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Prostitution and Exploitation of Prostitution

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Introduction

This guidance provides practical and legal guidance to prosecutors dealing with prostitution - related offences.

Prostitution is addressed as sexual exploitation within the overall CPS Violence Against Women (VAW) strategy because of its gendered nature. As with other VAW crimes, a multi-agency approach is needed to enable women involved in prostitution to develop routes out of prostitution, and to provide the most appropriate support. See Violence Against Women, elsewhere in the Legal Guidance.

The CPS works closely with the police. The ACPO's policy and strategy for policing prostitution is clear in its commitment to recognise prostitution as a victim-centred crime, and that those who are abused and exploited require holistic help and support to exit prostitution. There is a need to adopt a multi-agency approach and work with voluntary sector organisations to enable those involved in prostitution to change their lifestyles and to develop routes out.

At the same time, those who abuse and exploit those involved in prostitution should be rigorously investigated and prosecuted, and enforcement activity focused on those who create the demand for on - street sex, such as kerb crawlers.

This guidance also covers prostitutes or sex workers as victims of crime; the guidance is brief but provides links to other guidance which highlights the relevant measures which should be considered. Violence can occur from clients and pimps, with sex workers being targets for physical attacks, robbery or sexual assaults including rape. They may also be victims of domestic violence.

General issues

Public interest considerations

When considering charging, in addition to the public interest factors set out set out in the Code for Crown Prosecutors, 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 cases of sexual exploitation of a child, reference should be made to the policy document Safeguarding Children Involved in Prostitution, elsewhere in the Legal Guidance, and the child must 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 sexually abuse children should be prosecuted under Sections 47 - 51 of the Sexual Offences Act 2003. See the guidance on Rape and Sexual Offences, elsewhere in the Legal Guidance.

Drugs

There are strong links between street prostitution and the drug markets, particularly crack cocaine which appears to be increasing. Those involved in street prostitution make significant customers for drug dealers, more often for themselves, sometimes for their partner; they may be managed by drug dealers and also buy drugs for clients.

Prosecutors are alerted to the following Home Office guidance aimed at improving the engagement of those involved in prostitution with specialist projects: Good Practice Guidance to Increasing the Engagement of Adults Involved in Prostitution within the Drug Interventions Programme (12 September 2007).

If individuals have not had contact with outreach projects, drug intervention programmes (DIP) should identify those arrested for loitering and soliciting on their first arrest. Those arrested and brought into custody for loitering and soliciting cannot be tested automatically, as the offence is not a 'trigger' offence. The power exists, however, to drug test an individual for heroin and crack cocaine, where a police officer of Inspector or above considers that their offending has been principally caused by Class A drug misuse, which may include loitering and soliciting.

Conditional Cautioning

Subject to the circumstances of the individual case, a conditional caution with a DIP drug rehabilitative condition attached may be considered appropriate. A DIP condition can be tailored to best suit each individual, their drug use and nature of offending and can be used to help an individual avoid getting a criminal record.

If this is their first contact with the criminal justice system, women can, by accessing and completing the scheme and continued engagement, avoid getting entrenched in a cycle of offending and benefit from support at an early stage of drug and prostitution involvement. Women under pressure from others can also discuss their circumstances and receive confidential support away from any source of pressure.

However, one of the issues that prevent this being used more frequently is that a restrictive condition must also be put in place when a conditional caution is imposed to prevent re-offending. Many prostitutes will not accept a caution if it restricts them from continuing to loiter or solicit in the same areas.

Links with Human Trafficking

The increase in human trafficking for sexual exploitation is also fuelling the market for prostitution in the UK, although this is largely confined to off street and residential premises such as brothels, massage parlours, saunas and in residential flats. This is a lucrative business and is often linked with other organised criminal activity such as immigration crime, violence, drug abuse and money laundering. Women may be vulnerable to exploitation because of their immigration status, economic situation or, more often, because they are subjected to abuse, coercion and violence. However, there is evidence now that trafficked women are also working on the street.

For further guidance on trafficking for sexual exploitation see Human Trafficking and Smuggling, elsewhere in the Legal Guidance.

Violence against women involved in prostitution

Female prostitutes are often at risk of violent crime in the course of their work which can include both physical and sexual attacks, including rape. Perpetrators of such offences include violent clients or pimps. There tend to be higher levels of violence committed against street sex workers compared with off-street workers, which often go unreported to the police. Prostitutes themselves often take their clients to out of the way places where they are less likely to be interrupted.

