§ 9.3 p.m.
§ Read a third time.
§ Clause 1 [Persistent soliciting of women from motor vehicles for the purpose of prostitution]:
§ The Deputy Speaker (Lord Aberdare)
My Lords, I have to point out to the House that if Amendment No. 1 is agreed to, I cannot call Amendments Nos. 2 and 3.
Baroness Vickers moved Amendment No. 1:
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—").
§ The noble Baroness said: My Lords, I beg to move Amendment No. 1, with which I believe it will be convenient to discuss Amendments Nos. 2 to 15 and 17.
§ Amendment No. 2: Page 1, line 6, leave out ("persistently to solicit a woman") and insert ("to solicit a woman persistently").
§ Amendment No. 3: Page 1, line 7, after ("woman") insert ("in a street or public place").
§ Amendment No. 4: Page 1, line 8, leave out ("while it is in a street or public place").
§ Amendment No. 5: Page 1, line 10, leave out ("in a street or public place while") and insert ("when").
§ Amendment No. 6: Page 1, line 10, leave out from ("while") to the end of line 11 and insert ("having just got out of or off a motor vehicle, if he is still in its immediate vicinity.").
§ Amendment No. 7: Page I, line 11, at end insert ("persistently or, subject to section 5(5A) below, 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.").
§ Amendment No. 8: Leave out ("or nuisance") and insert ("or serious nuisance").
§ Amendment No. 9: Leave out ("in the neighbourhood") and insert ("in the immediate neighbourhood").
§ Amendment No. 10: Page 1, line 17, at end insert ("save that motor vehicles exceeding eight metres in length are hereby excluded.").
§ Amendment No. 11: Leave out Clause 1.
§ Amendment No. 12: Clause 2, page 2, line 2, leave out ("women (or the same woman)") and insert ("a woman (or different women)").
§ Amendment No. 13: Leave out Clause 2.
§ Amendment No. 14: After Clause 2 insert the following new clause:
§ .—(1) A man commits an offence if in a street or public place he (whether from a motor vehicle or not) persistently solicits different women or the same woman for the purpose of prostitution in such manner or in such circumstances as to be likely to cause nuisance or annoyance to the women or woman concerned or to other persons in the neighbourhood.
§ (2) A person guilty of an offence under this section shall be liable on summary conviction to a fine not exceeding level 3 on the standard scale (as defined in section 75 of the Criminal Justice Act 1982).
§ Amendment No. 15: After Clause 2 insert the following new clause—
§ .—(1) A man commits an offence if in a street or public place he (whether from a motor vehicle or not) persistently solicits different women or the same woman for the purpose of prostitution.
(2) A person guilty of an offence under this section shall be liable on summary conviction to a fine not exceeding level 3 on the standard scale (as defined in section 75 of the Criminal Justice Act 1982).
(3) In this section "motor vehicle" has the same meaning as in the Road Traffic Act 1972.".
Amendment No. 17: Clause 5, page 3, line 11, at end insert—
("(5A) In relation to anything done in any area at a time when section 3 of the Prosecution of Offences Act 1985 (conduct of criminal proceedings by Director of Public Prosecutions) is not in force there, section 1(1) above shall have effect as if all the words after "persistently" were omitted.")
§ I must say how pleased I am that the noble and learned Lord, Lord Denning, and the noble Lord, Lord Wigoder, have also put their names to certain of my amendments. I am grateful to both of them for the very careful and constructive way in which they have attempted to put this Bill in order. I am also extremely grateful to all noble Lords who have attended at this late hour to consider these amendments. I believe they represent a full response to concerns expressed at earlier stages of the Bill and I hope that the approach I have taken will find favour in many parts of the House.
§ I do not wish to go into the details of the drafting of these amendments but rather to explain what has been achieved. If these amendments are accepted, we shall have created a kerb crawling offence which can be charged either if the man is persistent or if his simple act of solicitation can be shown to have been likely to cause annoyance or nuisance.
§ The second limb, if I may so describe it, of the offence will not come into force until the independent prosecution service is in operation, in order to take full advantage of their interest in taking forward only those cases which have most merit. This approach is intended to achieve two things. The first is to prohibit persistent kerb crawling as your Lordships, in Committee, wished. The second is to prohibit the single act of soliciting where there is likely to be one or more victims of it—for example, to a frightened girl who is approached, or others in the community to whom nuisance is caused.
§ I hope that even at this late stage we have reached a position on this Bill of which we can be proud, and for which we owe so much to the constructive help which has been offered from all parts of the House.
§ I hope that I may explain briefly why the approach taken by the noble Lord, Lord Mishcon, in his Amendments Nos. 11, 13 and 15 is not one that I can commend, although I understand completely why he is minded to offer it for our consideration as an alternative approach to my own amendments.
§ The point of substance is whether the single act of solicitation should even be controlled by the criminal law. Under my approach, as your Lordships know, that act would be controlled where a woman who is approached by a kerb crawler is annoyed, or where a nuisance is caused to others by the kerb crawler, or the approach was likely to have that effect. Under the noble Lord's first new clause however only persistent soliciting in a way likely to cause nuisance or annoyance would be caught. Naturally, I stand by my view that in certain circumstances, and subject to the safeguards my approach introduces, a woman subject to a simply annoying approach should have redress under the law. On that basis, I ask the House to resist the noble Lord's first new clause.1275
§ The noble Lord's second new clause would import the words: "whether from a motor vehicle or not". Since we are aiming in this Bill for a clear offence of kerb crawling involving the use of a motor vehicle, and a back-up offence to stop clients talking to pursuing prostitutes on foot, the phrase is in my view unnecessary. I am reluctant therefore to invite the House to agree to the amendment to delete Clause 2, which is perfectly satisfactory as it stands, and I hope the noble Lord will not press his amendment. I beg to move.
§ The Parliamentary Under-Secretary of State, Home Office (Lord Glenarthur)
My Lords, may I briefly intervene at this stage merely to make one thing clear, because it relates to the amendment moved by my noble friend; that is, Amendment No. 17 on the Crown prosecution service. With the leave of the House I shall, of course, speak later, but perhaps I could take the opportunity now to explain it.
The object is to take advantage of the ability and expertise of the new prosecution service to take forward those cases which should be prosecuted vigorously and to drop those which should not, either because they fail the sufficiency of evidence test or because the public interest is not served. With that expert help in view, the Director of Public Prosecutions could, if the House thought it appropriate, give guidance to Crown prosecutors on the operation of Clause 1.
This might amount to something 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 thought it would be appropriate to discuss the amendment in the light of that.
§ Lord Mishcon
My Lords, it may be convenient if the House at once knew what are the matters at issue here, and then the debate can take its course in a proper, logical and clear form. With that purpose in view, I think the House might well agree that we should take by way of discussion (but there will be separate decisions taken) Amendment No. 1 and Amendment No. 7. I have no doubt that the noble Lord, Lord Monson, will be coming in on his Amendments Nos. 8, 9 and 10; and then I wish to speak, if I may, to Amendments Nos. 11, 13 and 15. I have intentionally left out Amendment No. 14 because, again in order to clarify the debate, I do not intend to muddy the issue by putting forward that amendment. When the time comes and Amendment No. 14 is called, I shall be using the traditional words, "Not moved".
That means that we are now considering whether or not a nuisance and annoyance provision should or should not go into this Bill as a criminal offence. I must preface my remarks by saying—and Members of this House will know that I say this with due moderation and respect—that unless my amendment is passed (I say this deliberately, and it may well be that it will not 1276 be passed) this Bill is a mess. It is not only a mess but, in my humble view—and this is why I ask the Minister and the noble Baroness, Lady Vickers, to consider this most carefully—if Amendment No. 1 is passed together with Amendment No. 7 and not my amendment, I would expect problems in another place. I say that very deliberately.
