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No: 200701838/C1
Neutral Citation Number: [2007] EWCA Crim 2664
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2A 2LL
Friday, 19th October 2007
B e f o r e
:
LORD JUSTICE TOULSON
MR JUSTICE GIBBS
HIS HONOUR JUDGE WIDE QC
(Sitting as a Judge of the CACD)
R E G I N A
v
STEVEN JOHN MASSEY
Computer Aided Transcript of the Stenograph Notes of
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190 Fleet Street London EC4A 2AG
Tel No: 020 7404 1400 Fax No: 020 7831 8838
(Official Shorthand Writers to the Court)
Mr N Gerasimidis
appeared on behalf of the
Applicant
Mr T Fitzgerald
appeared on behalf of the
Crown
J U D G M E N T
(As Approved by the Court)
Crown copyright©
1. LORD JUSTICE TOULSON: The main point in this appeal concerns the meaning of the word "control" in
section 53(1) of the Sexual Offences Act 2003
, which created a new offence of controlling the activities of a prostitute for gain in place of the previous statutory offence of living on the earnings of prostitution.
2. In February 2007 the appellant was tried at Exeter Crown Court before His Honour Cottle on an indictment containing four counts. They all related to a woman called Diane. He was acquitted on counts 1 and 2, which charged him with rape and assault occasioning actual bodily harm. He was convicted on counts 3 and 4. Count 3 charged him with living on prostitution, between 1st January 1997 and 30th April 2004, contrary to
section 31 of the Sexual Offences Act 1956
.
3. Count 4 charged him with controlling prostitution for gain, between 1st May 2004 and 2nd January 2006 contrary to
section 53(1) of the Sexual Offences Act 2003
. He was sentenced to 18 months' imprisonment on count 3 and 4 years' imprisonment on count 4 concurrent. He applied for permission to appeal against conviction and sentence. His appeal was referred to the Full Court. We stated at the outset of the hearing that we granted leave to appeal against conviction and the matter has proceeded as the hearing of the appeal.
4. The course of conduct relied upon to support count 4 was a continuation of the conduct relied to support count 3. The reason for there being separate counts was that the 2003 Act, so far as material, came into force on 1st May 2004, and section 30 of the 1956 Act was simultaneously repealed. To avoid the complexity of separate directions about the law before and after that date, we understand that the parties came to a practical arrangement. It was common ground that if on the evidence the jury was sure that the appellant's conduct made him guilty under the law as it applied from 1st May 2004, he would also be guilty the law as it applied before that date. If the jury found him not guilty under the new law, the prosecution would not seek a conviction in respect of the period covered by count 3. So the judge gave the jury a common direction on both counts 3 and 4 based on the new law.
5. This pragmatic approach caused no injustice to the defendant and made the judge and jury's task simpler. The relevance for this appeal is that if the conviction under count 4 is unsafe, the prosecution accept that the conviction on count 3 would also be unsafe. Conversely, if the appellant's appeal fails on count 4, no separate argument is advanced by the appellant on count 3.
6. The facts can be stated quite shortly. Diane met the appellant 10 years ago when she was 19. She was working as a prostitute on the streets of Plymouth. He picked her up and they went to his flat. She told him about her background, which had been troubled. She had been taken into care from the age of 2. While in care she committed of offences of loitering, dishonesty and violence. She developed a drug habit. When released from care at 16, she took to working on the streets. The appellant was then nearly twice her age. He was 35. Within a few days he took her in to live with him. She lived with him until she finally left him on 3rd January 2006. On that date she made a complaint to the police about his conduct and he was arrested. During the period of 9 years or so that they lived together, Diane left the appellant on a number of occasions but each time she came back.
7. As to the nature of their relationship and the part which he played in her activities as a prostitute, the jury had opposing accounts. Diane's version was that throughout the time they lived together he never worked. They both claimed income support and housing benefit. Apart from that, their income was what she earned from prostitution. Her evidence was that he took all her money and decided how much she should have back. He used to gamble with it. He also organised her methods of work. Initially she was earning between £500 and £650 a week on the streets. At his instigation, she advertised in the 'Free Ads' and he decided on the wording. This meant that clients would then come to their flat and her earnings rose.