Special measures and Achieving Best Evidence (ABE) video interviews

In circumstances where a prostitute or sex worker has reported a criminal offence and decided to support a prosecution, they should be considered as vulnerable or intimidated, and accordingly an application should be made to the court requesting the use of special measures under the Youth Justice and Criminal Evidence Act 1999, to enable them to give their best evidence.

Prosecutors should be alert to section 41 which places restrictions on evidence or questions about complainant's sexual history. In cases where a prostitute or sex worker is the victim of a physical or sexual assault, the defence is likely to seek to adduce evidence of the complainant's previous sexual history. The court may give leave in relation to any evidence or question only on an application made by or on behalf of an accused. The court may not give leave unless it is satisfied that it is an issue of consent and the sexual behaviour of the complainant which, according to the evidence, took place as part of the event which is the subject matter of the charge. Subsections (2)-(6) set out the circumstances in which courts may allow evidence to be admitted or questions to be asked about the complainant's sexual behaviour.

Refer to Special Measures, elsewhere in the Legal Guidance.

Domestic violence

Many prostitutes or sex workers may face violence from their partners, especially if they are also their pimp. Although these cases may be difficult to identify and prosecute, prosecutors should be alert to this fact and consider whether domestic and sexual violence is being used to as a form of control and whether or not charges could be instigated against the perpetrator. The CPS guidance on prosecuting cases of domestic violence gives some assistance on how to proceed in cases involving sex workers.

For further guidance see Domestic Violence and CPS Policy on Prosecuting Cases of Rape, and the Rape and Sexual Offences Manual.

Guidance by Offence

Loitering or Soliciting for Prostitution

Section 16 of the Policing and Crime Act 2009 amends section 1(1) of the Street Offences Act 1959 to create an offence for a person (whether male or female) persistently to loiter or solicit in a street or public place for the purposes of offering services as a prostitute, with effect from 1 April 2010. The term "common prostitute" has now been removed.

Section 1(4) has been amended to insert that for the purposes of section 1, conduct is persistent if it takes place on 2 or more occasions in any period of 3 months.

Section 1(5) provides that in deciding whether a person's conduct is persistent, any conduct that took place before the commencement of this section will be disregarded.

To demonstrate "persistence" under the amended legislation, two officers would need to witness the activity and administer the non statutory "prostitutes caution". This caution differs from ordinary police cautions in that the behaviour leading to a caution may not itself be evidence of a criminal offence and there is no requirement for a man or woman to admit guilt before being given a prostitutes caution. Details of these "prostitutes cautions" are recorded at the local police station. Insertion of the word "persistently" provides opportunities for the police to direct that individual to non-criminal justice interventions to help address the issues that may have caused them to enter prostitution and to ultimately find routes out.

The amended offence requires the prosecution to prove that the activity the subject of the charge itself was persistent; therefore there is a need to particularise when and where that persistent activity took place. Thus, once conduct has already been included within the scope of one prosecution that same conduct cannot be included in the scope of a later prosecution. Further, once an offender's cumulative conduct is met by a finding of guilt in a criminal court, to that extent there is a wiping clean of the slate. Therefore, a caution or conditional caution will wipe the slate clean.

Each case of subsequent "persistent" loitering or soliciting does not need to be met with any kind of formal warning to be considered for prosecution. However, in the event of an offender who leaves court following a conviction for soliciting or loitering, and then immediately resumed this activity, they would need to be told to desist at least once before they could be considered for any fresh prosecution.

Section 17 of the Policing and Crime Act 2009 amends section 1(2) of the Street Offences Act 1959, which sets out the fines applicable on summary conviction for loitering or soliciting. Section 17 introduces into section 1(2)(A) of the Street Offences Act 1959, orders requiring attendance at meetings as an alternative penalty to a fine for those convicted under section 1(1). The court may deal with a person convicted of this offence by making an order requiring the offender to attend three meetings with the person specified in the order (the supervisor) or with such other person as the supervisor may direct. The purpose of the order is to assist the offender, through attendance at those meetings, to:

a) address the causes of the conduct constituting the offence, and
b) find ways to cease engaging in such conduct in the future.

