An Open Letter to Theresa May

Dear Theresa,

Congratulations upon your appointment as Home Secretary. I wish you well as you become the latest of several holders of your office struggling to render the Home Office fit for purpose.

You will already have reason to be more aware than most of the 3,600+ new criminal offences in 66 criminal justice bills that have poured forth from the Department since 1997 in a bout of what your surprise new colleague Chris Huhne once famously described as “legislative diarrhoea.” I might suggest that merely doing nothing for the time being in terms of criminal legislation would be a giant leap forward – in that I’m informed the courts (as well as the rest of us) have great difficulty keeping up – but I do realise this is unlikely to be practical.

We are all aware that the Home Secretary has a notoriously wide brief, in your case even wider with the added responsibilities of Minister for Women and Equality.

This Anthology of English Pros blog is dedicated to serious discussion of the social phenomenon of prostitution, which I’m sure many from all sides will agree is a particularly sensitive and difficult one for legislators, very well illustrated by Katherine Raymond – former adviser to David Blunkett – in her piece some years ago in the Observer. In such a minefield, I will forego – at least for the present – demands that you tilt this way or that, and I am aware that you yourself have addressed the subject in the past, notably by giving the Robert Dolling lecture in Portsmouth two years ago.

However, I would make a number of observations.

Firstly, the UK is blessed with a large number of academics who have devoted much time and resources to studying this phenomenon. They include sociologists, criminologists, psychologists, philosophers, social geographers and historians. Among them, however, there is much disillusionment with the Home Office, which appears at times far more interested in scrambling about in a search for policy-based evidence than in formulating intelligent evidence-based policy.

The Home Office would benefit much by requiring academic studies either commissioned or cited by it to be peer reviewed, have a sound methodology, and to have complied with the ethical requirements of the recognised institutions. The Department of Health’s practice in these respects may be helpful.

The current practice is both amateurish and counter-productive. For example, I defy anyone who has succeeded in sailing through the sea of caveats interred in Chapter 3 of Organised crime: revenues, economic and social costs, and assets available for seizure, (which culminates in the infamous estimate of 4,000 sex trafficking victims in the UK at any one time in 2003), to ever have faith in any Home Office statistic again.

Such efforts have not only brought the Home Office in particular and the work of Government statisticians in general into disrepute, but have also been used to justify the deployment of crucial resources – in this case no less than all the UK’s 55 police forces – on the great wild goose chase that was Pentameter 2, which culminated in the convictions of precisely no human traffickers whatsoever as internationally defined.

I am sure you will agree that the efforts to reduce the fiscal deficit will make the intelligent targeting of resources even more critical in the period upon which we now embark, and that you will be anxious to ensure that such expenditures are not again incurred without appropriate justification based on sound evidence.

In many persons’ view, our present law – not only statute but also common and civil law – considerably increases the dangers to which those involved in sex work are exposed, and with little clear benefit. I turn now to a number of legal cases which have given cause for concern, and which illustrate some of the stresses and strains in the present situation.

The environment in which sex workers are safest – indoors and in numbers – has been specifically prohibited by brothel law since 1885, though the recent case of Claire Finch suggests that juries are now at last recognising the dangers of sex workers working in isolation and are refusing to convict gratuitous prosecutions, despite the legislation, thus denying your Department, the police and the CPS their shares of the booty through the Proceeds of Crime Act. Truly, the descent of these institutions into the role of privateers is lamentable.

Only last week, a judge in Leeds described the PCA as “draconian” in giving two women community sentences in a gratuitous prosecution for keeping a brothel which had caused no complaint whatsoever and which might, he said, be a model of how brothels should be run in the unlikely event of sanity prevailing.

By contrast in another case, Yuzhen Li, an undocumented migrant and 56-year-old mother of two, whose only financial gain had been the cash for a haircut, was jailed for eight months for assisting in the management of a brothel when a reading of the case suggests she was very possibly a trafficking victim herself. She will no doubt have been pleased to get back to China for improved human rights.

Meanwhile, the continued and intensified criminalisation of brothels results in them becoming a target of thugs on the understandable assumption that those involved will be reluctant to approach the police. Consequently, UK studies reveal that although sex worker assaults in the indoor market are far less common than in the streets, there is a much lower percentage of such assaults reported.

Exceptions may be found in the case last week at Isleworth Crown Court in which “the court heard [four burglars] targeted the brothel because they thought prostitutes were less likely to report a break-in to police.” Once inside, two sex workers were raped at knifepoint and cash and mobile phones stolen.

Similar horrors provoked by the current policy can be found in my post “Who dials 999 in a brothel?” but of course many such cases are unlikely to see the light of day, given up to seven years imprisonment for those involved in running such places, together with seizure of all proceeds under the PCA and now the possible closure of the premises for three months. The resulting situation is ripe for the development of protection rackets.

Whilst sex workers as solo operators may legally employ a non-sex worker – if they can afford it – such persons are highly vulnerable to charges of controlling for gain or other offences, typified in the case of the Wolverhampton Wanderers. 

Criminal justice interventions in the street scene have also been counterproductive. In both the indoor and outdoor markets, the possession of condoms are frequently used in evidence, further jeopardising safety in the community, whilst on the streets anti-prostitution drives – whether against the sex workers themselves or their clients – have caused displacement of the sex workers, often to locations unknown to them, and sometimes with tragic results, as in the case of Amanda Walker.

A Canadian study has recently been amongst the first to record and measure these increased risks of both physical and sexual violence to sex workers arising from criminal justice intervention. Much can also be learnt from the work of Dr Tracy Sagar at Swansea.

I am very supportive of much that you were reported as saying in the Robert Dolling lecture concerning survival sex work. Whilst many of your proposals seem to require long-term approaches, the better resourcing and development of drug rehabilitation intervention would seem essential in the short term. However, the bulk of sex work is in the indoor market and in many cases cannot in all consciousness be categorised as survival work.

Indeed, as you define the issue as in part arising from an aspirational problem of those involved, this begs the question of to what they aspire. If they aspire, for example, to own a Mediterranean yacht, in reality many might be more likely to achieve it through sex work than through the other occupations which might reasonably be available to them.

For what purpose should society intervene in sex work? Given that no significant nuisance to others is created – to deal with which laws already exist – it seems to me that intervention is only required

• to prevent the involvement of minors and others incapable of exercising choice

• to deal with violence and to minimise the risk of violence

• to minimise the risk of transmission of infection, and

• to prevent and deal with coercion

In closing, I wish you well in your new office, and look forward to your new Freedom or “Great Repeal Bill”, which will no doubt be hot off the presses in the near future. I hope that some consideration might be given to repealing the absurd ‘Trafficking’ sections of the 2003 Sexual Offences Act and replacing them with the agreed Palermo Protocol definition of trafficking to prevent further silly prosecutions of persons giving a sex worker a lift, such as that which happened to Mr Moat last week, resulting in him being given a conditional discharge for an offence meant to merit 14 years imprisonment.

Yours sincerely and with best wishes,

Stephen Paterson