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Regulated businesses

Prostitution and sex establishments

Contents:


Introduction
England and Wales
  Prostitution
  Regulation of sex establishments
Northern Ireland
  Prostitution
  Regulation of sex establishments
Scotland
  Prostitution
  Regulation of sex establishments

Introduction

Prostitution as such is not illegal in the United Kingdom jurisdictions, nor is it an offence to be a customer of a prostitute. However, soliciting in relation to prostitution, inciting, managing the activities of  or earning from prostitution, as well as allowing or using premises for such purposes, is in general a criminal offence.

There is separate legislation for England and Wales, Northern Ireland and Scotland.

England and Wales

Prostitution

Prostitution as such is not illegal in England and Wales, nor is it an offence to be a customer of a prostitute [R v Morris-Lowe]. However, since 2010 it has been an offence to pay or promise to pay for the sexual services of a prostitute who has been coerced or deceived [Sexual Offences Act 2003 as amended]. There are various offences relating to prostitution of a minor, soliciting for prostitution, permitting premises to be used for prostitution, keeping a brothel and advertising sexual services.

Prostitution of a minor: it is an offence if a person intentionally obtains for himself the sexual services of another person and before obtaining those services, he has made or promised payment for those services to that person or a third person, or knows that another person has made or promised such a payment; and either that person is under 18, and the accused does not reasonably believe that person is 18 or over, or that person is under 13. There are also offences committed in relation to a child (using the same age tests as before) where a person causes or incites the child to become a prostitute, or to be involved in pornography, controls any of the activities of the child relating to its prostitution or involvement in pornography, or arranges or facilitates the prostitution or involvement in pornography of the child, in any part of the world [Sexual Offences Act 2003 ss.47-50].

Soliciting: it is an offence for a person (whether male or female) persistently to loiter or solicit in a street or public place for the purpose of prostitution. A person guilty of such an offence is liable on summary conviction to a fine not exceeding level 2 on the standard scale or, for an offence committed after a previous conviction, to a fine not exceeding level 3 on the standard scale. Alternatively, the court may deal with a person convicted of such an offence by making an order requiring his or her attendance at meetings. ‘Persistent’: conduct is 'persistent' if it takes place on two or more occasions in any period of three months. A 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. [Street Offences Act 1959 s.1].


Soliciting by a prostitute: involves the physical presence of the prostitute and conduct on his or her part amounting to an importuning of prospective customers. A prostitute who displays an advertisement in a street or public place that he or she is available as a prostitute does not 'solicit' [Weisz v Monahan [1962] 1 All ER 664, [1962] 1 WLR 262, DC]. A female prostitute sitting scantily clad at a window bathed in red light and in an area where prostitutes were sought was held to be 'soliciting' in the sense of tempting or alluring prospective customers to come in for prostitution and projecting her solicitation to passers by [Behrendt v Burridge [1976] 3 All ER 285, [1977] 1 WLR 29, DC].

Soliciting services of a prostitute: it is an offence for a person in a street or public place to solicit another for the purpose of obtaining his or her sexual services as a prostitute. A person guilty of such an offence is liable on summary conviction to a fine not exceeding level 3 on the standard scale. [Sexual Offences Act 2003 s.51A(1)].

Trafficking: there are various offences relating to trafficking for purposes of sexual exploitation, mainly in relation to children, under the Sexual Offences Act 2003.

Controlling or inciting prostitution

Inciting prostitution: a person commits an offence if he intentionally causes or incites another person to become a prostitute in any part of the world; or controls any of the activities of another person relating to that person's prostitution in any part of the world, and he does so for or in the expectation of gain. A person guilty of one of these offences is liable on conviction on indictment to imprisonment for a term not exceeding seven years, or on summary conviction to imprisonment for a term not exceeding six months, to a fine not exceeding the statutory maximum, or to both. [Sexual Offences Act 2003 ss.52/53]

Brothels, escort agencies, massage parlours etc.