Where the court is dealing with an offender who is already subject to such an order, the court may not make a further order under this section unless it first revokes the existing order. If the court makes an order under section 1(2)(A) it may not impose any other penalty in respect of the offence. This is with effect from 1 April 2010.

This is a summary offence punishable by a fine not exceeding level two on the standard scale. For an offence committed after a previous conviction, a fine not exceeding level three on the standard scale.

Section 18 of the Policing and Crime Act 2009 amends section 5 of the Rehabilitation of Offenders Act 1974. It applies to the rehabilitation periods for those convicted of loitering or soliciting for the purposes of offering services as a prostitute and sentenced to an order under section 1 of the Street Offences Act 1959. The rehabilitation period applicable to an order under section 1(2)(A) of the Street Offences Act 1959 shall be 6 months from the date of conviction for the offence in respect of which the order is made. When the order has been completed, the person subject to the order will have become a rehabilitated person under the Rehabilitation of Offenders Act 1974. This is with effect from 1 April 2010.

Charging Practice

Charging practice should usually be to encourage those offering services as a prostitute to find routes out of prostitution and to deter those who create the demand for it. If it is decided that a criminal charge is necessary, the police should consider whether a section 17 order requiring the offender to attend three meetings with a supervisor to address the causes of the conduct constituting the offence, is appropriate and take early steps to explore this option. Prosecutors should then when appropriate remind the court of the availability of the order following conviction.

The nuisance caused and the impact of street prostitution on local communities should not be underestimated. Communities where street prostitution flourishes are often marginalised as "red light" districts and other forms of crime such as drug dealing can take place. The environment can become littered with discarded needles and condoms and local female residents can be harassed by kerb crawlers.

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 those involved in prostitution with opportunities to find a route out of prostitution. Many CPS Areas have developed prosecuting strategies in agreement with their local police force that focuses on rehabilitation.

These include:

  • 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 offences - repeat third stage and apply for ASBO on conviction.

Often a person offering services as 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.

Trafficking for Sexual Exploitation: Sections 57 to 59 Sexual Offences Act 2003

The Sexual Offences Act 2003 creates three offences of trafficking for the purposes of sexual exploitation:

  • Section 57 for trafficking into the UK;
  • Section 58 for trafficking within the UK; and
  • Section 59 for trafficking out of the UK.

A person commits an offence if he arranges or facilitates the travel of another person and intends to do anything in respect of that person, which if done, will involve the commission of a relevant offence. For these purposes, a relevant sexual offence is any offence under Part 1 of the Sexual Offences Act 2003, and therefore captures all serious sexual offences including exploitation of prostitution.

Further information including charging practice can be found in Human Trafficking and Smuggling elsewhere in the Legal Guidance.

Causing, Inciting and Controlling Prostitution for Gain

Causing or inciting prostitution for gain: Section 52 Sexual Offences Act 2003

This offence came into force on 1 May 2004.

Under section 52(1) a person commits an offence if:

a) he intentionally causes or incites another person to become a prostitute in any part of the world, and
b) he does so for or in the expectation of gain for himself or third party.

"In any part of the world" means that section 52 is contravened when a person is caused or incited in England, Wales or Northern Ireland to become a prostitute either in that jurisdiction or elsewhere in the UK or overseas.

Controlling prostitution for gain: Section 53 Sexual Offences Act 2003

This offence came into force on 1 May 2004.

Under section 53(1) a person commits an offence if:

a) he intentionally controls any of the activities of another person relating to that person's prostitution in any part of the world; and
b) he does so for or in the expectation of gain for himself or a third party

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

"Gain" is defined in Section 54(1) 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 2010 4-404i to 4-404l).

These offences (section 52 and 53) replace the Sexual Offences Act 1956 offences relating to the control of prostitution.

The offences are either-way and are specified sexual offences in respect of which a sentence of imprisonment for public protection may be imposed under the Criminal Justice Act 2003. On summary conviction, a person is liable to imprisonment for a term not exceeding 6 months or a fine not exceeding the statutory maximum or both. On conviction on indictment a person is liable to imprisonment for a term not exceeding 7 years.

According to guidance issued by the Sentencing Guidelines Council, the sentencing ranges for these offences will be informed by aggravating and mitigating factors:

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

The section 52 and section 53 offences are lifestyle offences for the purposes of the Proceeds of Crime Act 2002. Archbold 2010 20-172 to 2-178.

