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Police Law 11th Edition

35. Offences relating to Prostitution, Obscenity and Indecent Photographs

Chapter 35

Loitering or soliciting by a common prostitute p 1031

From a day to be appointed, the Street Offences Act 1959 is amended by the Policing and Crime Act 2009, s 16(2) so as to provide (the change is italicised) 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. For these purposes, conduct is persistent if it takes place on two or more occasions in any period of three months: Street Offences Act 1959, s 1(4)(a) (prospectively added by the Policing and Crime Act 2009 s 16(1),(3)). In determining for these purposes whether a person’s conduct is persistent, any conduct that takes place before the commencement of the Policing and Crime Act 2009, s 16 is to be disregarded: s 16(5)

Caution p 1032

The provisions relating to the expunging of cautions are prospectively repealed by the Policing and Crime Act 2009, ss 16(4), 112(2), Sch 8.

ORDERS REQUIRING ATTENDANCE AT MEETINGS p 1033

Add the above heading and the following text after the second paragraph on p 1033.

‘As from a day to be appointed, such orders may be made under the Street Offences Act 1959, ss 1(2A)-(2D) and Sch, which were added by the Policing and Crime Act 2009, s 17, Sch 1. Under added provisions, the court may deal with a person convicted of an offence of loitering or soliciting for the purposes of prostitution, contrary to the Street Offences Act 1959, s 1, 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. If the court makes such an order it may not impose any other penalty in respect of the offence.

Failure to comply with such an order without reasonable excuse can result in a magistrates’ court revoking the order and dealing with the offender, for the offence in respect of which the order was made, in any way in which the court could deal with the offender if the offender had just been convicted by it of the offence.’

Solicitation by those using motor vehicles p 1033

The Sexual Offences Act 1985 is prospectively repealed as from a day to be appointed by the Policing and Crime Act 2009, s 112(2), Sch 8.

Persistently soliciting for the purpose of prostitution p 1033

The Sexual Offences Act 1985 is prospectively repealed as from a day to be appointed by the Policing and Crime Act 2009, s 112(2), Sch 8.

Soliciting p 1034

Add the above heading and the following text after the second paragraph on p 1034.

‘As from a day to be appointed, it is an offence for a person in a street (as defined by the Street Offences Act 1959: see p 1031) or public place to solicit another (B) for the purpose of obtaining B’s sexual services as a prostitute (SOA 2003, s 51A(1)). The reference to a person in a street or public place includes a person in a vehicle in a street or public place (s 51A(2)). "Persistence" is not required to be proved.’ [P&CA 2009, s 19]

Paying for sexual services of a prostitute subjected to force etc. p 1035

As from a day to be appointed, a person (A) commits an offence if:

1. A makes or promises payment for the sexual services of a prostitute (B),
2. a third person (C) has engaged in exploitative conduct of a kind likely to induce or encourage B to provide the sexual services for which A has made or promised payment, and
3. C engaged in that conduct for or in the expectation of gain for C or another person (apart from A or B).

It is irrelevant where in the world the sexual services are to be provided or whether those services are provided (SOA 2003, s 53A(2)(a)). It is also irrelevant whether A is, or ought to be, aware that C has engaged in exploitative conduct (s 53 (2)(b)).

For the purposes of SOA 2003, s 53A:

1. C engages in exploitative conduct if C uses force, threats (whether or not relating to violence) or any other form of coercion, or C practises any form of deception: s 53A(3); and
2. ‘gain’ has the same meaning as in s 52 and 53 (see pp 1034 and 1035).

[P&CA 2009, s 14]

CLOSURE ORDERS p 1038

The Policing and Crime Act 2009 prospectively adds Pt 2A (ss 136A to 136R) to SOA 2003. These provisions give the courts the power to make premises closure orders where there is evidence of the premises being used for activities relating to certain prostitution and pornography offences.

Issue of closure notice

A member of a police force not below the rank of superintendent (‘the authorising officer’) may authorise the issue of a closure notice in respect of any premises if three conditions are met:

1. that the officer has reasonable grounds for believing that, during the relevant period (ie the period of three months ending with the day on which the officer is considering whether to authorise the issue of the notice):
1. the premises (which term includes any land or other place (whether enclosed or not) and any outbuildings which are, or are used as, part of the premises were used for activities related to one or more specified prostitution offences, unless only one person obtained all of the sexual services in question (whether or not on a single occasion, or
2. the premises were used for activities related to one or more specified pornography offences, or both
2. that the officer has reasonable grounds for believing that the making of a closure order under SOA 2003, s 136D is necessary to prevent the premises being used for activities related to one or more specified prostitution or pornography offences;
3. that the officer is satisfied:
1. that the local authority for the area in which the premises are situated has been consulted, and
2. that reasonable steps have been taken to establish the identity of any person who resides on the premises or who has control of or responsibility for an interest in the premises (s 136B(1)-(8)).

