Early next year the High Court will consider a ground breaking legal challenge brought by several women challenging the criminalisation and continued punishment of prostituted women. If successful, it will bring to an end a shameful practice in modern day Britain, where those who are victims of abuse and exploitation continue to be labelled and punished for something that was in a large part done to them.
The claim, brought by three women and supported in evidence by several others, will argue for the first time that the Government legislative scheme in respect of the recording, retention and disclosure of criminal convictions arising from street prostitution is unlawful. It will be argued, amongst other things, that scheme discriminates against women and is contrary to the UK’s legal obligations in respect of the trafficking of women.
"I met a pimp aged 15 and two weeks later I was thrown into the violent and abusive world of prostitution. Rape became an occupational hazard but I was arrested, charged and criminalised for loitering for the purposes of being a common prostitute. After more than twenty years out of prostitution, I am still having to explain my criminal record to any prospective employer. It feels like explaining my history of abuse" Fiona Broadfoot, Claimant.
The women bringing the claim were all pimped into prostitution when teenagers. All suffered serious violence and abuse on the streets and all struggled after years of such abuse to exit prostitution. The way in which street prostitution has been historically policed means that these women almost invariably have multiple convictions for soliciting. Now, many years after their convictions are spent, each time they wish to apply for a job or volunteer in certain occupational areas, they must disclose these criminal records.
The Governmentwill be defending all parts of the claim. In a somewhat bizarre defence to the discrimination ground, they will argue that, whilst the vast majority of those with soliciting convictions are women, overall the majority of crimes are committed by men. They cite, for example, statistics for sexual offences and say, “For instance, in 2016 7,357 men were convicted of sexual offences in comparison to just 120 women.”
Harriet Wistrich, solicitor for the Claimants states, “the government’s argument in respect of discrimination somewhat misses the point, because they quote statistics without looking at context. We say that women in street prostitution, have in the large part been exploited and subject to abuse, whereas men convicted of sexual offences are perpetrators of abuse. The purpose of the scheme it to protect vulnerable people from contact with those who may seek to abuse or exploit them.”
Please come to the Royal Courts of Justice on 17th and 18th January (tbc) to show your support for these women as they challenge the government. Demonstration of support outside court from 9.30 on 17 January
Further details about the claim, the background facts and legal arguments relied on by both sides – can be seen in the summary below.
The Defendants represented by the Government Legal Department are the Secretary of State for the Home Department and the Secretary of State for Justice
Summary of R (QSA and others) v SSHD and SSJ – a judicial review challenge of disclosure requirements in relation to criminal convictions arising from street prostitution
This judicial review claim is brought by three women, and supported in evidence by a number of others, who each have multiple convictions for “soliciting” under section 1, Street Offences Act 1959 having been engaged in prostitution over a period of time many years ago.
Each exited prostitution but by reason of the operation of various statutory provisions they are required to disclose the existence of those convictions (though “spent”) when seeking work or volunteering within particular occupational sectors and in relation to certain activities involving their own children. This means that they must disclose the fact of their having engaged in prostitution. Each of the women was groomed and pimped into prostitution, in some cases when children, and thereafter trafficked.
The relevant legislation under challenge is the exceptions in the Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975 which enables employers and others, through the Disclosure and Barring Scheme (DBS) to take into account spent criminal convictions when assessing an applicant’s suitability. The claim argues that the operation of the scheme in respect of offences under s1 Street Offences Act is unlawful and contrary to Articles 4, 8 and 14 ECHR as well as in breach of our international UN treaty commitments in respect of CRC and CEDAW.
The current law requires that anyone with more than one criminal conviction, however long ago it was sustained, must disclose those convictions when applying for a range of occupations or volunteer activities. For example, an application to be a carer in a home for learning disabled adults or to become a parent governor in your local school will require a DBS certificate. These certificates, which must be presented to prospective employers and others, will provide a list of all criminal convictions, whether spent or not. Following a legal challenge to the scheme in 2013, the policy was altered to exclude the mandatory disclosure of single convictions that didn’t result in a suspended or custodial sentence.
Whilst disclosure of such convictions is not a statutory bar to certain types of occupation or activity, the disclosure provides information and a discretionary right to refuse employment or bar the person from certain activities such as participating in school trips with their children.
Street Prostitution has been treated in many ways as a nuisance offence and tends to be enforced when police decide to ‘clean up’ the streets. Women who have been historically arrested for soliciting and loitering, almost invariably have multiple convictions. The policing of these ‘offences’ was used less as a deterrent and more as a palliative to neighbourhood concerns. Unlike most crimes where repeat offending results in more severe punishments over time, the sanctions for soliciting tend to remain the same regardless of the number of offences that have been committed. Most women who were on the street for any period of time have multiple convictions for soliciting and these show up on their DBS checks, creating an impression of serious criminality just by virtue of the lengthy list of convictions on their certificate.
