Prostitution and Exploitation of Prostitution
- Overall approach to the prosecution of Prostitution
- Public interest considerations
- Drugs, Alcohol and Other Vulnerabilities
- Links with Human Trafficking
- Violence against Those Involved in Prostitution
- Guidance by Offence:
- Loitering or Soliciting for Prostitution
- Keeping a Brothel
- Paying for Sexual Services
- “Kerb Crawling”
- Advertising - Placing of Adverts in Telephone Boxes
- Advertising - Placing of Advertisements in Newspapers
- Exploitation of Prostitution - Causing or Inciting Prostitution for Gain: Section 52 Sexual Offences Act 2003
- Controlling Prostitution for Gain: Section 53 Sexual Offences Act 2003
- Trafficking for Sexual Exploitation: Section 2 Modern Slavery Act 2015
- Sexual Exploitation of Children
- 'Sex for Rent’ Arrangements and Advertisements
The CPS focuses on the prosecution of those who force others into prostitution, exploit, abuse and harm them. Our joint approach with the police, with the support of other agencies, is to help those involved in prostitution to develop routes out.
The context is frequently one of abuse of power, used by those that incite and control prostitution - the majority of whom are men - to control the sellers of sex - the majority of whom are women. However CPS recognises that these offences can be targeted at all victims, regardless of gender.
The CPS charging practice is to tackle those who recruit others into prostitution for their own gain or someone else’s, by charging offences of causing, inciting or controlling prostitution for gain, or trafficking for sexual exploitation. In addition to attracting significant sentences, these offences also provide opportunities for seizure of assets through Proceeds of Crime Act orders and the application of Trafficking Prevention Orders.
For those offences which are summary only (loitering and soliciting, kerb crawling, paying for sexual services and advertising prostitution) the police retain the discretion not to arrest or report to the CPS those suspected of committing an offence, or they can charge the offence without reference to a prosecutor, regardless of whether the suspect intends to plead guilty or not guilty.
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 and Girls (VAWG) portfolio, due to its gendered nature. See Violence Against Women and Girls, elsewhere in the Legal Guidance. The individual policies that sit within the VAWG framework will be applied fairly and equitably to all perpetrators and victims of crime, regardless of gender.
The CPS works closely with the police on all prostitution-related offences. The National Police Chief’s Council (NPCC) National Guidance on Policing Sex Work was published in December 2015.
Prosecutors should be aware that there is autonomy as to how forces police prostitution within their area. For those offences which are summary only – loitering and soliciting, kerb crawling, paying for sexual services, keeping a brothel and advertising prostitution – the police retain the discretion:
- Not to arrest or report to the CPS those suspected of committing an offence;
- To charge the offence without reference to a Prosecutor, regardless of whether the suspect intends to plead guilty or not guilty;
- To issue a simple caution to a suspect;
- To decide that no further action should be taken; or
- To issue a conditional caution if they consider that the suspect might be suitable.
However, the police guidance provides practical advice when dealing with prostitution-related issues to ensure consistent levels of service, whilst balancing the need to protect those involved in prostitution from crime. The strategic principles for policing prostitution emphasise that those who sell sex should not be treated as offenders but as people who may be or become victims of crime. Prostitution should be tackled in partnership with other organisations and projects offering support services.
The Police guidance recognises the diverse nature of prostitution and the different challenges in responding. It also emphasises the need to robustly investigate organised criminal activity associated with sexual exploitation. This CPS guidance provides links to other legal guidance associated with exploitation of prostitution, including trafficking for sexual exploitation, drugs and domestic abuse.
Whilst historically, case-law and legislation detailed below used the female gender when setting out offences, for present-day purposes it should be noted that the law encompasses everyone.
When considering charging, in addition to the public interest factors set out in the Code for Crown Prosecutors, the following public interest aims and considerations should be borne in mind:
- Those who sell sex should not be routinely prosecuted as offenders. The emphasis should be to encourage them to engage with support services and to find routes out of prostitution.
- Diversionary approaches should be prioritised over enforcement of offences under the Policing and Crime Act 2009, which should only be used as part of a staged approach that includes warnings and cautions.
