The University of Hong Kong Faculty of Law
4/F KK Leung Building, Pokfulam Road, Hong Kong
25 September 2006
Ms Elaine Lam
Zi Teng
Hong Kong
Dear Elaine:
Re: Security Bureau’s supplementary information on police-undercover operations against vice activities
Thank you for informing me of the Security Bureau’s recent response to our Centre’s submission.
It appears that the Security Bureau agrees with our opinion that, as a matter of law, it is unnecessary for police officers to receive sexual services in order to prove any of the offences in Part XII of the Crimes Ordinance (Cap 200). Instead, it bases its position on an operational need to allow officers the flexibility to engage in sexual activities, short of vaginal and oral intercourse, “to collect sufficient evidence against the persons concerned”.
While I agree that there may be circumstances in which it would be necessary for an undercover officer to receive sexual services, however, I would draw the line at circumstances where the officer’s refusal of such services would likely lead to immediate physical harm. Essentially, what is wrong with the existing policy is that it endorses an exploitative practice that confers a personal advantage on the officer, whether he desires it or not. Furthermore, given the covert nature of such operations, there are insufficient safeguards to prevent the possible abuse of such practices by individual officers. There are also health and safety implications in having this permissive practice.
Such a practice raises an important professional and ethical issue for the police force as a whole. There needs to be a public debate on whether the police on ethical grounds should adopt a general policy that its officers will not receive sexual services in the execution of their duty. The only possible exception might be if the refusal of such services in the circumstances would likely lead to the immediate physical injury of a person.
It is fallacious to believe that obtaining direct and personal evidence of the receipt of sexual services is necessary to build a strong prosecutorial case for offences under Part XII.
As is seen in the three enclosed cases from England, it is possible to build a strong circumstantial case against the proprietors without police officers receiving sexual services. Such evidence would consist of
- observations of the premises both from within and without for signs of a vice operation;
- advertisement used suggesting the availability of prostitution services at the premises;
- communications for the sale and purchase of sex at the premises;
- attempted sexual contact between undercover agent and subject;
- observations and physical evidence of sexual activities found within premises as a result of the execution of search warrants.
I accept that to generate a strong inference of the proprietor’s knowledge in the sexual activities, the evidence will need to show that the activities were prevalent in the premises and, in some cases, this may require that observations be made of the premises for a period of time.
There is a US law student on exchange at HKU this term who is interested in doing pro bono work on this topic. We may try to explore what policies police forces around the world have adopted in this area. I will keep you informed if I have any further research.
Yours truly,
Simon N.M. Young
Associate Professor
Deputy Director, Centre for Comparative and Public Law
Enclosure
*663 Kelly v. Purvis
[1983] 2 W.L.R. 299
Divisional Court
DC
Ackner L.J. and Webster J.
1982 Nov. 11, 12; Dec. 2
Crime--Sexual offences--Brothel, assisting in
management of--Massage parlour--Masseuses
providing sexual services not amounting to full
sexual intercourse--Whether massage parlour
"brothel"--Sexual Offences Act 1956 (4 & 5 Eliz. 2,
c. 69), s. 33
[FN1] The defendant, who assisted in the
management of a licensed massage parlour, was
charged with assisting in the management of a
brothel, contrary to section 33 of the Sexual
Offences Act 1956. At her trial before the
magistrate, the prosecutor established prima facie
that during the massage extra services, involving
masturbation of the client, were offered by the
masseuse for additional fees, paid directly to that
masseuse, and not forming part of the takings of the
establishment. The defendant was fully aware of the
sexual services being provided and on occasions
performed them herself. At the close of the case for
the prosecution it was submitted on behalf of the
defendant that the offence alleged had not been
established. The magistrate ruled that although he
was satisfied that the masseuses were common
prostitutes, he was not satisfied that a prima facie
case had been made out that the premises were a
brothel since there was no evidence that full sexual
intercourse was provided there. Accordingly, he
dismissed the information.
FN1 Sexual Offences Act 1956, s. 33: see post, p.
668E.
On appeal by the prosecutor:-
Held, allowing the appeal, that premises where
more than one woman offered herself as a
participant in physical acts of indecency for the
sexual gratification of men constituted a brothel for
the purposes of section 33 of the Sexual Offences
Act 1956; that, accordingly, on a charge of assisting
in the management of a brothel it was not essential
to prove that normal sexual intercourse was
provided at the premises (post, p. 671A-B).
Reg. v. Justices of Parts of Holland, Lincolnshire
(1882) 46 J.P. 312, D.C. and Winter v. Woolfe
[1931] 1 K.B. 549, D.C. considered.
Per curiam. To constitute a brothel, it is not
essential to show that premises are in fact used for
the purpose of prostitution which involves payment
for services rendered. A brothel is also constituted
where the women (for there must be more than one
woman) do not charge for sexual intercourse (post,
pp. 669G - 670A).
The following cases are referred to in the
judgment:
Caldwell v. Leech (1913) 109 L.T. 188, D.C..
Durose v. Wilson (1907) 96 L.T. 645, D.C..
Gorman v. Standen [1964] 1 Q.B. 294; [1963] 3
W.L.R. 917; [1963] 3 All E.R. 627, D.C..
Reg. v. Justices of Parts of Holland, Lincolnshire
(1882) 46 J.P. 312, D.C..
Reg. v. Webb [1964] 1 Q.B. 357; [1963] 3 W.L.R.
