(1) QSA v (1) Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Lord Justice Holroyde |
| Judgment Date | 02 March 2018 |
| Neutral Citation | [2018] EWHC 407 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/986/2017 |
| Date | 02 March 2018 |
[2018] EWHC 407 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Holroyde AND Mrs Justice Nicola Davies
Case No: CO/986/2017
The Queen on the application of
Karon Monaghan QC & Keina Yoshida (instructed by Birnberg Peirce Ltd) for the Claimants
Kate Gallafent QC & Christopher Knight (instructed by Government Legal Department) for the Defendants
Hearing dates: 17th, 18th January 2018
Judgment Approved
This is the judgment of the court, to which we have both contributed.
The first and third claimants each have the benefit of an order that their names be anonymised in these proceedings. No such order was sought by the second claimant.
Each of the three claimants has been convicted, many years ago, of multiple offences of loitering or soliciting in a street or public place for the purpose of prostitution, contrary to section 1 of the Street Offences Act 1959. Those convictions, notwithstanding the passage of time, remain on their records; and the claimants are required to disclose them, and to obtain verification of their disclosure, if they apply to work or volunteer within particular occupations. They contend that the recording and retention of information concerning their convictions, and the operation of the statutory provisions which require them to disclose those convictions if seeking particular types of employment, are unlawful.
The proceedings are brought against the defendants as the authorities responsible for matters of policy in relation to the criminal law, and for the recording of criminal offences and the operation of the Disclosure and Barring Service (“DBS”).
We record at the outset our gratitude to counsel for their helpful written and oral submissions.
The facts:
The convictions which are primarily relevant for present purposes are those for offences contrary to section 1 of the 1959 Act, to which I shall refer for convenience as “soliciting”. Insofar as any of the claimants has any other criminal convictions, they are for offences which were not particularly serious, and their only relevance is with regard to the operation of the multiple convictions rule (as to which, see below).
The witness statements of the claimants paint a grim picture of the circumstances in which they committed their soliciting offences, of their vulnerability when first required or persuaded by “boyfriends” to prostitute themselves, and of the violence and abuse to which they were subjected at the hands of the men who groomed, trafficked and prostituted them. The first claimant was put to prostitution when she was only 14 years old and subject to a care order, and she was first convicted of soliciting offences at the age of 16. The second claimant was put to prostitution at the age of 15, and was just 17 when convicted for the first time of a soliciting offence. The third claimant was a little older, but still only 18, when groomed into prostitution, and was aged 21 when first convicted of a soliciting offence. The evidence of both the first and the second claimant shows them to have entered into prostitution when they were, in law, too young to consent to any sexual activity. Those who procured them to have sexual intercourse with others, when they were below the age of majority, committed criminal offences contrary to section 23 of the Sexual Offences Act 1956. Thus in those instances, the first and second claimants were themselves victims of crime in relation to the activity which resulted in their own convictions of soliciting offences. Having read their evidence, and the evidence of other witnesses who have similar forlorn histories to relate, I have no difficulty in accepting that all three claimants have, even as adults, been victims in many other ways.
Ms Monaghan QC for the claimants emphasises that each complainant succeeded in removing herself from prostitution many years ago. Again, I have no difficulty in accepting that it is greatly to their credit that they did so, despite the many difficulties they have faced in making their exits. The 50 soliciting offences of which the first claimant has been convicted were committed over a period of 8 years, the last conviction being in 1998. In the second claimant's case, the 49 soliciting offences of which she has been convicted were committed over a period of 3 years, the last conviction being in 1988. In the third claimant's case, the 9 soliciting offences of which she has been convicted were committed over a period of 4 years, the last conviction being in 1992. In relation to each of them, the penalties imposed for the soliciting offences were almost always fines, with conditional orders of discharge being made on a few occasions.
Although the offences were committed long ago, and the penalties imposed were comparatively minor, the convictions of soliciting offences have continuing consequences for each of the claimants. They are not statutorily barred from working with children or vulnerable adults, but the effect of the relevant statutory provisions is that, throughout their lives, the claimants must disclose their convictions if they apply for certain types of employment, or seek to assist as a volunteer in such types of employment, and must obtain a certificate verifying any such disclosure. The claimants contend that it is unlawful to require them to do so, and that the operation of the statutory provisions both exposes them to unfair embarrassment and places them at an unfair handicap in obtaining employment of the kind which they, and many other women in similar positions, are likely to seek. It also acts as a deterrent to their applying for such employment. As will be seen, the adverse consequences of which the claimants complain arise because they have each been convicted of more than one soliciting offence. They contend that it is unremarkable, having regard to the nature of the soliciting offence and to the unhappy and difficult personal circumstances which often apply to those women who enter prostitution, that they should be convicted more than once of soliciting. They submit that in this respect also, the legislative provisions have an unfair effect and are unlawful.
It is accordingly necessary to consider aspects of the statutory provisions relating to the recording of criminal offences and the extent to which a person applying for employment is required to disclose criminal convictions.
The legislative framework:
Section 1 of the Street Offences Act 1959, as amended, provides as follows:
“1 Loitering or soliciting for purposes of prostitution.
(1) It shall be an offence for a person aged 18 or over (whether male or female) persistently to loiter or solicit in a street or public place for the purpose of prostitution.
(2) A person guilty of an offence under this section shall be liable on summary conviction to a fine of an amount not exceeding level 2 on the standard scale, or, for an offence committed after a previous conviction, to a fine of an amount not exceeding level 3 on that scale.
(2A) The court may deal with a person convicted of an offence under this section by making an order requiring the offender to attend three meetings with the person for the time being specified in the order (“the supervisor”) or with such other person as the supervisor may direct.
(2B) The purpose of an order under subsection (2A) is to assist the offender, through attendance at those meetings, to—
(a) address the causes of the conduct constituting the offence, and
(b) find ways to cease engaging in such conduct in the future.
(2C) Where the court is dealing with an offender who is already subject to an order under subsection (2A), the court may not make a further order under that subsection unless it first revokes the existing order.
(2D) If the court makes an order under subsection (2A) it may not impose any other penalty in respect of the offence.
(3) … …
(4) For the purposes of this section
(a) conduct is persistent if it takes place on two or more occasions in any period of three months;
(b) any reference to a person loitering or soliciting for the purposes of prostitution is a reference to a person loitering or soliciting for the purposes of offering services as a prostitute;
(c) “street” includes any bridge, road, lane, footway, subway, square, court, alley or passage, whether a thoroughfare or not, which is for the time being open to the public; and the doorways and entrances of premises abutting on a street (as hereinbefore defined), and any ground adjoining and open to a street, shall be treated as forming part of the street.”
It should be noted that, at present, level 2 on the standard scale is a fine not exceeding £500, and level 3 is a fine not exceeding £1,000; see section 37 of Criminal Justice Act 1982.
Thus in its present form, the offence of soliciting contrary to section 1 of the 1959 Act can be committed by either a man or woman. The position was however different in this regard at the time when the claimants were convicted of their offences. As originally enacted, the section – in material part – provided as follows:
“1 Loitering or soliciting for purposes of prostitution.
(1) It shall be an offence for a common prostitute to loiter or solicit in a street or public place 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 ten pounds or, for an offence committed after a previous conviction, to a fine not exceeding twenty-five pounds or, for an offence committed after more than one previous conviction, to a fine not exceeding twenty-five pounds or...
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