§ 2.50 p.m.
§ LORD CHORLEY
My Lords, I beg to move that this Bill be now read a second time. I think it would be proper to start by reminding your Lordships that this is a much revised version of a Bill which came before your Lordships for Second Reading about a year ago and which was not found acceptable. It would probably be wrong to assume that your Lordships all have in mind the details of the Bill which I then brought forward. On the other hand, I think it would be equally wrong to assume that your Lordships' minds were, so to speak, a blank on this subject; and therefore I do not propose to go over too much in detail the ground which I traversed last year. In that way I hope to save a certain amount of time. On the other hand, it will be necessary to retraverse some of the ground.
Briefly, the object of the Bill is partly to remove an injustice which exists in the law as laid down in the 1959 Act 9 and partly to fill in some gaps in the law which that Bill did not make any effort to tackle. It can be summarised, I think, by saying that the object of the Bill is to remove a number of discriminations which exist in the law as it stands at present—the discrimination between men and women, the discrimination between the prostitute and her customer, and the discrimination between heterosexual and homosexual conduct in relation to street offences. As it is against women that most of this discrimination exists, it is not unnatural to find that the societies which represent the interests of women in one way and another have been campaigning for a long time to get a redress of the law on this subject of street offences. In the forefront, as last year, has been the Josephine Butler Society, which has given me great assistance in connection with this Bill. But I think most, if not all, the women's organisations are very much behind the Josephine Butler Society in this matter, and in particular the Mothers' Union, which has written me a number of letters in support of this Bill.
I would mention that when the Bill was before your Lordships a year ago it gave rise in this quarter to a great deal of interest and a great deal of optimism, which, of course, was not justified in the event. That attempt last year was evidently in the minds of an important conference for the advancement of women's rights which was held last year in London in connection with Human Rights Year, which, as your Lordships will remember, was very much in the air at that time. At that conference a resolution was passed demanding equality between men and women in relation to street offences. I think these points are worth noticing as showing the great public interest which has been raised over this matter, particularly among the women's societies.
Undoubtedly, in my attempt last year to reform the law I drew the Bill too wide. The 1959 Act, may I remind your Lordships, makes it an offence for a common prostitute to loiter or solicit in a street or public place for the purpose of prostitution. That is to say, the Act applies only to common prostitutes. For practical purposes, to get a conviction it is sufficient to prove that a woman is a common prostitute and that she was 10 loitering in the streets, because it will pretty well follow, as night follows day, that if this is proved and she says, "I was not looking for a customer; I was looking in a shop window", no one is going to believe her. It undoubtedly is an infraction of the general principle of British justice. A class of society should not be singled out for treatment in this way, and that is one of the discriminations that this Bill is aimed to remove.
In my earlier Bill, in order to get rid of discrimination I substituted the words "any person" for the words "common prostitute". And in order to bring the kerb crawler and other people guilty of offensive conduct of a similar type within the sanction of the law we substituted the words "immoral purposes" for "purposes of prostitution". Those proposed alternatives were very much criticised in the debate, and in retrospect I admit that they were very properly criticised, as being too wide and as subjecting perfectly respectable people who were perhaps engaged in looking into shop windows to suspicion and quite possibly to arrest by the police, thereby putting too much power into the hands of the police and constituting indeed an infraction of civil liberties.
The noble Earl, Lord Arran, who was the first to advance these criticisms, in a powerful speech, which I enjoyed, although in a way it was aimed at myself, in effect moved that the Second Reading of the Bill should be rejected by the well-known method of proposing that it should be moved again in six months' time. In the debate which followed I took the view, perhaps naturally, that those defects could be put right at the next stage—"hammered out in Committee" was the phrase I think I used—and quite a number of your Lordships took the view that that was the better course to adopt. Others, however, and indeed the majority of those who took part in the discussion, evidently thought that the defects were too serious to be got over in that way and that the better thing to do eras to hand my Bill back, so to speak, to see whether I could make it a better one. And after spending quite a bit of tine on this effort I come back to-day with what I am quite sure is a very much better Bill.
Before I leave this point I should like to say that Lord Arran himself almost 11 came over to the view that the Bill could be put right in Committee, and he said that if he had not been convinced by the Minister of State, my noble friend Lord Stonham, that the Government themselves were going to introduce a Bill to deal with this problem, and to introduce it soon, he would have advised your Lordships that we should go into Committee on it. I should like to quote the actual words which I have taken from the OFFICIAL REPORT, where he said:I would suggest that the House should persevere with this Bill; but the noble Lord, Lord Stonham, has made it unequivocally clear that something is going to be done—and soon …"—[OFFICIAL. REPORT, 8/2/68, col. 1338.]I ask your Lordships to pay attention to that, because now, more than twelve months later, nothing has been done, or, if it has, it has been so imperceptible that it has hardly caused a ripple on the surface. That is another reason why I am back to-day with the improved Bill: because I think it is time this matter was dealt with. Indeed, in view of last year's support in principle which almost every one of your Lordships who took part in the debate gave, I think I may take it that my job to-day is to persuade you that the present Bill is well enough drafted to be acceptable, at any rate for Second Reading—acceptable enough to be sent to Committee and worked on there.
