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Home » Professionals » Legal Guidance » P to R » Prostitution and Offences Against Public Morals

Prostitution and Offences Against Public Morals

Updated 29/01/08

Prostitution and related offences - Public Interest Considerations

The following public interest aims and considerations should be borne in mind:

  • To encourage prostitutes to find routes out of prostitution and to deter those who create the demand for it;
  • To keep prostitutes off the street to prevent annoyance to members of the public;
  • To prevent people leading or forcing others into prostitution;
  • To penalise those who organise prostitutes and make a living from their earnings;
  • Generally the more serious the incident the more likely that a prosecution will be required;
  • The age of the prostitute and the position of those living off the earnings will clearly be relevant
  • When considering a child accused of prostitution, reference should be made to the policy document <Safeguarding Children Involved in Prostitution> and the child should generally be treated as a victim of abuse. The focus should be on those who exploit and coerce children. Only where there is a persistent and voluntary return to prostitution and where there is a genuine choice should a prosecution be considered.
  • Those who use child prostitutes should be prosecuted under Sections 47 - 51 of the Sexual Offences Act 2003. <SOA Guidance>

Exploitation of Prostitution (Adults)

The Law

Section 56 and Schedule 1 of the Sexual Offences Act 2003 extends the gender specific prostitution offences to apply to both males and females equally.

The Sexual Offences Act 2003 creates the following offences:

  • causing or inciting prostitution for gain anywhere in the world (Section 52)
  • controlling prostitution for gain in any part of the world (Section 53)

"Gain" is defined in Section 54 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.

"Prostitute" is defined in Section 51(2) as

"a person (A) who, on at least one occasion and whether or not compelled to do so, offers or provides sexual services to another person in return for payment or a promise of payment to A or a third person; "prostitution" is to be interpreted accordingly."

Corroboration is no longer required, although a court may, if it thinks it is appropriate, give a direction as to convicting on uncorroborated evidence (Archbold 2008 4: 404i to 404l).

These offences replace the Sexual Offences Act 1956 offences relating to the control of prostitution.

The offences are specified sexual offences in respect of which a sentence of imprisonment for public protection may be imposed under the Criminal Justice Act 2003. Sentencing ranges will be informed by aggravating and mitigating factors:

  • evidence of physical / mental coercion: 2 - 5 years custody
  • no coercion or corruption but offender is closely involved in victim's prostitution: 26 weeks - 2 years custody
  • no coercion or corruption and involvement of offender is minimal: non-custodial

Archbold 2008 20-172 to 178.

Charging Practice

These offences will tackle those who recruit others into prostitution for their own gain or someone else's regardless of whether this is achieved by force or otherwise. The sections are primarily aimed at offences where the person caused or incited to become a prostitute is 18 or over. Cases involving victims under 18 are dealt with by Section 48, 49 and 50 of the Sexual Offences Act 2003 and carry a higher penalty <Refer to child prostitution sections of SOA 2003>. However, where the prosecution may have difficulty proving that the defendant did not reasonably believe that the child was 18 or over, then Section 52 or Section 53 may be charged to ensure that he does not escape liability altogether.

If there is sufficient evidence to satisfy the evidential test a prosecution will usually take place unless there are public interest factors tending against prosecution which clearly outweigh those tending in favour.

Exploitation of Prostitution (child prostitutes)

Cases involving prostitutes under 18 are dealt with by Section 48, 49 and 50 of the Sexual Offences Act 2003 and carry a higher penalty <Refer to guidance on Sections 47 - 51 of SOA 2003>. However, where the prosecution may have difficulty proving that the defendant did not reasonably believe that the child was 18 or over, then Section 52 or Section 53 may be charged to ensure that he does not escape liability altogether.

If there is sufficient evidence to satisfy the evidential test a prosecution will usually take place.

Archbold 2008 20-155 - 20 - 162

Keeping a Brothel

The Law

Summary offences under the Sexual Offences Act 1956

  • Section 33, keeping a brothel;
  • Section 34, a landlord letting premises for use as a brothel;
  • Section 35, a tenant permitting premises to be used as a brothel.
  • Section 36, a tenant permitting premises to be used for prostitution.

A brothel, for these purposes, is defined as "a place where people of opposite sexes (but see para below) are allowed to resort for illicit intercourse, whether the women are common prostitutes or not". It is not essential to show that the premises are in fact used for the purposes of prostitution (which involves payment for services rendered); a brothel exists where women offer sexual intercourse without charging.(Winter v Woolfe [1931]KB 549).

"Premises which are resorted to for the purposes of lewd homosexual practices shall be treated as a brothel" for the purposes of Sections 33 to 35 of the Act (Section 6, Sexual Offences Act 1967). The same now applies to Section 36 by virtue of Schedule 1 of the Sexual Offences Act 2003.