Why do I say this Bill is a mess? It is called, in common parlance, a kerb-crawling Bill. When this came before another place at Second Reading the honourable Member who moved it as a Private Member's Bill said in her opening speech—I am trying to avoid long quotations, but this is a fair paraphrase—that in the main she wanted to deal with the problem of decent, respectable women who were accosted for sexual purposes in a way which was completely unsuitable and, from their point of view, most distressing.
When the Minister spoke at Second Reading in another place he recited how necessary this Bill was because of a questionnaire which he had seen showing that the bulk of the people questioned—indeed, he read out the number of replies—who were perfectly respectable women who had been accosted for sexual purposes, complained that the criminal law should assist them. That was why the noble and learned Lord, Lord Denning, and I tried to insert the words "for sexual purposes" to protect these women, and they are the main ones to be protected. The noble Baroness, no doubt on advice, and the noble Lord the Minister resisted that.
What are we left with? We are left with a speech that the noble and learned Lord, Lord Denning, made at Report stage. I say with the greatest possible respect and deference, which he knows I always mean, that I do not understand how he has put his name to this amendment, having regard to his speech. I know perfectly well that the noble and learned Lord, Lord Denning, is more than capable of answering any criticism and nevertheless is equally capable of bearing it with grace.
§ 9.15 p.m.
I want to read his speech at Report stage. It is at col. 859 of the Official Report of the 27th June when he was kind enough to quote me:
On Second Reading my noble friend Lord Mishcon said: 'In my view, the habit of kerb crawlers accosting perfectly respectable ladies is a much greater nuisance than kerb crawlers who … are trying to solicit or accost prostitutes'. Those are the men to whom this Bill against kerb crawling is directed—not the men who accost prostitutes, but the men who accost ordinary, decent ladies and invite them to enter a car, as they will say for a joy-ride, but in fact for sexual purposes. Those are the ladies who will be annoyed. That is the nuisance which is to be dealt with.
If the words 'for the purpose of prostitution' are retained in these clauses, the man will always get away with it by saying, 'I was not going to ask her to be a prostitute. I was not going to pay her any money. I was just crawling along to see whether I could find an enthusiastic amateur'. He would get out of it every time. Therefore I suggest that in each of these cases, instead of having this difficult definition 'for the purpose of prostitution', we should have the simple words 'for sexual purposes'.
It may be said that this is all too dangerous for an innocent man, going along slowly, who invites a girl into a car in that way. But of course it is not limited to that; it has to be done persistently and it
has to be proved that the man is accosting one innocent lady after another, in a period of 20 minutes, or it may be on one day after another. One has to prove persistence and not just a single instance; and that is the importance of this amended clause.".
§ What did the noble and learned Lord, Lord Denning, mean in those very clear words? The nuisance that this Bill is supposed to deal with in accordance with the noble and learned Lord's desire—and I should have thought that it was the desire of Parliament—is not the prostitute nor the person seeking people for the purpose of prostitution. It is the approach to the innocent lady, the respectable lady. That is the nuisance.
§ What do we have in this amendment? What do we have now in this Bill as a result of the amendment of the noble and learned Lord and myself not being accepted by your Lordships' House on the Government's advice? We have now got a nuisance and annoyance provision to be enacted and to be enforced only where the man solicits for the purpose of prostitution. I quote the noble and learned Lord: "The man will get off every time"—certainly he will in the case of the respectable lady. The purpose of the Bill according to the noble Lord the Minister, according to the promoter and according to the noble and learned Lord, Lord Denning—and I most warmly and heartily agree with him and with every word he uttered in that speech—and from Parliament's point of view, went when "for the purpose of prostitution" was insisted upon on the advice of the Government.
§ What do we have now? Parliament having decided through your Lordships' House at Committee stage—until somebody changed that decision—that it was unsafe to deal even with matters "for the purpose of prostitution", I repeat that the respectable lady whom the noble and learned Lord and I were trying to protect against nuisance and annoyance is not in the Bill any more. What Parliament in your Lordships' House decided at Committee stage was that, even if it be for the purpose of prostitution, it is dangerous and wrong to have any charge preferred unless the element of persistence is present. That is what the Committee stage of Parliament said. The noble and learned Lord took it graciously and so did the Government, because presumably they decided not to alter that vote. What did they then do? They accepted "persistence", but they then did something which the other place did not even consider. They put in a provision of nuisance and annoyance without any persistence being required at all.
§ The second thing that the Minister made so clear in another place was that he wanted to advocate to the House to follow him because he said that the Bill follows every word of the recommendations of the Criminal Law Revision Committee. The noble and learned Lord, Lord Denning, advocated to the House so understandably at previous stages: "Follow the advice of the Criminal Law Revision Committee and you will not go wrong. It consists of admirable people. It was chaired by a most experienced judge. Please follow its advice."
§ I shall quote that advice on nuisance and annoyance and what this Bill now contains by way of the Government amendment which, as I say, in my humble view defeats the whole purpose of the Committee's decision. I must take a little time over 1278 this because it is so important, and I hope that your Lordships will realise that I shall not make a series of long speeches. If I make my case in one long speech, I can move my amendments very briefly.
At col. 1292 of 25th January, 1985, in another place on Second Reading the Minister said:
I urge my noble friend the Member for Derbyshire, West … to recognise—he did not appear to do so with the clarity that one might have hoped for in his speech, which was, as usual, lucid and well considered—that perhaps he underestimates the significant point that, in bringing forward her proposals, my noble friend the Member for Drake has followed to the letter the recommendations of the Criminal Law Revision Committee".
§ We had better turn to the recommendations in those circumstances. A heavy responsibility devolves upon this House, including upon those Members of your Lordships' House who are not present at this debate to hear my speech and who, I hope, will not enter this Chamber without having heard my speech and vote upon what is such an important matter. That is a hope which I express, and I do so without any disrespect.
What does the committee say? Under the heading, "The accosting of women", at page 12, paragraph 38, it starts:
As to the formulation of the proposed new offence, we suggested in our working paper a three-pronged attack, namely, that it should be an offence:
Paragraph 40 goes on to say:
We now recommend that it should be an offence for a man to use a motor vehicle in a street or public place for the purpose of soliciting a woman for prostitution. The object of the offence is to stop the man who goes out in a vehicle to look for a prostitute. We are not of course drafting the offence—this would be the task of the Parliamentary draftsman".
The second sentence in paragraph 43 says:
Our intention is that it should also cover the man who stops his vehicle and steps out onto the kerb to solicit a prostitute".
That sentence follows on a recommendation that:
the new offence will cover the man who solicits from a vehicle at whatever speed the vehicle is moving (or whether it is stopped ) even though the vehicle is not itself creating a nuisance".
I shall now quote the last three lines of paragraph 44.
Men often make sexual advances to women in streets and public places as well as elsewhere which may or may not be welcome. It would in our view be most unwise that such conduct should of itself give rise to the possibility of a criminal offence".
§ It could not be clearer.
Then there is paragraph 46:
Are there any other circumstances in which a man should be penalised for soliciting a woman for sexual purposes? There are undoubtedly cases where soliciting is carried out, whether in a vehicle or on foot, in such a way as to put the woman accosted in real fear for her personal safety. There is a substantial body of evidence in favour of creating a new offence to cover such cases".
That is where fear is involved.
In our working paper, we said that such cases would normally have features which would enable some other criminal offence to be charged. Whether that be so or not, we are now persuaded that it would be desirable and practicable to create a new offence which would prohibit a man from soliciting a woman for sexual purposes, whether or not he intended to pay, in a manner likely to put her in fear. This is the view of the Policy Advisory Committee which we share".
The last quotation is from paragraph 48:
Some of our commentators suggested that it should be sufficient for an offence that the woman solicited was caused annoyance. Most of us take the view that that would spread the net too wide".