- It will generally be in the public interest to prosecute those who abuse, harm, exploit, or make a living from the earnings of prostitutes.
- Generally, the more serious the incident and previous offending history, the more likely it is that a prosecution will be required.
When considering cases of sexual exploitation of a child, Prosecutors should refer to relevant legal guidance on ‘Child Sexual Abuse’. Coercion and manipulation often feature in these cases and the focus should be on prosecuting those who exploit and coerce children, with the child being treated as a victim. For those who sexually abuse children, offences under Sections 47–51 of the Sexual Offences Act 2003 should be considered. See Sexual Offences Act 2003 – Guidance, elsewhere in the Legal Guidance.
There can be strong links between prostitution and problematic substance (drug and alcohol) use, on a number of levels. For example, such usage can be a coping mechanism for people involved in prostitution. For others, it can be an addiction funded by the prostitution itself. On the other side of the spectrum, it can be a method to embroil and coerce another into prostitution.
(See ‘Out-of-Court Disposals’ for further information on response to drug abuse.)
Other vulnerabilities of those who sell sex may include mental illness and depression, homelessness or vulnerable housing status, domestic abuse and previous experience of the criminal justice system. Suitable cases should be dealt with by means of diversion from the criminal justice system, with referral to special exiting and outreach support. This would include mental health support, benefits advice, education, training and employment support, drug and alcohol services, health services and domestic abuse services.
Human trafficking is a lucrative business and is often linked with other organised crime within the sex industry, covering criminal activities such as immigration crime, violence, drug abuse and money laundering. Victims may be targeted for sexual exploitation because of their immigration status, economic situation or other vulnerabilities.
For further guidance on trafficking for sexual exploitation see Human Trafficking, Smuggling and Modern Slavery, elsewhere in the Legal Guidance.
Those who sell sex are often targets of violent crime, which can include physical and sexual attacks, including rape. Evidence suggests that offenders deliberately target those who sell sex because they believe they will not report the crime to the police. Perpetrators of such offences can include clients or pimps. There is a strong public interest in prosecuting violent crimes against those who sell sex. In circumstances where a person who sells sex has reported a criminal offence and decided to support a prosecution, special measures should be considered at the earliest opportunity to give them the necessary support and confidence to provide evidence, including through the use of ABE interviews.
Prosecutors should be alert to Section 41 Youth Justice and Criminal Evidence Act 1999, which protects complainants in proceedings involving sexual offences by placing restrictions on evidence or questions about their sexual history. In cases where physical or sexual violence is used, 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. 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.
Those involved in prostitution may face violence from their partners, especially if they are also controlling their activities. Although these cases may be difficult to identify and prosecute, Prosecutors should be alert to this fact and consider whether domestic and sexual abuse is being used as a form of control and whether or not charges could be instigated against the perpetrator. The CPS guidance on prosecuting cases of domestic abuse provides advice on how to proceed in cases involving those who sell sex and how to identify controlling or coercive behaviour.
For further guidance see Domestic Abuse
Section 1(1) of the Street Offences Act 1959 (amended by Section 16 of the Policing and Crime Act 2009) makes it a summary-only offence for a person persistently to loiter or solicit in a street or public place for the purposes of offering services as a prostitute.
Section 1(4) specifies that for the purposes of Section 1, conduct is ‘persistent’ if it takes place on two or more occasions in any period of three months.
To demonstrate ‘persistence’, two officers need to witness the activity and administer the non-statutory ‘prostitute’s 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 person to admit guilt before being given a prostitute’s caution. Details of ‘prostitute’s cautions’ are recorded at the relevant local police station. Insertion of the word ‘persistently’ provides opportunities for the police to direct the individual to non-criminal justice interventions.
As the offence requires proof that the activity was ‘persistent’, there is a need to particularise when and where such activity took place. Once conduct has formed the basis of a prosecution, the same conduct cannot be included in the scope of any later prosecution. Furthermore, once an offender’s cumulative conduct is met by a finding of guilt in a criminal court; there is a wiping clean of the slate. Therefore, a caution or conditional caution will wipe the slate clean (see penalty/charging practice and conditional cautions below).
