alarming or disturbing was compatible with Convention rights. The court upheld the convictions of 4 of the 5 appellants for breaches of the peace, committed in a variety of circumstances. The court endorsed the objective test administered by the lower courts in deciding whether the conduct complained of was genuinely alarming and disturbing; and re-stated an earlier opinion ( Smith v Donnelly, 2001 SLT 1007) to the effect that the question whether certain conduct was genuinely alarming and disturbing to any reasonable person depended on the context in which it had taken place, and consequently depended on the place, time and circumstances in which it occurred. It thus follows that conduct involving street prostitution could take place in circumstances in which the crime of breach of the peace would not be committed. The test would be whether offence or alarm had been caused by, or was capable of being caused by, the behaviour in question.

The court also observed that it would be an unfortunate and unjustifiable narrowing of the common law if the crime of breach of the peace were to be limited to cases in which there was evidence of actual alarm or annoyance, whether given by the persons who were alarmed or annoyed or by others, and the safeguard against any undue expansion of the law was provided by the need, emphasised in Smith, above, for the conduct to be genuinely alarming and disturbing to any reasonable person. Of interest too, in this context, was the observation by the court that the protection of a neighbourhood against breach of the peace should not be inhibited merely because a bystander displayed an over-stoical reaction to the conduct in question.

Finally, concealed conduct can also amount to a breach of the peace if it leads someone to be suspicious of the circumstances and investigate and then, reasonably, be alarmed or disgusted ( MacDougall v Dochree, 1992 SLT624).

11.16 It appears to the Group that a situation where a street prostitute was openly operating - soliciting - in an area to which the public had access could clearly constitute a breach of the peace in certain circumstances. In addition, conduct which amounted to 'kerb crawling' whereby a male was approaching members of the (female) population to inquire about the purchase of sex could, equally, be capable of constituting a breach of the peace. It may also fall within the terms of Section 12 of the 1976 Sexual Offences Act - which makes it an offence for a man to solicit a woman for purposes of prostitution - although this section appears little used, perhaps through difficulty in establishing proof. The question which the Group then asked itself was, if section 46 were to be repealed and reliance placed on the common law - in essence breach of the peace - to meet the offensive behaviour aspects of street prostitution, would this suffice? The advantages and disadvantages of that approach can be summarised thus:

  • There will be those narrow cases where the available evidence does not support a charge of breach of the peace, albeit the community discerns that offence has been caused. That position, however, could equally be encountered with a statutory offence. Each case will turn on its own facts and circumstances.
  • It is commonly understood that the inherent flexibility of the common law is an advantage to the police and prosecutors in responding to the various guises of criminal conduct. However, there may also be future circumstances where the Appeal Court convenes to reconsider the scope of and test for breach of the peace, ruling out conduct which may currently be thought to be captured.
  • Police and public confidence is critical and, for the above reasons, use of breach of the peace may have a rather ambivalent reception. By contrast, the enactment of a statutory offence may be felt to have a deterrent effect against offending, and have the advantage of clarity.

11.17 The Need for (New) Legislation?

In the Civic Government (Scotland) Act 1982 Section 46, a statutory offence of soliciting was preserved, consolidated from previous older legislation. Rather than relying upon common law crimes such as breach of the peace, one of the motivations behind this offence may have been to criminalise the behaviour per se but also presumably to strengthen the response to the impact on communities and the public. That being so, the Group considers that an offence which focuses on the public offence aspect of street prostitution, permitting intervention where it impacts upon the wider community, could tackle offensiveness and alarm, clarify police powers and reduce or remove the current difference in treatment of sellers of sex (predominantly female) and buyers of sex (predominantly male). The Group has given consideration to an alternative approach - and has concluded that there is merit in exploring a new statutory offence which targets the offensiveness and alarm aspect of street prostitution, specifically soliciting, but which could also be used to address corollary behaviours such as those which have come to be termed kerb crawling provided this can be shown to be causing offence or alarm.

11.18 The police may favour a specific statutory offence if it could bring clarity to their dual tasks of responding to community concerns in respect of street prostitution and protecting the public. Creation of a statutory offence could have a deterrent effect and would bring the opportunity to consider what constructive disposals might be made available to the Courts, perhaps aiding exit from prostitution or tackling offensive purchasing of sex. That said, the Group is conscious of the concerns expressed in 'A Safer Way' that female offenders can be fast-tracked to custodial sentences because Courts often favour sentences involving probation for women offenders earlier in their offending 'career' than for men. This is seen as a way of addressing their often complex needs. The circumstances faced by women offenders may lead to breach of the probation order, and the consequent up-tariffing of the initial offence if the breach then leads to imprisonment.