§ Even if it were persistent annoyance, says the Criminal Law Revision Committee, this would spread the net too wide. There may be some vague direction from a Director of Public Prosecutions to a new prosecuting service which is being set up, saying, "Please be careful before you prosecute in a case. See to it that you have some corroborative evidence if you can. Try to see to it that it is not a police officer only". If that is going into the direction, that does not answer the Criminal Law Revision Committee. The committee is saying, "Look on this terribly difficult question of sexual matters and all the rest of it. There is the question of there being on our statute book an offence that the woman solicited was caused annoyance. We take the view that that would spread the net far too wide, whether or not it was persistent, and whether or not it had directions like that in it". Those are directions which I assure the House the great judge who was the chairman of this committee would certainly have considered and included had he thought fit.
§ What does the direction mean? It is a suggestion to the Director of Public Prosecutions. It cannot be more. The director may take the suggestion. The present director may take the suggestion. The next director may not decide to take the suggestion. What about private prosecutions? One cannot tell a private prosecutor, "Don't you dare go before a magistrate and apply for a summons, in spite of the fact that the statute has been passed". If one accepts Amendment No. 1, the offence would prima facie appear to be there. If somebody, one person, one police officer, says that it is a nuisance or annoyance, or it is likely to be a nuisance or annoyance, the magistrate has to grant the summons. If there is a prima facie case, he has to hear it.
§ What about the poor innocent man, his actions completely misinterpreted, finding himself in front of a criminal court? Of course, it will be said that he will be acquitted. Your Lordships will forgive my common parlance if I say, "A fat lot of good that will do him". How wonderful for a wife to be distressed and to have to explain to neighbours, "My husband did not really do it, and please do not think that I am now an unsuitable neighbour or that he is not a respectable man."
§ This Bill, if the amendment is passed with "nuisance and annoyance" in it, without it even having to be persistent, will not carry out the purpose that the noble and learned Lord, Lord Denning, wanted. It is for the purpose of prostitution. It is nothing to do with soliciting an innocent woman. That is out. So your Lordships will find, in my judgment—I say this most humbly—that in another place this new importation that the other place never discussed and that is contrary to the advice of the Criminal Law Revision Committee will not get support. We want a Bill that will deal with a mischief, even if it does not deal with the mischief that the noble and learned Lord and I wanted it to deal with, involving the respectable woman. It will still deal with the mischief, but it will deal with it only if Amendment No. 15, which 1280 contains "persistence" and does not import the element of nuisance and annoyance, is carried.
§ 9.30 p.m.
§ Lord Denning
My Lords, the noble Lord, Lord Mishcon, has quoted me quite correctly. That was the view that I certainly expressed in this House. But we lost on it. I have to accept the ruling of this House that the words "for the purpose of prostitution" must be in the Bill, and, therefore, they are retained in the Bill. In retaining them this House is affirming the view of the Criminal Law Revision Committee. The very point that the noble Lord, Lord Mishcon, and myself put was that we wanted it to be an offence to accost a woman from a motor-car for sexual purposes so as to cause her annoyance. That is what we wanted. That is one of the possibilities that the Criminal Law Revision Committee considered on page 12. It is one of the positions that it considered and rejected. It came down in favour of an offence being committed if a man were to accost a woman from a motor-car for the purpose of prostitution. Those are the very words. Those words are now in the Bill. What it is not intended to cover is the man who parks his vehicle and leaves for a walk, and so forth.
Having dealt with that point, I turn back to our amendment, if I may so call it. It is my privilege to associate myself with the best of draftsmen, if I may say so, in the drafting of this. The Bill is designed to deal with the particular mischief of kerb crawling from vehicles. That was the way in which the Criminal Law Revision Committee was asked to deal with it and what it recommended. That is kerb crawling from vehicles. Clause 1 deals with it. Clause 2 simply deals with the matter of "on foot" and so forth. But the particular evil with which the Bill deals is kerb crawling. So let us keep Clause 1, because that is the real aim of the statute. Clause 2 is obvious, but persistence must be there.
As to Clause 1, the noble Lord has stressed the introduction of the words "nuisance or annoyance". I venture to say that in bringing in those words we are doing exactly what the Criminal Law Revision Committee desired. To be persistent the man has to be going round time after time every 20 minutes or so seeking women for the purpose of prostitution—
§ Lord Mishcon
My Lords, I know that the noble and learned Lord will forgive me. Before he goes on to say that this is what the Criminal Law Revision Committee meant, will he be kind enough to look at paragraph 48, which I quoted to the House? How can he possibly say what he has said, in view of paragraph 48?
§ Lord Denning
My Lords, I have read paragraph 48 very carefully and I hope that I have not misread it. It reads:Some of our commentators suggested that it should be sufficient for an offence that the woman solicited was caused annoyance. Most of us take the view that that would spread the net too wide.I quite agree because the noble Lord has not listened to the rest of my argument. Perhaps he should wait a little.
1281 We have the case of persistence, when time after time or for 20 minutes or more a man can be shown to be cruising around accosting different women. We are now concerned with the man who is successful—the kerb crawler who goes along the street, picks up a prostitute on one occasion and goes off. He is not persistent; he has done it on only occasion. Then there is the next man who comes along and is successful or not as the case may be, but does it on only one occasion. You cannot prove persistence in any of those cases.
Let us see what was the evil or the nuisance which the Law Commission had in mind. I propose to read paragraph 8 on page 3. Please listen to the nuisance which the Criminal Law Revision Committee had in mind. It reads:The nuisance arises in various ways. What may have been a quiet street or square becomes frequented, often until the early hours of the morning, by prostitutes looking for clients and clients looking for prostitutes. Noise, arguments, some squabbling and occasionally violence results. When accommodation is not available prostitutes provide the services they are offering in parked cars, front gardens, alleyways or even in the street itself. Offensive litter is left in the street. Many clients drive slowly along the street in motor vehicles looking for what they want.That is the nuisance with which the Law Committee is dealing. On page 4 it goes on to say:What the law should be concerned with are offers, whether made by men or women, in circumstances which can cause a nuisance. We say 'can cause a nuisance' because an act of soliciting by a single prostitute or kerb crawler does not necessarily amount to a nuisance: but when prostitutes and clients congregate in numbers, as commonly occurs, there is no doubt that this does amount to a nuisance. In this sense every act of soliciting has in it the potential for causing a nuisance".That is the sort of thing they are doing; it is not just one single act. It is the combination of that with others. Persistence is one thing. It is these repeated acts by different men causing annoyance and nuisance with which the Committee is dealing. It is that kind of nuisance, and that is why in a way I would suggest that these additional words cover the position exactly. It is not only persistence—that is one thing, but the amendment also says: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".I would suggest that "persistence" is not enough to stop this nuisance. We need these additional words, which catch the very nuisance which the Criminal Law Revision Committee envisages. That is my justification.
I would also say, because it depends on the last sentence, that in the old days there was the fear that an over-zealous policeman might charge a man and carry the proceedings through and ruin his reputation. That is taken care of by a provision in the amendments. Under the new Prosecution of Offences Act, it will not be sufficient for the policeman to charge and carry it right through. What is to happen in the future is that he is to report the matter to the Crown prosecutor. The Crown prosecutor—this lawyer, this barrister or solicitor—will look into the case and see whether it is likely to succeed and whether it is proper to bring before the court. He will not prosecute an innocent man, or anything of that kind. That is a safeguard as a result of the Prosecution of Offences Act. It is part of these amendments.
1282 We say that this clause about nuisance and annoyance should come into operation only when the Crown prosecutors come into operation too. That is the reason for the words "subject to Section 5(5A)". There it is. That is no doubt a most important decision. Whether or not you bring in the words "cause nuisance", the phrase "for the purpose of prostitution" has to be there. I would uphold all these amendments.
Might I mention in passing, on what the noble Lord, Lord Monson, says as to "nuisance" or "serious nuisance" that in law a thing is only a nuisance if it causes serious matters, serious discomfort. Minor matters do not matter. "Serious nuisance" adds nothing to the law: "nuisance" is enough by itself. Then, as to "in the neighbourhood" or "in the immediate neighbourhood", the law can say what is in the neighbourhood or not. You do not need the extra word "immediate". After careful consideration I hope your Lordships will accept the amendment as it now stands after much thought and consideration by so many people, and not give effect to the counter-argument of my noble friend Lord Mishcon.
