R (1) QSA v (1) Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Lady Justice King,Lord Justice Bean |
| Judgment Date | 10 February 2020 |
| Neutral Citation | [2020] EWCA Civ 130 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: C1/2018/0783/QBACF |
| Date | 10 February 2020 |
[2020] EWCA Civ 130
Lord Justice Bean
Lady Justice King
and
Lord Justice Hickinbottom
Case No: C1/2018/0783/QBACF
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE DIVISIONAL COURT
LORD JUSTICE HOLROYDE & MRS JUSTICE NICOLA DAVIES
2017/0783 & 0787
Royal Courts of Justice
Strand, London, WC2A 2LL
Karon Monaghan QC and Keina Yoshida (instructed by Birnberg Peirce) for the Claimants
Kate Gallafent QC and Christopher Knight (instructed by Government Legal Department) for the Respondents
Hearing date: 21 January 2020
Approved Judgment
Each of the three Claimants was convicted in the 1980s or 1990s 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 (“SOA 1959 s 1”). Those convictions, notwithstanding the passage of time, remain on their records. They contend on this appeal from the Divisional Court (Holroyde LJ and Nicola Davies J: [2018] EWHC 407 (Admin)) that the criminalisation of their actions and the recording and retention of information concerning their convictions all contravene their rights under the ECHR.
Each Claimant succeeded in removing herself from prostitution many years ago. The 50 soliciting offences of which the first claimant has been convicted were committed over a period of eight 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 three 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 four 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 discharges being ordered on a few occasions.
Although the offences were committed long ago, and the penalties imposed were comparatively minor, the convictions for 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 prior to this litigation, they had to disclose their convictions if they applied for certain types of employment, and were required to obtain a certificate verifying any such disclosure.
The principal issue before the Divisional Court was the Claimants' challenge to what was described as the multiple convictions rule, namely the requirement of a series of statutory provisions that when applying for certain jobs anyone with more than one spent conviction has to disclose them. The Claimants succeeded in the Divisional Court on that issue. The Secretaries of State obtained permission to appeal from that decision but their prospective appeal was undermined by the judgment of the Supreme Court handed down on 30 January 2019 in the cases of R (P) v Secretary of State for Justice and another, reported at [2019] 2 WLR 509, holding that the multiple convictions rule was not a proportionate way of meeting its objective of disclosing to potential employers criminal records indicating a propensity to re-offend. The Defendants' appeal in the present case was accordingly withdrawn and dismissed by consent.
That left the Claimants' application for permission to appeal against their other grounds for seeking judicial review which had been rejected by the Divisional Court. Only two remain in issue now. These are:—
a) that the criminalising of conduct falling within the scope of SOA 1959 s 1 violates Article 8 read with Article 14 of the ECHR because it is gender discriminatory;
b) the recording and/or retention of data concerning convictions under SOA 159 s 1 violates Article 4 and/or Article 8 and/or Article 14 read with Article 8 of the ECHR and is accordingly unlawful.
Permission to appeal on these two issues was refused by the Divisional Court but granted in this court by Rafferty and King LJJ following an oral hearing on 11 June 2019.
The legislation
In its present form, the offence of soliciting contrary to SOA 1959 s 1 can be committed by either a man or woman. The position was different at the time when the Claimants were convicted of their offences. As originally enacted, the section read:
“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 imprisonment for a period not exceeding three months or both.”
Case law established that this was an offence which could only be committed by a woman: R v De Munck [1918] 1 KB 635. There was already by 1959 a similar offence which could only be committed by a man. Section 32 of the Sexual Offences Act 1956 provided —
“ Solicitation
32. It is an offence for a man persistently to solicit or importune in a public place for immoral purposes.”
The object of the solicitation under this provision could be a man or a woman: R v Goddard (1990) 92 Cr.App.R 185, although most of those prosecuted under s 32 of the 1956 Act were gay men. The offence remained in force until repealed by the Sexual Offences Act 2003.
SOA 1959 s 1 has been amended on a number of occasions. The possibility of imprisonment for a second or subsequent offence was removed in 1983, although a higher maximum fine for repeat offenders remained. The 2003 Act made the offence applicable to male as well as female defendants. By amendments contained in the Policing and Crims Act 2009 s 16 the word “persistently” was inserted into s 1 (1), defined as set out in s 1 (4), and the term “common prostitute” was removed from the section.
At the same time the court was given the power to impose, in lieu of any other penalty, an order requiring attendance at up to three meetings with a supervisor. The Serious Crime Act 2015 s 68 limited the scope of the offence to defendants aged 18 or over.
In its present form SOA 1959 s 1 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…….
Although the offence of soliciting contrary to SOA 1959 s 1 can now be committed by either a man or a woman, it is undisputed that 98–99% of defendants charged with it, and convicted of it, are women.
It is not only the wording of the offence which has changed since the period of the Claimants' convictions. The number of defendants prosecuted under SOA 1959 s 1 has very substantially reduced. In 2006 the Government published a “co-ordinated prostitution strategy” which set out measures to be taken to achieve the aims of (1) challenging the view that street prostitution was here to stay; (2) achieving an overall reduction in street prostitution; (3) improving the safety and quality of life of communities affected by prostitution; and (4) reducing all forms of commercial sexual exploitation. In 2008 the Government published a review entitled “Tackling the Demand for Prostitution” which focused on buyers of sex.
The evidence before the Divisional Court and this court includes a witness statement dated 2 November 2017 from William Jones, the Home Office lead official for sexual violence and victims of child sexual abuse. He noted that the 2006 strategy document and the 2008 review “emphasised the need to tackle prostitution as a crime and as a considerable public nuisance, as well as a source of associated crime and disorder. They also recognised the vulnerability of many prostitutes and the difficulties they have in exiting prostitution and [sought] to develop policies to assist. In addition, they recognised that some prostitutes will have been victims of trafficking.”
Mr Jones described the amendments to the legislation made by the Policing and Crime Act 2009. The 2009 Act also...
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