HC Deb 05 July 1985 vol 82 cc658-75

Lords amendment: No. 1, in page 1, line 6, leave out from "(1)" to end of line 7 and insert A man commits an offence if he solicits a woman (or different women) for the purpose of prostitution—

Miss Janet Fookes (Plymouth, Drake)

I beg to move, That this House does agree with the Lords in the said amendment.

Mr. Deputy Speaker

With this, it will be convenient to take Lords amendment No. 2, in page 1, line 11, at end insert Will she, in explaining this group of amendments, say whether amendment No. 2 applies to subsection (1)(a) and (b) or only to (b)?

Miss Fookes

I was alluding only to what I believe are established facts. I meant no other inference.

Before dealing with points that hon. Members may wish to raise, I will outline the purpose of the Lords amendments, which I accept, and then deal with any queries arising out of them. Although the Lords amendments substantially change the original clause about kerb crawling, they still contain two points which were important to me from the outset.

First, there is a specific offence applying to those who use motor vehicles, as widely defined, for the soliciting of women for the purpose of prostitution. This is such a nuisance in certain areas of some big cities that it is important that that point should be at the heart of the Bill in clause 1.

Secondly, the principle—again, a principle to which I attach great importance—is maintained that, where a woman has a single approach made to her by a kerb crawler and is thereby upset and annoyed, she has redress under the clause.

The other place, however, attached two safeguards, which are alternative safeguards, and I hope that they will allay the misgivings that were expressed by hon. Members on both sides of the House when the clause was presented in its original form.

The first is that one will have to show that the man was soliciting for the purposes of prostitution, which, in my view, is a severe test in any case. In addition, the word "persistently" is included—either one woman or more than one woman—and that deals effectively with the point made by those who felt that an innocent man—perhaps asking the way, which seems to be the classic example that we are given—might be accused, tried and perhaps convicted unjustly. I appreciate why, in forming a new criminal clause, hon. Members were seeking to safeguard the innocent. The element of persistence does so.

The second alternative test or safeguard reads: in such manner or in such circumstances as to be likely to cause annoyance to the woman … or nuisance to other persons in the neighbourhood. Again, that deals effectively with the bitter grievances of residents who find that their ordinary lives are disrupted by kerb crawling by numbers of different men coming into the area. I hope that it will give much needed relief to areas such as Bedford hill, parts of Tooting, Southampton, parts of my constituency of Plymouth, Drake and other areas of the country. They have looked for redress for long enough. I hope that they will find it in the way in which the clause is now formulated.

Also of interest to the House—this also applies to the question of additional safeguards—is the addition that has been made in the other place about the Crown prosecution service. When we discussed the measure before it went to the other place, I pointed out that the independent prosecution service would afford an additional safeguard against over-zealous police prosecuting a man who might be innocent. I did not think that that was a great risk, but I accept that others thought otherwise.

The result of that matter being dealt with as part of this group of amendments is that the new service, which will be independent of the police, will have to be in operation before that part of clause 1 can be effective. I understand that it might come into operation at different places at different times, but the Minister will be able to give more authoritative information about that than I, a Back-Bencher, can do. This will provide a final and effective test and safeguard against any wrongful accusations or trials in court.

I will not delay the House by dealing with one amendment which is consequential on another.

Two amendments standing in the name of my hon. Friend the Member for Northampton, North have been included in this group. His amendments would toughen up the clause to such an extent that it would be almost impossible to bring any prosecution with any chance of success. To that extent they are unacceptable, but I will explain in more detail why that is the case.

My hon. Friend's first amendment suggests that in place of "nuisance" the term "serious nuisance" should be in the Bill. I gather that over the years there has been a clear understanding in the courts of what "nuisance" means and that it is not to be taken lightly. To import the additional adjective "serious" would, in my view, restrict the operation of the clause to such an extent as to make it unworkable. For that reason, I could not accept it, although I understand the reason for my hon. Friend wishing to introduce it.

I have explained why the annoyance or nuisance test is useful and why it meets the wishes of residents and women in particular areas who are subjct to the nuisance. To remove it would weaken the Bill unacceptably. Therefore, I must advise the House not to accept the two amendments standing in my hon. Friend's name.

The new package, to which their Lordships gave considerable time and effort, represents a reasonable compromise between those, like myself, who were anxious to see that an effective clause was in place to deal with the nuisance of kerb crawling and the objections of those who felt that innocent men might inadvertently be caught up in a new criminal offence.

Mr. Marlow

My hon. Friend has eloquently set out the position. She will recall that I asked her whether amendment No. 2 covered both paragraphs (a) and (b) of subsection (1).

Miss Fookes

The plain answer to my hon. Friend's question is yes, it does.

I think that I have covered adequately the various points of importance in their Lordships' amendments. I warmly commend them to the House.

Mr. Marlow

First of all, can I draw attention to the remarks of Lord Wigoder in another place? The Bill has gone through the other place, and we are all desperately trying to rewrite the whole of it. The point that I am making is that we have received from their Lordships—I make no complaint about this—a Bill that has been substantially changed. What we are here to debate is whether the changes are the right changes and whether or not they produce the right Bill.