A house occupied by one woman and used by her alone for prostitution, is not a brothel (Singleton v Ellison [1895] 1QB 607).

For further discussion on the nature of a brothel under the Sexual Offences 1956, see Stones Justices' Manual, footnotes to 2005 8-28009 and Archbold 2008 20-233 to 235.

Either way offence under Sexual Offences Act 1956

Section 33A of the Sexual Offences Act 1956 (inserted by the Sexual Offences Act 2003) creates an either way offence of keeping, managing, acting or assisting in the management of a brothel to which people resort for practises involving prostitution. The degree of coercion, both in terms of recruitment and subsequent control of a prostitute's activities will be very relevant to sentencing. 'Prostitution' is defined in Section 51 (2) of the Act and replicates the common law - payment, or the promise of payment to the prostitute or a third person is required.

The offence carries a maximum of 7 years imprisonment. The guideline also highlights a number of financial orders which can be made in addition to sentence.

Offences contrary to Sections 33, 33A and 34 are lifestyle offences under the Proceeds of Crime Act 2002, Schedule 2 Archbold 2008 5 - 660.

Charging Practice

If there is sufficient evidence to satisfy the evidential test a prosecution will usually take place unless there are public interest factors tending against prosecution which clearly outweigh those tending in favour.

There is a greater discretion in charging those who have assisted in running a brothel, such as receptionists. If the assistance is crucial to the operation of the brothel or the receptionist has been involved for a long period of time, a prosecution will normally be appropriate. If the assistance is minor or over a short period of time, a prosecution may not automatically result.

Loitering or Soliciting for Prostitution

The Law

The offence is created by section 1 Street Offences Act 1959. Stones Justices' Manual 8 - 28160-161. It applies to both men and women following Section 56 and Schedule 1 of the Sexual Offences Act 2003.

"Prostitution": The essential feature is the offer of sexual services for reward. Sexual intercourse is not an essential element (de Munck [1918] I KB 635.)

To prove the man/woman is a common prostitute the defence should be asked whether they admit the fact. Where no such admission is forthcoming, the fact must be proved, by evidence of cautions or previous similar offences.

Charging Practice

Finding routes out of prostitution can be a difficult and lengthy process involving drug treatment, housing, health and employment needs. The CPS approach should be incremental to provide prostitutes with opportunities to find a route out of prostitution. On the other hand, the nuisance caused and the impact of street prostitution on local communities should not be underestimated. Strategies should provide routes out of prostitution for those providing sexual services and also deter those who create the demand for them.

For these reasons many CPS Areas have developed prosecuting strategies in agreement with the police that focus on rehabilitation, such as

  • First and second offences - caution and encouragement to access support services;
  • Third offence - arrest and charge with continued encouragement to access support services;
  • Fourth offence - repeat third stage
  • Fifth offence - repeat third stage and apply for ASBO on conviction.

Often a prostitute is seen both to loiter and then to solicit. In such circumstances, he/she should be charged with both offences, as alternatives. When there is a conviction on one, the other must be withdrawn or dismissed.

If an appeal seems likely, the court should be asked to make no judgement on the second offence, so that if the appeal succeeds the case can go ahead on the second offence if need be.

Child Prostitution

Children under 18 should be treated primarily as victims of abuse. The Sexual Offences Act 2003 creates a framework <Refer to SOA 2003> which focuses on the investigation and prosecution of those who coerce, exploit and abuse children through prostitution. Only when there is a voluntary and persistent return to prostitution should prosecution of the child be considered. It will need to be borne in mind whether there was a genuine choice available to the child.

Reference must be made to the guidance contained in <Safeguarding Children Involved in Prostitution Published in May 2000>

Kerb Crawling

The Law

The Sexual Offences Act 1985 creates two offences:

  • Kerb Crawling (Section 1) (Stones 8-28260)
  • Persistent soliciting of a woman by a man for the purposes of prostitution (Section 2) (Stones 8-28262)

When charging, note that the two offences overlap. Section 1 should be charged where the evidence clearly shows that the approach to the woman was made from a motor vehicle or that it was so close to a vehicle that the man had just got out. If in doubt Section 2 should be used.

For Section 1 evidence is required to prove that annoyance was likely to be caused to the woman (or any of the women) solicited or that nuisance was likely to be caused to other persons in the neighbourhood. Justices are entitled to take account of their local knowledge of the regular presence of prostitutes in a particular neighbourhood and of the fact that an area is heavily populated and residential (DPP v Paul (1989) 90 Cr App Rep 173).

For Section 2, "persistent soliciting" was held in Dale v Smith [1967] 1 W.L.R. 700 to require either more than one invitation to one person or a series of invitations to different people.