§ Lord Wigoder
My Lords, I do not suppose that any of your Lordships, if asked to choose an example of good legislation, would choose the way in which this Bill has proceeded through both Houses of Parliament. Having gone through the other place we are now at Third Reading and are all desperately trying to rewrite the whole Bill. What the noble Lord, Lord Boyd-Carpenter, would say about this on Third Reading if he were here I shudder to think, hut we must do our best in this difficult situation.
With all due respect to Lord Mishcon's powerful argument, I do not think that we should start to construe the words of the Criminal Law Revision Committee quite as stringently as he is seeking to do. They are not gospel. We have to form our own judgment as to the merits and demerits of the course proposed in these amendments.
§ Lord Mishcon
My Lords, I interrupt the noble Lord, Lord Wigoder, only to help the argument. The Minister in the other place made it clear that he was advocating that Parliament should follow strictly the recommendations of the committee. The noble Lord, Lord Glenarthur, who always argues with such fairness, made the point that what we wanted to do was to follow the recommendations of the Criminal Law Revision Committee.
The noble and learned Lord, Lord Denning, at Second Reading and thereafter, begged the House to follow the recommendations of the Criminal Law Revision Committee, chaired as it was, as he said, by such an experienced judge, and consisting of such experienced people. If the noble Lord, Lord Wigoder, is asking us not to follow the recommendations of the Criminal Law Revision Committee, I hope that those who are agreeing with his amendment will hear him very clearly.
§ 9.45 p.m.
§ Lord Wigoder
My Lords, I am only saying: let us by all means hear in mind what the committee has said, 1283 but we have to form our own judgment on the issues in front of us. What the noble Lord, Lord Mishcon, is really doing is seeking to score debating points at the expense of the Minister rather than arguing the merits of this amendment.
I should like, as has the noble and learned Lord, Lord Denning, to support the noble Baroness, Lady Vickers, in her Amendments Nos. 1, 7, 12 and 17. What originally concerned the noble Lord, Lord Mishcon, and myself when this Bill started on its progress through your Lordships' House was the danger of an innocent man being wrongly summonsed, wrongly brought to court, and, it may be, wrongly convicted. That is something that always concerns us, and it is right that that risk should be minimised. It can never be removed; let us not deceive ourselves. There is only one way in which we can ensure that an innocent man is never convicted and that is to have a system of law under which no guilty man is ever convicted either. All we can seek to do is to minimise the risk—that and no more.
I suggest that the proposals now before your Lordships' House in these new clauses minimise the risks in as reasonable a way as is possible in all the circumstances. They minimise the risk, first, by saying that one single act in which a motorist is seen, either from his car or having got out of his car, to speak to a woman is not in any circumstances sufficient to found a summons. That was the original matter that much concerned me and the noble Lord, Lord Mishcon, too, on Second Reading. What is now being said is that there are to be safeguards written in. The first safeguard is that one single act will not do: it must be a persistent act. It must be repeated on more than one occasion. That is the amendment that the noble Lord, Lord Mishcon, moved in Committee, which I supported and which was carried on a Division.
The effect of carrying Lord Mishcon's amendment on a Division at Committee stage was that the amendment of the noble Lord, Lord Monson, which was to follow, could not be put. As I said in the argument at the time, I preferred the amendment of Lord Monson to that of Lord Mishcon because I thought it added a new ingredient, again without prejudicing the person who has committed one isolated act of talking to one individual without any further evidence. The noble Lord, Lord Monson, was saying that as an alternative to persistency there could be a situation in which it was shown that nuisance or annoyance was likely to arise. I should have supported that right from the beginning, had I had the chance, but I did it in argument and there could not be a Division on it. I support it now because that is the proposal of the noble Baroness, Lady Vickers, in these amendments. It seems to me to be a reasonable approach to say that one is minimising the risk to the innocent motorist if one is saying either that the behaviour has to be persistent or, alternatively, it has to be shown that nuisance or annoyance arose on that one instance.
I should have been satisfied with that as it stands. The Government have indicated that they are prepared to go further and have offered an additional undertaking, that courts should be advised—because this is a matter that can be raised in court and courts 1284 will take great notice of it—that they should look for evidence other than the evidence of a single police officer where the charge is brought under the annoyance section. That is an additional safeguard quite voluntarily offered by the noble Baroness and by the noble Lord, Lord Glenarthur, in the course of the drafting of these amendments.
I add one comment: the noble Lord, Lord Mishcon, brought up the question of the private prosecutor. I do not think I can ever recall in the course of long experience at the Bar any private prosecution for an offence of this nature. Offences of this nature, though not under this wording, have always been capable of being committed in the past under the conduct likely to cause a breach of the peace provisions. I do not believe I can recall a private prosecution having been brought. I think it is singularly unlikely that one ever will in the future. If it did happen by any chance the Director of Public Prosecutions has complete power to take the matter over at the earliest possible stage. I think that is as much a precaution as one can possibly have in these circumstances.
§ Lord Mishcon
My Lords, I intervene only so that the House can have a full argument. Does the noble Lord agree that, first, we have never had before the case of any resident who could week after week, if he wanted to, keep watch for the first time, because a resident in a neighbourhood can do this, and say, "I think these people are a nuisance and, police officer, would you mind noting this man who committed this act on this one occasion." Secondly, does he agree or disagree that it is no possible consolation that the director has taken over a prosecution or a summons after the summons has been issued and a charge has been preferred under the summons, where the man appears in court and the matter is then adjourned, but the press have got hold of it. I ask the noble Lord both those questions before we dismiss the private prosecution quite so airily.
§ Lord Wigoder
My Lords, in the first place I think that the noble Lord's scenario is being quite fanciful. I think that in the second place one must face up to the fact that frivolous, vexatious prosecutors, if they exist, exist in all sorts of areas on all sorts of charges. There are women going around who are perfectly capable of going up to a police officer and saying: "Lord so and so has just pinched my bottom". There is a risk that that will happen. It is totally fanciful, but there is a risk that it will happen. There is a risk that a magistrate will grant a summons and there is a risk that a charge will follow.
The risk imported into this Bill is no greater than in a thousand other possible offences and it seems to me in these circumstances that the proportions which have now been written into the amendments that have been tabled in the name of the noble Baroness, Lady Vickers, are as much as one could reasonably expect.
I add only one other matter: the alternatives put forward by the noble Lord, Lord Mishcon. There were two. One was Amendment No. 14, which he has now indicated that he proposes to abandon, and the other is Amendment No. 15. I would venture to suggest that there is perhaps some weight in the argument that Amendment No. 15 is not as helpful as it might be in 1285 this situation because it does not make kerb crawling from a motor-car a specific offence. It lumps it in with the soliciting on the pavement. I think that it is possible that, in so far as there is a nuisance here—and we ought not to exaggerate it—it is very much a nuisance concerned with motor-cars and it perhaps merits a separate clause on its own. That is an added reason, I think, why the amendments of the noble Baroness, Lady Vickers, are to be preferred.
§ Viscount Hanworth
My Lords, I have the greatest admiration for the noble Lord, Lord Mishcon, and he puts forward his case which really tears our hearts. But I think that what he is really doing is producing a Bill which is totally ineffective. He is trying to show the dangers (which there always are) of wrong conviction. But I would think that they are almost minimal. In the first place, I do not think that the police will he looking anywhere except in areas where prostitutes are common. Therefore, most sensible people will not "crawl" down the kerb in those areas. That is one point.
I gather that in Canada they included the word "persistent" in a rather similar type of Act and that no prosecution has ever been successful under it—or so I am told. Really, I think that what the noble Lord, Lord Mishcon, is trying to do is to render this Bill completely ineffective—yes, completely ineffective. I really think that this is what should be realised by the House.