Charging Practice

When charging, in addition to the public interest factors set out in the Code for Crown Prosecutors, the following public interest aims and considerations are amongst those to be considered:

  • To prevent people leading or forcing others into prostitution;
  • To penalise those who organise prostitutes and make a living from their earnings;
  • The age of the prostitute and the position of those living off the earnings will clearly be relevant;
  • Generally the more serious the incident the more likely that a prosecution will be required.

The section 52 and section 53 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 involved in prostitution are dealt with by sections 47, 48, 49 and 50 of the Sexual Offences Act 2003 and carry a higher penalty. Refer to the Abuse of Children through prostitution or pornography (sections 47-50) in the Rape and Sexual Offences Manual, elsewhere in the Legal Guidance and also under Exploitation of Prostitution (Children) later in this guidance.

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 stage of the Full Code Test, it is likely it will be in the public interest to prosecute.

Police investigations: abuse of process

In investigating cases of controlling prostitution, the police may raid and disrupt brothels where local police policy previously had been one of toleration of off street prostitution.

Such an investigation in 2007 resulted in defendants, who were arrested and charged with offences of controlling prostitution, raising a successful defence of abuse of process based on entrapment and breach of an undertaking (implied or otherwise) given by the police not to prosecute.

The judge in this case concluded that by their words and acts, the police had led those who were running the brothels into believing that, provided certain conditions were met, the premises could continue to operate as brothels without risk of prosecution. The police had openly pursued a 'laissez faire' policy towards them, and clear undertakings had been given by the police that they would not investigate those running the brothels provided certain 'ground rules' were observed; for example, no selling of alcohol, no drugs, no under age girls. Police policy had effectively been one of targeting other types of prostitution, namely on-street prostitution and addresses in residential areas. Involvement of the local authority in licensing these establishments for the purposes of the sale of alcohol, which went unchallenged by the police, served to reinforce this policy and the impression created for those running them.

Where a prosecutor reviews a case with a similar factual basis as outlined above, to prevent any future abuse of process argument based on breach of an undertaking, prosecutors should advise the investigating officer to obtain the following:

  • police force policy on policing off street prostitution;
  • any further police guidance issued to that police force;
  • information as to whether there was toleration of off street premises; and
  • evidence from the officers who allegedly visited the premises, providing detail of how often they visited, for what purpose, what was said and by whom.

Prosecutors should then carefully consider whether there is a potential for an abuse of process of argument to be run.

Prosecutors should refer to Abuse Of Process, elsewhere in the Legal Guidance, which sets out the relevant legal arguments in similar circumstances.

Keeping a Brothel

The following are 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.

There is also an either way offence that has been inserted by section 55 of the Sexual Offences Act 2003. Section 33A of the Sexual Offences Act 1956 (inserted by sections 55(1) and (2) of 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 (whether or not also for other practices). "Prostitution" has the meaning given by section 51(2) of the Sexual Offences Act 2003.

The difference between offences under sections 33 and 33A arises because the definition of a brothel in English law does not require that the premises are used for the purposes of prostitution since a brothel exists wherever more than one woman offers sexual intercourse, whether for payment or not. Section 33A is also capable of covering premises where people go for non-commercial sexual encounters, such as certain saunas and adult clubs. Section 33A was introduced to increase the maximum penalty for the exploitation of prostitution in circumstances where the element of control required for section 53 is difficult to prove in circumstances where the owner of a brothel puts himself at a distance from the actual running of the establishment.

A brothel is defined as "a place where people of opposite sexes (but see paragraph 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).

Section 6 of the Sexual Offences Act 1967 provides that "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. The same now applies to section 36 by virtue of Schedule 1 of the Sexual Offences Act 2003.

It is not illegal to sell sex at a brothel provided the sex worker is not involved in management or control of the brothel. A house occupied by one woman and used by her alone for prostitution, is not a brothel (Gorman v Standen, Palace Clarke v Standen (1964) 48 Cr App R 30).

Premises only become a brothel when more than one woman uses premises for the purposes of prostitution, either simultaneously or one at a time (Stevens v Christy [1987] Cr. App. R. 249, DC). This implies that if two women are present, both must be there for the purposes of prostitution. In circumstances where prostitutes are working individually out of one flat but there is a rotation of occupants and the young women are moved on a regular basis; i.e. sole occupancy and a rotation of sole occupants, it does constitute a brothel.