The Women bringing the claim
The claim is brought by three Claimants, but additional witness evidence is provided by several other women who are similarly affected. Most of the women have opted for anonymity. They include:
‘QSA’ – who was born in the early 1970s and placed in local authority care in Leeds was groomed by a boyfriend she met when aged 14 who made her sell sex on the streets when aged only 15. She was regularly arrested by the police and by the age of 16 already had 11 convictions for prostitution loitering. She continued in prostitution subject to control by a number of pimps and became a heroin addict. She eventually managed to exit from prostitution aged 25. She has 64 convictions and is deterred from seeking employment because of the disclosure and Barring Scheme.
Fiona Broadfoot, was born in 1968 in Bradford. She was also pimped from the age of 15 and continued to be exploited and abused in prostitution until into her 20s ending up with over 38 convictions for prostitution loitering. She exited from prostitution when she learnt of the murder of her cousin by a punter. She later applied to do a social work degree but was told she would not be able to secure placements because of her convictions. She has nonetheless found some employment and devotes all her energy to raising awareness of child sexual exploitation. However, she finds the process of having to provide DBS certificates humiliating and psychologically disturbing.
Other women involved in the claim include, ‘Angela’ groomed into prostitution as a child and now with over 90 convictions, almost all for prostitute loitering; ‘Martha’ with 62 convictions from the 1980s. She trained and worked as a social worker after exiting prostitution but when the more rigorous DBS scheme was introduced she felt so humiliated that she left the profession and is now unemployed.
All the women involved in the case were victims of coercion to a lesser or greater degree, some were pimped originally when still children and all experienced serious violence and abuse from punters and or pimps. All of them had exited with great difficulty many years ago and continue to suffer the impact of those early traumatic experiences.
The legal arguments
In the case itself we argue that the policy, as it applies to these women, is in breach of the Human Rights Act because it violates several Articles of European Convention of Human Rights (ECHR) including:
Article 4 ECHR, an absolute right prohibiting slavery and forced labour and applies to human trafficking. The state has positive obligations to protect victims of trafficking. We argue in this case that all the women were exploited in prostitution and therefore subject to trafficking. We rely also on EU treaty obligations which contain ‘non-penalisation’ provisions for victims of trafficking.
Article 8 ECHR is a qualified right to respect for private and family life. It provides that there shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and necessary in a democratic society. We argue that the impact of such disclosure requirements is a gross invasion of privacy and cannot be seen as proportionate or necessary.
Article 14 ECHR provides that all rights and freedoms contained in the Human Rights Act must be protected and applied without discrimination.
We argue that the requirement to provide disclosure of offences for street prostitution is discriminatory because
- the vast majority of those with these convictions are women (in fact s1 Street Offences Act was until recently a gender specific offence) and
- the types of occupation and activity requiring a DBS disclosure are predominantly those performed by women
The claim of discrimination is also supported by the UK’s ratification of CEDAW (the Convention on the Elimination of All Forms of Discrimination against Women) which recognises that that prostitution is a gendered form of violence and explicitly imposes the obligation on states to rehabilitate women who have been engaged in prostitution.
In addition, we also refer to our commitments under the UN Convention on the Rights of the Child, which has explicit rehabilitation aims in relations to children’s offending. Some of the women were first convicted of offences when they were still children.
The Defendant’s arguments
The defendant argues that the claims under Article 8 raise the same issues that are subject to an appeal in the Supreme Court in the case of R (P & others) v Secretary of State for the Home Department & others  EWCA Civ 321. The defendant unsuccessfully applied to stay this claim until after that supreme court hearing which is provisionally fixed for June 2018.
They challenge the argument that the scheme is discriminatory saying it is ‘surprising’ because whilst the s1 offence is disproportionately committed by women, most crimes are disproportionately committed by men. “For instance, in 2016 7,357 men were convicted of sexual offences in comparison to just 120 women. In the same year, 25,853 men were convicted of offences of violence in comparison to 3,381 women.”
In relation to Article 4 and the trafficking provisions, they state that the positive obligation on the state does not extend to the prevention of disclosure of convictions.
The Claim, which was issued by Birnberg Peirce Ltd in the Administrative Court in February 2017 is supported by the Nia project who very recently published their report on this issue, ‘I’m no Criminal’ http://www.niaendingviolence.org.uk/perch/resources/im-no-criminal-final-report.pdf
It is also supported by the Centre for Women’s Justice http://centreforwomensjustice.org.uk/
For further information and access to spokespersons contact:
Harriet Wistrich or Alice Brackenbury, Birnberg Peirce Ltd 0207 911 0166
Or the Nia project 020 7683 1270