§ Lord Silkin of Dulwich
My Lords, in my view, and I think it is a view which would commend itself to all noble Lords, the criminal law should be used only in circumstances in which it is absolutely vital that an offence should be recorded as committed; and, secondly, it should be expressed only in terms which are of the utmost clarity so that people know whether they are committing an offence or not. The noble Lord, Lord Wigoder, at the beginning of his remarks, drew attention to the lack of clarity in this Bill and, indeed, expressed his regret, as we all do, that it should be coming at this stage to this House to try to clear up what my noble friend Lord Mishcon has described as a mess.
Perhaps one might illustrate the lack of clarity which exists in this way if in no other. Whereas the noble and learned Lord, Lord Denning, supported the amendments now before the House on the basis that the report of the Criminal Law Revision Committee did in fact invite legislation based on nuisance or annoyance, the noble Lord, Lord Wigoder, as I understand him, said, no, they did not, but that does not matter because we have to make up our own minds about it. So, even on the question of what we were recommended to do by the Criminal Law Revision Committee there is, unhappily, a lack of clarity. My own view is the same as that of my noble friend Lord Mishcon. If that committee had intended to advise Parliament there should be an offence in the absence of persistence, merely because of nuisance or annoyance, it would have said that in the clearest possible language. Quite clearly, it has not done that, whatever the noble and learned Lord, Lord Denning, may read into the earlier parts of the report.
1286 When we come to the question of whether it is essential that the public should be protected by the criminal law in these matters, I would say this. In the ordinary way, one does not use the criminal law to protect the public simply against nuisance. There are other ways of doing it. In this case, because of the particular nuisance of persistent kerb crawling, Parliament has thought it right to select that and that alone for protection through the criminal law. It did so, I am afraid, in a way which resulted in another place in two honourable Members delaying the proceedings for the whole of a Friday because they said it was so unclear. And it was agreed that the Bill should go forward unamended to your Lordships' House only upon the promise to those honourable Members that we would put right that lack of clarity. I wish it could be said that we are doing so by this amendment.
With this amendment we should be going much further than making the matter an offence, treating specially the persistence of kerb crawling as a criminal act and one which is deserving of a criminal penalty, because we should be adding to it a single act which can be construed as being likely to create some form of annoyance or nuisance.
Is it not abundantly clear that the danger of doing that has been recognised by those who have promoted this amendment and indeed by the Government themselves and also in the whole tenor of the debates that we had on Report stage? Is it not quite clear that that is recognised by virtue of the very fact that the qualification is now put, in that that is not even to be an offence until Section 3 of the Criminal Prosecutions Act this year has been brought into effect in the particular area where otherwise a summons might be taken out? It is not until that is done and therefore the matter is in the hands of the Director of Public Prosecutions that that single act is even to he an offence.
I take the view that to legislate in that way is to create a wholly dangerous precedent. What is being said is that this additional piece which has been added on is so vague that not only will people not know whether they are committing the offence or not but also we are going to leave it until afterwards, until someone in the Crown prosecutor's office has had a look at the facts, before a decision can be made as to whether or not there ought to be a prosecution. One only does that in circumstances where there is a vague and uncertain type of act where one does not know whether it should be an offence or not.
My experience of the use of similar provisions, involving the consent of the Director of Public Prosecutions being required, is not that those consent provisions are directed to that kind of situation. My experience is that they are directed to the sort of situation where there is no doubt that an offence has been committed, but the question is whether the public interest is that that offence should be prosecuted or not. That is the right way in which a provision of that kind should be used. This is the wrong way. In my view it will be setting an extremely dangerous precedent if we use it in this way to give support to a wholly vague concept which the amendment is seeking to put into this Bill.
1287 I agree with my noble friend that this Bill is a mess. It started off as a dog's dinner, but if we leave these amendments in and let them be carried, it will be a canine catastrophe.
§ 10 p.m.
§ Lord Kilbracken
My Lords, my noble friend Lord Mishcon has spoken with his usual persuasiveness and with very appropriate persistence. I should certainly vote for his Amendment No. 15, even though it would mean that if any of my amendments happened to be agreed they would immediately evaporate. I find it unnecessary that he should include the wordswhether from a motor vehicle or notin parentheses, because if it is an offence to solicit persistently, it does not matter where you are.
§ Lord Mishcon
My Lords, I wonder whether my noble friend will forgive me. I am only seeking the opportunity to answer the noble Lord, Lord Wigoder, indirectly. I put in those words so that the very point he made could be covered and it could be seen that we were dealing with kerb crawling. That is why I brought out the "motor vehicle" in my amendment.
§ Lord Kilbracken
My Lords, I thought that was probably the case, because we are, after all, dealing with kerb crawling. It has always been called the kerb-crawling Bill and motor vehicles seem to be dropping out of it more and more. That is why my noble friend left it in unnecessarily in parenthesis.
On the alternative amendment proposed by the noble Baroness I want to make only one point; that is, to say that under Amendment No. 7 it becomes an offence to cause annoyance or a nuisance if you are in a motor vehicle. But Clause 2 remains unchanged. Therefore if you are a pedestrian, such behaviour is not an offence. What in fact this means is that if two people arrive in a red light area and one of them arrives in a car which he parks, and then walks 10 or 20 yards, or whatever is a reasonable distance, and behaves in a way to cause a nuisance or annoyance, he commits an offence. But if his pal arrives on foot at exactly the same place and behaves in exactly the same way, or worse, it is not an offence at all. That seems to me to be not in accordance with any normal principles of justice, and that is why I strongly support my noble friend on the Front Bench.
§ Lord Monson
My Lords, because of the somewhat silly rules governing the time limits for Private Members' Bills in another place—rules which do not allow adequate time for discussion and full deliberation between the various stages in each House of Parliament—we are forced to have what amounts, in effect, to a Committee stage debate on these first two clauses, in so far as the rules of the House permit; which is rather confusing.
Effectively, it seems to me that we have four choices in so far as Clauses 1 and 2 are concerned. We accept either the amendments of the noble Lord, Lord Mishcon, Nos. 11, 13 and 15, or the amendments of the noble Lord, Lord Kilbracken, Nos. 3, 4, 5 and 6, 1288 which I believe have almost the same objectives. Alternatively, we accept the amendments of the noble Baroness, Lady Vickers, and her supporters, Nos. 1, 7 and 12, or the same amendments but as modified—and I would contend liberalised—by my Amendments Nos. 8 and 9. I should like to be able to claim that the latter option is a happy compromise, halfway between the point of view of what one might term the Mishcon-Kilbracken amendments on the one hand, and those of the noble Baroness and her supporters on the other. I confess that this would be an over-optimistic claim, but I hope to be able to convince the noble Lord, Lord Mishcon, that my amendments go at least a little way in his direction.
To a certain extent I welcome Amendments Nos. 1, 7 and 12, in so far as they incorporate to a considerable extent my abortive Committee stage amendment; abortive not because it was defeated—I am not sure that it would have been—but abortive for technical reasons. In parenthesis I think that this would be a good moment to challenge the contention of the noble and learned Lord, Lord Silkin, that nuisance is not normally covered by the criminal law, because surely the Litter Acts are a prime example of the criminal law dealing with nuisance, inadequate though those Acts have turned out to be.
But having said that, I am not really happy about Amendment No. 7 as it stands, because it goes rather wider than did my original amendment by adding a word such as "circumstances" to the word "manner". In other words, it strays from the concept of intent which I was trying to stick to, and it also adds the extremely nebulous word "neighbourhood", to which I shall return in a moment. I have therefore put down Amendments Nos. 8 and 9 in an attempt to make Amendment No. 7 less sweeping.