Section 1 of the Street Offences Act was amended by section 68(7) of the Serious Crime Act 2015, so that the offence of loitering or soliciting applies only to persons aged 18 or over. In so doing, it recognises children as victims in such circumstances.
This offence is punishable by a fine not exceeding level two on the standard scale. For an offence committed after a previous conviction, this increases to a fine not exceeding level three on the standard scale.
Section 17 of the Policing and Crime Act 2009 introduced 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 a supervisor specified in the order or with another person as the supervisor may direct. The purpose of the order is to assist the offender, through attendance at those meetings, to address the causes of prostitution and find ways to cease engaging in such conduct in the future. Prosecutors should, when appropriate, remind the Court of the availability of the order following conviction.
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.
Section 18 of the Policing and Crime Act 2009 amends Section 5 of the Rehabilitation of Offenders Act 1974 for those sentenced to such an order. When the order has been completed, the person will have become a rehabilitated person under the Rehabilitation of Offenders Act.
Subject to the circumstances of the individual case, a conditional caution with a condition to attend a Drug Intervention Program (DIP) and a 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 a criminal record. 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 of those who sell sex will not accept a caution if it restricts them from continuing to loiter or solicit in the same areas.
The following are summary-only 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.
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).
There is no statutory definition of a ‘brothel’. However, it has been held to be “a place where people of opposite sexes are allowed to resort for illicit intercourse, whether…common prostitutes or not”:Winter v Woolfe  KB 549.
It is, therefore, not necessary to prove that the premises are in fact used for the purposes of prostitution, which involves payment for services rendered. Sections 33 – 35 apply to premises where intercourse is offered on a non-commercial basis as well as where it is offered in return for payment.
Section 33A, however, only applies to premises to which people resort for practises involving prostitution (whether or not also for other practices). ‘Prostitution’ has the meaning given by Section 54(2) of the Sexual Offences Act 2003.
Section 33A was introduced to increase the maximum penalty for the exploitation of prostitution and to cover the circumstances where the element of control required for Section 53 Sexual Offences Act 2003 (‘controlling prostitution for gain’) is difficult to prove because the owner of a brothel has put himself / herself at a distance from the actual running of the establishment.
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  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, 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  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”.
It is not necessary to prove that full sexual intercourse is offered at the premises. It is sufficient to prove that “more than one woman offered herself as a participant of physical acts of indecency for the sexual gratification of men”: Kelly v Purvis  QB 663.
The degree of coercion, both in terms of recruitment and subsequent control of a prostitute’s activities will be relevant to sentencing.
When considering charges, the following public interest aims and considerations should be considered:
- The need to penalise those who organise the selling of sex and make a living from the earnings.
- Generally the more serious the incident the more likely that a prosecution will be required.
- The vulnerability of those who sell sex and the position of those living off their earnings will 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 significant financial gain from the enterprise.
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 look after those supplying sexual services. The ‘maid’ will keep the premises clean, buy provisions such as food and cleaning materials and ensure that items such as condoms, creams etc. are available. They will deal with calls for appointments from 'punters', answer the door and general reception duties. The ‘maid’ will be paid by those selling sex on a commercial basis.
- Medium Involvement: This type of brothel has a maid who is brought in to manage premises used by several people selling sex over the course of a week. The ‘maids’ may differ and will be employed by the premises owner. The ‘maid ‘will not always know those who sell sex in the premises as they may also change daily. The ‘maid’ will be paid a small sum by the premises owner and more by those providing the services. They will vet 'punters' and receive telephone calls. Those selling sex in these brothels are likely to be foreign nationals and Prosecutors should be alert to the possibility that they may have been trafficked. Where trafficked victims and children are providing sexual services in these premises, arrest and prosecution of the ‘maid’ should be considered.
- Serious Crime Involvement: In this type of brothel, the ‘maid’ is actually the ‘controller’ or ‘trafficker’ works directly on the premises. Those selling sex in the brothel are often trafficked and/or coerced into providing a range of services to which they may not agree. The ‘controller’ maintains close supervision to limit their freedom and monitor their earnings and finances. Often these ‘maids’ are committing serious additional offences, e.g. trafficking for sexual exploitation, controlling prostitution for gain, false imprisonment. In these cases, a prosecution is more likely to be required.
