![]()
Part I
Protection through policing
Plurality and pragmatism
![]()
1 Policing sex work in Britain
A patchwork approach
Alex Feis-Bryce
Introduction
Currently, neither the purchase nor the sale of sex is criminalised in Britain but there are various pieces of legislation that seek to regulate and forbid a range of acts associated with transactional sex in both an indoor and outdoor setting. These laws, in theory, seek to provide a mechanism for police both to minimise the impact sex work has on the wider community and penalise those who are seen to be either profiting from or exploiting sex workers.
The laws relating to prostitution in Britain have not radically changed in the 60 years since the introduction of the Sexual Offences Act 1956, which focuses on the perceived exploiters and the third parties who gain financially from transactional sex; and the 1959 Street Offences Act, primarily concerned with soliciting. The Wolfenden Report 1957, which preceded the 1959 Sexual Offences Act and provided the tone and justification for the laws we have today, was laden with moralistic language and primarily concerned with the impact of sex work on wider communities, but Hubbard argues that âalongside this desire for order was a concern that it was not the lawâs role to interfere in the private lives of citizens or to seek to enforce any particular pattern of behaviourâ (Hubbard 2006).
The fact that there has not been a fundamental overhaul of the law in this area since the late 1950s, despite the dramatic change to sex work markets and the emergence of the internet as the most significant space in which clients and sex workers find one another, is remarkable and reveals the fear that successive Governments have had when it comes to announcing any meaningful policy changes in this area. Partly due to the dominance of the construction of sex work as a form of public nuisance, which was central to the Wolfenden Report, policy and policing does not always reflect the true nature and spread of sex work markets. This is arguably truer now than ever before, with the decline of traditionally predominant markets: there have been significant reductions in both street-based markets and in managed indoor premises for selling sex which typically take the form of brothels, flats or saunas (Brooks Gordon et al. 2015; Scoular and OâNeill 2007).
Trends and strategies in policing of sex work in Britain have historically been comprised of a number of approaches including regulationism, suppression and, from the late 1980s onwards, welfarism which can be seen as multi-agency responses to conflicting interests around the needs of local communities, sex workers and the front line services which support them (Matthews and OâNeill 2003; Scoular and OâNeill 2007). Sex work is commonly framed as problematic, particularly when it is present and visible in urban areas; consequently, sex workers are often targeted by a range of interventions from police and governing authorities (Laing and Cook 2014). The representation of sex workers in the media and, in particular, the propagation of certain damaging myths justifies law and order strategies designed to exclude and deliberately marginalise sex workers as discussed in OâNeill et al. (2008).
As Sagar and Jones in this collection expose, local approaches to policing sex work are driven by several complex factors. These include: political pressure, often driven by the vocal concerns of residents (Sagar and Croxall 2012); national trends in policing; ideological positions influenced by the media and Government, such as the conflation of sex work with trafficking; the construction of sex work as problematic and inherently exploitative (Laing and Cook 2014); and, more recently, the redefining of sex work as anti-social behaviour (Scoular and OâNeill 2007).
Beyond New Labour
Key legacies of the New Labour Government, in the context of policing sex work and the redefining of sex work as anti-social behaviour, include Anti-Social Behaviour Orders (ASBOs) and Engagement and Support Orders (ESOs) â both of which have been seen to impact negatively on social welfare and access to support services (Sagar 2007; Scoular and Carline 2014). Legislation intended to curb so-called anti-social behaviour was streamlined by the Anti-Social Behaviour, Crime and Policing Act 2014 which replaced ASBOs with Criminal Behaviour Orders and civil injunctions which increased police powers to use legislation to disrupt and displace sex workers through dispersal orders.
The New Localism agenda, which is now central to the current political consensus, has a significant impact on approaches to policing. This can be problematic for sex workers, leading to insular nimbyism (not in my back yard syndrome), which excludes minority voices, becoming a driving force to local strategies (Sagar and Croxall 2012), particularly in the case of street sex work and visible brothels in residential areas. The paradox of localism is that in theory it seeks to redress marginalisation and social exclusion but, in reality, further marginalises minorities who are not seen as embodying an active citizenship and are therefore often denied a voice (Sagar and Croxall 2012).