One entirely understands why the noble Lord, Lord Mishcon, feels somewhat aggrieved that some noble Lords are attempting to reverse to some extent the decision made at Committee stage. In general, I strongly disapprove of trying to reverse Committee stage decisions at Report or Third Reading. I certainly protested when the Government did just that a year or so ago, although I cannot now remember what the particular Bill was. However, I hope that I can convince the noble Lord, Lord Mishcon, and his friends that if my liberalising amendments to Amendment No. 7 are accepted by the House, the degree of the reversal of the Committee stage decision will be reduced and the risk of innocent men being prosecuted also somewhat reduced. Furthermore, the danger of prosecution for what I think the noble Lord, Lord Glenarthur, at an earlier stage of the Bill, termed "victimless crimes" will be minimised.
I now turn to Amendments Nos. 8 and 9, because I think that this is probably the right moment to discuss them. My noble and learned friend Lord Denning pointed out that in the strictest legal terms the words I propose adding will not have much significance. This may well be so, but let us remember that it will be mainly lay magistrates who will be trying such cases; it is such educated but legally unqualified people to whom the words I propose to add will, I submit, make a considerable difference.
To such lay people the words "serious nuisance" are considerably more serious than a straightforward, 1289 unqualified nuisance. Similarly, the words "immediate neighbourhood" suggest an area much more tightly defined than neighbourhood pure and simple. Incidentally, one dictionary definition of the word "neighbourhood" is a district, and another is a region. I need hardly remind your Lordships that both a district and a region can cover a very large number of square miles.
Let me give two examples. The first relates to Amendment No. 8. A man is woken up around about midnight by the sound of a car—possibly because he is a light sleeper, because the idling speed of the car is set rather fast, or because its tappets have not been adjusted. The man goes to his bedroom window, looks down, and sees a man leaning out of the car which has its engine ticking over and sees that he is talking to a woman standing against a lamp post. He notes down the car's registration number and then reports the incident the next day to the police, claiming that the girl was obviously a prostitute—what else would any person be who was leaning against a lamp post at midnight? If the word "nuisance" is not qualified by the word "serious", it is possible that the police would have to act over a minor, one-off incident of that kind.
My second example relates to Amendment No. 9, which would insert the word "immediate". Your Lordships may remember that when the Wolfenden proposals recommending liberalisation of the law governing private homosexual behaviour between consenting adult males were published many years ago a number of people objected on the ground that even if such behaviour took place entirely in private behind locked doors, it would nonetheless be most worrying and upsetting for the objectors to know that such behaviour might be taking place anywhere within a radius of a few miles of where they lived. The mere thought that such a thing might be happening in their own town or city was the aspect to which they objected so strongly.
Latterly, we have had new laws governing the siting of sex shops. Here again, whereas many people do not mind the existence of a sex shop in their town or city provided it is not located near a school, next to the town hall, or in the main shopping street, others are grossly offended if a sex shop is sited anywhere in their locality. The mere existence of such a shop in their area is, in their view, an insult and a provocation.
One can imagine some zealous puritan who dislikes the idea of prostitution using this Bill, if unamended, to try to challenge prostitution wherever it occurs in their neighbourhood. I repeat that one dictionary definition of the word "neighbourhood" includes an area of several square miles.
Amendment No. 9 is designed to ensure that only a nuisance that is either seen by the complainant or takes place within earshot of the complainant can lead to prosecution. I realise that in the last resort a court's judgment of concepts such as nuisance and neighbourhood will have to be based on subjective criteria, but these amendments are designed to limit the degree of subjectivity and make it less likely that an innocent man will be convicted, or that the taxpayer will be put to the expense of prosecuting somebody for a victimless crime, to use the words of the noble Lord, Lord Glenarthur.
§ 10.15 p.m.
§ Lord Houghton of Sowerby
My Lords, I think that if we get all the speeches over now we might be able to get more quickly through the rest of the business. The first observation I wish to make is one of sympathy with the noble Baroness who has taken on this thankless task. This was a bad Bill when it came here, and she ought to have known it.
We are trying to get an imperfect Bill into proper shape simply because, due to the procedural switchback that the Bill went through in another place inadequate consideration was given to it and they threw it here hoping that we in your Lordships' House would put the Bill into shape. That is disgraceful. If the public of Britain could see how we are making their laws and how we are inventing criminal offences I think they would support the public opinion poll that I saw a few days ago, which suggested that there is far too little confidence in Parliament to safeguard the liberties of the subject.
I am disappointed, if I may say this with the greatest respect, with the noble Lord, Lord Wigoder. It is not the first time that he has opened on a subject of this kind by taking the sword of liberty out of its scabbard and then put it back again before he has finished. If the Liberal Party are going to welsh on civil liberties in the way they have on child pornography and other examples I have seen in your Lordships' House, then it is not the Liberal Party that I think it should be.
I feel that we are entitled to some indignation at being put through this kind of experience on this subject at this time. There are two courses of action we could take. One is to plough on at whatever hour and do our level best to get this Bill right. The other is to cut short the proceedings and send the Bill to where it came from and tell them that we have done our best with it in the time available and it is now up to them to finish the job. I think that the second course is probably the best.
The Bill came here with the word "persistently" on the lips of Members of another place who had been objecting to the Bill all the time. In the end they consented to it coming to this House in the hope that the word "persistently" would be put in the Bill. That was the gift with the ribbon on, that came from another place along with the Bill. All the trouble that we have had since the beginning, and that we are now in, derives from the introduction of the word "persistently". The original Bill said (and I am quoting from Clause 1):It is an offence for a man to solicit a woman for the purpose of prostitution if he does so"—and there then followed paragraphs (a) and (b). We decided on a vote in this House, supported by the noble and learned Lord, Lord Denning, by my noble friend Lord Mishcon and by the majority of Members of the Committee, to include the word "persistently" in that line in the Bill.
The Bill as it stands now reads:It is an offence for a man persistently to solicit a woman".That is what the trouble is all about. I think that having put in the word "persistently" we should send it back to the House of Commons with that word still in it where it is now, and say, "We have done, according to the message we received, what some 1291 Members of the Commons wanted to happen to the Bill, and now it is up to you."
We are putting ourselves through unnecessary torture trying, to get this Bill into shape when it should have been attended to in the other place. If the Leader of the House of Commons is not giving his attention to the Private Member's Bill procedure and the problems that he is throwing up not only in the other place, but in your Lordships' House, then it is time he did.
The noble and learned Lord, Lord Denning, has shifted his ground, but he has explained as best as he can why he has done so. But what we must go back to in relation to the word "persistently" is that, in the noble and learned Lord's own words, we are dealing with a nuisance. The words "nuisance" and "persistently"—what they mean and where they should go—are really bedevilling the whole debate at the present time.
I do not think it is easy for the House to solve this problem except by saying, "We have a Bill; we changed it in Committee; let us stick to it so far as the word 'persistently' is concerned". Otherwise, if the House wishes to adopt the first course and plough on until we get it right, I want to make my position absolutely clear. I agree with everything that my noble friend Lord Mishcon said. I thought that he put the case fully, adequately and most persuasively, and I would prefer his amendment. So far as I am concerned, I am not disposed to compromise with time, and it seems to me that if we are to do our business properly and if all other efforts fail, it must be tested in the House. That is where I stand.
I think this business of being,likely to cause annoyance to the woman (or any of the women),is full of dangers. I say that this Bill is in danger of becoming almost wholly sexist, and unless we are careful it will be racist, too, because one of the chief dangers which the NCCL had in mind regarding this Bill was to the ethnic minority women who might be exposed rather more than anybody else to the attentions of the police. I think we have to be very careful indeed in the future when legislating on the liberty of the subject, especially when it concerns women. We have to take great care that we avoid possible consequences which might prove embarrassing.
Finally, I want to ask what kind of a Bill is this, that has to have as its final clause an indication that the new prosecuting authority, which we do not yet have, will be guiding the police on how they should act under the Bill? I can quite understand the prosecuting authority giving guidance to the police where experience has shown that it is needed, but I think it is a reflection on your Lordships' House for the prosecuting authority, before the Bill is even passed, to say what the police should do with it. It is a reflection on Parliament.