Can I congratulate my hon. Friend the Member for Plymouth, Drake (Miss Fookes) on bringing this measure to the House and, despite alarms, scares and ups and downs, getting it to this stage? I think that we all agree that in some parts of the country there is a very severe nuisance caused and areas of considerable blight as a result of the habit of kerb crawling that has grown up. I wonder whether it would be appropriate to stress this by referring to some remarks made in Committee by my hon. Friend the Member for Birmingham, Edgbaston (Dame J. Knight). My hon. Friend drew attention to what it is like to live in a red light district. She went on to say that she was pleased to say that she had never had the misfortune to do so herself. However, it appears that she has received many complaints from constituents. She said: When kerb crawlers have created a red light district it is as if a blight were over the whole area. I cite the example of a woman who was waiting outside her daughter's school to bring her home. She was accosted by two prostitutes who told her, in the foulest language imaginable, to get off their patch … That happens constantly in that sort of area. A young girl was called over to a car by a man who was kerb crawling. The driver exposed himself, which frightened the child and she ran away." —[Official Report, Standing Committee C, 27 February 1985, c. 72.] These are the sort of things that happen in these areas. I have no doubt that in such areas other forms of crime thrive as well. If my hon. Friend's Bill will rid our country of this blight, I think that we should all be grateful to her.

There are areas where prostitution takes place. There is an element in Northampton but not so much in the area of the town that I represent. I do not think that it has reached the level that was described by my hon. Friend the Member for Edgbaston in Committee. I think that in those circumstances — the police will probably agree — the police have sufficient and adequate powers to deal with the problem. When the problem has reached the proportion that makes it a nuisance, under the existing law, they have managed to deal with that nuisance. However, there are other areas and those other areas do need, perhaps, the protection of the law; they do not need the protection of morals. I do not think that our constituents are asking us here to take a moral view. They are asking us to prevent abuse and nuisance. They are asking us to do it in such a way that we are not in danger of introducing injustices.

I know that the hon. Member for Hammersmith (Mr. Soley), who is on the Opposition Front Bench, is quite rightly concerned about police powers. I know that he will be looking at the Bill as it is likely to be amended and as it has been amended by their Lordships to ensure that any additional powers that are given to the police are necessary powers.

12.15 pm

This is an ambitious area for a Private Member's Bill. It is not an area that is completely devoid of controversy. Where we have an area that is not devoid of controversy, we must be very careful, obviously, how we proceed, particularly when a Private Member's measure is involved.

One thing that has obviously concerned me and my hon. Friend the Member for Derbyshire, West (Mr. Parris) is the possibility of injustice taking place. In this particular area, it is not just a matter of somebody going to court and being found guilty when they are innocent. Of course, that is bad enough but that is not the injustice that we are basically concerned with. In this particularly sensitive area one is concerned about the possibility that an innocent man may be picked up, may be charged, may be brought to court and then found to be innocent. The fine that might have been involved would be as nothing compared with the effect of that charge, innocent though he be, on his reputation. It could have a catastrophic effect on a man's marriage. It could have a catastrophic effect on a man's family life.

Mr. Deputy Speaker

I am listening with great interest to the hon. Gentleman but he must relate his remarks to one of the amendments that is before the House. I invite the hon. Gentleman to do so.

Mr. Marlow

The amendment that I am referring to, Mr. Deputy Speaker, is Lords amendment No. 2, which introduces the concept of nuisance or annoyance. I seek leave to speak also to my amendments, which are (a) and (f). What we have in amendment No. 2 is that a man will commit an offence if from a motor vehicle or whatever he persistently or … in such manner or in such circumstances as to be likely to cause annoyance to the woman (or any of the women) solicited, or nuisance to other persons in the neighbourhood. We had a long debate in the Chamber—I think that a similar debate took place in Committee — about the inclusion of the word "persistently". My hon. Friend the Under-Secretary of State felt that to include the word "persistently" would be to weaken the Bill and to make it to that extent inoperable. However, he did agree that the problem had been debated in their Lordships' House. We are, of course, very grateful to them for that. Their Lordships have a great deal of expertise on this subject. There are many Law Lords and lawyers in another place who have been involved in the courts and know the problems that come from the courts. Their Lordships decided in Committee that "persistently" should be imported into the Bill.

The Bill then had problems, so further amendments had to be introduced. My hon. Friend the Member for Drake has said that the amendment that suits the purposes of the Bill is No. 2. We now not only have "persistently"—it is not "persistently and" but "persistently or". The "or" is in such circumstances as to be likely to cause annoyance to the woman (or any of the women) solicited, or nuisance to any other persons in the neighbourhood. I am concerned to hear from my hon. Friend the Minister precisely what is meant by that clause. I am particularly concerned about the safeguard subject to section 5(5A)". I am sure that when my hon. Friend the Minister catches your eye, Mr. Deputy Speaker he will have quite a lot to say about that.

The amendment reads: in such manner or in such circumstances as to be likely to cause annoyance to the woman (or any of the women)". I hope that my hon. Friend will be able to tell the House why we have to include the words "to be likely" and why it cannot just be left in such manner or in such circumstances as … to cause annoyance". In other words, why cannot we have a provision that makes it an offence actually to cause annoyance?

What is likely to cause annoyance to one individual is quite different from that which is likely to cause annoyance to another individual. Some people are happy-go-lucky, carefree and relaxed. Some people are a little nervous, a little concerned and a little agitated. By their nature, they are more likely to feel an annoyance than others. What construction would the courts normally put on this? Do they expect a reasonable person in a reasonable state of mind to be reasonably annoyed? Some people, even with the best will in the world, are fairly fractious.