8. He also set up a website for her. He arranged bookings with clients and he kept a diary which was produced as an exhibit. The diary recorded "in calls" and "out calls." In calls" were where the client came to the flat. According to Diane the appellant would on occasions watch through a spy hole and comment on her performance. "Out calls" were when she went to the clients. The appellant would drive her there. He would decide whether a client could take photographs, and he prepared a form of agreement for a client who wanted to take photographs to have to sign. According to Diane, he was domineering and violent towards her. Sometimes she did not want to perform particular acts, but he would go on about the money. She felt intimated and so did as he wanted.
9. The appellant's version could hardly be more different. According to his evidence, his reason for taking her in was a mixture of pity for her, because of her life story, and having strong immediate feelings for her. He did not like her working as a prostitute and, from the outset, he tried to dissuade her from doing so, but she would not give up the sex trade because of the money it brought her. She spent all that she earned on herself principally on clothes and betting. He supported himself by freelance photography, including nude shots of Diane, computer repairs and acting as independent bookmaker. Since she was insistent on continuing to work as a prostitute, he helped her organise her life in a way which would make things safer for her. He kept details of appointments in a diary at her request, because her own organisational skills were so poor. Against that factual setting we turn to section 53 of the 2003 Act. Section 53(1) provides:
"A person commits an offence if‑
(a) he intentionally controls any of the activities of another person relating to that person's prostitution in any part of the world, and
(b) he does so for or in the expectation of gain for himself or a third party person."
10. The central issue of law raised by this appeal is what is meant by the word "control". The judge directed the jury as follows:
"What does the word 'control' mean in this context? What it does not mean is total control; the prosecution do not have to prove that Diane was a slave doing the defendant's bidding. They must prove that he exercised control over her activities in the sense that she was acting under compulsion exercised over her activities by the defendant. The Crown do not prove that on every occasion she acted under compulsion; they must prove that over the whole period the defendant was exercising control over her activities.
It is the prosecution's case that there was ever‑ present an atmosphere of intimidation, an atmosphere deliberately created by the defendant, an atmosphere she was well aware of, and kept well of aware of, and it is against that background that she is acting as a prostitute. The words of the offence is 'controlling the activities', not 'forcing the activities'. Defence counsel repeatedly used the word 'force' or 'forcing'; disregard that. The prosecution do not have to prove that he forced Diane into prosecution or forced her to work as a prostitute; they have to prove that he controlled her activities."
11. The appellant's skeleton argument advanced the case that coercion was, as matter of law, an essential ingredient of control under section 53. In his oral argument, Mr Gerasimidis modified the way in which he presented the appeal. He submitted that the case had been presented by the prosecution on the basis that the appellant was a violent pimp who had compelled Diane to act as she did. In those circumstances, it was right for the judge to direct the jury that they had to be sure that he had compelled her to act as she did, but it was contradictory and confusing for the judge then to say that the prosecution did not have to satisfy them that he had forced her to work as a prostitute. The jury was therefore left without any clear guidance what "control" required. The jury did not accept all the complainant's evidence, because they acquitted the appellant on counts 1 and 2.
12. Without a clear direction about the meaning of control, it was argued that the jury verdicts may have been a half‑way house between the prosecution and the defence, reflecting the fact that the jury did not like the part which the appellant played in relation to the diary and obtaining money from Diane. In the circumstances, his conviction was unsafe.
13. It was submitted in the respondent's skeleton argument that no valid criticism could be made of the judge's direction.
14. We were referred to the decision of this Court in
Attorney‑General's Reference No 2 of 1995
[1997] 1 Cr App R(S) 72, where the court was concerned with the words "control, direction or inference" in
section 31 of the Sexual Offences Act 1956
.