However, it is also recognised that a way out of controlled or forced prostitution for some is to become part of the controlling network themselves. A ‘maid’ or brothel keeper in these circumstances may then be both a victim and an offender. In cases where trafficking is involved, Prosecutors should refer to the Human Trafficking Legal Guidance on ‘suspects who might be victims of trafficking’. In cases that do not involve trafficking, Prosecutors should carefully consider whether the public interest requires a prosecution. This will involve balancing the control or coercion to which the offender has been subjected against the harm that has been caused to their victims.
Sections 33 to 36 are summary-only offences. Without a previous conviction, sentences carry up to 3 months imprisonment, a fine not exceeding level 3, or both. For an offence committed after a previous conviction, they carry a maximum sentence on conviction of 6 months imprisonment, a fine not exceeding level 4, or both. Sections 33and 34 are ‘lifestyle offences’ within Schedule 2 of the Proceeds of Crime Act 2002.
Section 33A is an either-way offence and has a maximum penalty of 7 years imprisonment on indictment or 6 months upon summary conviction, or a fine not exceeding the statutory maximum (£5,000), or both.
Section 53A of the Sexual Offences Act 2003, inserted by Section 14 of the Policing and Crime Act 2009, creates a summary-only offence of paying for the sexual services of a prostitute subjected to force, etc.
A person (A) commits an offence if:
- A makes or promises payment for the sexual services of a prostitute (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 engaged in that conduct for or in the expectation of gain for C or another person (apart from A or B).
It is irrelevant:
- Where the sexual services are provided.
- If the sexual services are, in fact, provided.
- Whether A is, or ought to be, aware that C has engaged in exploitative conduct.
‘Exploitative conduct’ includes:
- The use of force, threats (whether or not relating to violence) or any other form of coercion.
- 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.
There is no statutory definition of ‘sexual services’. It is normally deemed to include acts of penetrative intercourse (as set out in section 4(4) Sexual Offences Act 2003) and masturbation. It does not include activities such as ‘stripping’, ‘lap dancing’ etc.
‘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.”
‘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.
This offence was introduced to address the demand for sexual 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 likely that this offence will be considered in relation to off-street prostitution. If the police apprehend someone who has paid for sexual services with a person involved in street prostitution, charging the buyer with soliciting (Section 51(A) Sexual Offences Act 2003) may be a more appropriate offence 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 on-line internet based services.
In considering this offence, the previous history of the buyer may be a relevant consideration when applying the public interest test in the Code.
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.
Section 51A of the Sexual Offences Act 2003 (as amended by Section 19 of the Policing and Crime Act 2009) creates a summary-only offence for a person in a street or public place to solicit another for the purpose of obtaining a sexual service. 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. The amendment removes the requirement to prove persistence. This enables an offender to be prosecuted on the first occasion they are found to be soliciting, without the need to prove persistent behaviour, or that the behaviour was likely to cause annoyance or nuisance to others.
Although a matter for individual CPS Areas, an approach may be agreed with the police that is tailored to local circumstances, which provides an appropriate response to the local prevalence of kerb crawling.
National policing guidance advises that forces may give consideration to environmental solutions to encourage those involved in street prostitution to work in areas that are well lit and where CCTV is in operation. Enforcement on either those selling sex or ‘customers’ in cars or on foot is not encouraged as this is likely to result in displacement and put those selling sex at greater risk.
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.
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”. These include 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.
Section 46(1) of the Criminal Justice and Police Act 2001 creates a summary-only offence to place advertisements relating to prostitution. A person commits an offence if he:
- Places on, or in the immediate vicinity of, a public telephone an advertisement relating to prostitution, and
- 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.
Whilst there is no specific offence, the Newspaper Society has advised publishers not to publish advertisements for illegal establishments such as brothels or for the illegal offering of sexual services. 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. Guidance advises that a newspaper company ensures that its staff are assisted and supported in decisions to refuse this type of advertising or refuse any particular advertisement. In some circumstances 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, elsewhere in the Legal Guidance.
