By Rob Jerrard LLB LLM (London)

Living on the earnings of prostitution.


It is apparent that the offence has been on the statute book for some time: it was originally to be found in the Vagrancy Act 1824, but is now contained within the Sexual Offences Act 1956. It is punishable on indictment with seven years' imprisonment, see Schedule 2, part 1, of the 1956 Act.

S.30 Sexual Offences Act 1956 states:-

"1; It is an offence for a man knowingly to live wholly or in part on the earnings of prostitution.

2 For the purposes of this section a man who lives with or is habitually in the company of a prostitute, or who exercises control, direction, or influence over a prostitute's movements in a way which shows he is aiding, abetting or compelling her prostitution with others, shall be presumed to be knowingly living on the earnings of prostitution, unless he proves to the contrary".

The section is really directed at a male person who is wholly or partly kept by a prostitute. In its simplest and most usual form it consists of an arrangement by which a man lives with a prostitute and is wholly or mainly kept by her. However the cases show that it is often not that simple.

The phrase, "Living on"

R v Bell [1978] Crim L.R.233 (CA). Over a period B was seen in the company of T, a prostitute. There was evidence that B knew about the pitches on which T plied her trade, and observed her being picked up by car drivers. The Judge directed the jury that the fact that B was observed frequently in T's company gave rise to a presumption that he was living on her earnings. The Judge did not differentiate between the different burdens of proof resting on the defence and the prosecution. B appealed. In s.30 the burden may shift, but if it does so, the defendant need only prove it on a balance of probabilities. See R v Clarke [1976] 2 ALL E.R. 696. Held, dismissing the appeal, the essence of the case had been that B denied association in any way with T in circumstances in which he could properly be said to be living on her earnings, that was essentially a matter for the jury. If the Judge failed to explain the different burdens to the jury the court might apply the proviso in appropriate circumstances. He did not feel able to do so here.

R v Stewart (1986) 83 Cr.App.R.327,(CA), concerned the letting of flats at high rents to prostitutes. The landlord was aware of their calling. The principal witness was a prostitute (Anita) who said that she became a prostitute in the early '70s when she formed a relationship with the appellant. He arranged a mortgage on her house and loaned her money. She said he agreed to transfer the property into her name, (he never did). She also stated she collected rents from other prostitutes, on his behalf.

The main issues on appeal were:-

(a)The Judge's directions to the jury on the meaning of the words, "knowingly to live wholly or part on the earnings of prostitution";

(b)The fact that it had been left open to the jury to convict where the premises were let at a normal market rent;

(c)A direction had been given that if the letting was referable to prostitution and nothing else, it was immaterial whether or not the letting was at a higher than normal rent;

(d)The Judge's direction had developed along the lines of a joint venture: the object was for the woman to earn money by prostitution, the man taking a reward from the prostitute, in some cases by extracting from her in the guise of rent sums beyond any commercial rent. Evidence was given that Anita had paid eight times the ordinary rent.

The appeal was dismissed, as there was nothing in the directions to which exception could be taken. The Court of Appeal stated that a good working test, sufficient to deal with many cases, is whether the facts of supply means that the supplier and the prostitute were engaged in the business of prostitution together: and, "the fact of supply" will include the scale of supply, the price charged and the nature of the goods or services. The trial Judge should identify for the jury the flavour of the words, "living on", and then express this general concept in the shape of guidance more directly referable to the case in hand.

Premises let at a market rent with the knowledge of the purpose to which they are to be put.

In R v Stewart, supra, it was said, "There will remain a residue of cases, and these include the situation where premises have been let at a market rent with knowledge of the purpose to which they are to be put. We see no room here for any rule of thumb distinction between premises which are or are not let at abnormally high rates. Certainly jurors will find it easier to infer in the former case that the lessor participates in the woman's earnings.....We can, however, see no logic in the suggestion that the lessor cannot be convicted unless the rent is exorbitant. The words "Whatever the rent" in Shaw v Director of Public Prosecutions (1961) 125 J.P. 237, are authority for the view that the presence or absence of this factor is not conclusive. Nor in our opinion is the question whether the premises are occupied or capable of occupation as residential premises to be taken as a touchstone." R v Silver (1956) 120 J.P. 233, disapproved of.

Shortage of accommodation

In R v Calderhead and Bidney (1978) 68 Cr.App.R. 37 (CA), the court concluded that where a landlord takes advantage of a prostitute's difficulty in getting accommodation to extract from her in the guise of rent sums beyond any normal commercial rent, he is not then in reality merely acting as a landlord, he is making her engage in a joint venture with him which will bring him a part of her immoral earnings over and above rent.