Since the departure from office of the New Labour Government, which was heavily influenced by a radical feminist construction of sex work and the âvictim and victimizerâ narrative, a more nuanced understating of sex workersâ vulnerability has emerged at national policy level (Sanders and Campbell 2014; Brown and Sanders 2017). Neither the Coalition Government, nor its Conservative predecessor, has been forthcoming in attempting to establish a single national narrative on sex work. Instead, the localism agenda has retained its prominence along with the rhetorical commitment of policy makers to a community policing model with local accountability which culminated in introduction of Police and Crime Commissioners, the first of which were elected in November 2012, representing a significant constitutional step towards local policing. In addition, while the legislation was not drafted by the Government with sex workers in mind, the Anti-Social Behaviour, Crime and Policing Act 2014 increased the powers of police to issue dispersal orders to sex workers and increased the length of time of a personâs exclusion from a particular area to 48 hours.
Perhaps the most significant direct intervention by the Coalition Government into this policy area was in providing financial support for the establishment of National Ugly Mugs (NUM) to support sex workers when theyâre victims of crime. A central element of the service offered is a third-party reporting mechanism so sex workers can report crimes to NUM who produce alerts or warnings which are circulated to other sex workers to prevent crime. Although local information sharing schemes have existed in the UK and throughout the world since the 1980s, NUM was the first to be established on a national scale, funded by Government and with formal links to police intelligence systems. In a sense, this intervention can be seen as a move away from the muscular liberal welfarist approach which characterised the New Labour years to a tacit support for a harm reduction agenda and an acknowledgement that sex workers often do not report serious crimes to the police. Following on from the Home Office-funded pilot, NUM has been a huge success, demonstrating that it regularly prevents crimes against sex workers, leads to the conviction of violent serial offenders (NUM Impact Report 2016/17) and has become a strong advocate for evidence-based policy and policing and for the decriminalisation of sex work.
Certain national trends, which emerged during the New Labour years, have retained their prominence in the debate and continue to influence both policing policy and practice throughout Britain. The conflation of sex work and human trafficking combined with the Governmentâs commitment to their flagship modern slavery policy agenda are still persistent drivers of police enforcement in relation to sex work.
The position of the Home Office on the policing of prostitution, recently outlined in a submission to the Home Affairs Select Committee (HASC) Prostitution Inquiry, is that, âLocal areas are in the best position to identify and respond to specific issuesâ (Home Office 2016: 2). With the absence of legislation built on strategic or ethical principles, whether based on the rights and safety of sex workers or the notion that sex work should be eradicated, police forces retain discretion in applying and enforcing the existing laws and are influenced by the range of competing factors outlined above. However, as I will outline in this chapter, the Modern Slavery Agenda, which gained even greater prominence when Theresa May became Prime Minister, has resulted in central pressure from the Government, the National Crime Agency and the National Police Chiefs Council being imposed on local police forces to take action to disrupt indoor sex work markets in an attempt to be seen to be taking action to ârescue victims of modern slaveryâ.
Policing in practice
In practice, for as long as the state has sought to police sex work, it has been more common in Britain for enforcement to focus on sex workers than clients or third parties. According to Crown Prosecution Service (CPS) Data, curiously grouped together with Human Trafficking in their Violence Against Woman and Girls Crime Report, in 2013/14 there were more charges for loitering and soliciting than for control offences, brothel keeping offences and kerb-crawling put together. In 2014/15, the number of prosecutions for loitering and soliciting was more than double those for kerb-crawling (456 versus 227). In 2015/16, this gap narrowed but the number of prosecutions for soliciting was still greater than for kerb crawling offences (163 versus 153). In addition, based on data between 2002 and 2012 relating to cautions and prosecutions for soliciting and loitering offences, by far the most common outcome for sex workers who are prosecuted is a financial penalty (see Figure 1.1) which seems counter-productive and inconsistent with the stated aims of most police forces to âexitâ street-based sex workers (Ministry of Justice Freedom Of Information request).