Charging Practice

A number of CPS Areas have introduced policies agreed with their local police force in order to deal with kerb crawling with the aim of preventing repeat offending and deterring those who create the demand for prostitution. Again, as with soliciting, the CPS strategy should be incremental - an approach designed to respond to local circumstances and the local prevalence of kerb crawling.

A staged approach involving the following elements may be appropriate:

  • First offence - informal warning/caution and an Acceptable Behaviour Contract if admitted;
  • Second offence (or disputed first offence) - court diversion into re-education programme or prosecute and apply for an ASBO on conviction;
  • Third offence - prosecute; charge with breach of ASBO if appropriate. Remind the court of their power to disqualify from driving under Section 146 of the Powers of Criminal Courts (Sentencing) Act 2000 and encourage local media to name and shame those who are convicted.

Trafficking for Sexual Exploitation

<Refer to Human Trafficking elsewhere in the Legal Guidance>

Bigamy

The Law

Contrary to Section 57 Offences Against the Person Act 1861 [Archbold 2008 31-1]

Charging Practice

Consider the following Public Interest Criteria when deciding whether to charge particularly the harm caused to the "non-bigamous" spouse

  • Whether there has been any trickery involved;
  • If the offence was committed for a fraudulent purpose including financial gain or enabling immigration controls to be evaded;
  • If there has been a number of bigamous marriages a prosecution should usually follow;

Pay particular attention to:

  • the position of the spouse;
  • the attitude of the spouse;
  • the motive for committing bigamy;
  • where circumstances reveal a complete flouting of the marriage laws;
  • the position of any children who may suffer from unwanted publicity, which may result from criminal proceedings.

The relationship between the victim and the public interest in prosecuting is set out in <The Code for Crown Prosecutors>.

Sexual Activity in a Public Lavatory

Section 71 of the Sexual Offences Act 2003 creates a summary offence of intentionally engaging in sexual activity in a public lavatory. Archbold 20-228

Consider the factors set out in the Code for Crown Prosecutors when applying the public interest test.

The offence is punishable with 6 months imprisonment, or a fine, or both.

Prostitution - placing of adverts in telephone boxes

The law

Stones Justices' Manual 1.4142

Section 46 of the Criminal Justice and Police Act 2001creates an imprisonable summary only offence.

Under section 46(1) A person commits an offence if:

a) he places on, or in the immediate vicinity of, a public telephone an advertisement relating to prostitution, and

b) he does so with the intention that the advertisement should come to the attention of any other person or persons.

Section 46(3) any advertisement which a reasonable person would consider to be an advertisement relating to prostitution shall be presumed to be such an advertisement unless it is shown not to be.

'Public telephone' is defined in Section 46(5). There are specific restrictions preventing the use of S46 where the advertisement is placed in a place to which children under 16 are not permitted to have access, whether by law or otherwise, or in any premises which are wholly or mainly used for residential purposes.

A person guilty of an offence under this section is liable on summary conviction to imprisonment for a term not exceeding 6 months or to a fine, or both.

Public Nuisance

This is a common law, either way, offence, which should be used sparingly.

A person is guilty of a public nuisance who:

a) does an act not warranted by law, or

b) omits to discharge a legal duty, if the effect is to endanger the life, health, property or comfort of the public or obstruct the public.

In R v Rimmington and R v Goldstein[2006] 1AC 459 the House of Lords stated that the offence should not be used in order to avoid the time limits or limits on sentence which Parliament thought appropriate for statutory offences. Conduct falling within a statutory offence should be prosecuted under that statutory offence.

In that case it was also stated that the offence of public nuisance was clear, precise, adequately defined and based on a discernible rational principle, and was not therefore contrary to common law principles or incompatible with the European Convention on Human Rights 1950, Article 7.

The Defendant's act should be one that affects the community, a section of the public, rather than simply individuals. As laid down by the Court of Appeal in R v Shorrock [1994] Q.B. 279, and approved by the House of Lords in R v Rimmington and R v Goldstein [2005] UKHL 63 the defendant is responsible for a nuisance which he knew, or ought to have known (because the means of knowledge were available to him), would be a consequence of what he did or omitted to do.

An order for abatement of the nuisance can be obtained if it is proved to be continuing.

Archbold 2008 31-40 et seq

Committing an act outraging public decency

The Law

This is a common law offence; offences committed after 20 January 2004 are triable either way by virtue of Section 320 Criminal Justice Act 2003 (brought into force by SI 2004/81 (C.2)).Offences Committed before that date are indictable only.

(Archbold 2008 20 238 to 20- 243)

There are also offences of conspiracy to corrupt public morals and conspiracy to outrage public decency.

(Archbold 20-244 to 20-245, and 34-32 to 34-39)

Charging Practice

Prosecutors should consider carefully whether alternative charges (such as the ones outlined in this section) are more appropriate.

Last updated 29 January 2008