Amendment No. 2 states: or nuisance to other persons in the neighbourhood. What is "nuisance"? My hon. Friend the Member for Drake told us that it was a well-known concept in the courts, but I am not a lawyer. How grave does a matter have to be for it to be a "nuisance"? If a dog fouls a pavement outside the gate of one's house, is that a nuisance? If someone drives a car slowly up the street in which one lives, is that a nuisance? If a man parks his car in one's drive and spends 15 minutes chatting up five prostitutes and making leery remarks, and the reactions between the man and the prostitutes are offensive to people in the neighbourhood, that is obviously a nuisance. If many people are bobbing around a district looking for prostitutes, jamming the streets, making noises and blowing petrol fumes around the place, that is a nuisance. Where does one draw the line?

I have tabled an amendment which refers to a "serious" nuisance, because I can understand that concept. A serious nuisance causes distress and inconvenience and is a factor that creates a blight in an area. I await the comments of my hon. Friend the Under-Secretary of State with interest.

The Bill has been massively and properly amended by the other place. It is a sensitive issue. If the legislation has been wrongly drafted, the lives and reputations of innocent people could be blighted. The Bill is necessary, and I look forward to hearing the explanations of my hon. Friend the Under-Secretary of State.

Mr. Matthew Parris (Derbyshire, West)

The first debate in Standing Committee was on my amendment No. 2 which would have inserted after the word "prostitution" in a manner likely to cause nuisance or offence. The amendment was fully debated in Standing Committee, but I was not able to persuade hon. Members that it was a sensible improvement.

The next debate was on whether the element of persistence should be imported into the Bill. My hon. and learned Friend the Member for Folkestone and Hythe (Mr.

Howard) and I argued that it should be. We were unable to persuade the Standing Committee that that was the right change to make.

The House of Commons agreed to let the other place take another look at the matter, and it has done so. Their Lordships have imported into the Bill both the element of persistence and the element of likelihood to cause nuisance or offence. It would be churlish of me to say that that does not represent precisely the improvement that I wanted.

My hon. Friend the Member for Northampton, North (Mr. Marlow) is a little unhappy about the element of likelihood to cause nuisance or offence. I understand his fears, but we proposed the importation into the Bill of the element of persistence not because there was an inherent viciousness in persistence which could not attach to a single act but because a person, by being persistent, was more likely to cause nuisance or offence. If the element of persistence is included, there is less likelihood of an innocent person being prosecuted.

If it has to be shown that a person is causing nuisance or offence, that reduces the possibility of an innocent man being prosecuted. In that case, we must clearly define just what it is about persistence that we seek to proscribe. We seek to proscribe the offensive potential of persistence. Although I understand the point put by my hon. Friend the Member for Northampton, North, I do not object, for those reasons, to the importation of a likelihood to cause nuisance or offence or to the importation of the element of persistence.

Mr. Marlow

One tries to be careful in this place, and I do not think that I ever said that I was against the importation of a nuisance or annoyance. I was concerned about how this provision was made. The matter should be properly debated and given the safeguards of new section 5(5A). This is a matter on which I need significant reassurance from my hon. Friend the Under-Secretary of State. Although my hon. and learned Friend the Member for Folkestone and Hythe (Mr. Howard) and some of my other colleagues are in the Chamber, many of our colleagues are not. It is up to us on their behalf to take an interest in what is happening.

Mr. Parris

My hon. Friend is right. We need reassurance on that point. If my hon. Friend's amendment (b) had been selected, I would have supported him, if necessary in the Division Lobby.

We might seek some reassurance on the likely prosecuting policy of the new prosecution service. I understand that there have been discussions as to the type of advice that might be given. I shall be interested to hear what my hon. Friend the Under-Secretary of State says on this matter. He might well offer my hon. Friend the Member for Northampton, North and me the reassurance that we seek.

I would not go as far as Lord Denning did in the other place on Third Reading when, referring to the Crown prosecutor, he said: He will not prosecute an innocent man, or anything of that kind." — Official Report, Houe of Lords, 3 July 1985; Vol. 465, c. 1281.] His contribution to the evolution of English jurisprudence has been immense — and I do not doubt that it will continue — but I think that he goes further than even the most radical of us would wish to go. I would not assume that, because the new Crown prosecutor prosecutes, the man involved is to be taken as guilty. I hope that the House does not assume that either.

We were unhappy about a number of aspects of the Bill in Committee, on Report and on Third Reading. We let the matter go to the other place for another consideration. Their Lordships have in large measure made the changes that my hon. Friend the Member for Northampton, North, my hon. and learned Friend the Member for Folkestone and Hythe and I sought. It is right to acknowledge that the Bill has been greatly improved in the other place, that these amendments are right and that, taken all in all, with these amendments the Bill will be a useful addition to the statute book.

Mr. Clive Soley (Hammersmith)

The hon. Member for Derbyshire, West (Mr. Parris) got into considerable trouble in Committee and elsewhere for pushing hard on the door that he has just said has opened a little. I was involved in putting forward amendments that referred to "nuisance". The hon. Gentleman got into a great deal of trouble while I did not — I suspect because I am a member of the official Opposition while he is a member of the unofficial opposition. This supports the old theory that one's opponents are in front and one's enemies are behind. We had the unedifying sight of the Conservative party attacking its own members for not sticking to the party line.

12.30 pm

In fairness, the hon. Member for Derbyshire, West has pursued the issue determinedly and in a principled way. I stick by my initial position that I put on the Floor of the House and in Committee — that we are trying to reach the right balance between protecting the rights of individuals and minimising the risk of wrongful conviction with the rights of people in some parts of the country who suffer from men driving or walking around their areas trying to find women whom they think to be prostitutes. Those areas tend to have many prostitutes. It was recognised that that was a problem.