The court expressly left open the question whether a landlord who intentionally lets premises at a proper rent to prostitutes to be used only for the purposes of prostitution and not for residence would be guilty under s.30(1). "If this question comes to be raised in any future case, in our view it would be a question for the jury to decide on the evidence upon proper directions. We can conceive that a jury would take a view that such a landlord was, in effect, a partner in her trade and thus guilty of the offence"

Sole Income?.

R v Howard (1992) 94 Cr.App.R. 89, concerned an appellant who produced cards and adhesive stickers to be used by prostitutes to advertise their services and telephone numbers. He knew that his products were to be used by prostitutes to obtain clients and that the payments he received came from the earnings of prostitution. That profitable business was his sole source of income at that time. The trial Judge found that he earned 700 to 800 per week, and he would not have supplied them with the products but for the fact that they were prostitutes.

It was held, by the Court of Appeal, that the facts were indistinguishable from the example given by Viscount Simmonds in Shaw, supra. The facts fell within the definition given in s.30 and a prima facie case was made out.

Escort Agency

R v Farrugia, Borg, Agius, and Gauchi, (1979) 69 Cr.App.R 108, concerned an escort agency. The defendant Agius thought up the system and considered they would not be guilty of any offence. Girls went to and sat at the agency which was advertised widely. Those who knew would telephone and ask for "escorts". Mini cab drivers, two of whom were Farrugia and Gauchi, were under the directions of Agius.

A driver would take girls on an assignment. On arrival at the destination the driver would introduce the girl to her assignment and collect the agency's fee, usually 17.50, and his fare. There was no evidence that the fare was excessive. Nearly all the activities were late at night.

At the trial an attempt was made to prove that the agency was genuine, although evidence to the contrary was overwhelming. The defence submitted that this did not prove the defendants "knowingly lived wholly or in part on the earnings of prostitution". They may well have made part of their living out of prostitution but that was not the same as living on the earnings of prostitution.

All four were convicted. Their appeal to the Court of Appeal was dismissed on the basis that all four knew what the girls intended to do. What they received came from intended prostitution - as earnings. As with Calvert v Mayes (1954) 118 J.P. 76, No direct payment had to be proved. R v Ansell [1974] 3 All E.R. 568 and Shaw, supra applied. All sentences were reduced.

The Presumption, s.30(2) Sexual Offences Act 1956.

Under s.30(2) there are three factors upon which the prosecution can rely in order to prove the presumption:-

(a)proof that the accused was living with a prostitute;

(b)proof that he was at the material time in her company;

(c)proof that he exercised control, direction, or influence over her movements in such a way as to show him to be aiding and abetting her prostitution.

In R v Clarke, supra, it was decided that on a true construction of s.30(2), proof that a man lives with or is habitually in the company of a prostitute is sufficient to raise the presumption that he is knowingly living on her earnings of prostitution. The onus then shifts to the man to prove on a balance of probabilities that he was not living wholly or partly on the earnings of a woman whom he knew to be a prostitute.

R v Wilson (1983) 78 Cr.App.R. 247. W was the caretaker of a block of flats and lived with a woman. Evidence was given that she was a prostitute and W admitted that she had given him sums of money to help with maintenance payments he made to his children. He was charged under s.30(1). He appealed in part on the fact that the Judge had failed to direct the jury on the "preying on" or "parasitism" which were a necessary element of "living on".

Held, dismissing the appeal, The term "living parasitically" as used in Shaw, supra, was misleading. It must not be applied to a case such as this where sub-section (2) raises a presumption.

Once a case turns on subs. (2) it becomes a question for the jury to decide whether the accused has escaped the presumption, by proving to the contrary on a balance of probabilities. Where subs. (2) is concerned it is irrelevant to consider the nature and quality of the "living on" In Shaw it was necessary to consider the "living on" quality since it was not a case of the presumption.

In R v Grant (Thomas) [1985] Crim.L.R. 387 (CA), Grant was charged with a single count under s.30. Prosecution evidence was given of police observations and by the woman concerned. The woman's evidence under cross-examination strengthened the case against G. G gave and called no evidence. The jury were directed that if the prosecution established any of the elements in s.30(2), the presumption as a matter of law was that G knowingly lived wholly or in part on her immoral earnings unless he proved the contrary on a balance of probabilities and that, since he had not offered any evidence, their duty was to convict unless the prosecution had failed to make out any of the grounds.