I should like to say at this stage that while of course I take responsibility for the terms of the Bill, the work which has been done upon it has been that of a number of friends and colleagues and I should like to take this opportunity of thanking them for their unremitting help. I do not want to mention any names except to say that, because I think it is a good example of the sort of way in which our English system so often works, one of the outstanding critics last year were the National Council of Civil Liberties who, in effect, said that this was a Police Bill and ought to be thrown out root and stock. I challenged them to adopt a constructive attitude and help me to put a better Bill before Parliament. They responded to that challenge and they were represented on my drafting committee throughout the year by one of their members who gave us very great help, and I am very grateful for what he 12 did. I mention this as being typical of a great deal that goes on in this country, where criticism becomes of a very constructive character. Nevertheless, none of us is an expert Parliamentary draftsman. That is a highly technical profession, and I have very little doubt that there are still a number of defects in the present Bill; and I expect my noble friend Lord Stonham will be pointing some of them out to me during the course of his speech.
At an early stage I sent a copy of the draft to the Home Office, and I should like to take this opportunity of thanking them for a number of suggestions in respect of the drafting. They were very acceptable and they have enabled me to improve this Bill a good deal. If there are faults, I am quite sure that the faults and defects are of a kind which can be put right in Committee, and I am hoping this afternoon to get a Second Reading so that I can have the assistance of your Lordships in putting the Bill into a fit state to go on to the Statute Book.
There is not a great deal more I want to say by way of general introduction except to make one point. One of my main objectives on the last occasion was to make kerb crawling an offence. That is still one of my main objectives to-day. I referred in some detail to this matter on the last occasion, and I pointed out that the Wolfenden Report had described kerb crawling as a nuisance. My noble friend Lord Stonham supported me in my views and said they were not in any way exaggerated; and the Home Office evidence showed that at any rate in certain cities this offence was really a menace. I then drew attention to the important case of Crook v. Edmondson, where a magistrate's court had convicted a man of an offence under Section 32 of the Sexual Offences Act 1956—he was a kerb crawler—but on a case stated the High Court decided that this section was not applicable to kerb crawling. The result was to leave kerb crawling "unhit at" as it were, by the English criminal law, and one of my main objects, as I said a moment ago, is to try to get this matter put right.
Having mentioned the Wolfenden Report and having been reinforced by the Home Office views, and having, as I thought, dotted the i's and crossed the 13 t's by quoting from the address by a Liverpool magistrate and from a letter of a young woman who had written to me from London, and also mentioning that I had a good deal more evidence, I thought I had done enough. But in the debate a number of influential speakers took the view that the case in respect of kerb crawling had not been made out, and that it was not sufficiently proved that it was a serious nuisance. I must say that I was rather surprised at this, and reading over the debate during the week-end I still felt surprised and wondered whether possibly I ought to have produced more evidence.
I could go on about this matter for a long time. It is difficult to know exactly how far you should go in order to try to persuade your audience that this really is a serious business. I have had more letters from Liverpool; Manchester is obviously very bad, and it is worse in the conurbations. I have had letters from all round Manchester, from towns in Yorkshire, from Birmingham, and from Nottingham, where the Chief Constable himself has recently gone on record that it is not safe for a woman to be unescorted in the streets of that city after dark. Of course, I have also had letters from London. It is interesting that very recently a woman Member of another place was complaining that a kerb crawler has accosted her in South London. I understand that that matter has in fact been raised in the other place on several occasions and strong views have been there expressed, but so far no Government activitity has followed.
I hope that what I have said is sufficient to make it quite clear that this is quite a serious nuisance; that everybody this afternoon will agree that the nuisance is accepted as a fact, and that the problem is really to deal with it in an effective sort of way. I was reading the discussion during the week-end, and I must say that I was particularly interested in the speech of the noble Baroness, Lady Gaitskell. I am not sure whether she is here to-day, but her speech evidently attracted a good deal of attention, because I have have received an interesting letter inviting me to bring my noble friend Lady Gaitskell up to Whalley Range, near Manchester, for an afternoon, after which, my informant said, 14 "She will come back quite convinced as a result of what she will see in Whalley Range". As I say, I hope that I have said enough to satisfy your Lordships that kerb crawling is, in fact, a nuisance.
Turning to the terms of the Bill itself, the important clause, of course, is Clause 1, which it is proposed should take the place of Section l(1) of the 1959 Act. To a large extent this is based on the Report of the Macmillan Committee on Street Offences in 1928, a very valuable Report which unfortunately was not followed up in Parliament. This proposed clause is divided into two subsections, the first of which is aimed at what one might call the normal type of street prostitution. As on the last occasion, it substitutes the words "any person" far the words "common prostitute". We want to get rid of the peculiar and special position of the common prostitute. Obviously everybody who behaves in this way ought to be responsible for their activities. The activities aimed at are, as in the case of the 1959 Act, activities in a street or public place; that is to say, we are concerned with street nuisances in this Bill, just as the 1959 Act is, but nuisances of a limited type, nuisances which might be described as "prostitution nuisances". The important change is one which I think I have mentioned already, that we are substituting for the word "loitering" the words "persistently to accost". "Loitering" will disappear, and the words "persistently to accost" will take its place. We have introduced the need for persistence because it was suggested on the last occasion that to penalise what one might call a casual "pick-up" was altogether going too far, and I think there is a good deal in that argument.