Exploitation of Prostitution - Causing or Inciting Prostitution for Gain: Section 52 Sexual Offences Act 2003
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.
‘Causing’ requires the prosecution to prove that the defendant contemplated or desired that the act would ensue and it was done on his express or implied authority or as a result of him exercising control or influence over the other person: Att.-Gen of Hong Kong v Tse Hung-lit  A.C. 876 PC.
This offence is aimed at individuals who cause prostitution through some form of “fraud or persuasion” – Christian (1913) 23 Cox C.C. 541.
A Section 52(1) offence cannot be committed if the complainant has already been involved in prostitution, either home or abroad – R v Ubolcharoen  EWCA Crim 3263.
Under Section 53(1), a person commits an offence if:
- He intentionally controls any of the activities of another person relating to that person’s prostitution in any part of the world, and
- 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:
- 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
- The goodwill of any person which is or appears likely, in time, to bring financial advantage.
‘Prostitute’ is defined in Section 54(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; and ‘prostitution’ is to be interpreted accordingly.”
‘Control’ includes, but is not limited to, ‘compulsion’, ‘coercion’ and ‘force’. It is enough that the person acted under the instructions or directions of the Defendant. There is a wide variety of possible reasons why the person may do as instructed. It may be, for example, because of emotional blackmail or the lure of gain. There is no requirement for the person to have acted without free will: R v Massey  1 Cr. App. R. 28 CA.
An individual who profits from the activities of a prostitute but who does not control any of those activities will fall outside of the scope of this offence: R v Massey
The following types of conduct have specifically been held to fall outside of the scope of this offence:
- Selling a directory of prostitutes, in which the prostitutes paid to have their details included: Shaw v DPP  A.C. 220.
- Providing prospective clients, for a fee, with information about services offered by named prostitutes: R vAnsell  Q.B. 215
These offences focus on situations where the complainant has been sexually exploited by others for commercial gain. Sexual exploitation can occur in both on and off-street prostitution. The offences are designed to 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 offences are primarily aimed at those who cause, incite or control others who are over 18 to become a ‘prostitute’. Offences involving children under 18 should be considered under Sections 47, 48, 49 and 50 of the Sexual Offences Act 2003, which carry a higher penalty. 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 the offender does not escape liability altogether.
When considering charge, 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:
- To prevent people leading or forcing others into prostitution;
- To penalise those who organise ‘prostitutes’ and make a living from their earnings;
- The vulnerability of those selling sex 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.
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.
Given the high profits from organised prostitution offences, financial investigation is important to provide evidence to support these offences as well as proceedings for asset seizure under the Proceeds of Crime Act.
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.
Both offences are ‘lifestyle offences’ for the purposes of the Proceeds of Crime Act 2002.
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.
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 Crown Court 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 that certain ‘ground rules’ were observed. These included no selling of alcohol, no drugs and no under-age girls. 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: R v Elsworth and others (Operation Rampart) 2007
When reviewing a similar case, to prevent an abuse of process argument based on breach of an undertaking, Prosecutors should advise the investigating officer to obtain:
- Police force (or other local) policy on policing off-street prostitution;
- Any further relevant 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 potential for an abuse of process of argument. Prosecutors should refer to Abuse of Process, elsewhere in the Legal Guidance, which sets out the relevant legal arguments in similar circumstances.
Section 2 of the Modern Slavery Act 2015 creates an offence of arranging or facilitating the travel of another person for the purposes of sexual exploitation. A person commits an offence if he arranges or facilitates the victim’s travel by recruiting them, transporting or transferring them, or harbouring or receiving them, with a view to the victim being exploited in any part of the world. For these purposes, exploitation involves the commission of an offence under Part 1 of the Sexual Offences Act 2003, or section 1(1)(a) Protection of Children Act 1978. It therefore captures all sexual offences including exploitation of prostitution.
Further information including charging practice can be found in Human Trafficking, Smuggling and Slavery elsewhere in the Legal Guidance.