Such an authorisation may be given orally or in writing, but if it is given orally the authorising officer must confirm it in writing as soon as it is practicable (s 136B(9)). The issue of a closure notice may be authorised whether or not a person has been convicted of any specified prostitution or pornography offence that the authorising officer believes has been committed (s 136B(10)).

For the purpose of the provisions relating to closure notices and closure orders, ‘specified prostitution offence’ means an offence under the Sexual Offences Act 2003, s 47; s 48 (committed by causing or inciting a child to become a prostitute); s 49 (committed by controlling the activities of a child relating to the child’s prostitution); s 50 (committed by arranging or facilitating the child’s prostitution; 52; s 53 (see pp 1034, 1035, 1037 and 1038); and ‘specified pornography offence’ means an offence under s 48 (committed by causing or inciting a child to be involved in pornography); s 49 (committed by controlling the activities of a child relating to the child’s involvement in pornography; s 50 (committed by arranging or facilitating a child’s involvement in pornography): ss 136A(1)-(3). The reference to any such offence includes a reference to the corresponding offence under service law (s 136A(6)).

For the purpose of the provisions relating to closure notices and closure orders, ‘local authority’ means, in relation to England, a district council; a London borough council; a county council for an area for which there is no district council; the Common Council of the City of London in its capacity as a local authority; the Council of the Isles of Scilly (s 316R(5)) and, in relation to Wales, a county council; a county borough council ( s 136R(6)). References to the local authority in relation to any premises, a closure notice relating to any premises, or a closure order relating to any premises, are references to the local authority for the area in which the premises are situated (s 136R(8)).

A person who remains on or enters premises in contravention of a closure notice commits an offence unless has a reasonable excuse for remaining on or entering the premise (s 136G(1) and (3)).

Contents and service of closure notice

A closure notice must:

1. state that no-one other than a person who regularly resides on, or owns, the premises may enter or remain on them;
2. state that failure to comply with the notice amounts to an offence;
3. specify the offence or offences in respect of which the authorising officer considers that the conditions specified in heads (a) and (b) in the previous paragraph are met;
4. state that an application will be made for a closure order in respect of the premises;
5. specify the date and time when, and the place at which, that application will be heard; and
6. explain the effects of a closure order (s 136C(1)).

A closure notice must be served by a constable (s 136C(2)). Service is effected by (1) fixing a copy of the notice to at least one prominent place on the premises; (2) fixing a copy of the notice to each normal means of access to the premises; (3) fixing a copy of the notice to any outbuildings which appear to the constable to be used with or as part of the premises; and (4) giving a copy of the notice to the persons identified in pursuance of (c)(ii) above and to any other person appearing to the constable to be a person of a description mentioned in that provision (s 136C(3)). A constable must also serve a copy of the notice on any person who occupies any other part of a building or other structure in which the premises are situated if, at the time of acting under s 136C(3), the constable reasonably believes that the person’s access to the other part of the building or structure will be impeded if a closure order is made (s 136C(4)). The requirements to give a copy of the notice to a person or persons do not require a constable to serve a copy of the notice on a person if it is not reasonably practicable to do so (s 136C(5)). A constable acting under s 136C(3) may enter any premises, using reasonable force if necessary, for the purpose of complying with s 136C(3)(a) to (c): s 136C(6).

A person who obstructs a constable acting under s 136C(3) or (4) commits an offence (s 136G(4)).

A closure notice has effect until an application for a closure order is determined. But, if the hearing of an application for a closure order is adjourned, the closure notice ceases to have effect unless the court makes an order for the continuation of the closure notice until the end of the period of the adjournment (s 136C(8)).

Closure orders

If a closure notice has been issued, a constable must apply under s 136D to a magistrates’ court for a closure order. A closure order is an order that the premises in respect of which the order is made are closed to all persons for such period not exceeding three months as is specified in the order (s 136D(2)). A closure order may include such provision as the court thinks appropriate relating to access to any other part of a building or other structure in which the premises are situated (s 136E(3)). A closure order may be made in respect of the whole or any part of the premises in respect of which the closure notice was issued (s 136E(4)). The application must be heard by the magistrates’ court not later than 48 hours after the notice was served, subject to the magistrates power to adjourn the hearing for up to 14 days in specified circumstance (ss 136D(3), 136E(1)). If the court adjourns the hearing, it may order that the closure notice continues in effect until the end of the period of the adjournment (s 136E(2)).