I still take the view, as I did when we began to discuss the Bill, that we are attempting to deal with a complex problem by dealing with only a small part of it. As I have said on a number of occasions, the problem is not one of prostitutes per se. All hon. Members know that it is not and never has been an offence to be a prostitute. It is an offence to solicit for prostitution in a public place.

We need a much more detailed programme to enable prostitutes to meet their clients without causing a public nuisance. That is the core of the problem that we still have not resolved. At the same time, I recognise, as Members on both sides of the House do, that there has been a problem in some limited parts of the United Kingdom.

One of my anxieties, which is shared by a number of my hon. Friends and one or two Conservative Members, including the hon. Member for Derbyshire, West, is that we are legislating for England and Wales as a whole on a problem that affects parts of the country only. That is always a danger that we should avoid if possible. I made suggestions in Committee and on the Floor of the House as to how we should deal with the matter, but it is not appropriate for me to go over that ground again.

The House of Lords has, to some extent, come to our rescue. We were struggling to find a form of words which introduced the concept of nuisance to people who lived in the areas that we were discussing. I put it to the Minister that I thought it possible to find a form of words which would enable residents who felt that there was a nuisance to give evidence to a court or, alternatively, some form of drafting which would enable that nuisance to be made explicit in the Bill. The House of Lords has managed to do that.

In doing so, the House of Lords has introduced the concept of persistence. The Opposition have mixed views on the issue of persistence. There is a feeling that a person should not have to commit an act more than once for it to be an offence. If something is an offence, it is an offence on the first occasion. The act should not have to be committed two, three, four or more times to prove that it is an offence. That has always been an argument against persistence.

We have the problem because "persistence" was introduced in the concept of prostitution in the first instance. It is always instructive to bear in mind that that was done with good intentions, as so often in this place — to protect women, it was thought, from wrongful conviction. The idea was that a woman should be warned at least three times by the police before she could be charged with being a prostitute. That has resulted in women being taken before the courts and described as common prostitutes. To be described in court as a common prostitute, it was accepted that one had already been warned three times about one's behaviour. We are now introducing the concept of a "common kerb crawler". That is the problem that arises from using the word "persistent". It shows the difficulty of legislating on this matter coherently and consistently.

I believe that the Lords amendment improves the Bill, for many of the reasons given by the hon. Member for Derbyshire, West. I am still not happy with it, for all the reasons that I have given previously, but I accept that it may be the only way we have of dealing with the problem in the parts of the country that have been mentioned.

I look forward to hearing the Minister — if I may have his attention for a moment while I refer to him. There is anxiety about whether the Bill will be used wrongfully. Perhaps the Minister will give the House a commitment that the figures showing the number of people arrested, charged and convicted will be made available to the House so that we can see how the Act works over a period.

I understand that the Minister is also prepared to give a commitment to the House about the guidance given to the prosecution service. With the Lords amendments and those commitments from the Minister, I do not wish to delay the Bill's passage.

The Parliamentary Under-Secretary of State for the Home Department (Mr. David Mellor)

May I first say how grateful I am for the helpful way that hon. Members have addressed the task of considering the Lords amendments. I shall try to respond as fully and cogently as I can to the points that have been raised, because it is important that those matters are considered with care. As we all acknowledge, the House should never take lightly the creation of a new criminal offence. Given the careful consideration in both Houses, no one can say that it has been taken in anything other than a most careful way.

Before getting down to some of the details, I think that it would be churlish not to pay the warmest of tributes to my hon. Friend the Member for Plymouth, Drake (Miss Fookes) for the skill and determination with which she has taken the Bill through the House—

Mr. Ian Mikardo (Bow and Poplar)

And a bit of luck.

Mr. Mellor

I was going to come to that.

My hon. Friend the Member for Drake has also kept in touch with the Bill's progress in the other place, where it was piloted through by a distinguished predecessor, Lady Vickers, who for many years was a most distinguished representative of the city of Plymouth, as my hon. Friend is now. I welcome the hon. Member for Bow and Poplar (Mr. Mikardo) to his place because he has played a constructive role in the discussions. As he said, my hon. Friend also required a bit of luck, but a bit of luck in a good cause is something that we can all welcome. In the end, I suspect that one of the principal reasons why hon. Members wanted the Bill to go through was not simply that it addressed a serious problem in a serious way, but the respect and regard that they have for my hon. Friend and their wish that she should be gratified in her legitimate desire to change the law in this sensitive area.

When the Bill was conceived, it was designed to create three different offences. That followed careful examination by the Criminal Law Revision Committee of the present state of the law on sexual offences, particularly in relation to the harassment of women in public places. The committee took seven years to consider those matters. We recognise the difficulties that faced the committee in making judgments that are not just legal — I remember the point made by the hon. Member for Bow and Poplar on that. It is not just a lawyers' paradise. We are making social judgments, too. It was in recognition of that that the Policy Advisory Committee on Sexual Offences was established, which consisted of people from social services and education, probation officers, psychiatrists, and so on, who were intended to broaden the ambit of the discussion and ensure that the legal discussion did not just fasten on the narrow lawyers' interest, but took account of the wider social implications.

I recognise the matter that the hon. Member for Hammersmith (Mr. Soley) has been at pains to point out throughout the Bill — that, while the Criminal Law Revision Committee is considering the whole of the law on sexual offences, the Bill deals with only a narrow part of it. I understand why he and my hon. Friend the Member for Derbyshire, West (Mr. Parris) have said on several occasions that it would have been better if the Bill had dealt across the board with the criminal law on sexual offences, particularly the vexed question of the extent to which prostitution may be permitted in today's society. In an ideal world, I feel sure that that is what we wanted to do. However, so difficult is the consideration of the law on prostitution that it has not even been possible yet for the Criminal Law Revision Committee to conclude its deliberations on that matter.