I admit that the need to prove persistence throws an additional burden upon the prosecution, a greater burden than exists under the 1959 Act under which the burden of proof is as light as it can be. Under the Act the prosecution has only to prove loitering by a common prostitute and they are home. The Wolfenden Committee considered the matter in some detail and felt that what they described as "habitualness" was an aspect which was difficult to prove. They came down in favour of the easier and, as I regard it, unjust method of penalising the common prostitute.
15 Their argument would suggest that they considered the matter chiefly in connection with loitering rather than in relation to soliciting. I agree that it is more difficult to prove habitualness in the case of loitering than it is in the case of soliciting. However, it is nothing like as difficult as the Committee made out. A police officer should have no particular difficulty in a proper case in satisfying a court that a case has been made out. When I was a young barrister I often attended magistrates' courts and frequently heard police evidence in this sort of case brought under the then law. The police officer described how he had watched the defendant accosting one man after another during a period of, say, twenty minutes, and the magistrate had no difficulty whatever in finding "habitualness", to quote the word used by the Wolfenden Committee.
A further point to be considered is that solicitation may be by the prostitute or by the customer. I underline this point, which is brought out by the words in the clause "with a view to offering or obtaining" since it brings about an important change in the present law. The present law penalises only the prostitute. That illustrates the glaring inequality of the Act as it stands. This inequality is one of my principal objections to the present Act and I wish to dispose of it by means of the present Bill. The 1959 Act is concerned with sexual nuisance, and we do not propose to go beyond it. We have used the expression "sexual services" rather than "sexual intercourse". The expression "sexual intercourse" is a much narrower phrase and in connection with homosexual activities might well not be a satisfactory phrase. I do not like the expression "sexual services" and I should be happy to have a better one if one can be suggested. The phrase "sexual gratification" has been suggested, but possibly it goes too wide.
I should like to deal with the question of payment or reward, which phrase appears in subsection (1A) to show that the provision is concerned with ordinary prostitution. Subsection (1B) relates to what one might describe as aggressive sexual conduct in the streets, of which kerb crawling is a good example. Some types of that activity would come within the first part of the clause. Nowadays a number of prostitutes use their cars to 16 stalk their prey. Even among the male kerb crawlers are many who seek the ordinary prostitute and who are prepared to pay. The woman M.P. whom I mentioned described how the man who attempted to obtain her services thrust two crumpled pound notes into her hand, which clearly brought him within the first part of the provision. But many of these persons are not so inclined and are after a, so to speak, free evening with some woman whom they can persuade to go with them. In order to achieve that goal they are prepared to go along the street, mile after mile, accosting and upsetting all the women they can intercept.
We have tried to exclude the casual picker-up by requiring that the conduct must amount to a nuisance. No prosecution is to lie unless the person importuned, or some other person such as a resident in the street or user of the street, has found the conduct in question so much of a nuisance that he or she is prepared to give evidence about it. This is an ample safeguard, and indeed some people may think that it is more than ample. It is further tightened up by the definition of "importuning" which comes within the next clause.
The Wolfenden Committee, having decided that kerb crawling is a nuisance, then went on to say that the problem of proof was a difficult one and that they did not propose to make any recommendations about making it an offence. Again, that was rather too timorous an outlook on their part. I have no doubt that if many of the women who have written to me about this problem were to give evidence about what they have seen a court would have no hesitation in finding that an offence had been committed. It is significant that in the only case that ever came before the court, Crook v. Edmondson, the bench were of opinion on the facts that the case would be made out, if Section 32 were apposite. They had no doubt that the man in question had been guilty of going along in his car trying to get hold of a woman for sexual services. Therefore I feel that there is no difficulty about proving the matter.
Subsection (5) of Section 1 of the existing Act repealed certain sections of earlier Statutes which the Act replaced, except to take into account convictions which had been entered under them for purposes of assessing punishment. The Macmillan 17 Committee of 1928 suggested that a number of local Acts of Parliament were in existence on the subject. The 1959 Act did not repeal all the local Acts relating to this matter and it seems high time, as was suggested by the Macmillan Committee, that the law should be uniform over the whole country. Therefore, we have taken the opportunity of having a general repeal clause. It may be objected that all the different local Acts ought to be set out and repealed seriatim, and I agree that that would be much the better way of doing it, but I just do not have the research facilities for finding them and it seemed to us that it could be done in this general way. If my noble friend Lord Stonham should tell me that it cannot be done in this way, then I suppose we could drop this clause, but it would be a pity.
There is one further point on this clause about which I ought to say something, although the matter is a little technical and will take a few minutes. This repeal clause is not intended to have the effect—and I do not think it has—of repealing Section 32 of the Sexual Offences Act 1956. That is the Crook v. Edmondson section, if I may call it that. Perhaps I should read it. It says:It is an offence persistently to solicit or importune … for immoral purposes.I should like your Lordships to notice that this is a section in an existing Act of Parliament which is used a good deal, and there the word "persistently" is used, which the Wolfenden Committee did not think was a good word; also the words "immoral purposes" are used, which are words in my Bill to which strong objection was raised. So both those terms are in an existing Act of Parliament. It is certainly not my intention to repeal that section. I should be grateful for the Minister's opinion as to whether my repeal clause has that effect, because I hope it has not.