11.19 Appropriately drafted, the Group sees such an offence provision, in place of Section 46, as requiring to have the following characteristics:

  • establishing the unlawful conduct as the creation of alarm or offence to another person or persons, rather than the act of soliciting per se;
  • providing the flexibility to address the range of conduct to be safeguarded against - such as unwanted importuning of passing men, or unwanted attempts to purchase by men approaching women from cars or on foot;
  • being applicable to male or female persons, whether as the person seeking to supply or obtain services. 1

The precise terms of new legislation of this nature would be for consultation, and for parliamentary draughtsmen. It would, of course, sit alongside the common law, and in certain circumstances a charge of breach of the peace may better meet the circumstances of the offence. For more explicitly sexual conduct arising from prostitution, public indecency charges would be available.

In arriving at this proposal the Group is conscious that the objectives of the law outlined could create a response which is essentially complaint led and does not contain the kind of objective test surrounding breach of the peace as to what genuinely causes or is capable of causing alarm, distress or embarrassment. While it is appreciated that this would have enforcement consequences there is the advantage that it criminalises where there is a proven rather than hypothetical offensive behaviour or conduct. This is a matter which could be considered in the course of any subsequent consultation.

The Group is of the view that, as with the current law on soliciting, imprisonment should not be an available penalty for this offence.

It is the Group's view that it would be important not to define buying or selling sex as a sexual offence but rather as offensive behaviour or conduct. The purpose of the offence is to penalise offensive behaviour or conduct arising from prostitution if it occurs, rather than the sexual behaviour itself. To regard it as a sexual offence runs the risk of increasing stigma - to the detriment of potential rehabilitation - and increasing the seriousness of the offence unduly.

11.20 There is a third option, which draws on the work of the Scottish Law Commission in preparing a draft Criminal Code for Scotland. The draft - in its approach to Section 46 of the 1982 Civic Government (Scotland) Act - proposed the following codification (it should be remembered that the codification was based on existing law and was not remitted to propose changes in law):

Section 105 Draft Criminal Code

A person who, for the purposes of prostitution or of obtaining the services of a prostitute -
a) loiters in a public place;

b) solicits in a public place or in any other place so as to be seen from a public place; or
c) importunes any person who is in a public place,
d) in such circumstances as to be likely to cause fear, alarm or offence to others is guilty of the offence of soliciting.

In the draft codification this appears as a crime of 'offensive conduct' rather than as a sexual offence, because, as the authors of the draft code state, the essence of the crime is the fear, alarm and offence caused by the conduct to the individuals importuned and to members of the public, rather than the fact of soliciting itself. The remit of the codification was not to change but to codify the criminal law, and so the soliciting offence is retained, albeit with the supplementary requirement that it is only an offence if it is likely to cause fear, alarm or offence, which is not a prerequisite of the 1982 Act. The fact of soliciting itself is deemed to be offensive in that Act.

11.21 The Group therefore considers that, if it is accepted that the emphasis of law should be dealing with the behaviour termed 'soliciting' and its associated features as a criminal offence only if alarm or offence can be shown to have been caused by it, then three options are worthy of consideration. All rely on a repeal of Section 46 which simply criminalises the act of 'soliciting'.

Option 1 would repeal Section 46 and rely on Breach of the Peace, with its objective test of whether the behaviour would cause alarm, offence or embarrassment to a reasonable person.

Option 2 would create a new offence based on selling or purchasing sexual engagement in a way which causes alarm, offence or embarrassment to the wider public. This would require to be initiated through a complaint that a member or members of the public have been offended. The court may then introduce an objective consideration of whether, objectively, it was reasonable in the circumstances, for them to have been offended.

Option 3 would follow the Scottish Law Commission codification route, which retains the penalisation of soliciting and adds the penalisation of the purchaser, but only if, by objective tests, fear, alarm or offence can be demonstrated.