Keeping a brothel: it is an offence for a person to keep a brothel or to manage, or act or assist in the management of a brothel. The offence is triable summarily. A person guilty of such an offence is liable on a first conviction to imprisonment for a term not exceeding three months, or to a fine not exceeding level 3 on the standard scale, or to both.; or after a previous conviction to imprisonment for a term not exceeding six month, to a fine not exceeding level 4 on the standard scale, or to both [Sexual Offences Act 1956 s.33/37].

It is an offence for a person to keep, or to manage, or act or assist in the management of, a brothel to which people resort for practices involving prostitution (whether or not also for other practices) [emphasis added]. ‘Prostitution’ occurs if a person (A) on at least one occasion (whether or not compelled to do so) offers or provides sexual services to another person in return for payment or a promise of payment. A person guilty of such an offence is liable on conviction on indictment to a term of imprisonment not exceeding seven years, or on summary conviction to a term of imprisonment for a term not exceeding six months, to a fine not exceeding the statutory maximum, or to both. [Sexual Offences Act 21956 ss.33A/37].

Comment: it will be noted that the second offence carries a much heavier penalty. It seems that the difference between the two above offences arises because the definition of a brothel in English law does not require that the premises are used for the purposes of prostitution, since a brothel exists wherever more than one person offers sexual contact, whether for payment or not.

Brothel: whether the premises constitute a brothel is a question of fact and degree [Stevens and Stevens v Christy (1987) 151 JP 366, DC]. A brothel is a place resorted to by persons of opposite sexes where the women offer themselves as participants in physical acts of indecency for sexual gratification of men. Premises frequented by men for intercourse with only one woman are not a brothel [See: Singleton v Ellison [1895] 1 QB 607; Mattison v Johnson (1916) 85 LJKB 741]. Where premises are used by more than one prostitute for her trade, the question of whether the premises or part of the premises are or is a brothel is a question of fact in each case to be deduced from the circumstances as a whole. The mere fact that individual rooms were let under separate tenancies for exclusive occupation by one woman does not of itself preclude the whole or part of a house from being a brothel [Donovan v Gavin [1965] 2 QB 648, [1965] 2 All ER 611, DC] On the other hand, a three-storey house with two floors and one floor let separately to prostitutes was held not to be a brothel [Strath v Foxon [1956] 1 QB 67, 39 Cr App Rep 162, DC].

Permitting premises to be used for prostitution

Landlord: it is an offence for the lessor or landlord of any premises or his agent to let the whole or part of the premises with the knowledge that it is to be used, in whole or in part, as a brothel, or, where the whole or part of the premises is used as a brothel, to be wilfully a party to that use continuing.

Tenant or occupier: it is an offence for the tenant or occupier, or person in charge, of any premises knowingly to permit the whole or part of the premises to be used as a brothel. It is also an offence for the tenant or occupier of any premises knowingly to permit the whole or part of the premises to be used for the purposes of habitual prostitution (whether any prostitute involved is male or female).

‘Prostitution' is not defined in the legislation. However, at common law ‘prostitution' is not confined to cases where a person offers his or her body for ‘lewdness’ in a passive way but includes cases where a person offers his or her body as a participant in physical acts of indecency for the sexual gratification of men [R v Webb [1964] 1 QB 357, [1963] 3 All ER 177, CCA].

Penalties: the penalty for the offences relating to premises is generally up to three months imprisonment, or a fine up to level 3 on the standard scale, or both. If the offender has previously been convicted of the same offence, the penalty is up to six months imprisonment or a fine up to level 4 or both. [Sexual Offences Act 1956 ss.33-37].

Placing of advertisement relating to prostitution

Advertising sexual services: a person commits an offence if he places on, or in the immediate vicinity of, a public telephone an advertisement relating to prostitution, and he does so with the intention that the advertisement should come to the attention of any other person or persons. A person guilty of such an offence is liable on summary conviction to imprisonment for a term not exceeding six months, to a fine not exceeding level 5 on the standard scale, or to both. [Criminal Justice and Police Act 2001 s.46(1)(a)].

Comment: advertising sexual services, whether in print or online, is not illegal, unless it amounts to an obscene publication. However the placing of cards and other advertisements relating to prostitution adjacent to public telephones is illegal.

Massage parlours, saunas etc: persons letting or managing such establishments may or may not commit any of the above offences relating to prostitution or keeping a brothel depending on the acts taking place.