638; [1963] 3 All E.R. 177, C.C.A..
*664 Rex v. De Munck [1918] 1 K.B. 635, C.C.A..
Singleton v. Ellison [1895] 1 Q.B. 607, D.C..
Winter v. Woolfe [1931] 1 K.B. 549, D.C..
The following additional cases were cited in
argument:
Abbott v. Smith (Note) [1965] 2 Q.B. 662; [1965]
3 W.L.R. 362; [1964] 3 All E.R. 762.
Dickenson v. Fletcher (1873) L.R. 9 C.P. 1.
Reg. v. Pierson (1706) 1 Salk. 382.
Rex v. Chapman [1931] 2 K.B. 606, C.C.A..
Woodhouse v. Hall (1980) 72 Cr.App.R. 39, D.C..
CASE STATED by the South Westminster
Stipendiary Magistrate sitting at Bow Street.
On January 21, 1982, an information was
preferred by the prosecutor, Robert Kelly, a
Sergeant in the Metropolitan Police, against the
defendant, Christine Purvis, alleging that between
October 20, 1981, and January 20, 1982, she did
assist in the management of a brothel at premises
known as Celebrity Sauna, 85, Charlotte Street,
London, W.1, contrary to section 33 of the Sexual
Offences Act 1956. The defendant pleaded not
guilty to the information.
The stipendiary magistrate (Mr. W. E. C. Robins)
heard the information on April 6, 1982, to the
conclusion of the prosecution case and found, prima
facie, the following facts. Between October 20,
1981, and January 20, 1982, the defendant was
prima facie assisting in the management of the
premises concerned, a massage parlour licensed by
the appropriate local authority. The premises
consisted of a lounge/reception area, two changing
rooms, three massage rooms, a solarium, a sauna
and two shower cubicles. On payment of the
appropriate fee on entry, massage, or sauna and
massage were provided. The defendant told the
prosecutor that the charges were as follows:
massage £12; sauna and massage £15; VIP
treatment including free drinks at the bar £18. A
card also advertised a sauna at £5, but the defendant
told the prosecutor that they did not do saunas on
their own. During the massage, which tended to
concentrate on the customer's lower back, buttocks
and thighs, extra services were offered by the
masseuse concerned for an additional fee of £15,
namely manual masturbation of the client's penis.
There was a charge of £20 if the additional service
was performed topless, and a charge of £25 if
performed naked. Those fees were usually paid
direct to the masseuse concerned but on one
occasion to the receptionist. There was no evidence
that the additional fees and surcharges were treated
as part of the takings of the establishment. Eleven
women were seen in the premises during the eight
days of observation, usually four working there at
any one time, one of them acting as receptionist. A
number of men were seen to visit the premises. On
each occasion on which the officers visited the
premises during the observation, they were offered
masturbation and heard similar offers to other men.
On two occasions men were seen to be masturbated,
one by the defendant. Semen was found on tissues
taken from the premises at the conclusion of the last
police visit. The defendant also acted as a masseuse
and performed masturbation. There were also
conversations in her presence when she *665 was
the receptionist which indicated that she was fully
aware of the sexual services given by the other
masseuses. There was no evidence that full sexual
intercourse was offered at the establishment,
although when asked by the prosecutor "Do any of
the girls do full sex?" the defendant replied "Only
with regulars, sir; we don't know you, sir. You will
have to discuss it with the girls."
It was contended by the prosecutor that these
masseuses were prostitutes plying their trade in an
establishment in which during the relevant period,
the defendant assisted in the management, and that
therefore the premises became a brothel within the
meaning of section 33 of the Sexual Offences Act
1956. It was submitted by the defendant that
whether or not the masseuses could legally be
described as prostitutes, and whether or not their
activities might result in the commission of other
offences, the premises could not be described as a
brothel. It was further contended by the defendant
that the word brothel was generally recognised as
meaning an establishment to which male persons
resorted for the purpose of having full sexual
intercourse with prostitutes and that that definition
was approved by the Divisional Court of the King's
Bench Division in Winter v. Woolfe [1931] 1 K.B.
549, and that that definition was quoted with
approval after the coming into force of the Sexual
Offences Act 1956 in Gorman v. Standen [1964] 1
Q.B. 294.
The magistrate was of the opinion that in the
context of the authorities quoted by the defendant,
illicit intercourse could only refer to sexual
intercourse which was defined in section 44 of the
Sexual Offences Act 1956. In default, therefore, of
further authorities and argument from the
prosecutor to widen that definition he felt obliged to
dismiss the information. He was, however, satisfied
prima facie that on the authorities quoted by the
prosecutor, the women concerned were common
prostitutes and the facts were sufficient to support a
prima facie case for assisting in the management of
a bawdy house but not a brothel. For those reasons,
the magistrate was of the opinion that the
defendant's contention was correct in law and
accordingly dismissed the information without
calling upon the defendant to answer it and also
awarded her £500 costs against the prosecutor.
The question for the opinion of the High Court
was whether on a charge of assisting in the
management of a brothel in contravention of section
33 of the Sexual Offences Act 1956 it was essential
that there be evidence that normal sexual
intercourse had been provided there or whether it
was sufficient to prove that acts amounting to
prostitution by more than one woman had taken
place on the premises.
Victor Temple for the prosecutor. There is no
definition of a brothel in the Sexual Offences Act
1956 itself, so one is obliged to go back to the
common law. Coke's Institutes, Pt. III (1817 ed.), p.