The difficult decision that my hon. Friend the Member for Drake had to take, and with which we in the Home Office assisted her, was whether the problem of kerb crawling and some of the associated difficulties had reached such a peak that it could not be left on the shelf to await the receipt of further advice. The inevitable difficulty, particularly in a congested Department such as the Home Office, is finding a place in the legislative programme for a major and full-scale reform.

I felt that there was an element of urgency about the matter, which was impressed on me by the hon. Member for Tooting (Mr. Cox), who is not here but who has taken a great deal of interest in the matter as the hon. Member representing the Bedford hill area. In an Adjournment debate in February last year the hon. Gentleman raised the problem of kerb crawling in his and other areas in very strong terms. He said that, having banged on the door of just about every Minister at the Home Office, he believed that action could no longer be delayed. On that basis—rightly, as I am sure the House agrees — I asked the Criminal Law Revision Committee if it could bring forward its consideration of the kerb crawling aspect of the law on prostitution so that its report would be available in the summer of 1984. If any hon. Member was then minded to bring in a Bill on the subject, as my hon. Friend the Member for Drake subsequently was, the House would be able to pass a law on the matter far more quickly than would otherwise have been possible. I am very glad that the Criminal Law Revision Committee was able to do that and that its advice was set out in such straightforward terms.

My hon. Friend the Member for Drake then had to decide whether to follow the advice of the Criminal Law Revision Committee or whether to take a different approach to the problem. She was persuaded — like the Criminal Law Revision Committee and, I believe, the whole House — that the time had come to address the problem of kerb crawling and that one could no longer take the attitude taken in the 1957 report that the problem had not yet become so serious and commonplace as to justify making kerb crawling a criminal offence. The balance of convenience has plainly changed and the Criminal Law Revision Committee was right to recommend a change in the law.

The question which aroused controversy both here and in another place was how the law should be changed to strike the difficult balance between providing the relief from this problem that women in many areas undoubtedly need and taking account of the difficulties which arise in sensitive matters of this nature as we have done on previous occasions by introducing the concept of persistence into other statutes relating to sexual behaviour in recognition of the fact that the risk of a miscarriage of justice, which may arise under any criminal statute, is perhaps a greater risk in this area of the law.

My hon. Friend the Member for Drake elected to follow the advice of the Criminal Law Revision Committee and to create three offences. The first deals clearly and unequivocally with the problem of kerb crawling and makes it clear that if a man solicits a woman from a motor vehicle for the purpose of prostitution an offence is committed. That obviates the need to rely on the rusty old blunderbuss of the Justices of the Peace Act 1361 which, apart from many other drawbacks, can result only in binding over. The intention is not to jam the courts with kerb crawlers but to send out a clear message that kerb crawling is a criminal offence and thus to deter many people who might have indulged in the practice while it remained hedged about with equivocation.

It was recognised that in the case of offences occurring in the street but unrelated to kerb crawling by motor vehicles a requirement of persistence was appropriate, as is already the case in the parallel provisions relating to homosexual soliciting. The fact that persistence is required in the case of people on foot but not in the case of those soliciting from motor vehicles has struck some hon. Members on both sides of this House and in another place as rather odd and there has been legitimate and persistent debate on that aspect at every stage of the Bill. I make no complaint about that, and I know that others will make no complaint about the fact that I have a very firm view on the matter to which I still hold.

The revision committee then considered the more difficult problem of whether solicitation of women in a manner likely to cause fear, irrespective of whether it was related to prostitution in a street environment, should be an offence. It recommended that it should, and my hon. Friend the Member for Drake took up the matter. That was far and away the most difficult proposition among many difficulties in the Bill. It has been recognised generally here and in another place that, although the advice of the revision committee is worth while, we were not wholly persuaded that it would be appropriate to broaden the scope of the Bill to include cinemas and other places where, perhaps, the case for change is not so clear-cut.

Because of the extraordinary happenings on those two Fridays a couple of months ago when the Bill died and was revived, we did not take out clause 3. It was taken out in another place and we shall have an opportunity to give that our blessing later.

12.45 pm

I am glad that there was discussion of clause 4—the increase in penalties — in another place because the matter has not been subject to amendments, although some have been proposed. It is a grave and potentially dangerous anomaly that the penalty for indecent assault, which can be committed by a serious sex offender, is only two years. The courts have drawn attention to the fact that such a sentence is wholly inappropriate and that it could be in everybody's interests, including the offender, to confine an offender and to increase the penalty to 10 years.

The increase in the penalty for attempted rape from seven years to life imprisonment would, but for a proviso in the Criminal Attempts Act 1981, already be in place. That Act rightly took the view that, because the intention is always to commit the full offence, to be guilty of attempt, the intention must be more serious than the act. As the hon. Member for Bow and Poplar, who is nodding assent, knows, somebody can be convicted of murder if he intends to cause serious bodily harm but he cannot be convicted of attempted murder unless he intends to kill. On advice from the revision committee, the House took the view, in 1981, that the penalty for an attempt should always be the same as the penalty for the completed offence on the basis that that left the courts with proper discretion to sentence.

