Wednesday, 19 November 2008

Much ado about hanky-panky

I can understand why those who work as pimps should be targeted by the law. Some of them are pretty harmless and give their girls a bit of protection in case a punter gets threatening or refuses to pay, but many extort a large percentage of the girls' earnings under threat of violence. Making it illegal to traffic people for prostitution is also a nasty business, often involving coercion of girls into a trade they had no intention or desire to engage in. Quite rightly both activities are unlawful already. Today our hapless Home Secretary announced plans to make it illegal to use the services of a prostitute if she is operated by a pimp or has been trafficked into the UK for the purpose of prostitution. To make matters worse, the offence is committed whether or not the punter knows of the pimp or the trafficking. It is a most bizarre proposal. To make it all the more bizarre, the maximum penalty will be a fine of £1,000 thereby putting it on a par with other serious crimes such as failing to pay the television tax and smoking in a pub.

What intrigues me is how the offence can be proved. At the moment paying for consensual sexual services is not illegal, if the proposed new law is brought in that will still be the case but there will be an exception where the prostitute is managed by a pimp or has been trafficked. On the face of it, therefore, it will be necessary for the prosecution to prove three things: (i) that sexual services were provided, (ii) that money changed hands or was due to change hands in return for those services and (iii) the provider of those services has a pimp or has been trafficked. In theory the law could be framed so as to presume that every person selling sex falls into the special categories, in which case only points (i) and (ii) will have to be proved and the defence will then have to disprove the third point, but that is unlikely to survive a challenge under the Human Rights Act because it imposes an impossible burden of proof on a defendant.

Undoubtedly a small number of cases will be easy for the prosecution because the girl will give evidence herself about how she operated, although I wouldn't put any money on an appreciable number of pimped girls doing this. The very nature of most pimps is severely discouraging towards anyone attempting to ruin their business. Furthermore, many of the girls need the money even if they don't like the way their pimp treats them and will prefer to keep earning a living rather than give evidence against a punter they don't know and will probably never see again and thereby run the risk of exposing their pimp who, in turn, will expose them to a right good smacking.

Perhaps the most obvious situation in which the proposed new law will be used is when a brothel is raided and a number of illegal immigrants are found in close proximity to pale and sweaty middle managers in a state of undress save for a small intimate rubber item. It might well be possible to persuade a court to infer that the girls have been trafficked if no other explanation for their presence in the country is forthcoming, but I doubt that it will be as easy as the Home Secretary might wish.

The biggest problem the prosecution will have if it seeks to rely on inference rather than direct proof is that the offence is one to which ignorance of the true facts is no defence. In other words, the punter only commits an offence if the girl was pimped or trafficked and then he cannot excuse himself by saying he did not know she was pimped or trafficked. Since the evil being legislated against is the pimping or trafficking and the punter would be innocent of any crime if the girl is not pimped or trafficked, establishing this element of the offence is particularly important. It is all the more important where the defendant will be condemned even where he has no knowledge and no means of establishing whether the girl is pimped or trafficked. For the prosecution to say "it is no excuse that he does not know" is not very appealing when the case they present shows they do not know either.

On another practical note there must be doubt whether the police would be prepared to devote substantial resources to investigating the background of a prostitute where only her punter is charged and the maximum penalty is a £1,000 fine. It would be rather different where an alleged pimp or trafficker is in the dock, but to target resources at a middle aged saddo just to keep Jacqui Smith and simple Harriet happy does not seem at all sensible.

To secure a conviction for a criminal offence usually requires proof both that the accused person did something and that he had a particular state of mind when he did it. To be guilty of theft you must have the intention to deprive someone of property permanently, to be guilty of murder you must have the intention to cause serious harm, to be guilty of handling stolen goods you must know or believe them to be stolen, and so the list goes on. Merely doing something without having a guilty mind is not usually enough. There are exceptions, many exceptions, but I cannot think of one in which the thing which makes conduct illegal is outside the control of the defendant. For example, driving in excess of the speed limit or with more than the permitted level of alcohol in your system both involve criminalising something entirely within the control of the defendant even if he had no intention to speed or to be over the limit. Before killing an animal of a protected species someone can find out whether the object of his brutal desire is indeed of a protected species. I might be wrong (it is many years since I practised in the criminal courts except on planning and regulatory matters) but I cannot think of any example of the law criminalising conduct because of a state of background facts which the defendant neither knows nor has any reasonable prospect of being able to discover.

A very obvious situation comes to mind which illustrates just how bizarre this proposal is. Assume two pasty middle managers visit Madame Fifi's Sauna and Hanky-Panky Parlour. Two girls are available, one middle manager goes to Room 1 with Chantelle the other takes Tatiana to Room 2. In burst the police and both men are arrested. It turns out that Chantelle is an illegal immigrant from Russia and was forced into prostitution after being smuggled to the UK by the Russian Mafia. Tatiana is actually Joyce Stubbins from Canvey Island and works two days a week to save for a new caravan. Each man has done exactly the same thing. Neither of them has any means of knowing the background of the girl who was to be the temporary object of his fleshy lusts. Yet one is guilty and the other is not. It really is a complete nonsense, an absolute lottery, arbitrary and ill thought out law at its very worst.

And what will it achieve? How many more pimps and traffickers will be identified and prosecuted as a result? Of course there is no need even to waste time asking that question because the answer is a big fat zero. If the desire is to stop men using prostitutes for fear of losing out in the lottery draw it might have some effect, but it will only do so at the expense of imposing a ridiculous, unfair and random law.

Making the criminal law used to be a serious business involving careful consideration of the consequences the proposed law might be expected to have. These days we have Jacqui Smith and simple Harriet thrusting the contents of their combined half-brain on the populace without regard to anything other than the desire to prove just how very shallow they are.


Ian_QT said...

Another excellent post. I can't help but feel that if only you had called your blog something, anything else then you'd be attracting a lot more attention.

TheFatBigot said...

It's funny you should mention that Mr QT, I was thinking the same recently. I chose the name because I had a vision of myself as a plumper version of Mr Kitchen, lots of swearing and deep indignation. When starting to write I realised I just can't do that, it's simply not my style.

But there it is, I am the FatBigot and the FatBigot I suppose I must remain.

Mark Wadsworth said...