204, refers to "brothel houses, estuis and
bordelloes" and states that the keeper thereof is
punishable at the common law. In Singleton v.
Ellison [1895] 1 Q.B. 607 a bawdy house was
equated with a brothel. The term "bawdy house"
included one room kept by a lodger who
"accommodate[s] lewd people to perpetrate acts of
uncleanness " (Reg. v. Pierson (1706) 1 Salk 382);
but following more recent authority more than one
woman would be required *666 to constitute a
brothel: see Caldwell v. Leech (1913) 109 L.T. 188;
Durose v. Wilson (1907) 96 L.T. 645 and Singleton
v. Ellison. In Singleton v. Ellison, a brothel was
described as a place resorted to by persons of both
sexes for the purposes of prostitution. It is common
ground that the premises in the instant case were
used for prostitution. Prostitution is not limited to
sexual intercourse, but includes a situation where a
woman "offers her body commonly for lewdness for
payment in return": see Rex v. De Munck [1918] 1
K.B. 635, 637 and Reg. v. Webb [1964] 1 Q.B. 357
. In Woodhouse v. Hall (1980) 72 Cr.App.R. 39,
42, a brothel was accepted as being an
establishment at which two or more women were
offering sexual services.
That full sexual intercourse is not necessary to
constitute a brothel is also suggested by section 6 of
the Sexual Offences Act 1967, which treats as a
brothel somewhere resorted to for the purposes of
lewd homosexual practices. The purpose of the
distinction between the offences of a tenant
permitting premises to be used as a brothel in
section 35 of the Act of 1956 and that of a tenant
permitting them to be used for prostitution in
section 36 of that Act is purely that more than one
woman would be necessary for the premises to
constitute a brothel, not because in that case full
sexual intercourse needed to be shown.
R. Alun Jones for the defendant. Until 1872 there
was no distinction either in statute or at common
law between premises being used for prostitution
and a brothel. Prosecutions were brought under the
Disorderly Houses Act 1752, the preamble of which
clearly suggested that the mischief at which it was
aimed was the element of public nuisance involved.
Sections 5 and 8 of that Act mention "bawdy
houses, gaming houses or other disorderly houses
..." Both in Hawkin's Pleas of the Crown, 8th ed.
(1824), vol. 1, p. 717, which refers to bawdy
houses, and in Coke's Institutes, Pt. III (1817 ed.),
p. 204, which refers to brothel houses, the offence is
described as a "common nuisance." It was only
towards the end of the 19th century that Parliament
began to provide specific rules for specific offences.
The Licensing Act 1872 by sections 14 and 15
respectively made a clear distinction between
permitting premises to be the habitual resort of
prostitutes and permitting them to be a brothel.
Whilst payment is an essential element in
prostitution, full sexual intercourse is not; but to
establish a brothel, full sexual intercourse is
necessary, though the element of payment is not. A
"brothel" was defined by Groves J. in Reg. v.
Justices of Parts of Holland, Lincolnshire (1882) 46
J.P. 312 as "premises kept knowingly for the
purposes of people having illicit sexual connexion
there." Lopes J., at p. 313 defined a brothel as a
place where "people of opposite sexes ... have illicit
sexual intercourse."
The difference between habitual prostitution and a
brothel is maintained in Winter v. Woolfe [1931] 1
K.B. 549, a leading authority which has been
recognised by Parliament in subsequent legislation.
It was held there that it was not necessary to prove
that the women resorting to the premises were
prostitutes, or that they received payment for acts of
fornication, and the main point was that persons of
opposite sexes had been permitted with the
knowledge of the occupier to have illicit sexual
intercourse there. In giving judgment, Avory J.
adopted the definition of a brothel given by Grove
J. and Lopes J. in Reg. v. Justices of Parts of
Holland, Lincolnshire,46 J.P. 312 *667 . In Gorman
v. Standen [1964] 1 Q.B. 294, 303, Lord Parker
C.J. stated that "A bawdy house by definition is a
house resorted to or used by more than one woman
for the purposes of fornication."
The forerunner of the Sexual Offences Act 1956
was the Criminal Law Amendment Act 1885,
section 13 of which provided for the suppression of
brothels, but retained the distinction between
premises used "as a brothel" and those used "for the
purposes of habitual prostitution." If Parliament
uses a word previously defined judicially without
providing its own definition it may be presumed
that it thereby adopts that definition. In any case,
the words of a penal enactment must clearly
indicate the circumstances in which they operate:
Dickenson v. Fletcher (1873) L.R. 9 C.P. 1. Where
there is any doubt as to the meaning of an
enactment, the benefit of the doubt should be given
to the subject and against the legislature which had
failed to explain itself: Rex v. Chapman [1931] 2
K.B. 606.
In enacting the Sexual Offences Act 1967,
Parliament was not purporting to define a brothel
but simply to apply to homosexual acts what
sections 33 to 36 of the Act of 1956 did for
heterosexual acts. Likewise, section 5 of the Act of
1967 gives no definition of prostitution by men. The
facts of the present case do not establish that the
premises were a brothel because there was no
evidence of full sexual intercourse having taken
place, and the appeal should be dismissed.