Attempted rape was left out of the 1981 Act because the revision committee was considering the merits of that offence. It was thought right to leave the matter as it was so that it could be taken up in a full-scale review of sexual offences, to which the hon. Member for Hammersmith looks forward. Time has passed and the pond has perhaps got a little murkier. It is not appropriate to leave this gap any longer. A dangerous sex maniac might not succeed in carrying out the full act of rape, but he might have such a history of offending that, having committed the rape, he would have been sentenced to life imprisonment.

As the Minister who deals with life sentence matters, I know that some of the most difficult cases on which to make a decision about release are not the homicide cases but the non-homicide cases in which people, when at liberty, have been driven to acts of ever-increasingly serious sexual misbehaviour. Without going into the matter in too much detail, it is surely an anomaly that in dealing with distinctions of millimetres on the question of when attempted rape becomes rape, the courts should have their hands tied. Therefore, I am sure that the changes that have been made will be widely welcomed.

We are principally concerned with clauses 1 and 2. I have made clear my view that to import any consideration of persistence or of nuisance and annoyance would weaken the impact of the Bill. My views were accepted in this House but not in the other place, although I was glad to see that that most distinguished of common lawyers, Lord Denning, took the opportunity in the debate — as obviously one hoped that he and others like him would — to make clear his view that that was the right approach.

The process of legislation, particularly on private Members' Bills, involves each of us giving the best advice that we can to the House, but if others choose to disagree and their view prevails, it is then up to us all to make the best that we can of the new arrangements, and certainly not to stand in the way of the Bill proceeding because it does not represent what one would personally regard as the best arrangement.

Their Lordships, having taken their decision about persistence, then made certain amendments which enabled the Bill to be a workable Bill. Therefore, I am not grudging in my acceptance of it or in my recommendation that we should accept it. I am warm in my feelings towards the Bill, although I would have been positively steaming about it if I had had my way entirely. But that is life.

In the debate in the other place the issue of persistence was considered. Several peers took part in the debate, some with legal qualifications, others without. However, we do not want our debates to become blighted with apartheid in the sense of Members having or not having legal qualifications. After the debate, by a majority of 33 to 26, the decision was taken to insert the word "persistently."

After that there were deliberations in the other place and also outside. I was glad that my hon. Friend the Member for Drake played some part in those deliberations. We tried to see whether, the decision having been taken that the element of persistence was needed, there was a case for introducing a parallel offence which, in a very specific case, would not require the element of persistence. We wanted to ensure that the Bill would be workable and deal with the central problem that had been troubling all of us so much.

There are two competing problems with which we are concerned. The first is the blight upon an area where prostitutes operate openly in the streets and where there is kerb crawling by potential clients. The prostitutes are happy about that but, obviously, not the rest of the community. Several hon. Members, particularly my hon. Friends the Members for Derbyshire, West and Northampton, North (Mr. Marlow), have had the quite legitimate concern that one single act could be misinterpreted by an over-zealous policeman. Inevitably, the prostitute herself would not be available to give evidence, being happy about the transaction, and it would be wrong to blight someone's prospects, career and future family life — matters to which my hon. Friend the Member for Northampton, North has referred eloquently today and on other occasions — on the basis of one equivocal incident. For that reason, it was felt necessary to have the clear safeguard that such an incident should have to happen twice.

However, having agreed with that view, their Lordships recognised in their intensive discussions that that would not deal with the other major problem that has caused us so much concern and led many people to want to change the law, which is the situation where the woman who is the object of the solicitation is not a prostitute, but an ordinary woman — one's sister or wife, or someone else's daughter — going home or to visit a friend and not dressed in a way that could be described as extravagant or sexually provocative.

Polls in Bedford hill and many other parts of the country showed that such women were regularly being propositioned, and their pleas for redress are every bit as intense as those of people who are embarrassed by the fact that their home street has become a haunt of known prostitutes.

If such a woman had been the subject of an unwarranted approach, probably in abusive and insulting terms, it would be wrong to require the same thing to happen to someone else before there were any means of redress. The recognition of that fact has united us. We have all been troubled about that matter, however we may differ about the ways of building in safeguards. I know that that aspect worries my hon. Friend the Member for Northampton, North, and my hon. Friend the Member for Derbyshire, West put it well in Committee when he said: I can see that to embarrass a woman gravely or to inconvenience her seriously may be enough of a crime to warrant prosecution. Many women, particularly those who live in London and in the areas where the problem exists, are inured to such solicitation and are probably no longer put in fear by it, simply because it happens so often, but that does not mean that it does not offend or inconvenience them, or that those who solicit should not be prosecuted." — [Official Report, Standing Committee C, 20 February 1985; c. 7.] There was common ground in their Lordships' consideration of finding a way whereby innocent women — our wives, sisters or mothers; the hon. Member for Barking (Ms. Richardson) showed how catholic is the taste of some of these gentlemen when she recounted a personal experience of a kerb crawler—can be protected.

Equally, their Lordships wanted to be sure that vexatious and improper prosecutions would not arise. That is why the concept of nuisance and annoyance was exhumed, as so many parts of the Bill have been exhumed from time to time, and inserted in parallel with the concept of persistence, so that if nuisance is caused to persons in the neighbourhood or annoyance is caused to the woman, there is no reason why a criminal penalty should not ensue. That is the proposal which their Lordships ask us to accept.

There need to be safeguards. The fact that the words "nuisance" and "annoyance" have been inserted makes it virtually inevitable that there will have to be evidence from either the woman who was the victim of the solicitation or a local resident who clearly saw and heard what was going on. The safeguard is built in by the need to establish nuisance or annoyance and not merely the fact that the act of solicitation took place.