15. We do not find that authority helpful for present purposes, because in that case the court said that since Parliament had used three distinct words they must be construed disjunctively. In the area of statutory construction, context is critical. Section 53 of the 2003 Act has to be construed in its statutory framework duly considering the social mischief at which it is aimed. The phrase "he intentionally controls any of the activities of another person ... relating to [that person's] prostitution ... " occurs not only in section 53 but also in section 49. Sections 49 to 51 are a group of sections collected under the heading "abuse of children through prostitution and pornography". Sections 52 to 54 are a group of sections collected under the heading "exploitation of prostitution." Those headings are not definitive, but they are pointers towards the mischief at which the sections are aimed.
16. Section 49(1) provides:
"A person (A) commits an offence if.
(a) he intentionally controls any of the activities of another person (B) relating to B's prostitution or involvement in pornography in any part of the world and (b) either‑
(i) B is under 18 and A does not reasonably believe that B is 18 or over, or.
(ii) B is under 13."
17. The explanatory note to section 53 states that it requires the same behaviour as section 49, and the same phrase must plainly bear the same meaning in both sections. The explanatory note to section 49 includes this statement:
"An example of the behaviour that might be caught by this offence is where A requires or directs B to charge a certain price, or to use a particular hotel for her sexual services, or to pose for a certain photographer, and B complies with this request or direction."
18. It is contrary to the normal practice of Parliamentary Counsel to include examples in Acts of Parliament (by contrast with some forms of legislation such as European Directives) but examples in explanatory notes can be helpful in casting light on the mischief against which a particular statute is aimed. The admissibility of explanatory notes for that person is well established: In
Westminster City Council v National Asylum Support Service
[2002] UKHL 38
[2002] 1 WLR 2956
Lord Steyn said, at paragraph 5:
"Insofar as the Explanatory Notes cast light on the objective setting or contextual scene of the statute, and the mischief at which it is aimed, such materials are therefore always admissible aids to construction. They may be admitted for what logical value they have. Used for this purpose Explanatory Notes will sometimes be more informative and valuable than reports of the Law Commission or advisory committees, Government green or white papers, and the like. After all, the connection of Explanatory Notes with the shape of the proposed legislation is closer than pre‑parliamentary aids which in principle are already treated admissible: see Cross,
Statutory Interpretation
, 3rd ed (1995) pp 160‑161. If used for this purpose the recent reservations in dicta in the House of Lords about the use of Hansard materials in aid of construction are not engaged: see
R v Secretary of State for the Environment, Transport and the Regions Ex parte Spath Holme Ltd
[2001] 2 AC 349
, 407;
Robinson v Secretary of State for Northern Ireland
[2002] UKHL 32,
The Times, 26 July 2002
, in particular per Lord Hoffmann, at paragraph 40. On this basis the constitutional arguments which I forward extra‑ judicially are also not engaged: 'Pepper v Hart: A re‑examination' (2001) 21 Oxford Journal of Legal Studies 59."
19. The example and language of the explanatory note to section 49 are instructive. There are significant differences, of course, between section 49 and section 53, apart from the differences of penalty. Section 49 relates to children and does not require that the defendant should have acted for financial advantage. It extends to pornography as well as prostitution. But both sections have a common ingredient ie the intentional control of another person's activities, and both are directed at forms of sexual exploitation.
20. In our judgment, "control" includes but is not limited to one who forces another to carry out the relevant activity. "Control" may be exercised in a variety of ways. It is not necessary or appropriate for us to seek to lay down a comprehensive definition of an ordinary English word. It is certainly enough if a defendant instructs or directs the other person to carry out the relevant activity or do it in a particular way. There may be a variety of reasons why the other person does as instructed. It may be because of physical violence or threats of violence. It may be because of emotional blackmail, for example, being told that "if you really loved me, you would do this for me". It may be because the defendant has a dominating personality and the woman who acts under his direction is psychologically damaged and fragile. It may be because the defendant is an older person, and the other person is emotionally immature. It may be because the defendant holds out the lure of gain, or the hope of a better life. Or there may be other reasons.