Temple in reply. The definition of a brothel was
also considered in Abbott v. Smith (Note) [1965] 2
Q.B. 662, 663 where Judge Chapman stated: "the
essence of a brothel, or bawdy house, is that there
must be premises resorted to or used by more than
one woman for the purpose of illicit sexual
intercourse or other sexual lewdness ... with more
than one man. ..." It is significant that offences
under sections 30 and 31 of the Sexual Offences
Act 1956 of living on the earnings of prostitution
and of controlling a prostitute respectively are both
triable on indictment as well as summarily, whereas
that of keeping a brothel under section 33 is only
triable summarily.
Cur. adv. vult.
December 2.
ACKNER L.J.
read the following judgment of the court. This
prosecutor's appeal by case stated from the
adjudication on April 6, 1982, by the South
Westminster Metropolitan stipendiary magistrate,
Mr. William Edward Charles Robins, sitting at Bow
Street, raises the question: what constitutes a
brothel?
Only the prosecution evidence was heard, because
the magistrate accepted the defence submission that
the prosecution had failed to establish the offence
alleged, namely, that between October 20, 1981,
and October 20, 1982, the defendant, Christine
Purvis, assisted in the management of a brothel at
premises known as Celebrity Sauna, 85 Charlotte
Street, London W.1, contrary to section 33 of the
Sexual Offences Act 1956.
The prosecution evidence established, prima facie,
the following facts. [His Lordship summarised the
facts as set out in the case stated, and continued:]
The magistrate was satisfied that the women
concerned were common prostitutes. He was not,
however, satisfied that a prima facie case had been
made out that the premises were a brothel by reason
of the *668 absence of evidence that sexual
intercourse, within the meaning of the Sexual
Offences Act 1956, was provided.
The magistrate's finding that the women concerned
were common prostitutes was not challenged.
Whereas under American law prostitution is the
"practice of the female offering her body to an
indiscriminate intercourse with men, usually for
hire," it is well established that in English law
"prostitution is proved if it be shown that a woman
offers her body commonly for lewdness for
payment in return": see Rex v. De Munck [1918] 1
K.B. 635, 637, per Darling J. applied in Reg. v.
Webb [1964] 1 Q.B. 357. Reg. v. Webb was also a
case of a massage parlour, where the masseuses
masturbated their clients. In that case, the point was
taken by the defendant that the definition given by
Darling J. in Rex v. De Munck, should be read as
confined to cases where the woman offers her body
for lewdness in what one might call a passive way,
or where she submits to something being done to
her. Lord Parker C.J., giving the judgment of the
court, observed that the words used by Darling J.
were not the words of the Sexual Offences Act
1956, but merely the judge's own definition, for the
purposes of that case, of circumstances in which
prostitution may be said to have been proved. In the
judgment of that court, the expression "a woman
offers her body commonly for lewdness" includes a
case where a woman offers herself as a participant
in physical acts of indecency for the sexual
gratification of men.
It is thus common ground that these premises were
used for the purpose of prostitution. Is that
sufficient for it to qualify as a brothel, or do the
prosecution have to establish that sexual intercourse
takes place with the women who used the premises?
There is no definition in section 33 of the Sexual
Offences Act 1956 as to what constitutes a brothel.
The section merely provides: "It is an offence for a
person to keep a brothel, or to manage, or act or
assist in the management of, a brothel." That
offence derives from the Criminal Law Amendment
Act 1885 (48 & 49 Vict. c. 69), where in section 13
it is provided that: "Any person who - (1) keeps or
manages or acts or assists in the management of a
brothel ... shall commit an offence." That Act, too,
gives no definition of a brothel. In such
circumstances, as Lord Parker C.J. pointed out in
Gorman v. Standen [1964] 1 Q.B. 294, 301: "one is
driven back to the meaning of 'brothel' at common
law."
In Stephen, Digest of the Criminal Law, 5th ed.
(1894), at p. 142, the definition of a "common
bawdy house" is given as "a house or room, or set
of rooms, in any house kept for purposes of
prostitution."
In Gorman v. Standen, Lord Parker C.J. stated that
at common law, a brothel was the same thing as a
bawdy-house. He pointed out, at p. 301, that the
definition of what is involved in a bawdy-house or a
brothel had been variously stated in the cases:
"Sometimes it is stated as a place resorted to by
persons of both sexes for the purpose of
prostitution; sometimes it is referred to as a place
used by persons of both sexes for the purposes of
prostitution."
The form of indictment for keeping a bawdy-house
was referred to by Avory J. in Caldwell v. Leech
(1913) 109 L.T. 188: *669
"'Did keep and maintain a certain house and in
the said house for filthy lucre and gain divers
evil-disposed persons, women as well as men, upon
the times and days aforesaid as well in the night as
in the day unlawfully and wickedly did receive and
entertain. ...'"
In general the cases have been concerned, not so
much with the activities which went on in the
premises, as with the number of women who have
to be involved, the extent of the control or
management, and whether the women must be
professionals or only amateurs. In Singleton v.
Ellison [1895] 1 Q.B. 607, it was held that where a
woman occupied a house and had men in for the
purpose of fornication with her, she had not
committed the offence of keeping a brothel within
the meaning of the Criminal Law Amendment Act
1885. Wills J. said, at p. 608:
"A brothel is the same thing as a 'bawdy-house' -
a term which has a well known meaning as used by
lawyers and in Acts of Parliament. In its legal
acceptation it applies to a place resorted to by
persons of both sexes for the purpose of
prostitution. It is certainly not applicable to the state
of things described by the magistrates in this case,
where one woman receives a number of men."
Singleton v. Ellison was distinguished in Durose v.