Escort agency: running an escort agency may be illegal in that it will likely amount to controlling, causing or inciting prostitution for gain [see e.g. R v Moir [2007] EWCA Crim 3317: the accused was convicted of three counts of keeping a brothel, one of inciting prostitution and three of controlling prostitutes for gain; ping a brothel, one of inciting prostitution and three of controlling prostitutes for gain. She ran an escort agency from her home and had other addresses that were available to use].


This will not apply if the agency genuinely provides social rather than sexual services. Use of disclaimers such as "Any fees paid to our escorts are for time and companionship only and anything else that may occur is a matter of personal choice between two consenting adults only" are unlikely to be effective if they are inconsistent with the reality of the activities being arranged..

Enforcement

Criminal enforcement: whether the police will actually investigate or the Crown Prosecution will initiate criminal proceedings in any particular case will depend on local priorities, complaints and other factors. See the CPS guidance to prosecutors.

Regulation of sex establishments

A local authority may take powers to require ‘sex establishments’ to have a licence. The authority may adopt a policy which limits the number of sex establishments in its locality and to impose certain requirements as to the premises used. In 2007, lap dancing clubs were reclassified as sexual entertainment venues (SEV) in order to give local authorities in England and Wales the power to regulate such venues as sex establishment.
[Local Government (Miscellaneous Provisions) Act 1982 s2 & Sched.3, as amended by s2, Policing and Crime Act 2009 s.27].

Case law has established that the local authority’s reasons for a decision must be intelligible, adequate and enable the reader to understand why the matter was decided as it was and what conclusions were reached on the principal important controversial issues, disclosing how any issue of law or fact was resolved. A reasons challenge will only succeed if the party aggrieved can satisfy the court that he has genuinely been substantially prejudiced by the failure to provide an adequately reasoned decision. In the case of annual renewal of licences, the local authority is entitled to have a fresh look at the matter. If there has been no change in circumstances since an earlier decision and the Council wishes to depart from an earlier decision, it must give its reasons for so doing. See e.g. R (on the application of Bean Leisure Trading A Ltd) v Leeds City Council [2014] EWHC 878 (Admin)

Meaning of ‘sex establishment’

A ‘sex establishment’ means:

* a ‘sexual entertainment venue’ i.e. any premises at which relevant entertainment is provided before a live audience for the financial gain of the organiser or the entertainer; ‘relevant entertainment is any live performance; or any live display of nudity which is of such a nature that, ignoring financial gain, it must reasonably be assumed to be provided solely or principally for the purpose of sexually stimulating any member of the audience (whether by verbal or other means); excluded are sex shops and sex cinemas (see below) and premises where less than 12 occasions lasting not more than 24 hours each have been provided in any 12 month period; ‘nudity’ has a special definition and ‘audience’ may include one person;

* a ‘sex cinema’ i.e. any premises, vehicle, vessel or stall used to a significant degree for the exhibition of moving pictures are concerned primarily with the portrayal of, or primarily deal with or relate to, or are intended to stimulate or encourage sexual activity; or acts of force or restraint which are associated with sexual activity; or are concerned primarily with the portrayal of, or primarily deal with or relate to, genital organs or urinary or excretory functions; excluded is a dwelling-house to which the public is not admitted, and certain films licensed under the Licensing Act 2003;

* a ‘hostess bar’ i.e. any premises used for a business which consists wholly or partly of the offering, expressly or by implication, whether on payment of a fee or not, of the provision of companions for customers on the premises; or any premises in respect of which any impression, by whatever means, is given to customers, or potential customers, that:
- a performance, entertainment, service, exhibition or other experience of a sexual nature is available on the  premises; or
- alcoholic refreshments are available on the premises despite the premises not being licensed under the 2003 Act;

* a ‘sex shop’ i.e. any premises, vehicle, vessel or stall used for a business which consists to a significant degree of selling, hiring, exchanging, lending, displaying or demonstrating sex articles or other things intended for use in  sexual activity or acts of force or restraint which are associated with sexual activity.