Perhaps I ought to say something more about Section 32, because last year there was a good deal of argument about it. On that occasion my noble friend Lord Stonham queried whether it was not an inconsistency on my part not to seek to repeal that section, because up to a point it creates a discriminating position as between men and women, if only because—as it has now been held that it applies only to men—it establishes punishment of up to two years, whereas the Street 18 Offences Act 1959 provides a maximum sentence of three months' imprisonment. It is used to a certain extent against male prostitutes, although I expect your Lordships know that it was really enacted in 1898—I think this was pointed out last year—against the activities of the ordinary prostitute's bully, and I believe it is still occasionally used in that sort of way. As we have seen, the Crook v. Edmondson case decided that the section is not applicable to male importuners of women. I should have thought one could put up quite an argument that it was not applicable to male importuners of males, because the same argument could, at any rate, be advanced; but, so far as I am aware, the point has never been taken in the court.
However that may be, I see no reason why the section should be repealed, and there is at least one reason, which seems to me to be a good one, why it should not; that is, that although the prostitute's bully has rather left the centre of the stage, he is still a very real person and there are from time to time cases where he has to be dealt with. This is the section of the Sexual Offences Act under which he can be dealt with, and it ought to be kept in existence for that reason. But, apart from that, there is quite an argument for keeping it in existence for the purpose of dealing with the male prostitute. Cases of this sort vary a great deal in gravity. This we know is so over the whole range of the criminal law. For example, there can be an ordinary common assault, dealt with summarily by magistrates, and for which the punishment is light. But an assault may be quite a serious one. In that case it will be made the subject matter of an indictment and tried by a jury, and imprisonment can then be up to two years. I think it is right that the prosecuting authority should have these various possibilities open to it.
The ordinary case of homosexuality is dealt with as gross indecency to a male person. It is a summary offence and is dealt with by magistrates, and it seems to me absurd that importuning for that can be dealt with only as an indictable offence under Section 32 of the 1956 Act. Would it not be better to have a summary offence, as this Bill provides, so that when the case is an ordinary, rather trivial one it can be brought before a magistrate and dealt with there and then 19 and the whole matter cleared up? I hope my noble friend Lord Stonham will tell me that my repeal clause does not have any effect on Section 32 of the 1956 Act.
Finally, by Clause 4 we repeal Section 2 of the 1959 Act. This is the section which enables a woman who has been cautioned by a police constable about her conduct to apply to a magistrate to have the caution expunged from the official records, if an official record of it has been made; or, if it has not been made, to make an order that it shall not in fact be entered on the records. With the disappearance of the old law the need for this provision, which was put in for the purpose of protecting the innocent woman who had been cautioned and wanted to have the caution removed, will disappear. In any case, it is a unique element of English criminal law which was a good deal criticised at the time, and, as I understand it, it has been practically a dead letter, so there does not seem any reason why it should be continued. However, the Home Office will have much more information about this subject than I have, and I shall be happy to act on what ever advice my noble friend Lord Stonham gives me about it.
I have attempted to go over these clauses in the Bill, and I hope I have been able to explain them to the House with reasonable lucidity. I hope that your Lordships will now feel that you can give the Bill a Second Reading. I beg to move.
§ Moved, That the Bill be now read 2a.—(Lord Chorley.)
§ 3.27 p.m.
§ LORD DERWENT
My Lords, many of your Lordships—perhaps most of you—will approve of the objects of this Bill, which are, first of all, as the noble Lord, Lord Chorley, said, to make the law for street offences, in so far as sexual importuning and so on is concerned, the same for women as for men. The second object of the Bill—perhaps the noble Lord, Lord Chorley, would call it the primary object—is to try to do away with the practice of kerb crawling. This practice does exist and I am told it is worse in some places than in others. It must be a practice which is extremely 20 frightening to most women and, if possible, it should he curbed.
I hope the noble Lord will not object if I say that although I agree with him that this is a better Bill than the last one which he introduced, it is all the same very doubtful whether it ought to have a Second Reading. I say that for two reasons. First, I believe part of it to be quite unenforceable and no prosecution would succeed; and, secondly, it is in part too widely drawn. As the noble Lord said, the whole meat of the Bill is in Clause 1, which contains two subsections with which I shall deal separately. To start with, let us see exactly what subsection (1A) says. It says:It shall be an offence for any person in a street or public place persistently to accost any person or persons with a view to offering or obtaining sexual services for payment or reward.It is the words "for payment or reward" which I believe will make this part of the Bill unenforceable. I quite see why the words are in the Bill, since without them it would be drawn far too widely. There I agree. But what happens in practice? How are we going to get a conviction under this Bill? Somebody is accosted or importuned. If the person who is importuned is willing or interested, nothing further is likely to happen in so far as a prosecution is concerned. We are really dealing here with cases where the person importuned is neither willing nor interested.
My Lords, let us see what happens in practice. There are really four cases to consider. The first case is that of the female prostitute who accosts, and where she having said, "What about coming home with me, dearie?", the man is unwilling and says, "No, thank you; I am going home", or words to that effect. She then becomes persistent and says, "Be a sport", or, again, words to that effect, and he then becomes a bit more abrupt in his refusal. In practice, that is the end of it. So far no offence has been committed under this subsection because nobody has mentioned payment.