I appreciate that, as many hon. Members and noble Lords have said, perhaps we should take advantage of the recent creation, with all-party support, of an independent prosecution system to ensure that, even more than anyone could claim today, there is an objectivity in the decision to take a case to court, given all the implications that follow from that and about which my hon. Friend the Member for Northampton, North spoke so eloquently. There is a case for providing that only in the most exceptional circumstances should a case under the nuisance or annoyance provisions proceed without a non-police witness being available.

As my noble Friend Lord Glenarthur pointed out, the Director of Public Prosecutions is ready, if the House thinks it appropriate, to give guidance to Crown prosecutors about the operation of this part of clause 1. The guidance would be along the lines that where the charge alleges annoyance to the woman solicited or nuisance to other persons in the neighbourhood, it should, save in exceptional circumstances, be supported by the evidence of someone other than a police officer, and, wherever possible, by that of the woman herself. I hope that my hon. Friend the Member for Northampton, North sees that as a step forward. It binds in to the point that I made clear to the hon. Member for Hammersmith when we last considered the Bill — that we shall monitor the number of cases that are put to the independent prosecution service as being worthy of prosecution, the number it decides to prosecute, and the number that result in conviction. Those three sensitive figures will show whether the Act is being properly applied.

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I agree with my hon. Friend the Member for Northampton, North that we should not put innocent transactions, such as asking directions, in jeopardy. We have had to strike a balance between wanting to protect women and wanting to protect men from unreasonable prosecutions. After all our efforts, I believe that we have struck that balance, and obviously I hope that hon. Members agree.

Before I deal with some of the detailed points raised by my hon. Friend the Member for Northampton, North, I wish to pay warm tribute, not merely to those in this Chamber who have helped to ensure the passage of the Bill, especially my hon. Friend the Member for Derbyshire, West who, having recognised how much progress has been made, spoke warmly in support of the proposition today, but to those in the other place who have played a leading role in ensuring, at some difficulty to the procedures of the other place, that the Bill was debated two nights running this week so that it could return to this House in time.

Lord Denning gave the wise advice that one would expect from the foremost common lawyer of the century. There was considerable assistance from the Opposition Front Bench, especially Lord Mishcon, who was ably assisted by Lord Elystan-Morgan, who was the most reluctant to accept the arrangements, but in the end was willing to do so. I am grateful to him for that, as I am to Lord Houghton, for whom I have a particularly high regard because of our joint work on animal welfare and experimentation—issues with which my hon. Friend the Member for Drake is also intimately concerned. He was undoubtedly unhappy about some elements of the Bill, but he determined that sufficient had been done to change it to his satisfaction. I salute him for a typically courageous and principled approach to the matter, which has been echoed by my hon. Friends the Members for Derbyshire, West and for Northampton, North. Lord Harris, a former Minister of State, Home Office, Lord Wigoder, a distinguished practitioner in criminal law, and, last but not least, Lord Monson all took part in intensive discussions and helped to bring the Bill through to this stage.

My hon. Friend the Member for Northampton, North has properly asked telling questions about what exactly the Bill means. I want to deal with his important and valuable points. He reminded us that clause 1 will read as follows: A man commits an offence if he solicits a woman (or different women) for the purpose of prostitution (a) from a motor vehicle while it is in a street or public place; or (b) in a street or public place while in the immediate vicinity of a motor vehicle that he has just got out of or off, persistently or, subject to section 5(5A) below, in such a manner or in such circumstances as to be likely to cause annoyance to the woman (or any of the women) solicited, or nuisance to other persons in the neighbourhood. The first point that we must make about that is that it creates two alternative ways of bringing the offence. The second point that should be emphasised is that, to show that what we say about the role of the independent prosecution service is not just window dressing — I strongly commend this point to my hon. Friend the Member for Northampton, North because it goes a long way to meeting his points about the innocent not suffering — clause 5(5A) states that this part of section 1 should not come into force until the independent prosecution service is operating in the area. Therefore, I have entered into a meaningful commitment today. There is no risk of the law being enforced for about 12 months in some cases, and possibly longer in others, by arrangements that are not in accordance with the new framework that we have established. That shows the good faith that we have been anxious to establish.

My hon. Friend the Member for Northampton, North asked me about nuisance. One reason why their Lordships were attracted to the proposition which, in its final form, emerged from discussions in which the lead was taken by Lord Denning and by First Parliamentary Counsel, was that we should distinguish between what must be proved in relation to the woman solicited and the neighbourhood, because their interests are different. For the woman, we wanted an offence of annoyance, and I shall come to my hon. Friend's pertinent questions about how that should be tested in a moment. As for the neighbourhood, we are talking about nuisance, not annoyance, because nuisance to a place is the commonly understood, familiar tool in the courts. It is much better to cleave to words which lawyers are accustomed to using in other contexts than to use new words.

My hon. Friend posed several carefully thought-out questions, and I do not believe that it is ducking the questions to say that it is impossible with this, as with any other issue of fact, to give a conclusive answer. Such issues of fact must be determined by the courts, which will consider the background to the alleged offence, basing their consideration on the way in which they approach nuisance in many other contexts. The word "nuisance" is found in civil and criminal law. Nuisance is a question of fact, and the court will investigate all the circumstances of the case: when it happened; the manner in which it happened; the effect of what happened; and whether all the circumstances lead to the conclusion — this is the key point — that the nuisance was material and substantial.

The damage — this is the reinforcement which my hon. Friend seeks — must not be merely sentimental, speculative, trifling, temporary, fleeting or evanescent. I have not dug that list of words out of "Roget's Thesaurus", they have come from cases in which the courts have said, based on the way in which they have dealt with the concept of nuisance, that it must be none of those things. The framework exists for a common-sense recognition of what nuisance is.