It must be emphasised that, whichever route is pursued, refocusing the criminal law in this way does not imply lack of concern at the risks associated with prostitution. The Group regards street prostitution as a survival behaviour that should be tackled vigorously and women given as much assistance as necessary with a view to minimising the risks to their health, safety and welfare, and facilitating their progression away from prostitution. The Group is strongly of the opinion that these objectives are better sought through support and encouragement, with access to appropriate services, than by stigmatisation and criminalisation.

11.22 To sum up, the Group agreed that there was a need to remove the status basis of the offence and to be more explicit that the legislative objective was to tackle public offence, rather than criminalise sexual transactions per se. The differential treatment of sellers of sex (predominantly female) and buyers (predominantly male) should be addressed by targeting buyers as well as sellers explicitly in any new statutory formulation. The Group wanted to modernise the legislation rather than adjust the existing framework and avoid using the law to make a moral statement. Which of the three options may feasibly deliver these outcomes should perhaps be considered through consultation which allows the respective merits of each to be examined. Other criminal offences related to prostitution, which seek to protect the vulnerable, are not discussed in the report but the Group considers that the repeal of Section 46 would itself assist the protection of vulnerable women involved in street prostitution by not criminalising them unnecessarily.

11.23 Possible Offence of Kerb Crawling or Persistent Soliciting

Since this new offence could address the public offence aspect of kerb crawling there would be no additional requirement to create a specific offence of kerb crawling (as has been done in England and Wales).

A way of dealing with nuisance behaviour

The desire to criminalise kerb crawling springs mainly from the nuisance caused by kerb crawling when it is concentrated in a residential area, which is viewed as a form of antisocial behaviour. If there are kerb crawlers, it follows that there are prostitutes in the area, but there are also other members of the public and kerb crawlers may not be discriminating as to whom they approach. Tolerance of kerb crawling also may encourage street prostitution as it provides a steady supply of 'clients' and vehicles may be used for sexual encounters or to drive to places where such encounters may take place. The kerb crawling legislation, therefore, also came to be seen as a way of tackling the male behaviour of seeking to purchase sex.

It may be concluded that the primary motivation for criminalising kerb crawling is because it is antisocial behaviour, which exacerbates the nuisance of street prostitution and is a source of affront and annoyance to the public. Clearly however, new legislation which penalises the offensive behaviour or conduct involved in the sexual transaction - whether on the part of the seller or purchaser - would give sufficient powers to the Police to tackle drivers whose conduct creates a nuisance and annoyance to others whilst in pursuit of a sexual transaction.

In England and Wales, where a separate offence exists relating to kerb crawling, a power of arrest was introduced in 2001, since when, the number of prosecutions has increased (see Home Office review of prostitution). Some forces, e.g. Cleveland Constabulary, welcomed the power of arrest on the grounds that it could allow the police to take the alleged offender to a police station whereas previously he could only be spoken to at the kerbside and would then be free to drive away.

11.24 As part of its remit the Group examined the case for introducing a criminal offence of kerb crawling. We have considered the definition of kerb crawling, the possible model of the existing offence provision in England and Wales, and the effect of introducing such an offence into Scots law including enforcement issues and how the courts might deal with offenders. It is the conclusion of the group that:

  • the evidence of effectiveness in the use of this law in England and Wales and internationally is unconvincing;
  • the nuisance which can arise for communities through this phenomenon can be tackled without further legislation beyond that already proposed above, especially if that legislation is connected to social policy initiatives to impact on street prostitution prevalence;
  • enforcement of kerb crawling legislation is difficult to apply in key locations such as City Centre areas where differentiation of kerb crawlers from other slow moving traffic would be difficult to draw to the satisfaction of a Court;
  • unwanted consequences such as displacement, or stigmatisation could arise.

11.25 The Use Of Antisocial Behaviour Orders (ASBOs)

ASBOs were introduced by section 19 of Crime and Disorder Act 1998 and came into effect in April 1999. They are preventative orders designed to protect individuals from further anti-social behaviour that causes or is likely to cause alarm or distress. Breach of an order is a criminal offence punishable by a fine or imprisonment (up to 5 years on indictment). Local authorities and registered social landlords, in consultation with the police, can apply for ASBOs.

The 1998 Act was amended by changes in the Criminal Justice (Scotland) Act 2003. The 2003 Act introduced interim ASBOs and extended the power to apply to Registered Social Landlords (These provisions commenced on 27 June 2003). The interim order provides more immediate protection to individuals and families from anti-social behaviour. Security of tenure is not affected by an interim ASBO.