The defence submitted that the presumption, assuming that it arose, could be discharged merely by cross-examination and without calling or giving evidence. G was convicted and he appealed.

Held, dismissing the appeal, that a case could arise where, in examination-in-chief, the woman's evidence was that she was a prostitute and the defendant knew it, and she lived with him and provided benefits for him, and in cross-examination she withdrew that evidence and said that he was not living on her immoral earnings. In such a case the burden could be discharged by cross-examination and if that were the case the direction given in the present case could be criticised.

It was not the law that s.30(2) meant that a conviction must inevitable follow where a defendant gave no evidence and the presumption had been raised by evidence before the jury. However, in the present case, a direction along the lines contended by the defence would have been academic in view of the facts. The direction was not wrong.

Is "he" a man?

In R v Tan and Others [1983] Q.B. 1053, the defendants Tan and Gloria Greaves were convicted of keeping a disorderly house, living on the earnings of prostitution, and living on the earnings of male prostitution. On the question of keeping a disorderly house, contrary to common law, the defendants provided sexual services to those wishing to receive them. The services provided were the use of certain equipment provided in private with no observers. Straightforward (Sic) sexual intercourse was not provided. Clients were subjected to humiliation, flagellation, bondage and torture accompanied by masturbation.

The essential ingredient required for the offence of s.30 was that the defendant was a man. Gloria Greaves was born a man and remained biologically a man albeit he had undergone a sex change operation. In this instance the court followed Corbett v Corbett (orse. Ashley) (1969) 113 S.J. 982, however rulings on Human Rights may influence any future cases.

In Cossey v United Kingdom (1990) The Times, 17 October, the European Court of Human Rights held that the United Kingdom had not breached the European Convention on Human Rights by refusing a male to female transsexual a birth certificate showing her sex as female. A British transsexual's status is recognised for certain purposes, a passport and a driving licence can be issued, however such a person is prevented from marrying in his/her new gender.

The same court reached the opposite conclusion in B v France (1992) The Times, 31 March. The case concerned a French citizen. The court found that there were noticeable differences between France and England with reference to their law and practice on civil status, change of forenames, use of identity documents, and so on, which enabled them to distinguish this case from Rees v United Kingdom (1986) The Times, 26 October, and Cossey, supra.

Sentencing

The Court of Appeal generally considers a deterrent sentence to be necessary in all cases of living on the earnings of prostitution. The most significant factor in determining the length of sentence in a given case is the extent to which the offender is responsible for the corruption of the woman concerned.

In the case of R v Cecil Jackson and Sullivan (1982) 4 Cr.App.R.(S) 286, and R v Jackson, Sullivan and Hilton (1982) 4 Cr.App.R.(S) 184 the Court of Appeal made it clear that an immediate custodial sentence was correct if there is evidence of coercion or corruption. The court said that to run a brothel in a sauna is unlawful because Parliament has made it so.

In R v Robinson and Others (1984) 6 Cr.App.R.(S) 159, two men and one woman pleaded quilty to living on the earnings of prostitution and aiding and abetting the offence. The offences concerned the running of a sauna and the giving of certain sexual "services". There was evidence that the girls charged about 40.00, plus tips were paid to the girls. The girls said they were encouraged to persuade clients to buy champagne at 20.00 a bottle. The receipts of the establishment were said to be 220,000 per year.

The Court of Appeal confirmed that an immediate custodial sentence was appropriate for the manager, however they reduced the sentence of two years to nine weeks already served since there was no evidence of coercion or corruption: the girls had previously worked as prostitutes.

In Farrugia, supra, Lawton LJ; said a sentence exceeding two years should be reserved for cases where there is such coercion or corruption. In Farrugia, the defendant Agius had his 5 year sentence reduced to two years, albeit the fine of 5,000 stood, "to take some of the profit out of this disgraceful immoral business"

The case has been followed in R v Hall (1987) 9 Cr.App.R.(S) 121, where three years was reduced to eighteen months because the landlord was said to have had only limited control. A fine of 10,000 stood since there was no reason to think he could not afford to pay. It was also applied in R v Smyle (1990) 9 Cr. App.R.(S) 256, where two years was reduced to fifteen months for a man who had received 10,000 from a prostitute over fourteen months; to feed his addiction for drugs. Although he had additionally been charged with causing her actual bodily harm the assault was not related to her activities as a prostitute and there had been no coercion or corruption.


Rob Jerrard