21. Sex workers are often vulnerable young women with disturbed backgrounds, who have never known a stable relationship or respect from others and are therefore prey to pimps. It is all too easy for such a person to fall under the influence of a dominant male, who exploits that vulnerability for financial gain. Exploitation of prostitution for financial gain is the broad mischief against which section 53 is aimed, whether or not it involves intimidation of the prostitute or prostitutes concerned. At one stage it was submitted by Mr Gerasimidis that some degree of absence of free will on the part of the prostitute is an essential ingredient of control. But on the reflection he withdrew that submission and, in our judgment, he was right to do so. If, for example, a group recruits young women from overseas and puts them to work in organised prostitution in the United Kingdom, we do not see any ground for saying that the prosecution would have to prove absence of free will in order to be able to show that the organisers were controlling the activities of the women for gain.
22. Although, as we have stressed, we do not seek to substitute alternative words for the word "control" which Parliament has used, our approach to the interpretation of the word in its statutory content is consistent also with its ordinary English usage. The Concise Oxford Dictionary defines "in control of" as "directing an activity". It defines the noun "control" as "power of directing, command". By contrast, it does not includes the words "compel, force or coerce", although they would doubtless be forms of control.
23. In the present case the first part of the judge's direction, in which he said the prosecution had to prove that "he exercised control over her activities in the sense that she was acting under compulsion exercised over her activities by the defendant", put the matter too high. It amounted to saying that the prosecution had, as a matter of law, to prove absence of free will, a proposition we have rejected. His direction as a whole cannot have led the jury to underestimate what the prosecution had to prove.
24. Diane's account of the appellant's role in relation to her activities as a prostitute was corroborated by the production of the diary and the ultimately undisputed fact he had designed the website. If the jury accepted her general account in relation to those activities, as we think they must have done, although they did not accept the specific allegations of rape and actual bodily harm, there was ample foundation for his conviction, which we do not regard as unsafe. The appeal against conviction is therefore dismissed.
25. We turn to the question of sentence. This was not the worst case of its kind but it was a bad case. The appellant exploited Diane from the age of 19 to 28 for his financial gain. In his sentencing remarks the judge said:
"Over a period of years thereafter you controlled her activities. She worked as a prostitute from your home, and in your home. It was you who made all the arrangements to ensure maximum use of the services she could provide. You maintained her diary; she accounted to you for all earnings; you took her appointments and away from Plymouth; you kept an eye on her all the time. You had no other means of support except State benefits, and you lived off her for years.
I have already referred during the course of submissions to your gambling activities. All the documentation that was put before the jury during the course of trial demonstrated conclusively that your gambling activities had been entirely unsuccessful; it was her earnings that were funding your unsuccessful gambling activities.
The threat of violence was subtle, but ever‑present, and there is no doubt she felt intimidated by you. Although the particular assault occasioning actual bodily harm resulted in a verdict of not guilty, having heard the evidence in the case I am quite satisfied that you did regularly use violence towards her. You were, as the prosecution alleged you were, a violent pimp, taking advantage of a damaged and vulnerable individual. It may be when you relaxed your approach to Diane working; however, there remained present the threat even during those periods; and as time went on, and towards the end of the period concerned in this case, Diane felt more and more under greater compulsion to work for fear of the consequences of refusing to do so."
The judge made those remarks after having had the benefit of presiding over the trial and seeing the witnesses. We see no basis for challenging his view of the facts. The financial gain to the appellant must have been considerable, even though we were told by Mr Gerasimidis that it became common ground during the trial that there were significant periods when Diane was not working as a prostitute, and she accepted in cross‑examination she kept rather more of her money for herself than she originally claimed.
26. The Sentencing Guidelines Council's guidelines on the 2003 Act suggest a sentencing range of 2 to 5 years custody for an offence under section 53 where there is evidence of physical or mental coercion. The introduction of those guidelines came 1 month after the judge passed sentence in this case. But we do not consider that the sentence of 4 years' imprisonment was in all the circumstances wrong in principle or manifestly excessive. Accordingly the application for leave to appeal against sentence is refused.