Policing and Crime Bill

I remind the Committee that I am a serving magistrate, as I declared on a previous occasion. Inevitably, the debate has strayed a little between these two amendments. I am amazed that we have managed to hang on to this amendment, which stands very much on its own and is a very important part of what we are discussing. I am very grateful for the support of the noble Baroness, Lady Miller, for this amendment. I think that she will join me in saying that one of the greatest concerns of many noble Lords is the imposition of the strict liability on the defendant and that there is no defence against the charge that he was going to have or had had sex with a prostitute who had been trafficked. I am not a lawyer, but it seems to me that it is an extremely serious matter to put someone in jeopardy of the law by an incontestable assumption of guilt. In the case of a person who seeks sex from a prostitute who—the noble Lord, Lord Pearson, has already raised this—at a later date is found to have been trafficked, exploited or abused, in hiring her for sex he commits an offence whether or not he knows or has any reason to believe that she has been trafficked. This assumption of knowledge as a basis for prosecution clashes, we believe, with natural justice. At least an offence should be committed only if it can be proved that the defendant could reasonably have known that the prostitute had been trafficked. I know that many will disagree with giving even this limited amount of defence and we have heard a little of that today. There are those who believe that these provisions will, because of the jeopardy in which the punter is being placed, reduce the amount of prostitution per se. Again, we have discussed the purpose of Clause 13. Many see this as a moral issue, but because this clause and the offence are so prescriptive it is in our view solely an issue of justice. Like other noble Lords, I have been inundated with e-mails, letters and briefings. This issue has led to an enormous amount of lobbying from both sides on all aspects of Clause 13. Quite rightly, concern over exploited prostitutes’ welfare has led to the involvement of many organisations, all of which are seeking the same result: largely the ending of all prostitution—again, we have discussed that briefly—whether there is evidence of trafficking or not. There are those who believe that this proposed legislation is unworkable in that the offence will be almost impossible to prove. So it will not achieve its aims of reducing the number of prostitutes who are controlled by pimps or who help to make prostitutes any safer. We need to remind ourselves again that prostitution per se is not a crime, although a good many offences are attached to it. Contrasting views and opposing testimony show just how important it is that the legislation is clear, unambiguous and, above all, does what is intended. The primary reason for this offence being promoted is to seek to protect those who are exploited and trafficked for sex, and to reduce the opportunities for those generating and profiting from that exploitation. These are laudable aims, but we must remember that unworkable law will not help anyone. It will not support the victims seeking protection from exploitation or help the police looking to prosecute the criminals involved. An offence that proves to be impossible to prosecute will only waste the enforcement agency’s time and resources, and add yet another layer of confusion to an industry already operating in the shadows. In the Minister’s reply to the previous amendment, we got some indication of how the Government see this working, but as I understand it it also requires the police and other agencies to have or to obtain knowledge that someone had been trafficked. They may or may not get that information from the punter if the punter is under threat of prosecution. The question of whether the offence should be one of strict liability has been considered by a great many bodies. The Joint Committee on Human Rights is surely not a committee that one would ever suggest did not take the protection of the vulnerable seriously enough. It clearly stated that the Government have failed to demonstrate the necessity for the new strict liability offence. It stated: ""In our view, the proposed offence has the potential to put women into more exploitative or unsafe situations, may not address the problem which the offence aims to target (namely exploitative prostitution) and may discourage reporting of such prostitution."" Justice, another organisation dedicated to the protection of human rights and the improvement of the legal system, also opposes a strict liability offence, as do Liberty and the Bar Council. All these organisations believe that the human rights issues in such an offence, couched as it is and being one of strict liability, make it extremely unlikely that a conviction will ever be achieved. All that this offence will result in is an even lower incidence of reporting as punters shy away from talking to the police for fear that they will be prosecuted for an offence against which they would have no defence. I hope that the Government, who in the next group of amendments indicate that they are listening to the concerns being raised about aspects of this clause, will also listen to our concerns. In moving the amendment we are looking at the adequacy or otherwise of the fairness of a prosecution. In doing so, I do not dismiss nor am I unsympathetic to the grave concerns being expressed, but this House as well as the other place need to be clear that when they put legislation for offences on to the statute book, it is fair and just. I beg to move.