Licences for sex establishments

A person over 18 may apply to the local authority for a licence. The authority may impose terms and conditions for a licence and subject to such restrictions as may be so specified. A licence remains in force for one year or for such shorter period as is specified in the licence.

Application fee: a local authority may charge an applicant for a licence a 'reasonable fee' [ Local Government (Miscellaneous Provisions) Act 1982 sched.3 para.19]. The lawfulness of the fee charged by the City of Westminster was challenged in the case of R (on the application of Hemming (t/a Simply Pleasure Ltd) and others) (Respondents) v Westminster City Council (Appellant) [2015] UKSC 25 (see below).

Tacit consent: it appears that most authorities consider that tacit consent does not apply though some do. There is a right of appeal against a refusal to grant a licence, imposition of conditions or revocation of a licence to the magistrates court.

What’s new item on this topic [see What’s new page or archive for full item]:

29/04/2015: Westminster Council partially successful in sex establishment licence fee appeal

R (on the application of Hemming (t/a Simply Pleasure Ltd) and others) (Respondents) v Westminster City Council (Appellant) [2015] UKSC 25.

29/04/2014: Leeds lap dancing clubs lose appeal
R (on the application of Bean Leisure Trading A Ltd) v Leeds City Council
[2014] EWHC 878 (Admin) Hearing Date: 25 March 2014


Two companies operating lap-dancing clubs were refused renewal of their Sexual Entertainment Venue licence by Leeds City Council. The council had reviewed its 2011 policy regarding the grant of licences to sex establishments; there was a quota of four licences potentially available. The two claimant companies issued proceedings in the Administrative Court (part of the High Court) seeking judicial review of the council's decision.


The judge each case gave the required permission to bring the proceedings but concluded that the challenges failed. The council was entitled to reach the conclusions it did, which were in accordance with its published policy. Its decisions were rational and proportionate.

Enforcement

Criminal enforcement: a person who contravenes the requirement to have a licence for a sex establishment, or breaches a licence condition, is guilty of an offence and liable on summary conviction to a fine not exceeding £20,000.

A sex establishment licence holder who without reasonable excuse knowingly permits a person under 18 years of age to enter the establishment; or employs a person known to him to be under 18 years of age in the business of the establishment, is guilty of an offence and liable on summary conviction to a fine not exceeding £20,000.


Comment: to establish a 'reasonable excuse' will probably require the same precautions as to adoption and compliance with an age verification policy as applies in the case of sale of alcohol.

 

Northern Ireland

Prostitution

Prostitution is not generally illegal in Northern Ireland. Legislation relating to prostitution is contained in the Sexual Offences (Northern Ireland) Order 2008 2008 No. 1769 (N.I. 2) which contains offences similar to those described above in relation to England and Wales.


Sex establishments

A local authority may resolve to take powers to require a licence to use any premises as a sex shop or sex cinema (Local Government (Miscellaneous Provisions) (Northern Ireland) Order 1985 SI 1985/1208).

For further information, visit nibusinessinfo

Scotland

Prostitution

Prostitution is not generally illegal in Scotland. Legislation relating to offences of soliciting are contained in the Civic Government (Scotland) Act 1982 s.46. The offence of soliciting the services of a prostitute was introduced by the Prostitution (Public Places) (Scotland) Act 2007 s.1. Offences relating to living on prostitution earnings and managing prostitutes or premises for such purpose are contained in the Criminal Law (Consolidation) (Scotland) Act 1995 Part 1.

Sex shops

A local authority may resolve to take powers to require a licence to use any premises as a sex shop (Civic Government (Scotland) Act 1982 s.45).

For further information, visit Scottish Business Gateway

News item:

24/06/2013: Scottish government consults on regulation of sexual entertainment venues
The Scottish Government considers that it is appropriate that sexual entertainment venues should be licensed in order that both performers and customers benefit from a safe, regulated environment. It believes that the licensing of these venues would limit the risk of criminality, such as prostitution and human trafficking. Sexual entertainment covers a range of different legal activity, including lap dancing, strip shows, peep shows and live sex shows. It includes entertainment provided by both male and female performers. Sexual entertainment licensing would not cover or authorise currently illegal activity, such as brothel keeping or trading in prostitution.

[Page updated: 02/06/2015]

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