Wilson (1907) 96 L.T. 645, a case involving a
block of flats where a number of the tenants were in
the habit of bringing different men nightly to the
premises for the purpose of prostitution. However,
A. T. Lawrence J. stated, at p. 646: "a brothel is
such a place as that described in that case - that is,
premises used by more than one woman for
prostitution."
In Caldwell v. Leech, 109 L.T. 188 Avory J.
expressed his entire agreement with the judgment of
A. T. Lawrence J., and stated, at p. 191:
"In my opinion the whole fundamental idea of a
bawdy-house is that it is a house to which persons
of both sexes indiscriminately make resort for the
purposes of prostitution."
The case upon which the defendant strongly relies,
and which persuaded the magistrate to dismiss the
information, is Winter v. Woolfe [1931] 1 K.B. 549
. This case concerned a cottage about two miles
from Cambridge, frequented in the main by
undergraduates, where sexual intercourse took place
with a number of women. The women were not,
however, proved to be prostitutes and therefore, at
the close of the case for the prosecution, it was
successfully submitted that there was no case to
answer. Accordingly, the court held that although
the occupier of the cottage knew what was going
on, the premises were not being used as a brothel.
Avory J. in giving the judgment of the court, held,
at p. 554, that the justices had "given too restricted
a meaning to the word 'brothel' as it is used at
common law, and as it is used in section 13 of the
Criminal Law Amendment Act 1885." It was not
necessary to prove that the women resorting to the
premises were prostitutes, known as such to the
police, or that they received payment for acts of
fornication committed by them with men. It was
sufficient to prove that with the knowledge of the
occupier persons of opposite sexes were permitted
there to have illicit sexual intercourse. This case, in
our judgment, merely demonstrates that to
constitute premises as a brothel, it is not essential
*670 to show that they are in fact used for the
purpose of prostitution, which involves payment for
services rendered. A brothel is also constituted
where the women (for there must be more than one
woman) do not charge for sexual intercourse.
In the course of his judgment (and this is
essentially what is relied upon by the defendant)
Avory J. expressed his willingness to accept the
definition of a brothel given by Grove J. and Lopes
J. in Reg. v. Justices of Parts of Holland,
Lincolnshire (1882) 46 J.P. 312. Grove J. said, at p.
312:
"The sole question is, whether there was any
evidence to support this conviction before the
justices for permitting these licensed premises to be
a brothel. ... I don't think that the matter of nuisance
is of any importance, for it is too well known that
these places are often kept in such a way as to be no
nuisance at all, but kept perfectly private. But what
needs only to be proved is this, namely, that the
premises were kept knowingly for the purpose of
people having illicit sexual connection there."
Lopes J. said, at p. 313:
"Now the sole question before the justices was,
whether the applicant permitted his premises to be a
brothel. What is the meaning of permitting the
premises to be a brothel? I think my brother Grove
has given a very apt definition, namely, that it is
permitting people of opposite sexes to come there
and have illicit sexual intercourse. That is a very
complete and satisfactory definition of the whole
matter."
Reg. v. Justices of Parts of Holland, Lincolnshire
was concerned with whether there was any evidence
to support the conviction by the justices for
permitting licensed premises to be a brothel. There
was evidence that two prostitutes, accompanied by
two men, went into the house; that the police had
watched the house; that they observed soon
afterwards, by shadows on the blinds, these four
people undressing in a double-bedded room. When
the police at a later hour, knocked at the door,
considerable delay occurred in opening it. Then
they found that the two prostitutes had been
transferred to the bed of the landlord's wife, three
women in one bed, while in the double bedded
room were the two men by themselves. It was
argued that the conviction could not be supported
by the evidence of one isolated act. The court,
however, held that although only one instance was
proved, still it supplied strong evidence of the mode
of conducting the house, and it was reasonably to be
inferred that this had not been a solitary instance of
such conduct, but one of many such instances.
There was the concealment of the two prostitutes by
the wife of the landlord showing that this had been
no extraordinary case but a frequent occurrence.
The wife gave no evidence. The justices were thus
held not to be bound to state a case, there being no
point of law raised before them. That case merely
decided that there was evidence before the justices
from which they could infer either that the premises
were being used for the purposes of prostitution, or
that persons of opposite sexes were permitted there
to have illicit sexual intercourse. It *671 was not a
case which called for an exhaustive definition of a
brothel. In Winter v. Woolfe [1931] 1 K.B. 549,
Avory J., in expressing his willingness to accept the
definitions given by Grove J. and Lopes J. was
doing no more than justifying his view that the
justices were giving too restricted a meaning to the
word "brothel."
We therefore answer the question raised by the
case stated in these terms. On a charge of assisting
in the management of a brothel in contravention of
section 33 of the Sexual Offences Act 1956, it is not
essential that there be evidence that normal sexual
intercourse is provided in the premises. It is
sufficient to prove that more than one woman offers
herself as a participant in physical acts of indecency
for the sexual gratification of men.
We should perhaps add, although this has not
featured in our reasoning, that the view which we
have expressed above does give content to section 6
of the Sexual Offences Act 1967 which provides
that premises shall be treated for the purposes of
sections 33 to 35 of the Act of 1956 as a brothel if
people resort to it for the purpose of lewd
homosexual practices in circumstances in which
resort thereto for lewd heterosexual practices would
have led to it being treated as a brothel for the
purposes of those sections.
The appeal will be allowed and the case remitted
to the magistrate to hear and determine according to
the law as it has been laid down by this court.