It is for the courts to decide whether the conditions for granting an ASBO are satisfied. There is nothing to prevent authorities making an application for an ASBO in relation to circumstances connected with prostitution if they are satisfied the conditions for granting an ASBO would be satisfied and that they have sufficient evidence to justify the case. An ASBO could be sought in respect of the behaviour of the woman or the man in the transaction.

ASBOs have to be seen as very new instruments for dealing with anti-social behaviour, and the ways in which they might be used to best effect have yet to be fully explored. However, the Group were concerned about the effectiveness of the use of ASBOs in cases involving women involved in street prostitution (especially if it is not connected to a package of suitable services and supports) and are convinced that this needs to be seen as a strategy of last resort where other approaches fail. Amongst the dangers are:

  • Use of an ASBO may precipitate loss of service contact and increase risk.
  • If a woman breaches an ASBO and is imprisoned she faces losing her accommodation and further deterioration in her circumstances.
  • Displacement may result as women seek to solicit in areas where the ASBO is not applicable, with dispersal of street prostitution over a greater area in cities.
  • The use of an instrument such as this in circumstances where the woman has addiction and/or mental health problems - and may therefore be impaired in her capacity to comply - makes impossible demands and is likely to rapidly increase the seriousness of her predicament.

On the other hand, well-considered use of an ASBO in the context of a total strategy to address street prostitution cannot be ruled out. Circumstances can be envisaged where an ASBO, with an attendant package of services and supports for the woman subject to the ASBO, could been seen to constructively strengthen the framework, combining regulation and support through which a woman might be assisted to move on from prostitution.

11.26 Managed Zones

i) International position

The most often quoted example of a managed zone abroad is in Utrecht, in the Netherlands. A zone in Amsterdam, the Tippelzone, was closed down in 2003 because it had become a haven for traffickers and drug dealers, and had become compromised due to the involvement of organised criminal interests. These factors are also understood to be affecting other Dutch zones. Concerns have grown that the benefits of adopting a managed approach are now being undermined by recent developments, in particular lack of community consultations when establishing a zone; inadequate maintenance and cleaning of zones; and insufficient policing to sever the potential connection to serious crime.

ii) England and Wales position

The Home Office has also been lobbied by members of Liverpool City Council (despite adverse outcomes to local consultations) and Doncaster Council who are keen on the introduction of a formal managed zone. The Home Office has published a consultation paper on prostitution which indicates that the Government will take strong persuasion that managed zones should be introduced but nonetheless invites views. The UK Government will not make decisions on managed zones until after that debate has
taken place.

iii) Scotland: Tolerance Zones Bill

Margo Macdonald MSP has twice introduced a Bill to the Scottish Parliament to enable local authorities to designate areas within their borders as 'prostitution tolerance zones'. It proposes to give local authorities the power to designate 'tolerance zones' within which soliciting, loitering or importuning by prostitutes for the purposes of prostitution would not be an offence under the Civic Government (Scotland) Act 1982. It provides for consultation by the local authority with various public bodies, voluntary bodies, local residents and business, prior to establishing a zone.

The Local Government and Transport Committee is currently considering Stage 1 of the revised Bill. Its conclusion on Stage 1 of the original Bill was not to support the principles of the Bill. The Committee heard a considerable amount of evidence for and against the legislation. They reached the conclusion that:

'whilst accepting that designated zones may be one way to assist prostitutes to access health, support and 'routes out' services, [the Committee] believes that the Bill in principle is an explicit acceptance of soliciting, albeit within a specified geographical area. The Committee is concerned that implicit in the Bill is an acceptance that local authorities should manage services in a way that would support prostitution within a designated zone. The Committee considers that while this is not the intention, it is an outcome that has to be addressed and as such the Committee cannot agree with the general principles of the Bill.'

It has heard evidence from the Deputy Justice Minister, Margo Macdonald MSP and Sandra Hood amongst others. It is likely that the Committee will await the Group's recommendations before deciding how to deal with Stage 1, since it was a recommendation in their report on Stage 1 of the first Bill that the Executive must conduct a full examination of prostitution in Scotland and the setting up of the Expert Group was a response to that.