For heaven's sake, let us keep our reputation as a legislative body with common sense and understanding of the importance of what we are doing. Apart from the other provisions of the Bill, the creation within a week, by this Bill and another one, of two life sentences is also, I think, a sad reflection upon the state of mind of Parliament. So that is where I stand, and I hope sincerely that we can either cut it all 1292 short and send this Bill back where it began—after all, we did not start it, and we cannot be responsible for all that has happened to it—or, so far as I am concerned, be prepared to go on all night to see that this Bill is properly amended and put into shape.
§ Lord Harris of Greenwich
My Lords, tempting though it would be to follow every aspect of Lord Houghton's speech, I shall do my best to resist that temptation. I should say at the outset—not that my noble friend Lord Wigoder requires any defence from me—that I assume that we are all speaking as private Members of this House and not as Members of political parties. This is a Private Member's Bill and it is on that basis that I am speaking. I do not have the remotest idea what the views of the Social Democratic Party are on this particular measure or this particular amendment, and I am not particularly concerned because in my view it is for us as private Members to decide what is the right thing to do, and I assume that is the way we shall all approach it.
Let me say at the outset that there is one point on which I agree with the noble Lord, Lord Houghton, and my noble friend Lord Wigoder. I think the story of this Bill has not been at all a happy one. I do not think that the House of Commons did its job particularly satisfactorily at the outset and I think that we were left in a particularly difficult situation. By and large, I do not like Private Members' Bills dealing with the criminal law and I think everything that we have seen during the passage of this Bill confirms me in that very clear prejudice.
Having said that, I believe that the amendments moved by the noble Baroness and supported by the noble and learned Lord, Lord Denning, and my noble friend Lord Wigoder significantly improve the Bill. Certainly taking account of those amendments and also of Amendment No. 17, which I consider is particularly important taken with the statement of the noble Lord the Parliamentary Under-Secretary at the beginning of the debate, speaking for myself, I believe that that makes a satisfactory concession to the views of those of us who were particularly concerned about the risk of the conviction of an entirely innocent man. Like my noble friend Lord Wigoder, I take the view that it is quite impossible to say that no innocent man will ever be convicted of an offence under the Bill, any more than one can say that there is an absolute guarantee that he will not be convicted under an entirely different measure. Nevertheless, I believe that the group of amendments improves the Bill. Certainly I propose to vote for them if there is a Division.
I was one of those who at the end of last week urged the need for informal consultations, and I very much welcome what was done. I do not intend to go into detail. A genuine effort was made to reach common ground. Obviously it has not wholly succeeded, but a genuine effort was made, and I should like to express my gratitude to all concerned.
Speaking entirely for myself, I repeat that I favour the amendments. I am grateful to the Parliamentary Under-Secretary for the statement that he made at the beginning of the debate. It certainly satisfies me.
§ Lord Glenarthur
My Lords, we have had a long and complicated debate on this aspect of the Bill. I have listened with great care to all that has been said. I shall try to pick up as many of the points that have been raised as possible.
May I first clarify the situation about the reference by the noble and learned Lord, Lord Silkin, to what was said in another place—the question of our obligations towards the Bill as another place saw it? I think it is important to get this on the record. As I understand it, the problem was not lack of clarity in any sense at all but that the issue of the persistence—which is the point that the noble Lord, Lord Houghton, raised—was entrusted to us to discuss. Whatever your Lordships may feel about our approach, few can doubt that the question of persistence has been well and truly aired.
On 17th May my honourable friend the Parliamentary Under-Secretary said in another place at col. 666 of Hansard:we shall arrange for a debate in the other place on persistency".He can say that again‡ We have had it. We have debated persistence. As the result of a complex debate which took place at the Committee stage, a series of discussions on Report and other discussions outside your Lordships' House, we have come forward with what might be called an amalgamation of two different ideas.
§ Lord Mishcon
My Lords, will the noble Lord please give way so that we do not lose this point again in confusion? Is he really saying that this is the way that an undertaking from a Minister is carried out; that a debate on whether persistence should be a necessary ingredient should be left to this House? Has that undertaking been satisfied when that vote at the Committee stage said, "Yes, persistence in", and the sponsors of the Bill, supported by the advice of the Government, have imported an alternative to persistence? It is not consistent with my idea of it.
§ 10.30 p.m.
§ Lord Glenarthur
My Lords, what I am saying is that my honourable friend in another place said that it would be discussed. I am asked by the noble Lord whether we have honoured that undertaking. It is interesting that the argument has been approved now by the noble Lords, Lord Wigoder, Lord Harris, and others. They seem to be satisfied. The noble Lord opposite does not seem to be satisfied. So clearly we are getting somewhere, anyway.
Perhaps I may just continue with developing the theme, which I wanted to do. The first thing, again, is persistence. Clause 1, amended in the way that we are doing, creates the kerb-crawling offence, which is the nuts and bolts of the whole issue and which has been a major objective of the Bill, with the additional safeguard of a test for persistence, and that is what was agreed in Committee. Thus a man who persistently solicits one woman, or who approaches several women, from or near his car will commit an offence where the prosecution can show that the approaches were for the purposes of prostitution.
Secondly, my noble friend and others have stood by the principle that one approach from a kerb crawler 1294 can be sufficiently upsetting to warrant the control of the law in certain circumstances. Indeed, although she is not here this evening, the noble Lady, Lady Saltoun, has cited a personal example of it.
That is necessary if we are to offer protection 10 a girl who may have been trailed for some time by a man in a car and who is frightened, upset or annoyed by being solicited as a prostitute. That is why so many of them want this protection. It is necessary also if we are to offer some relief to whole communities who cannot go about their daily lives without the thorough nuisance of many cars trailing prostitutes around and about their homes.
After all, it matters little to the residents whether the clients are smooth and successful operators who pick up the first girl they approach or not. What matters is the scale of the nuisance, and this Bill seeks to control it. It is necessary also, if we are to send out a clear deterrent message from your Lordships' House, that kerb crawling shall be against the law.
The noble Lord, Lord Mishcon, quoted from the Sixteenth Report of the Criminal Law Revision Committee. He referred to the rejection by that committee of annoyance or nuisance. We are of course well aware that both Wolfenden and the Criminal Law Revision Committee thought that a nuisance or annoyance test would not be helpful, as victims of the annoyance or nuisance will rarely come to court. But the approach we have taken now really is in slightly different terms. It represents, in our view, an honourable ocmpromise, common ground (to use the words of the noble Lord, Lord Harris) between those who wish to prohibit every act of soliciting and those who wish additional safeguards.
Since the noble Lord, Lord Mishcon, has fought most valiantly throughout the passage of the Bill for tests and for safeguards to be incorporated into Clause 1, I am a little surprised that he does not feel that this is one of the safeguards that meets his case. He quoted from paragraphs 46 and 48 and others from the report, and the Criminal Law Revision Committee discussion of the third offence recommended by the CLRC, which was dropped from the Bill in Committee. That was the old Clause 3. That offence was framed in the terms of "sexual purposes", not "purposes of prostitution", and in that way the test of annoyance was thought too wide. Those are the two parts that are connected there.
Thus I again find it odd that the noble Lord should quote the Criminal Law Revision Committee in this context and advocate, as he does, the wide open phrase, "sexual purposes". The two seem to be clearly at odds with one another. The Criminal Law Revision Committee wanted a clear offence of kerb crawling without an element of persistence and with the words "for the purposes of prostitution". As that has not proved wholly acceptable to this House, what we have done is to respond in the way that my noble friend has put forward today.
Let me turn to the tests for the single act. My noble friend and those who support her have been sensitive to the concern that, almost by definition, kerb crawling can only be a nuisance when it is either persistent or likely to upset someone. For this reason, the limb of the Clause 1 offence which deals with the 1295 single act of soliciting would, under these proposals, incorporate a test of being done either in a manner or in circumstances likely to cause annoyance to a particular woman or nuisance to other people.