Representation
Solicitors: Solicitor, Metropolitan Police; Peters &
Peters.
Appeal allowed. Costs in cause. Case remitted to
magistrate to continue hearing. ([Reported by
PAUL MAGRATH, Barrister-at-Law])
(c) Incorporated Council of Law Reporting For
England & Wales
END OF DOCUMENT
*339 R. v. Julie Martin
Court of Appeal
CA (Crim Div)
(Lord Justice Watkins, Mr. Justice French and Mr.
Justice Farquharson):
August 1, 1988
Keeping disorderly house--prostitute offering
various sexual activities-- length of sentence.
Nine months' imprisonment for keeping a
disorderly house reduced to three months.
The appellant was convicted of keeping a
disorderly house. She had offered various sexual
activities for payment at premises in London. No
other prostitute was involved in her activities. The
appellant had previously been fined for a similar
offence. Sentenced to nine months' imprisonment.
Held, (considering Payne (1980) 2 Cr.App.R.(S.)
161) the circumstances in Payne were worse than
those of the present case, and as the sentence in that
case was reduced to six months, the sentence in the
present case would be reduced to three months.
Case cited: Payne (1980) 2 Cr.App.R.(S.) 161.
References: offences related to prostitution,
Current Sentencing Practice B 5-1. 3 (A).
M. Boardman for the appellant.
FARQUHARSON J.:
On June 10 this year this appellant appeared at the
Knightsbridge Crown Court where, after a contested
trial, she was convicted of the offence of keeping a
disorderly house. The learned Judge imposed upon
her a term of nine months' imprisonment.
She was then 23 years of age and at the time of the
offence, in the month of January this year, she was
living in basement premises in Balcombe Street,
West London. During that month observation was
kept by police officers on those premises and it was
observed by them that a considerable number of
visits to the flat was made by various male persons.
A record was kept of those visits, which are too
detailed to be referred to in this judgment. It is
sufficient to say that there was a very considerable
clientele.
The appellant had published nearby an
advertisement and a telephone number, which the
police officers took the opportunity of using. The
telephone was answered by somebody who turned
out to be the appellant's "maid." In discussion she
told them the tariff which was charged by the
appellant for male visitors who required spanking or
caning, either on themselves or on the prostitute.
Further fees were charged for forms of sexual
intercourse. The range of fees was such, bearing in
mind the number of clients the appellant obviously
had, that she made a very considerable amount of
money. There is some information in the antecedent
form to confirm that.
*340 At a later date one of the police officers
attended the house, posing as a customer where,
without going into it further, it was found that the
activities which had been described on the
telephone were undoubtedly taking place, more than
one customer being present.
Subsequently the premises were raided and the
appellant arrested. A good deal of paraphernalia in
the form of whips and other weapons was found in
the premises, which tend to corroborate the
advertisement.
Grounds have been put forward before this Court
saying that the sentence was too long: first, the
young woman's age--she is now 24--secondly, the
activities which she undoubtedly indulged in were
done privately in a room in the flat: there was no
public offence such as might be caused by
prostitutes soliciting in the street, and thirdly, that
she was acting as a sole prostitute: there was no
other woman on the premises who was taking part
in these activities, and so there was no evidence of
any group misbehaviour or any girl being forced to
conduct herself as a prostitute by the appellant.
Indeed Mr. Boardman advancing this argument
points out this is not the kind of disorderly house
which was contemplated by the Legislature some
200 years ago. The activity is really that of a
prostitute rather than somebody presenting indecent
performances.
There is certainly authority for saying that this
kind of activity does come within the general range
of what constitutes a disorderly house, but it is fair
to say, in deference to Mr. Boardman's argument,
that this is very much at the lower end of the scale
of disorderly house offences.
The difficulty in the case, one which obviously
motivated the learned judge in taking the course
that he did, was the fact that this appellant has a
previous conviction for precisely the same offence,
in that on September 19, 1986 at Marylebone
Magistrates Court she was fined £250 for keeping a
disorderly house, as well as being bound over in the
sum of £200 for a term of 12 months. The attitude
of the judge was that the appellant had plainly
ignored the warning which had been given to her on
that occasion, and indeed was in effect flouting the
law by carrying on the activity in precisely the same
way as she conducted herself before that earlier
conviction.
The learned judge, it appears, would not consider
the option of a fine. We do not criticise him for that,
but plainly he took the view that there was no
mitigation, bearing in mind the circumstances of
that earlier conviction.
Before us today Mr. Boardman has referred to the
case of Payne (1980) 2 Cr.App.R.(S.) 161. She in
fact was charged with keeping a brothel and had
been sentenced at her trial to a term of 18 months'
imprisonment. On appeal this Court reduced that
sentence to one of six months' imprisonment. It is
fair to say that the circumstances in the case of
Payne were very much worse than those of the
present appellant: the scale of the activity, the
number of people involved, the extent of the
indecency and the general immorality of what Mrs.
Payne was doing was very much worse, as I have
just emphasised, than anything indulged in by this
appellant.
Being loyal therefore to the earlier decision of this
Court, it seems to us that if Mrs. Payne's sentence
was reduced by this Court to six months'
imprisonment, the present appellant's sentence
should be similarly reduced to something of the
order of three months. It is our view that that would
be an appropriate sentence for this particular
offence.
Accordingly the appeal will be allowed, the
sentence of nine months' imprisonment imposed by
the learned judge will be quashed and the sentence
of three months' imprisonment substituted therefor.