We then come to the second case—that of the male prostitute. My Lords, I am afraid I have no personal experience of being importuned by a male prostitute in this country, but any of your Lordships who have lived in the East for any length of time, as I have, will have 21 had experience of it, for it is much more common there. But the same sort of language is used—the same sort of language, not the same words—and as a rule there is still at this stage no mention of payment, except that sometimes small boys offer to introduce their sisters, which happens very commonly in the Middle East. But in this country the same sort of thing as regards language, and so on, would happen with a male prostitute as would happen with a female prostitute.
We then come to the third case, which is that of the man who tries to pick up a girl and is rather pestering about it, the girl being perhaps perfectly respectable. In practice, what happens is that he stops to talk to her, and she, perhaps not knowing quite what he is saying, also stops. What does he then say? He says, "Come and have a drink", or, "Let me take you out", or something of that kind. So far, no offence has been committed under this subsection. Then we come to the fourth case, which really comes under the second subsection—the question of kerb crawling. I have no personal experience of this, I may tell your Lordships, but what I am told happens is that a man drives down a road after a girl who is walking and makes a suggestion either verbally or by sign. But he is unlikely to drive along holding a £5 note out of the window. So, normally, again, so far under this subsection there is no offence. offence.
My Lords, when does the question of "payment or reward" come in? It comes in after the person who is being importuned shows that he is interested. It is then that they start to talk about money. But that is not caught under this subsection. I suppose an offence is being committed, but it is not going to be possible to get the evidence if the man or woman, as the case may be, is willing and interested. So in my view this subsection will be quite unenforceable because of these words, "for payment or reward"; and I should not have thought they were worth trying to put on the Statute Book in this form.
We then come to the second subsection, subsection (1B), which really creates two new offences. What is said is this:It shall be an offence for a person in a street or public place to importune any other person so as to cause annoyance to that person …22 That is the first part of the subsection. I may say that the definition of "importuning" in the Bill is:persistently for sexual purposes to molest by words, by behaviour, by any obstruction or by pestering or following, whether in a vehicle or on foot.But this subsection refers to pesteringany … person so as to cause annoyance in a public place".That must be too wide. Take the case of a young man and woman who have known each other for years, or at least for some time, and who go bathing together on the seashore. During the course of the afternoon the young man makes certain propositions to the young woman, and she says, "No; shut up!". But he goes on—this is not unknown, I dare say—and she eventually gets very cross. It is possible that she may get so cross that she goes off and complains that she has been pestered. But that is not really how life works. She gets up and walks away. All the same, according to the Bill the young man will have committed an offence. However the male Members of your Lordships' House may think you have behaved in your lives, there surely must be in your recollection some moment when you have pestered a girl whom you have known quite well. My Lords, does this make sense? I suppose this is enforceable, but it is far too wide.
The second part of the subsection says:It shall be an offence for a person in a street or public place to importune any other person so as to cause … a nuisance to any other person who resides in or uses the street or public place.My Lords, I am not a lawyer, and I hope the noble Lord, Lord Chorley, will deal with this matter when he comes to reply, but in so far as I have been able to find out, except when it is dealt with by Statute, a nuisance is always a civil offence and not a criminal offence. If I am right, then, for the first time, by means of a Private Member's Bill a Statute is being drawn so as to make a nuisance a criminal offence. I cannot believe that that is right. The noble Lord, Lord Chorley, is a very knowledgeable lawyer, and if I am wrong he will tell me I am wrong.
§ LORD CHORLEY
My Lords I can tell the noble Lord at once. There is a criminal offence of common nuisance.
§ LORD DERWENT
That is not mentioned here. This is a plain nuisance; and I still think I may well be right. Perhaps some other noble Lord will clear up that point. My Lords, for those two reasons—that I believe the first part of Clause 1 is in fact unenforceable and that the second part of Clause 1 is far too wide and would lead to absurdities—I suggest to your Lordships that you should consider not giving the Bill a Second Reading.
§ 3.38 p.m.
§ THE MINISTER OF STATE, HOME OFFICE (LORD STONHAM)
My Lords, my noble friend Lord Chorley has introduced this Bill with a balanced and persuasive speech, and the noble Lord, Lord Derwent, has made a speech which by no means attacks the Bill but in which he has given reasons why he thinks it is unenforceable. I hope it will be of assistance if I intervene thus early in the debate to indicate the Government's attitude to the Bill. As I understand it, the Bill's objectives are to remove discrimination between men and women, between prostitutes and their clients, and between heterosexual and homosexual behaviour in relation to street offences. Another of the proposed effects of the Bill is to make the conduct known as "kerb crawling" an offence.
Since those proposals involve important considerations of justice and equity I should be surprised if they did not have a strong appeal, not only to women's societies but to many noble Lords. The issues involved touch on matters of social conscience about which strong opinions are held, and I should like to make clear at the outset that the Government adopt a neutral attitude to the principles of the Bill and believe it is right that your Lordships should be free to vote on the Bill, if there is a vote, as you will. I propose to comment on the proposals in turn and hope I shall not be thought unsympathetic if during that consideration I insist that we have the clear duty also to consider the practical implications involved.