We come to the equally difficult point of the objectivity of the complaint. My hon. Friend is troubled by the possibility of a woman being excessively worried by what would be regarded by others as perfectly normal approaches, and that that woman could wreak havoc with the career of a man who simply drove up to her and asked, "What is the way to the public house?" The woman could say that she had been approached in a way that gave her the right to complain under the offences contained in the Bill.

The key to this is the use of the words "likely to", which I know trouble my hon. Friend. I believe that the words "likely to" will ensure that a properly objective test is applied. We do not want a definition of nuisance or annoyance that varies with the length of the individual's foot. We want the courts to be able to say, "Would a person of reasonable firmness, placed in a similar position, be caused annoyance?" In other words, was it likely, and would a reasonable person in the offender's position know, that such an approach was likely to cause annoyance?

Mr. Marlow

The amendment says: likely to cause annoyance to the woman". Does that imply a woman of reasonable firmness or the actual woman involved in the incident?

Mr. Mellor

That is a perceptive question. I believe that it means likely to cause annoyance to women. It does not mean that the court would take into account the particular circumstances of the woman, unless those circumstances were obvious. If the incident involved a woman with a white stick, the court would be entitled to take account of the fact that it is more likely that some words would cause annoyance to a disabled person, who in any event would be disoriented by any approach, than to a woman in full possession of her faculties.

I believe — and, what is more important, some of the distinguished people who have been mentioned as being involved in this believe — that an objective test is being established. It is proper and helpful for my hon. Friend the Member for Northampton, North to ascertain this. I agree that if the House were not satisfied that this was an objective test, it would be entitled to be sceptical, but there is an intention that there should be an objective test, and I think that that intention has been properly carried into effect with the wording.

Mr. Parris

Does my hon. Friend's argument work the other way? Suppose that a woman was not offended or annoyed, perhaps because she was a policewoman, although in plain clothes. If the solicitation was such that, had she been anyone other than a policewoman inured to this kind of thing, she would have been annoyed or offended, would the solicitation be likely to annoy or offend her?

Mr. Mellor

That would follow, but the element that is different, and that we have added by way of a safeguard, is that no longer are words of solicitation for the purpose of prostitution enough in themselves. They have also to be of a kind likely to cause annoyance. In other words, they have to go quite far.

A purely innocent member of the public might find that any words of solicitation were likely to cause annoyance, so the differences in some cases may not be great. However, it is important, because it gives a firm basis to the contention that lies at the heart of this matter — that there should, wherever possible — and only in exceptional circumstances not — be available a person who is not a police officer to give evidence. If these people are so offended that they look to us for redress, they have to be prepared to play a part in getting redress. They cannot slough off that responsibility on to others. We have achieved that, and changed the position.

I hope that what I have said satisfies my hon. Friend the Member for Northampton, North. I am happy to give way to him if I can be of any assistance to him on any other points.

Mr. Marlow

I am grateful to my hon. Friend for his patience, his careful exposition of the position, and the way that he has taken account of the points that I have made. I feel that the safeguards that he has suggested stand a good chance of achieving what both he and I are seeking to do. I congratulate him on what he has done.

Mr. Mellor

That is a most handsome remark for my hon. Friend to make. I am extremely grateful. It has been no hardship to deal with these points because they are essential to our consideration of the Bill. It is right that these matters should be properly looked into. I have always been concerned to see that everyone recognises that in the end — I had to learn this lesson as much as anybody else — the process of getting the Bill right is one of give and take. All of us will come with different views, and we shall not get everything we want.

My hon. Friend has made it clear that he is anxious only to test whether the Bill meets the worries that he legitimately has. I am glad that he thinks that I have satisfied him, and I thank him for his useful contribution, now purged of any suggestion that it was based on malevolence towards the Bill's future. I thank him for the interest that he has shown on previous occasions. The Bill strikes a balance that all new criminal legislation would do well to achieve—a balance between effective controls of activities which the criminal law should address and effective safeguards for those whose activities should not be drawn within its scope.

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The message which I hope we are able to send out this morning is that the buying and selling of the services of a prostitute must not take place in and around the homes of ordinary people who wish to go about their daily lives without the nuisance and offence that is caused on an intolerable scale in many inner-city areas.

The message also goes out in the Bill that serious sexual offences will be adequately punished as a result of the increases in the maximum penalties which clause 3 effects. I consider both signals to be important and worth while.

Mr. Soley

I am sure that it was inadvertent, but given that the Minister is sending out a message, he might wish to reconsider the phrase he used about the buying and selling of the services of a prostitute "in and around" homes. The Bill does not apply within the home. He may wish to clarify that.

Mr. Mellor

The hon. Gentleman is right. We are dealing with the public manifestation of the problem. I am grateful to him for following my remarks with care enough to correct me when I am incorrect.

We have managed to build in the safeguards that the House wanted, while doing what my hon. Friend the Member for Drake and I consider to be absolutely paramount — sending out the message that kerb crawling is an offence. The fact that the Bill covers one approach to a woman who is caused nuisance and annoyance — and which is shown by objective analysis to have been an offence — means that people cannot go kerb crawling thinking that they can have one bite of the cherry and that, so long as they get that right, there will be no problem.

We have been greatly assisted by the other place in our consideration of these matters. I commend to the House the amendments that their Lordships have suggested.

Question put and agreed to.

Lords amendments Nos. 2 and 3 agreed to.

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