(c) Sweet & Maxwell Limited
END OF DOCUMENT
*39 Woodhouse v. Hall
[Divisional Court]
DC
Lord Justice Donaldson and Mr. Justice Comyn
July 9, 1980
Evidence--Admissibility--Brothel--Management of
Brothel--Police Officers' Evidence of Words Said
by Employee in Brothel Not Called as
Witness--Whether Admissible--Sexual Offences
Act 1956 (4 & 5 Elix. 2, c. 69), s. 33.
By section 33 of the Sexual Offences Act 1956: "It
is an offence for a person ... to manage, or act or
assist in the management of, a brothel."
In a prosecution for acting in the management of a
brothel contrary to section 33 of the Sexual
Offences Act 1956 evidence by police officers of
conversations in the absence of the defendant in
which immoral services were offered to them by
women employed at the premises as masseuses, is
admissible to show the purpose for which the
premises were used. Such evidence is not hearsay
but is ordinarily admissible because it does not turn
on the truth of the statements alleged to have been
made by the women concerned but whether they
made the oral offers as alleged.
Ratten v. R. (1971) 56 Cr.App.R. 18; [1972] A.C.
378 applied.
[For admissibility of evidence and exceptions to
the hearsay rule, see Archbold (40th ed.), paras.
1284, 1286].
CASE STATED by Redbridge Justices for the
North East London Area sitting at Ilford.
1. On January 6, 1978, an information was
preferred by the prosecutor Eric Woodhouse against
the defendant, Jacqueline Hall that she did between
and including November 18, 22, 1977, at Wanstead
Sauna, 3 High Street, Wanstead, E11 act in the
management of a brothel at the said premises
contrary to section 33 of the Sexual Offences Act
1956.
2. The justices heard the said information on
November 16, 1978, when counsel for the
prosecutor in his opening address intimated that the
defence had been supplied with copies of the
prosecution witnesses' statements, that counsel for
the defendant wished to object to the admissibility
of certain evidence, and that both counsel asked us
to rule on this matter at the outset.
*40 The evidence in question was that of
conversations by police officers with women at the
premises, out of the presence and hearing of the
defendant, in which immoral services were offered.
3.Counsel for the prosecutor outlined the
prosecution case as follows:
(a) the premises referred to in the information
were a Sauna and Massage establishment occupying
two floors of the building, and consisted of a
reception area, sauna room, solarium, exercise
gymnasium, showers and cubicles used for changing
and massage;
(b) the defendant was the manageress of the
establishment and that two other women were also
employed there with her from time to time, so that
there were always two women on the premises at
any one time;
(c) during the period referred to in the information
four police officers in plain clothes had kept
observation on the premises and had also entered it
in the guise of customers, when they had used the
sauna, gymnasium and showers and had been
massaged by the defendant and the other two
women;
(d) while being massaged they had been offered
masturbation under the name "hand relief" by the
defendant and also by the other two women, such
offers having been on some occasions unsolicited
and on others in response to questions from the
officer concerned, and that the price quoted for
"hand relief" was £6 and for "topless hand relief" £10;
(e) such offers were made when the defendant or
other women making the offer was alone with one
of the police officers, so that when made by one of
the other women the defendant was neither present
nor within earshot;
(f) none of the officers had accepted any such
offer, each making some excuse;
(g) test requests by the officers for sexual
intercourse had been refused;
(h) on one occasion when a man being massaged
by the defendant was glimpsed through a half-open
door it was seen that he was naked and his penis
erect;
(i) on January 9, 1978, when a warrant for the
defendant's arrest was executed police officers
searched the premises and found a number of
discarded tissues two of which were later shown to
bear heavy seminal staining; and
(j) the two other women were not to be called as
witnesses for the prosecution.
4. It was contended by the prosecutor that
evidence by police officers of conversations with
women on the premises out of the hearing of the
defendant in the course of which extra services of
an immoral nature were offered would be
admissible on the ground that such evidence went to
prove that the premises were in fact a brothel, being
a place resorted to for the purpose of the
prostitution of more than one woman.
5. It was contended by the defendant that such
evidence would be inadmissible as being hearsay.
6. The justices ruled that the evidence would be
rejected as inadmissible unless the women alleged
to have spoken the words gave evidence of them.
Consequently the prosecution were only able to call
evidence relating to the activities of one woman and
at the conclusion of the prosecution's case the
defence submitted and the prosecution did not
challenge that there was no case to answer there
being no evidence that there was more than one
prostitute engaged on the premises. The justices
accepted the submission and found that there was
no case to answer and did not come to any
conclusion as to the facts.
7. The justices were referred to the following case:
Gorman v. Standen [1963] 3 All E.R. 627; (1963)
48 Cr.App.R. 30.
*41 8. The justices were of opinion that the object
of the proffered evidence was to establish the truth
of the statements and was therefore hearsay and
inadmissible. There being no evidence that more
than one prostitute was engaged on the premises
they accordingly dismissed the information. The
prosecutor appealed.
9. The question for the opinion of the court was:
"Whether the justices were right in rejecting as
inadmissible the proffered evidence of conversions
between police officers and women who offered
immoral services on the premises, such
conversations not being in the presence and hearing
of the defendant Jacqueline Hall."
John Hazan, Q.C. and John Blair-Gould for the
prosecutor. Ann Goddard for the defendant.
Donaldson L.J.:
This is a prosecutor's appeal by case stated against
the dismissal of a charge against the defendant
under section 33 of the Sexual Offences Act 1956.