Children under 18, exploited in prostitution, should be treated as victims of abuse. See Guidance on Prosecuting Child Abuse Cases, elsewhere in the Legal Guidance.
Those who sexually abuse children should be prosecuted under Sections 47 – 50 of the Sexual Offences Act 2003. See Abuse of Children through Prostitution or Pornography in the Sexual Offences Act 2003 – Guidance, elsewhere in the Legal Guidance. This covers the prosecution of those who coerce, exploit and abuse children through prostitution. These offences carry a higher penalty.
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 if someone has sexually exploited child. In these cases, Prosecutors are encouraged to consider prosecuting strategies which do not require the victim to give evidence in court.
There have been, in recent times, an increase in reports of advertisements posted on classified advertising websites, such as Craigslist, where landlords offer accommodation in exchange for sex. Such arrangements can lead to the exploitation of highly vulnerable persons who are struggling to obtain accommodation.
When considering the approach to prosecuting this behaviour, it is essential to consider the definition of prostitution contained in section 54 Sexual Offences Act 2003:
‘(2) In sections 51A, 52, 53 and 53A “prostitute” means 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; and “prostitution” is to be interpreted accordingly.
(3) In subsection (2) and section 53A, “payment” means 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.’
Therefore, the provision of accommodation in return for sex is capable of being caught by the following legislation - section 52 of the Sexual Offences Act 2003 (causing prostitution for gain) and that an advertisement would also be unlawful in accordance with section 52 of the Sexual Offences Act 2003 (inciting prostitution for gain). Please see above for substantive guidance on sections 52 and 53.
Prosecuting ‘sex for rent’ arrangements via use of a Section 52 'causing' charge
Circumstances which clearly feature exploitation
Causing or controlling prostitution for gain charges can be considered where arrangements are in place which involve the exploitation of a victim, e.g. where a homeless or otherwise vulnerable person is persuaded to enter into an arrangement.
Prosecutors should be mindful that in certain cases the evidence may also highlight an absence of ‘free’ consent to sexual activity as in R v Kirk and Kirk  EWCA Crim 434 (a case involving a vulnerable and destitute 14 year old girl who submitted to sex in return for money to buy food), which may give rise to the availability of other sexual offences such as rape.
Circumstances where exploitation is or may be absent
As the legislation is designed to address exploitation, there are potential difficulties in prosecuting arrangements where the element of exploitation is or may be missing; for example, a ‘sex for rent’ arrangement, which developed following a suggestion made by the tenant or prospective tenant. Such a scenario would call into question whether the landlord had ‘caused’ the tenant to become a prostitute. Similarly, there may be cases where the arrangement was discussed and agreed freely between two adults with full capacity in circumstances where there was no significant financial and/or power imbalance. The case of R v Christian (1913) 23 Cox C.C. 541, where a female willingly committed indecent acts, decided under old law, is likely to remain relevant. In circumstances where a victim has apparently acted in accordance with his/her free will, a section 53 ‘controlling’ charge could be considered.
A section 53 ‘controlling’ charge may be capable of capturing established ‘sex for rent’ arrangements, even where the victim is apparently acting in accordance with his/her own free will.
Prosecuting individuals for posting ‘sex for rent’ advertisements via use of a Section 52 ‘incitement’ or ‘attempted incitement’ charge
The use of a section 52 ‘incitement’ or ‘attempted incitement’ charge to prosecute individuals who post offending advertisements may face the following difficulties:
- Proving that an advertisement came to the attention of a potential victim Incitement can only be established if the proposed activity came to the attention of a potential victim. It is unlikely that posting an advert for general viewing would amount to the incitement of another person. What if the prosecution could not establish that anyone had looked at the advert or that only prostitutes had looked at the advert?
- Proving that the posting of an advertisement is ‘more than merely preparatory’ to incitement for the purposes of an attempt In order to prove an ‘attempted section 52’ offence the prosecution must establish that the act of placing an advert was more than merely preparatory to causing or inciting another to become a prostitute. It is not clear how this could be proved to the criminal standard where it is not possible to establish the identity of a respondent to the advert.