The Street Offences Act 1959 was aimed at a specific problem: the presence of large numbers of prostitutes on the streets of London and other cities. There were 24 those—and I was among them; and possibly in this House foremost among them—who in 1959 had grave doubts whether the Act was the right way to achieve that aim. I particularly had doubts about the use of the term "common prostitute" in Section 1 of the Act; and I still have grave doubts. Now we have to look at the position as it is today when the Street Offences Act has been in force for nearly ten years. No one could deny that in that time it has been largely successful in its aim of keeping prostitutes off the streets. Indeed, it has been more successful than many of us envisaged in 1959. I do not mean that the numbers employed in the "oldest profession" have been reduced; I do not think they have; and when we were considering the 1959 Bill no one thought that they would. But the prostitutes are plying their trade in ways which are less blatantly obvious.
Admittedly, there are still some areas where street prostitution is a problem, but we have been keeping the position under review and the general picture is that the number of prostitutes in the streets has substantially dropped since the Act came into force, and in many areas where prostitutes used to congregate in the streets they have almost totally disappeared. Nor is there any evidence that the Act, in driving prostitutes from the streets, has given rise to even more serious problems. It is true that many prostitutes have adopted other methods. There is an increased use of cars. I believe there was a sudden and remarkable increase in the demand for cars with left-hand drive soon after the 1959 Bill became an Act. There has been an increase in the use of advertisements to bring their services to the notice of clients; but it was recognised by the Wolfenden Committee that this was likely to happen, and the general feeling then was that these practices—some of which, such as advertisements, I remember referring to in a debate at that time—existed before the 1959 Act and it was thought that they would be less injurious than the presence of large numbers of prostitutes in the streets. There is no evidence that the Act has led to any large-scale underground organisation of prostitution or to an increase in the number of ponces or to other consequences so undesirable as to outweigh its advantages.
25 There have, I know, been some suggestions recently that prostitutes are returning to the streets in increasing numbers and that the rate of convictions under the Act is rising. It is true that in the last year or so there have been some slight increases in the number of convictions, but these figures must be seen in the light of the situation before 1959 and against the general picture since then. There were 2,422 convictions for street offences by prostitutes in 1967—the last full year for which we have figures—but this must be set beside the figure of 19,536 for 1958 and the figure of over 10,000 convictions annually for some years previously. Since the passing of the 1959 Act there have been fluctuations in the number of convictions, as was only to be expected, but the annual average over the eight years 1960 to 1968 has been around 2,000; in other words, little more than one-tenth of what it was before. None of us would wish to see a return to the position as it was before 1959; and in considering the proposals that my noble friend has put before us, we must ask if they would be as effective as the present law in combating the nuisance at which it was aimed.
Under Section 1(1) of the Street Offences Act 1959, it is at present an offence for a common prostitute to loiter or solicit in a street or public place for the purpose of prostitution. This offence, which many of us still find the most offensive and most unjust in its terms, would disappear under the present proposals, and instead there would be two new offences, the first of which would penalise anyone, man or woman who, in a street or public place, persistently accosts any person or persons with a view to offering or obtaining sexual services for payment or reward. I am glad, incidentally, that my noble friend decided not to use the term "gratification"; because that would have been even more difficult to prove. This is a provision which, if this Bill becomes law, would normally have to be used to deal with street activities by prostitutes. I recognise that it aims to do more than this, since it is aimed at the customer as well, but the point I am making is that it is the provision on which we should have to rely to deal with the street activities of prostitutes.
26 My Lords, would it be as effective as the present law? The reference to loitering in the 1959 Act is removed, find the first ingredient of the new offence is "persistently to accost". It is likely that it would be extremely difficult to prove persistence—the Wolfenden Committee thought that a formula requiring persistence to be proved would make the law unworkable against the activities of prostitutes. If the Wolfenden Committee were right, one of the main strengths of the 1959 Act would be gone. But, as Lord Derwent pointed out, this Bill would require not only persistence to be proved but also that the conduct in question waswith a view to offering or obtaining sexual services for payment or reward".I must agree with the noble Lard that the possibility of proving both these elements seems remote, and I have to advise the House that it is the view of the Government that if this provision were enacted it might weaken the law against street activities by prostitutes.
The second new offence created by the Bill applies to any person who, in a street or public place, importunes any other person so as to cause annoyance to that person, or a nuisance to any other person who resides in or uses the street or public place. But it is proposed that no one shall be convicted of this offence unless evidence is heard from a person importuned, or a person to whom nuisance has been caused. The term "importune" is defined in Clause 2 as meaningpersistently for sexual purposes to molest by words, by behaviour, by any obstruction or by pestering or following, whether in a vehicle or on foot".I do not want to delay the House this afternoon—this has never been my practice—by dealing with purely drafting points, but I think that I ought to mention that it seems to us that the drafting of the Bill is ambiguous in a number of respects. To mention just a couple of examples, first, it is not clear what is meant by "uses" the street; find although the proviso requires evidence to be given by the person importuned or caused annoyance, it does not say what the evidence is to relate to. It appeals from the Explanatory Memorandum that the intention is to require evidence of annoyance or nuisance, but the Bill itself does 27 not say so and in our view it ought to be clear on this point.