However, where rooms or flats in one building are let separately to different individuals offering sexual services; it may be treated as a brothel only if the individuals are effectively working together. Donovan v Gavin [1965] 2 QB 648 established that the letting of individual rooms in a house under separate tenancies and to different prostitutes does not necessarily preclude the house, or parts of it, from being a brothel.

For further discussion on the nature of a brothel under the Sexual Offences Act 1956 see Stones Justices' Manual, footnotes to 2009 8-28009 and 2009 20-233 to 20-235.

The degree of coercion, both in terms of recruitment and subsequent control of a prostitute's activities will be very relevant to sentencing.

Sections 33 to 36 are summary only offences and, for an offence committed after a previous conviction, carry a maximum sentence on conviction of 6 months' imprisonment, a fine not exceeding level 4, or both. Without a previous conviction, sentence is 3 months' imprisonment, a fine not exceeding level 3, or both. They are all lifestyle offences within the Proceeds of Crime Act 2002 Schedule 2, Archbold 2010 5-660.

Section 33A is an either way offence and has a maximum penalty of 7 years' imprisonment on indictment and for summary conviction it is 6 months' imprisonment, or a fine not exceeding the statutory maximum ((£5,000), or both.

Charging Practice in relation to Brothels

When considering charges, in addition to the public interest factors set out in the Code for Crown Prosecutors, the following public interest aims and considerations should be considered:

  • The need 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.

If there is sufficient evidence, it will usually be in the public interest for brothel keepers to be prosecuted, particularly in circumstances where they are making financial gain from the enterprise.

Maids

When considering charging so-called "maids" (an individual who has assisted in running the brothel, such as a receptionist), and there is sufficient evidence, the public interest will usually mean the maid will be charged if their assistance is crucial to the operation of the brothel or they have been involved for a long period of time. If the assistance of the maid is minor or over a short period of time such as cleaning and tidying, a prosecution may not be necessary in the public interest.

The following models may provide a useful guide in assessing the involvement of the maid in assisting in the running of the brothel:

Minor Involvement: the maid is employed to just look after the woman or women supplying sexual services. She will keep the premises clean, buy provisions such as food and cleaning materials and ensure that items such as condoms, creams etc are available. She may receive calls from 'punters', provide the address to those wishing to attend and may answer the door. The maid will be paid by the woman or women on the basis of business.

Medium Involvement: This type of brothel will have a maid who is brought in to manage premises used by several women over the course of a week. The maids will differ and will be employed by the premises owner. The maid will not always know the women who work in the premises as they will also change daily. The maid will be paid a small sum by the premises owner and more by the women providing the services. The maids will vet 'punters' and receive telephone calls. Police intelligence suggests that the women employed in these brothels are mainly foreign nationals and incidents of trafficking in this type of premises are rising. Where trafficked victims and young women under 18 are supplying sexual services in these premises, arrest and prosecution of the maid is more likely to be considered.

Serious Crime Involvement: In this type of brothel, the controller or trafficker works on the premises. Women working in the brothel are often coerced, forced or trafficked and the maid/controller needs to maintain close supervision to limit their freedom and monitor their earnings and finances. Often these maids are actually the controller or trafficker and are committing other (additional) serious offences, e.g. false imprisonment/assault.

Paying for Sexual Services

With effect from 1 April 2010, section 53A of the Sexual Offences Act 2003, as inserted by section 14 of the Policing and Crime Act 2009, creates a new offence of paying for the sexual services of a prostitute subjected to force etc.

Section 53A provides:

1. A person (A) commits an offence if:

a. A makes or promises payment for the sexual services of a prostitute (B);
b. A third person (C) has engaged in exploitative conduct of a kind likely to induce or encourage B to provide the sexual offences for which A has made or promised payment; and
c. C engaged in that conduct for or in the expectation of gain for C or another person (apart from A or B).

2. The following are irrelevant :

a. Where in the world the sexual services are to be provided and whether those services are provided;
b. Whether A is, or ought to be, aware that C has engaged in exploitative conduct.