The magistrates’ court may make a closure order if three conditions are met:

1. that the court is satisfied that, during the relevant period (three months ending with the day on which the issue of the closure notice was authorised;
1. the premises were used for activities related to one or more specified prostitution offences (but this provision does not apply if only one person obtained all of the sexual services in question (whether or not on a single occasion)); or
2. the premises were used for activities related to one or more specified pornography offences, or both;
2. that the court is satisfied that the making of the closure order is necessary to prevent the premises being used for activities related to one or more specified prostitution or pornography offences during the period to be specified in the order;
3. that the court is satisfied that:
1. before the issue of the closure notice was authorised, reasonable steps were taken to establish the identity of any person who resides on the premises or who has control of or responsibility for or an interest in the premises ; and
2. a constable gave a copy of the closure notice (see above) to the persons so identified (s 136D(4)-(10)).

A closure order may be made whether or not a person has been convicted of any specified prostitution or pornography offence that the court is satisfied has been committed (s 136D(12)).

A person who remains on or enters premises in contravention of a closure order commits an offence unless he has a reasonable excuse for remaining on or entering (s 136G(2),(3)). The accused does not bear the burden of proving a reasonable excuse but unless he adduces evidence of such an excuse the prosecution does not have the burden of proving that he did not have a reasonable excuse.

Closure order: enforcement

If a closure order is made a constable or an authorised person may:

1. enter the premises in respect of which the order is made;
2. do anything reasonably necessary to secure the premises against entry by any person (s136F(2)).

An ‘authorised person’ means a person authorised by the chief officer of police for the area in which the premises are situated (s 136F(6)).

A constable or an authorised person may also enter the premises at any time while the order has effect for the purpose of carrying out essential maintenance of, or repairs to, the premises (s 136F(4)).

A constable or an authorised person acting under the above powers may use reasonable force (s 136F(5)).

A person who obstructs a constable or authorised person acting under one of the above powers commits an offence (s 136G(4)).

Extension of closure order

At any time before the end of the period for which a closure order is made or extended a constable may make a complaint to a justice of the peace for an extension or further extension of the period for which it has effect (s 136H(1). Such a complaint may not be made unless it is authorised by a member of a police force not below the rank of superintendent (s 136H(2)). Such authorisation may be given if two conditions are met:

1. that the officer has reasonable grounds for believing that it is necessary to extend the period for which the order has effect to prevent the premises in respect being used for activities related to any of the specified prostitution or pornography offences which constituted the basis of the order;
2. that the officer is satisfied that the local authority has been consulted about the intention to make a complaint (s 136H(3)-(5).

If such a complaint is made the justice of the peace may issue a summons directed to (i) any person on whom the closure notice relating to the closed premises was served; or (ii) any other person who appears to the justice of the peace to have an interest in the closed premises but on whom the closure notice was not served, requiring such person to appear before the magistrates’ court to answer to the complaint (s 136H(6)).

The court may make an order extending the period for which the closure order has effect by a period specified in the order if the court is satisfied that the extension is necessary to prevent the premises being used for activities related to any of the specified prostitution or pornography offences in respect of which the original order was made (s 136I(1), (2)). The period specified in the order may not exceed three months; and the total period for which a closure order has effect may not exceed six months (s 136I(3), (4).

Discharge of closure order

Any of the following persons may make a complaint to a justice of the peace for an order that a closure order be discharged on the ground that it is no longer necessary to prevent the premises being used for activities related to any of the specified prostitution or pornography offences in respect of which the original closure order was made:

1. a constable;
2. the local authority;
3. a person on whom the closure notice relating to the closed premises was served;
4. any other person who has an interest in the closed premises but on whom the closure notice was not served (s 136 J(1), (3)).

Defences p 1043

PCA 1978, s 1A is prospectively amended by the Coroners and Justice Act 2009, s 69(1) so as to apply also to pseudo-photographs.

Defences p 1044

PCA 1978, s 1A is prospectively amended by the Coroners and Justice Act 2009, s 69(1) so as to apply also to pseudo-photographs.

Defences p 1046

CJA 1988, s 160A is prospectively amended by the Coroners and Justice Act 2009, s 69(2) so as to apply also to pseudo-photographs.

POSSESSION OF PROHIBITED IMAGES OF CHILDREN p 1046

Insert the above heading and the following text at the bottom of p 1064.

‘The following provisions apply from a day to be appointed.