It is my noble friend's intention that the second of the new offences proposed in his Bill should cover the activities of kerb crawlers, and I agree with him right away that the Bill's definition of importuning is wide enough to extend to this type of conduct. I agree with him also, and I think with all noble Lords, that we should like to put an end to this most objectionable behaviour towards decent women about which there have been a number of complaints—a comparatively small number but, unhappily, a growing number. Respectable women and girls walking along the street may find, and do find, themselves accosted by cruising motorists who are in all probability in search of prostitutes. As has been said, they may not be; and this must be a most unpleasant, indeed unnerving, experience for a woman or girl to be subjected to.
Furthermore, my Lords, there is a certain difficulty as the law stands at present—this I readily acknowledge—in catching these kerb-crawling pests. Until a few years ago we thought that they could be charged under Section 32 of the Sexual Offences Act 1956 with importuning for immoral purposes, but, as my noble friend Lord Chorley pointed out, in 1966, in the case of Crook v. Edmondson the High Court decided that the words "immoral purposes" in Section 32 have a restrictive meaning and do not include soliciting by a man of a woman for purposes of having sexual intercourse with her. The result is that kerb crawlers at present cannot now be dealt with under this section, although the police are not altogether powerless in the matter. For example, in London there is an offence under Section 54(13) of the Metropolitan Police Act 1839 of using threatening, abusive or insulting words of behaviour whereby a breach of the peace may be caused. There are similar provisions in a number of local Acts in different parts of the country, and in many areas there are by-laws which cover offensive behaviour in the streets. My information is that since Crook v. Edmondson the police in some areas have found it more difficult to deal with kerb crawling, but that the problem is not altogether unmanageable.
28 My Lords, the problem often lies not so much in the lack of an offence with which to charge the kerb crawler as in the difficulty of obtaining sufficient evidence to identify the men concerned. Nevertheless, accepting that there may be—indeed there are; let us be frank—deficiencies in the existing law to deal with kerb crawling, the question arises whether the proposals now before us would provide the answer. To bring a successful prosecution under the second offence proposed in my noble friend's Bill it would be necessary to prove that there was importuning; that is to say, molestation by words, behaviour, gestures, as the noble Lord said, and so on, for sexual purposes—something which, I suggest, would often be impossible to prove against a kerb crawling motorist. I am bound to say that when I was listening to my noble friend and to all the possibilities, it made me feel that in future I shall be afraid to get out of my car to ask the way. Nearly every time I get out of my car to ask my way, when I am in an area that I do not know, the first answer I get is, "I am a stranger round here." I can never seem to find anyone who knows where we are.
My Lords, it would be necessary for the person importuned or caused annoyance to give evidence against the offender, and we know, for reasons of which we are fully aware and with which we fully understand and sympathise, that persons accosted are usually unwilling to give evidence: they are not all lady Members of Parliament. It seems most unlikely, therefore, that this provision in the Bill will be of any real help in dealing with cases of kerb crawling.
Another aim of the Bill is to remove discrimination between homosexual and heterosexual behaviour in relation to street offences, and I should like briefly to examine what the Bill appears to do in this matter. Clause 2 provides that… sexual services shall be deemed to include heterosexual and homosexual services,and it would appear that accosting for homosexual purposes could be caught under the first of the new offences created at Clause 1(1A). It is not entirely clear whether homosexual conduct would be caught under the new offence at Clause 1(1B) because the definition of "importuning" in Clause 2(4B) refers to molestation for sexual purposes; and it is not clear whether this term, like the term 29 "sexual services" used in Clause 1(1A) would apply to homosexual conduct. I do not know whether noble Lords followed that particular point.
My noble friend asked me whether he was right in thinking that his Bill does not repeal Section 32 of the Sexual Offences Act 1956 which is the provision which at present applies to soliciting by men for homosexual purposes. My noble friend is quite right. His repeal clause does not repeal that section. Indeed my noble friend has made clear that it is not his intention to repeal it. Thus, the provision of the present Bill relating to homosexual importuning and carrying a maximum penalty for a third offence of three months' imprisonment would not be in place of, but in addition to, the existing Section 32 offence which carries the higher maximum penalty of two years' imprisonment. My noble friend obviously thinks that there would be an advantage in having an additional and less punishable offence—applicable summarily, as he said, so as to deal with the offence quickly—to deal with this type of conduct.
My Lords, does the Bill really achieve this? I have already referred to the difficulties which might be faced in proving the offences under this Bill in relation to heterosexual conduct. These difficulties would apply equally to proving offences of homosexual conduct. If homosexual importuning were to be dealt with under the new offence at Clause 1(1A) it would be necessary to prove not only that the persistent accosting was for homosexual purposes, which is all that needs to be proved under Section 32 of the 1956 Act, but also that it was for payment or reward. It is difficult to see the advantage or the logic in creating an additional, less heavily punishable, offence for which there is no real need; and since it would be more difficult to prove than the existing provision, it would be unlikely to be used by the police. Its effect would merely be to complicate the law unnecessarily. I would remind your Lordships that the present penality of two years is the maximum. There is nothing now to prevent a court from imposing a lesser penalty if it thinks that it would meet the circumstances of the case.