3. C engages in exploitative conduct if:

a. C uses force, threats (whether or not relating to violence) or any other form of coercion; or
b. C practices any form of deception.

The offence is one of strict liability. This means that it is irrelevant whether A is, or ought to be, aware that B is subject to exploitative conduct by C.

"Sexual services" is given the same meaning as section 4(4) of the Sexual Offences Act 2003, if the service provided involved penetration of B's anus or vagina, penetration of B's mouth with a person's penis, penetration of a person's anus or vagina with a part of B's body or with anything else, or penetration of a person's mouth with B's penis.

"Prostitute" is defined in section 54(2) of the Sexual Offences Act 2003 as:
"A person 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 that person or a third person."

"Exploitative conduct" is conduct which involves the use of force; threats (whether or not relating to violence); any other form of coercion; or deception. Force should be given its ordinary meaning and would involve physical violence against B.

"Gain" means any financial advantage, including the discharge of an obligation to pay or the provision of goods and services (including sexual services) gratuitously or at a discount; or the goodwill of any person which is or appears likely, in time, to bring financial advantage. A person guilty of an offence under this section is liable on summary conviction to a fine not exceeding level 3 on the standard scale.

Charging Practice

This offence has been introduced to address the demand for prostitution services and reduce all forms of commercial sexual exploitation. It has been developed, in part, to enable the UK to meet its international legal obligations to discourage the demand for sexual services in support of Conventions to suppress and prevent trafficking for sexual exploitation.

It is anticipated that this offence will be considered most often in relation to off-street prostitution. If the police apprehend someone who has paid for sexual services with a person involved in street prostitution, it is likely that soliciting (section 51(A) Sexual Offences Act 2003 - see Kerb Crawling below) would be a more appropriate offence to pursue as this does not require proof of exploitative conduct.

The offence is most likely to arise in police brothel raids where there is enforcement against suspects controlling or exploiting prostitution for gain and where clients are apprehended in the operation. However, the offence is not limited to particular types of premises. It could therefore apply to premises which may have a legitimate business, for example a nightclub, as well as online internet-based services.

Kerb Crawling

Section 19 of the Policing and Crime Act 2009 introduces section 51A into the Sexual Offences Act 2003 and creates a new offence for a person in a street or public place to solicit another for the purpose of obtaining a sexual service as a prostitute. The reference to a person in a street or public place includes a person in a motor vehicle in a street or public place.

This replaces the offences of kerb crawling and persistent soliciting under sections 1 and 2 of the Sexual Offences Act 1985 with effect from 1 April 2010.

A person guilty of an offence under this section is liable on summary conviction to a fine not exceeding level 3 on the standard scale.

Charging Practice

The effect of this amendment is to remove the requirement to prove persistence. This will enable the charge and prosecution of an offender on the first occasion they are found to be soliciting without the need to prove persistent behaviour, or that the behaviour is likely to cause annoyance or nuisance to others.

Although a matter for individual CPS Areas, sometimes an approach may be adopted with the police designed to respond to local circumstances and the local prevalence of kerb crawling. For example, high visibility policing in red light areas, with posters advertising that kerb crawlers will be prosecuted and disqualified and with signs in these areas detailing how many kerb crawlers had been arrested and prosecuted. Some police forces carry out regular surveillance operations in known red light areas, with a zero tolerance strategy adopted. All those arrested are bailed to the same court date, dealt with by the same bench and the local press are encouraged to report it.

On conviction in appropriate cases, the prosecutor should consider drawing the court's attention to any relevant statutory provisions relating to ancillary orders for kerb crawling such as their powers to disqualify from driving under section 146 of the Powers of Criminal Courts (Sentencing) Act 2000 or to deprive an offender of property, used to commit or facilitate the offence under section 143 Powers of Criminal Courts (Sentencing) Act 2000. See Ancillary Orders Toolkit elsewhere in the Legal Guidance.

Prostitution - advertising

Placing of adverts in telephone boxes

Section 46(1) of the Criminal Justice and Police Act 2001 creates an offence to place advertisements relating to prostitution.

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.

Under 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) as any telephone which is located in a public place and made available for use by the public. 'Public place' means any place to which the public have or are permitted to have access, whether on payment or otherwise. There are specific restrictions preventing the use of Section 46 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 (Stones Justices' Manual 2009 1-4142).