It is an offence for a person to be in possession of a prohibited image of a child, other than an excluded image. A prohibited image is an image which:

1. is pornographic;
2. is an image which focuses solely or principally on a child’s genitals or anal region, or portrays any of the following acts:
1. the performance by a person of an act of intercourse or oral sex with or in the presence of a child;
2. an act of masturbation by, of, involving or in the presence of a child;
3. an act which involves penetration of the vagina or anus of a child with a part of a person’s body or with anything else;
4. an act of penetration, in the presence of a child, of the vagina or anus of a person with a part of a person’s body or with anything else;
5. the performance by a child of an act of intercourse or oral sex with an animal (whether dead or alive or imaginary);
6. the performance by a person of an act of intercourse or oral sex with an animal (whether dead or alive or imaginary) in the presence of a child; and
3. is grossly offensive, disgusting or otherwise of an obscene character (C&JA 2009, s62(1), (2), (6), (7)).

By s 65, an "image" includes (1) a moving or still image (produced by any means), or (2) data (stored by any means) which is capable of conversion into an image within (1), but it does not include an indecent photograph, or indecent pseudo-photograph, of a child within the meaning of PCA 1978. References to an image of a person include references to an image of an imaginary person.

"Child" means, subject to s 65(6), a person under the age of 18 (s 65(5)). Where an image shows a person the image is to be treated as an image of a child if the impression conveyed by the image is that the person shown is a child, or the predominant impression conveyed is that the person shown is a child despite the fact that some of the physical characteristics shown are not those of a child (s 65(6)). References to an image of a child include references to an image of an imaginary child (s 65(8)).

Section 62(1) does not apply to excluded images (s 63(1)). An "excluded image" is an image which forms part of a series of images contained in a recording of the whole or part of a classified work (s 63(2)). But such an image is not an "excluded image" if it is contained in a recording of an extract from a classified work; and it is of such a nature that it must reasonably be assumed to have been extracted (whether with or without other images) solely or principally for the purpose of sexual arousal (s 63(3)). For these purposes, "recording" means any disc, tape or other device capable of storing data electronically and from which images may be produced (by any means); "extract" includes an extract consisting of a single image; and "classified work" means a video work in respect of which a classification certificate has been issued under the Video Recordings Act 1984 by a designated authority (s 63(7)).

Where an extracted image is one of a series of images contained in the recording, the question whether the image is of such a nature as is mentioned in s 63(3) is to be determined by reference to the image itself, and (if the series of images is such as to be capable of providing a context for the image) the context in which it occurs in the series of images; and s 62(5) (below) applies in connection with determining that question as it applies in connection with determining whether an image is pornographic (s 63(4)).

In determining for the purposes of s 63 whether a recording is a recording of the whole or part of a classified work, any alteration attributable to a defect caused for technical reasons or by inadvertence on the part of any person, or the inclusion in the recording of any extraneous material (such as advertisements), is to be disregarded (s 63(5)).

An image is "pornographic" if it is of such a nature that it must reasonably be assumed to have been produced solely or principally for the purpose of sexual arousal (s 62(3)).

Where (as found in the person’s possession) an image forms part of a series of images, the question whether the image is of such a nature as is mentioned in s 62(3) is to be determined by reference to the image itself, and (if the series of images is such as to be capable of providing a context for the image) the context in which it occurs in the series of images (s 62(4)). So, for example, where an image forms an integral part of a narrative constituted by a series of images, and having regard to those images as a whole, they are not of such a nature that they must reasonably be assumed to have been produced solely or principally for the purpose of sexual arousal, the image may, by virtue of being part of that narrative, be found not to be pornographic, even though it might have been found to be pornographic if taken by itself (s 62(5).

Where a person is charged with an offence under s 62, it is a defence for the person to prove any of the following matters:

1. that the person had a legitimate reason for being in possession of the image concerned;
2. that the person had not seen the image concerned and did not know, nor had any cause to suspect, it to be a prohibited image of a child;
3. that the person was sent the image concerned without any prior request having been made by or on behalf of the person, and did not keep it for an unreasonable time (s 64(1)).

The provisions of the Protection of Children Act 1978 relating to entry, search and seizure, and to forfeiture, apply in relation to prohibited images of children as they apply in relation to indecent photographs of children (C&JA 2009, s 67(1)).’

Sch 13 makes special provision in connection with the operation of the offence under s 62 in relation to internet service providers.

Cautions p 1032

In the first paragraph under this heading, line 3, substitute ‘his or her’ for ‘such’.

Possession of extreme pornographic images p 1049

The text set out beneath this heading is now in force. [SI 2008/2993]