May I draw your Lordships' attention to another consequence of the Bill? You 30 will notice that Section 1(3) of the 1959 Act, relating to powers of arrest, is left untouched. Thus a constable could arrest without a warrant anyone he found in a street or public place and suspected, with reasonable cause, to be committing either of the proposed new offences. At present the 1959 Act powers of arrest apply only to prostitutes, because only prostitutes can commit the offence. Thus the effect of my noble friend's Bill would be to make the powers of arrest in some respects narrower than they are at present and in some respects wider. They would be narrower because there would no longer be a power to arrest a prostitute for loitering for the purposes of prostitution, since that offence would be abolished. Nor would there be power to arrest a prostitute simply for soliciting. There would have to be reasonable cause to suspect persistent soliciting and that the act of soliciting implied the offering of sexual services for payment or reward. On the other hand, the powers would be much wider—your Lordships may think, dangerously wider—in that they would apply to "any person" who appeared to be committing an offence under the Bill.
In considering my noble friend's proposals, therefore, we must consider very carefully their impact on the powers of arrest. On the one hand, we ought to be satisfied that the proposals do not seriously weaken the powers of the police to control the more objectionable forms of street soliciting; on the other hand, we ought to be satisfied that the powers of summary arrest are not extended beyond what is necessary and so catch innocent people. Any legislation which impinges on moral questions is bound to give rise to controversy, and the problem of prostitution raises particularly difficult issues. The law ought to be adequate to deal with overt social nuisances to which prostitution gives rise, but we must always bear in mild that it is generally accepted that private morality is not the concern of the criminal law. It is not always easy to balance these two considerations—morality and the law. I should be the first to agree that the law relating to street prostitution offences is far from perfect. It has not been a duty I have looked forward to, to point out what we regard as the difficulties of this present Bill. I assure your Lordships that it is a job I would sooner not have had to do. 31 The present law has its anomalies and its injustices. But what we have to decide to-day is whether piecemeal amendment of the kind proposed by my noble friend is the answer.
Last Session we debated a Bill with similar aims introduced by my noble friend. He gave an account of that this afternoon and said that he had striven very hard to improve on that Bill. I think he has succeeded in doing so. But the question is whether he has yet got it right. During our last debate I referred to the statement made by my right honourable friend's predecessor, that he proposed to ask the Criminal Law Revision Committee to review the law on sexual offences. I said then that it was hoped that the review would begin during the year—that is, in 1968. My Lords, I now have to tell you that this has not proved possible. The Criminal Law Revision Committee have a heavy programme of other commitments and I cannot at present commit the Government or the Committee on the question when the review of sexual offences is likely to start, but I can reaffirm that it remains the intention to refer the subject to the Committee when their other commitments permit.
My noble friend Lord Chorley quoted from the speech of the noble Earl, Lord Arran, in the last debate, to the effect that I had convinced the noble Earl that something was to be done soon. I repeat now what I said last year—namely, that it was hoped to start a review of sexual offences during the year. I do not think that anyone could reasonably have interpreted that as meaning a Government Bill this Session.
THE EARL OF ARRAN
My Lords, I think that the words used in regard to this were, "very shortly". I do not know what that "very shortly" meant, but one had hoped.
§ LORD STONHAM
My Lords, I am quoting now what my noble friend behind me said, and he said "Soon." The noble Earl has said "Very shortly". I do not think there is much between them. I would say that both mean "in the reasonably near future". What I said was perfectly honest; but at present the Criminal Law Revision Committee are heavily engaged on their current reviews 32 of the law of criminal evidence and of Common Law misdemeanours, which are both major topics. The Committee themselves decided to circulate a Paper setting out their provisional proposals on some of the more controversial aspects of their review, with a view to getting the reactions of lawyers and other interested persons and organisations before they reached their final conclusions. Anyone who sat through the Theft Bill debates will know that there was a wide variety of reactions from learned counsel. But this is a delay which the Committee have calculated on, one which is unavoidable and which I think in the long run would not only be a saving of time but also eventually bring a better Bill. That is what one is up against when standing at this Box and seeking to give an assurance. We have not gone back on anything. We really want to do this job. But I wish to make it clear now that we shall not have the answer in the near future or soon or in any other time expressed in any comparable form of words. But we will certainly press on with it.
Meanwhile, we believe that it is unsatisfactory to attempt to make changes in the law relating to street soliciting in advance of the general review of the law of sexual offences as a whole. The points which my noble friend seeks to deal with in his Bill are aspects of that whole and would suffer from being dealt with in isolation. Although it has not been possible to undertake the review of sexual offences as soon as had been hoped, we still believe that there would be considerable advantage in awaiting the review before seeking to amend any part of the law on the subject.
I have tried to show how sympathetic most of us are to the principles which my noble friend wishes to bring into practice, and I have tried to show some of the difficulties which surround the Bill. There are, perhaps, three main practical considerations. First, the Bill may reduce the effectiveness of the present law in dealing with the street activities of prostitutes. Secondly, there must be doubt whether it would effectively deal with the problem of kerb crawling. Thirdly, there would be the disadvantages of acting in advance of a general review of the subject. These are fundamental difficulties, which it might not be possible to overcome by Amendments to the Bill 33 now before us. I know that your Lordships will consider these points carefully in reaching your decision. That decision remains entirely one for you.