In 2015/16 as compared to 2014/15, there was an increase in prosecutions for control offences (100 from 83), brothel keeping (211 from 182) and a fall in prosecutions for kerb crawling (153 from 227) and soliciting (163 from 456) which could be a sign that the focus of enforcement is shifting in many areas (see Figure 1.2) to the indoor sex work markets or merely a reflection of where the majority of transactional sex takes place (Brooks Gordon et al. 2015). The most likely hypothesis is that the increased use of other legislation, such as Sections 34â42 of the Anti-Social Behaviour, Crime and Policing Act 2014, has led to a reduction in the enforcement of soliciting laws which means that the true level of criminalisation faced by sex workers is often hidden from statistics. The use of these orders in a particular area can be authorised by a relatively low ranking police inspector and failure to comply is a criminal offence. On this basis, the use of such orders, which can be issued with impunity and are only held to the criminal burden of proof if they are breached, is a way of effectively displacing sex workers without being held accountable in court for whether the legislation is being used appropriately.
When it comes to criminal sanctions suffered by sex workers, Government datasets can be misleading, particularly when offences relating to control, soliciting, brothel keeping, advertising and kerb crawling are all grouped together under the violence against women and girls banner. Offences are often introduced, based on a moral objection to sex work, and labelled misleadingly in both the legislation and CPS data. Take âcontrollingâ offences, for example. As pointed out by Luke Gittos, Law Editor of Spiked, according to the Court of Appeal, the so-called âcontrol offencesâ introduced in the Sexual Offences Act 2003 do not actually require force or compulsion and can be successfully prosecuted even if the sex worker is exercising free will (Gittos 2013). Brothel keeping legislation is broad and without nuance, making no distinction between brothel owners or managers and sex workers themselves or people they employ for security, safety or general business support which means that many of those prosecuted under the legislation are, in fact, sex workers.
There is also the notorious âprostitute cautionâ â this has become a legal anomaly because regular police cautions require both sufficient evidence to give a realistic prospect of conviction and an admission of guilt by the offender (Mullin 2015). The âprostitute cautionâ does not require any evidence of a criminal offence or an admission of guilt from the alleged offender and there is no right to appeal. It is also not merely criminal legislation that is used to restrict and criminalise sex work with civil legislation, which requires a lower burden of proof, being increasingly used against sex workers by local authorities and police. If breached, these orders can lead to fines and imprisonment. The Sex Worker Open University (SWOU), in their written submission to the HASC Prostitution Inquiry, cite Ilford as an example, taken from the Ilford Recorder.
Ilford police station arrested no fewer than 100 sex workers, handed out 236 cautions and issued 6 ASBOs in the year to September 2013.
(SWOU 2016)
With 43 relatively autonomous police forces in England and Wales, each of which has a Police and Crime Commissioner and a Chief Constable, we are left with a patchwork approach which can vary considerably from one area to the next and is driven by a wide range of factors, many of which are not related to the fundamental role of the police to protect the public from harm. An enforcement-based approach in a particular area may be underpinned by a concerted strategic effort to either eradicate the constructed âproblemâ of sex work or move it to another area or it could merely be a series of reactionary responses to public outcry or community complaints. Equally, an approach that avoids enforcing legislation against sex workers or their clients could be based on an acknowledgement that enforcement against either rarely achieves its objectives or it could be due to a lack of resources to commit to what may be seen as a low priority area. Thus, in the British context, policing of sex work is as often determined by default as it is by design.
In many areas police adopt their own interpretations of spacial and sexual morality and how this impacts on the wider public which informs their approach to policing sex work. In response, sex workers themselves often develop their own understanding of how their spaces will be policed and adjust their working habits accordingly (Hubbard 2005; Hubbard and Sanders 2003). In areas with street-based sex work spaces this can create a balance whereby police and sex workers can communicate with each other and share information for mutual benefit. This approach founded on engagement within certain boundaries is incompatible with heavy police enforcement but if cultivated can significantly improve the trust that sex workers have in the police. However, these relationships are often dependent on particular individuals and are rarely built on a solid foundation or enshrined in policy. On this basis, they can be fraught with complexities and can be easily undermined by a change in approach by the police driven by other factors such as recent âimmigration stingsâ.
Raids of brothels, most often justified by police as a response to intelligence about human trafficking and a desire to ârescue victimsâ, usually take the form of heavy enforcement. In December 2013, during Operation Companion, more than 200 police dressed in riot gear smashed down the doors of a number of brothels and massage parlours, and sex workers were dragged out onto the streets and photographed by journalists who had been invited along by the police. Police Commander Alison Newcomb was quoted in the...