Placing of advertisements in newspapers

There is no specific offence. However, the Newspaper Society has always advised publishers not to publish advertisements for illegal establishments and activities such as brothels or venues where sexual services are offered illegally. The advice also warns publishers that massage parlours can disguise illegal offers of sexual services and it suggests adopting protective policies such as checks on qualifications to ensure the advertised service is legitimate.

It advises that a newspaper company can adopt a policy of refusing all advertisements for personal services, or policies intended to reduce the risk of publication relating to illegal prostitution and human trafficking, or which its staff suspect might do so. It advises that a newspaper company ensure that its staff are assisted and supported in decisions to refuse this type of advertising or refuse any particular advertisement. Guidance also advises that papers instigate meetings with local police and prosecutors, local authorities and other relevant agencies to discuss and agree a consistent and workable approach.

Some police forces have local policies in place for enforcement against prostitution services advertised in the local press. Here, police are advising local newspapers that if advertisements appear for brothels, even under the guise of massage parlours and saunas, the newspaper itself may be liable to prosecution for money laundering offences under the Proceeds of Crime Act 2002. See Proceeds of Crime Act 2002 - General Guidance elsewhere in the Legal Guidance.

Exploitation of Prostitution (Children)

Children under 18 involved in prostitution should be treated as victims of abuse. See Guidance on Prosecuting Child Abuse Cases, elsewhere in the Legal Guidance.

When considering a case where a child has been sexually exploited, the child must be treated as a victim of abuse. Reference should be made to the policy document published by the Department of Children Schools and Families Working together to Safeguard Children: A guide to inter-agency working to safeguard and promote the welfare of children published in 2006. The focus should be on those who exploit and coerce children. The police should not issue children who are sexually exploited with a warning or caution but should remove them to a place of safety.

Those who use sexually exploited children should be prosecuted under Sections 47 - 51 of the Sexual Offences Act 2003. See Abuse of children through sexual exploitation in the Sexual Offences Act 2003 - Guidance, elsewhere in the Legal Guidance. It covers the prosecution of those who coerce, exploit and sexually abuse children. These offences carry a higher penalty.

Sections 47, 48, 49 and 50 of the Sexual Offences Act 2003 deal with paying for sexual services of a child; causing or inciting sexual exploitation of the child; controlling sexual exploitation of the child; and arranging or facilitating sexual exploitation of a child respectively. Archbold 2010 20-155 to 20-162.

These offences are specifically designed to tackle the use of children in the sex industry, where a child is under 18. Children sexually exploited are victims of abuse.

In the above offences, a child is defined as someone under 18. Consent is irrelevant. A reasonable belief that the child is over 18 affords a defence if the child is 13 or over. There is no defence of reasonable belief if the child is aged under 13.

If there is sufficient evidence, the public interest will usually require a prosecution to take place if someone is considered to have sexually exploited a child or facilitated the sexually exploitation of a child. Prosecutors are encouraged to consider prosecuting strategies without the need for the victim to give evidence in court.

See also guidance on Extreme Pornography; Indecent images of Children; Obscene Publications,elsewhere in the Legal Guidance.

Internal Trafficking

Whilst the UK is primarily a destination state for human trafficking, an emerging issue is the "internal trafficking" of children. This term is used to describe the trafficking of children born, or normally resident in the UK. Internal trafficking is characterised by the recruitment, grooming and sexual exploitation of young teenage girls in the UK by organised crime gangs. Investigations may arise in circumstances where a child has gone missing (often, but not limited to, children in local authority care). They may be sexually abused before being taken to other towns and cities where the sexual exploitation (prostitution) continues.

However not all cases of child sexual exploitation and abuse will be considered to be internal trafficking. Where evidence obtained by investigators supports an offence of trafficking within the UK (under section 58 Sexual offences Act 2003), then this offence should be charged. Where other serious sexual offences involving the exploitation of children are disclosed, prosecutors should refer to legal guidance on

Further guidance on investigating and evidencing such cases can be found in the NPIA Child Abuse Guidance.

The Department for Education (DFE) and Home Office published guidance in December 2007 Working Together to Safeguard Children Who May Have Been Trafficked provides guidance on the roles and functions of all relevant agencies involved in identifying and supporting child victims.

Further information can be found in Human Trafficking and Smuggling elsewhere in the Legal Guidance.