The charge was that between and including
November 18 and 22, 1977, at Wanstead Sauna in
Wanstead, London, she acted in the management of
a brothel at those premises contrary to that section.
The question of the admissibility of certain
evidence was raised at the beginning of the hearing,
and, in consequence, the case does not find facts but
sets out the evidence which the prosecution sought
to adduce to prove the charge, and which, as was
admitted, they could only prove if two police
officers gave evidence of a conversation.
The prosecution case, so far as relevant, was this.
The premises consisted of a reception area, a sauna
room, a solarium, an exercise gymnasium, showers
and cubicles for changing and massage. The
defendant was the manageress of the establishment.
Two other women were also employed there with
her from time to time, so that there were always two
women on the premises at any one time. During the
period referred to in the information four police
officers kept observation and also entered the
premises in the guise of customers. They used the
sauna, the gymnasium and the showers. They were
massaged by the defendant and by the two other
women.
Then I get to the crucial matter upon which the
prosecution relied, the evidence by the police
officers "that while being massaged they had been
offered masturbation under the name 'hand relief' by
the defendant and also by the other two women,
such offers having been on some occasions
unsolicited and on others in response to questions
from the officer concerned, and that the price
quoted for 'hand relief' was £6 and for 'topless hand
relief' £10." Then the prosecution case goes on to
allege "that such offers were made when the
defendant or other woman making the offer was
alone with one of the police officers, so that when
made by one of the other women the defendant was
neither present nor within earshot" and "that none
of the officers had accepted any such offer, each
making some excuse." It appeared that the other two
women, not unnaturally, were not to be called as
witnesses for the prosecution.
The justices ruled that the evidence of the police
officers as to the offers made by the two other
women were inadmissible unless the women
themselves gave evidence as to what they had said.
The prosecution accepted that in the absence of the
evidence of the police officers, they could not
establish that this was a *42 brothel, namely an
establishment at which two or more women were
offering sexual services. The question is whether
the evidence was rightly excluded.
We have been referred to Ratten v. R. (1971) 56
Cr.App.R. 18; [1972] A.C. 378, a Privy Council
decision, but one which reflects English law. For
my part I think it is sufficient to refer to a short
passage in the opinion of the Board which was
delivered by Lord Wilberforce and appears at p. 23
and p. 387 of the respective reports: "The mere fact
that evidence of a witness includes evidence as to
words spoken by another person who is not called,
is no objection to its admissibility. Words spoken
are facts just as much as any other action by a
human being. If the speaking of the words is a
relevant fact, a witness may give evidence that they
were spoken. A question of hearsay only arises
when the words spoken are relied on 'testimonially,'
i.e. as establishing some fact narrated by the words.
Authority is hardly needed for this proposition, but
their Lordships will restate what was said in the
judgment of the Board in Subramaniam v. Public
Prosecutor [1956] 1 W.L.R. 965, 970: 'Evidence of
a statement made to a witness by a person who is
not himself called as a witness may or may not be
hearsay. It is hearsay and inadmissible when the
object of the evidence is to establish the truth of
what is contained in the statement. It is not hearsay
and is admissible when it is proposed to establish by
the evidence, not the truth of the statement, but the
fact that it was made."'.
I suspect that the justices were misled by
Subramaniam's case (supra) and thought that this
was a hearsay case, because they may have thought
that they had to be satisfied as to the truth of what
the ladies said or were alleged to have said in the
sense they had to satisfy themselves that the words
were not a joke but were meant seriously and
something of that sort. But this is not a matter of
truth or falsity. It is a matter of what was really
said--the quality of the words, the message being
transmitted.
That arises in every case where the words
themselves are a relevant fact. The quality of the
words has to be assessed, but that is quite different
from the situation where the words are evidence of
some other matter. Then their truth and accuracy
has to be assessed and they are hearsay.
There is no question here of the hearsay rule
arising at all. The relevant issue was did these ladies
make these offers? The offers were oral and the
police officers were entitled to give evidence of
them. The evidence, in my judgment, was wrongly
excluded and should have been admitted. What the
result would have been is of course another matter.
This charge relates to 1977 and the prosecutor in
this case, a metropolitan police officer, and the
Metropolitan Police as the prosecuting authority,
have very properly said that it would be oppressive
to continue with the trial of these proceedings at this
stage. It is no fault of either party that there has
been this delay. For my part I would declare simply
that this evidence should have been admitted. If the
question arises in another case, as it will, the
evidence should be admitted. In this case I would
make no order sending the case back.
Comyn J.:
There is a famous observation in English
literature: "What the soldier said was not evidence."
That can be misleading.
The subject of hearsay can be misleading, because
it looks so simple in outline. I think a case such as
this is of particular importance for emphasising that
we are not dealing with an exception to the hearsay
rule. What we are here dealing *43 with is a more
fundamental question as to whether the evidence
proffered by the prosecution, rejected by the
justices, was hearsay at all.
In my judgment, sharing completely the views
expressed by Donaldson L.J., this was never a
question of hearsay evidence. This was a question
of whether there was ordinary admissible evidence
and there was, with the result as Donaldson L.J. has
stated.
Representation
Solicitors: Solicitor, Metropolitan Police, for the
prosecutor. Pellys, Bishop Stortford, for the
defendant.
Appeal allowed. Case not remitted.
(c) Sweet & Maxwell Limited
END OF DOCUMENT