11.27 A Locality-Based Approach - the Future Direction

The Group's intention is that by adopting the policy, strategy, service and legislative adjustments outlined in this report, consideration can move forward from narrow debate on the merits and demerits of an approach based on managed 'zones'. Placing the consideration of whether introduction of a managed location for street prostitution will be locally helpful or not within the need to draw up a local plan for a coherent response to street prostitution will result in comprehensive examination of the relevant issues. It will also result in collaborative engagement of the relevant interests including women involved in prostitution, service providers and communities likely to be directly affected.

The management of street prostitution in the locality where it is occurring offers a number of advantages which are evidenced from Scottish and international experience. It:

  • confines the public nuisance of street prostitution to a specified area;
  • allows the enforcement authorities to set up rules for operating in the location, particularly for those involved in prostitution, e.g. only to operate within specified hours;
  • facilitates the exchange of intelligence between those involved in prostitution and the police e.g. through reports of incidents with clients involving violence or risk of harm;
  • concentrates those involved in prostitution in a particular area where they can look out for each other, e.g. by noting descriptions of clients and their car numbers;
  • discourages under-age girls from operating in an area, since they will be readily visible and will be discouraged or reported upon by adults involved in prostitution;
  • assists with the safety of women involved in prostitution by means of reducing the areas in which unobserved violence might take place;
  • facilitates the provision of surveillance by C.C.T.V. and police patrols;
  • protects the women involved in prostitution from a repeated cycle of arrest, prosecution, unpaid penalties, short sentences of imprisonment and re-offending;
  • facilitates the provision of outreach services, such as needle exchange, condoms, health checks, drug services and advice, including assistance to exit prostitution, subject to resources;
  • facilitates the provision of a safe space such as a drop-in to allow women involved in prostitution some respite time, with the opportunity to exchange safety information and provide mutual support;
  • recognises the services are most effectively provided in the place and at the time that women involved in prostitution frequent an area, as they may not travel to make use of services at other times;
  • discourages clients from searching for women involved in prostitution elsewhere than in the defined locality.

There are also, of course, disadvantages to designation of managed localities for street prostitution.

  • Such an approach may be deemed to give a sense of normality to the concept of street prostitution, and implies that its existence will continue. These are assumptions which require to be continuously challenged.
  • Locating an area tends to be difficult.
  • Maintaining standards, and sustaining levels of services to the designated area have proved difficult in places such as The Netherlands, although this may primarily be an issue of resource availability and prioritisation.
  • Preventing overcrowding and overspill in areas of high prevalence is difficult.
  • Attracting women involved in prostitution from other localities which do not provide a managed arrangement, may increase numbers and tensions.
  • Avoiding infiltration by organised criminal interests attempting to use the areas where prostitution is managed as a location for pimping, drug sales and deploying trafficked women, can be problematic.

Avoiding these negative outcomes is likely to be resource intensive and also has implications for the thoroughness of the process for identification of suitable localities, and of course for the effectiveness of the services dedicated to prevention and exiting. If a co-ordinated approach, covering the four stages of prevention, early intervention, reduction of harm and exiting, is successful, then the designation of a particular area for management of street prostitution will act as a step towards significant reduction of levels of harm, and perhaps total numbers involved in prostitution, and thereby a diminution of need for such localities in the long term.

11.28 If the Group's proposal for a new approach to the criminal law is accepted (see above) the case for a 'managed area' significantly changes in its nature. It does not necessarily remove the case for a locality approach. The setting up of an area could be seen as unnecessary if the act of soliciting is not itself against the law because it is not necessary to create an area of immunity from prosecution for soliciting. However, in terms of the process of having a strategy to tackle prostitution, facilitate routes out, and reduce nuisance to others, it may well be in the best interests of a local authority to focus the conduct of street based prostitution into specific locations. This would comprise part of the strategy of reducing nuisance, whilst at the same time facilitating the benefits listed above. All these benefits would remain relevant, even though the act of soliciting was no longer illegal per se, because illegality would continue to attach to offensive behaviour or conduct. Crucially however, there would be no element of selective non-application of the law. All other aspects of law would be entirely applicable to the locality.

11.29 In conclusion, therefore, it is proposed that the responsibility for impacting beneficially on prostitution and those communities affected by it should become the responsibility of social policy as much as criminal law. Policy should lead the development of appropriate local strategies, with clearly defined multi-agency responsibilities and a requirement on services to tackle this phenomenon together, backed by the criminal law to prevent abuse of the vulnerable and to restrict public nuisance or offence.

1 This is because the issue is public offence. The more specific issues surrounding men seeking to supply will be dealt with in a later report.