I am grateful to the noble and learned Lord, Lord Denning, whose support and advice have been invaluable in trying to address the real nature of the offence that is caused by this single act. The noble Lord, Lord Monson, was concerned about "manner" and "circumstances". The kind of thing covered by "manner" might be crude or threatening language, something on those lines. The "circumstances" that might support a charge under this limb might be trailing at night along residential streets frequented by prostitutes for a long time prior to the soliciting. I do not think that he need be concerned about them at all.
We anticipate that this limb of the offence will operate in such a way that, in all but the most exceptional cases, at least one of the victims of kerb crawling will give evidence to support a charge, be it the ordinary woman who is prepared to testify or local residents who will come forward. In general, we see the role of the police as primarly a deterrent. Naturally, once kerb crawling is illegal, a uniformed police presence in the worst-afflicted areas should help enormously to bring much needed relief. But where the police are minded to prosecute, they will be encouraged to obtain the testimony of a non-police witness, perhaps the woman herself, to support the case. I explained earlier the delay mechanism that is proposed in the amendment to Clause 5.
I should like now to turn to Amendments Nos. 8 and 9 of the noble Lord, Lord Monson, to which he spoke. I think, basically, that his concern was answered by the noble and learned Lord, Lord Denning. I know that the noble Lord, Lord Monson, is concerned about the words "nuisance" and "neighbourhood" in my noble friend's amendment and has expressed fears that they might cause the kerb-crawling offence to have too wide an application. I do not share his fears. As regards nuisance, the courts are familiar with that test. They do not lightly judge something to be a nuisance. To require it to be a serious nuisance before action could be taken would greatly, and in my opinion quite unnecessarily, restrict the operation of my noble friend's amendment. Where nuisance was alleged under that amendment, it would still be necessary to prove that the man's acts were done in such a manner or circumstances as to be likely to cause nuisance to persons in the neighbourhood.
As it stands, the prosecution will have to describe the kinds of people who are likely to have been inconvenienced; for example, those needing to use the pavement or people living beside the road where the kerb crawling occurs. To restrict the test to those in the immediate neighbourhood would introduce an element of uncertainty. It could have the result that although nuisance to persons in the neighbourhood could clearly be established—after all, my Lords, we are trying to deal with this nuisance—the defendant would be able to argue that he was guilty of no offence because they were not in the immediate neighbourhood.
§ Lord Monson
My Lords, can the noble Lord give an assurance that if the word "immediate" is not included, then only if people can see the offence or are within earshot of the offence—only if those conditions prevail—will there be any question of prosecution?
§ Lord Glenarthur
My Lords, the noble and learned Lord, Lord Denning, really answered that point when he said that these terms are by no means unusual and that the courts will interpret this with absolute common sense. I do not think that we need to add to the form of words in my noble friend's amendment the words that the noble Lord suggests. The courts will be quite well able to take a commonsense view of "neighbourhood" as it stands. I do not think that I can add to the noble and learned Lord's very sensible earlier remarks.
§ Lord Mishcon
My Lords, with leave, the noble Lord of course appreciates that the only courts that would be dealing with these matters would be magistrates' courts.
§ Lord Glenarthur
My Lords, why should a magistrates' court not be perfectly capable of taking a sensible—
§ Lord Glenarthur
My Lords, the noble Lord makes some noises from across the Floor of the House, but courts are able to take a perfectly serious view of "neighbourhood". We are talking about a commonsense business, and I cannot see that there is the force of argument in it that the noble Lord opposite seems to suggest there is.
§ Lord Monson
My Lords, I am sorry to interrupt the noble Lord again, but he would agree, would he not, that the dictionary definition of a "neighbourhood" includes a region or a district? That is a very large area.
§ Lord Glenarthur
My Lords, I do not have a dictionary in front of me, but I am sure that the dictionary includes that definition. It is a question of interpretation. That is why I said that the court can establish, using commonsense, whether or not the widening of the neighbourhood is too wide in the way that the noble Lord fears it might be.
§ Lord Denning
My Lords, it obviously means the people who would be affected by the nuisance, and they must be in the neighbourhood; they would not be affected otherwise. It really seems to be a matter of surplusage to talk about the immediate neighbourhood.
§ Lord Denham
My Lords, I think that we are almost getting out of order on this. This is a Third Reading stage. Of course it is in order to break into a speech, but there have been so many interruptions in speeches that I think the House would appreciate it if noble Lords could keep their interruptions to a minimum.
§ Lord Glenarthur
My Lords I now turn to the proposed amendment, Amendment No. 15, of the noble Lord. Lord Mishcon. The package proposed is a rather different one. Of course the proposal that he puts forward in this amendment is narrower than what he might have put forward had he put forward Amendment No. 14. However, in his package and in this amendment there is no specific deterrent to the kerb crawler. The phrase,whether from a motor vehicle or not",does not add anything and it does not take anything away. The kerb crawler is seen as any other client of the trade when, in fact, we know that the evidence suggests that it is the trailing of prostitutes and other women who are taken for prostitutes by drivers of cars, which constitutes the real nuisance to the public. If this Bill is not to address kerb crawling per se, we lose something of its very being. I cannot think that such a loss will be well received by those who wish us to deter and control the menace.
The noble Lord, Lord Kilbracken, felt there was an injustice as between motorist and pedestrian. I can certainly understand his difficulty over the distinction between Clauses 1 and 2. It is at the heart of the debate on the issue of persistence. The CLRC and those of us who support the approach of my noble friend Lady Vickers take the view that the principal nuisance of soliciting for prostitution is kerb crawling and so Clause 1 must address the single approach in order to control it.
Clause 2 is the back-up to discourage clients from persistently soliciting on foot as well. But the CLRC did not wish to prohibit absolutely the single discreet approach not involving the use of a motor vehicle. So that is the role of Clause 2 and the difference between that and Clause 1.
I do not think that I can usefully follow the noble Lord, Lord Houghton, into his argument about procedure. He made a very trenchant speech. He holds his views with great force. At this stage I think we shall probably do better to concentrate on the amendments in hand.
The purpose of our amendments—I should say of my noble friend's amendment, which has been supported by the noble Lords, Lord Wigoder and Lord Harris, and others—is to bring together the two strands, which I described at Report stage to produce safeguards to meet Lord Mishcon's concern. That is the purpose which lies behind these amendments. They have been put forward by my noble friend in great seriousness. We believe that they meet the concerns expressed. Other noble Lords too feel that.
In the interests of trying to meet the prime concern which has been expressed by so many about kerb crawling, I hope that the noble Lord, Lord Mishcon, will see the force of the argument and accept my noble friend's amendment.
§ 10.46 p.m.
§ On Question, Whether the said Amendment (No. 1) shall be agreed to?
§ Their Lordships divided.1298
|DIVISION NO. 1|
|Attlee, E.||Long, V.|
|Brabazon of Tara, L.||Lucas of Chilworth, L.|
|Caithness, E.||Mackie of Benshie, L.|
|Cox, B.||Masham of Ilton, B.|
|Denham, L.||Morris, L.|
|Denning, L.||Rankeillour, L.|
|Glenarthur, L.||Simon, V.|
|Greenway, L.||Swinton, E.|
|Hanworth, V.||Vickers, B. [Teller.]|
|Harris of Greenwich, L.||Wigoder, L. [Teller]|
|Houghton of Sowerby, L. [Teller.]||Shackleton, L.|
|Silkin of Dulwich, L.|
|Mishcon, L.||Stoddart of Swindon, L [Teller]|
|Ponsonby of Shulbrede, L.|
§ The Deputy Speaker: My Lords, as it appears that fewer than 30 noble Lords have voted, in accordance with Standing Order No. 55, I declare the Question not decided, and that further proceedings on the Bill stand adjourned.