Official Report 836KB pdf
Good morning, and welcome to the 29th meeting in 2025 of the Criminal Justice Committee. We have received apologies from Rona Mackay MSP. Ash Regan MSP is joining us online, and I also welcome Rachael Hamilton MSP to the meeting.
Our first item of business is continued scrutiny of the Prostitution (Offences and Support) (Scotland) Bill. We have one panel of witnesses for this item, and I intend to allow up to 75 minutes for our discussion. I refer members to committee papers 1 and 2.
Our witness are Dr Emma Forbes, national lead for domestic abuse and head of victims and witnesses policy at the Crown Office and Procurator Fiscal Service; Liliana Torres Jiménez, secretary of the criminal law committee at the Law Society of Scotland; and Detective Superintendent Steven Bertram from Police Scotland. I extend a warm welcome to you all, and I thank those of you who were able to provide a written submission.
Just before we start, as ever, I make a plea to everyone to keep their questions and responses as succinct as possible.
I will begin by asking a broad opening question, to set the scene. I will put this to Dr Forbes first and then work my way along the panel. What are your overall views on the bill? Is there anything in it that you particularly agree or disagree with or which you think could be improved?
Good morning. COPFS supports the proposal in the bill to criminalise the buying of sex off street within private dwellings.
I know that you have received many consultation responses with a range of views and that you must consider individual choice and the fact that there are some voices calling for that, but I want to make the point that, as prosecutors, we act in the public interest and that, as part of that public interest test, we take into account the views and interests of a victim of any offence.
With any exploitation or abuse of women or children—this a gendered offence; our statistics and crime stats show that—our starting point is to presume that the prosecution of that is in the public interest because of the wider societal harms and the wider harms on them as individuals. We know that many women who are involved in prostitution are victims of myriad other offending and experience abuse and vulnerabilities. We are proud to be part of and active participants in the Government’s equally safe joint strategic board.
We support the policy intention behind the bill. I do not want there to be a but, but there are evidential difficulties in proving the offence. That does not mean that we should not do it and that the difficulties are insurmountable, but it is important that it is recorded that any intimate offending behind closed doors in private will always be more difficult to prove.
Good morning. The Law Society’s position regarding the bill, particularly the policy intentions behind it, is neutral. Our submission comments are focused on some of the legal implications that we envisaged from the proposals. I will highlight three of them.
The first point relates to the definition of “performance of a sexual act” as part of the definition of the new offence that is proposed in the bill. We consider that further clarification should be provided on what is understood by that new concept or the concept in the terms of the bill.
The second point that I want to highlight is the proposed penalties and whether those are consistent with the current sentencing provisions and practice.
The third point is on the debate about whether to provide for a statutory pardon or quash historic convictions. I know that this committee has heard evidence previously on which of those two approaches would be better for meeting the policy intention behind the bill, but we have some concerns on the proposed quashing of historic convictions.
I am happy to expand on any of those points or respond to any questions that the committee might have.
Good morning. Thanks for having us along today.
Similarly, Police Scotland is supportive of the proposed criminalising of the purchase of sex through the bill. I will probably speak about consistency a lot today. We recognise that much of the challenge that we face is bringing a national, consistent and effective approach to policing all aspects of criminal sexual exploitation. We work under the equally safe strategy part of that, and we have worked really hard over the past couple of years, tacking account of the current Scottish Government’s strategy and challenging men’s demand for prostitution.
I return to the issue of consistency. It is already illegal to buy sex in some circumstances, and we have the means to challenge demand for on-street prostitution. However, there is a gap currently as no legislation provides for the policing of prostitution that is off-street and behind doors. Also, we have separate legislation that tackles human trafficking and exploitation. There is a gap in the middle. That is the reason that we remain supportive of the bill—it would send out a very consistent message on what we are trying to achieve and how we police that. I guess the issue is about understanding when the crime would be complete. Whatever legislation comes in needs to be effective for policing.
We will probably discuss what our colleagues in the rest of the United Kingdom and Ireland have done, which I think has been discussed in previous sessions. I have certainly linked up personally with my opposite numbers in those areas and I know the challenges that they are facing. My only reservation is that, whatever comes in, needs to be effective and allow us to police effectively in Scotland.
Thank you very much. We are keen to cover a lot of issues that were raised in previous sessions. One of the key ones is the application of the proposed new criminalising offence, so to speak, in the context of off-street crime and off-street prostitution.
However, first I will come back to Detective Superintendent Bertram. One of the provisions in the bill relates to placing a responsibility or a duty on the Scottish ministers to ensure that support is provided to women who are working in this industry. We know that Police Scotland is already heavily involved in extensive collaborative work as part of operation begonia. As a north east MSP, I am very aware of how well-established and strong those collaborative partnerships are.
I am interested in your reflections and commentary on how important the support—the non-criminalising—element is to the work on tackling prostitution and the demand for prostitution. How could that be improved? Where are there gaps in that provision that relate to the bill that would be helpful for us to understand?
Partnership working and support go hand-in-hand—we would not see success without both. Whenever we plan work, we always ensure that we have in place key support. Sometimes, it can be a bit of a postcode lottery with services, with some that are available in parts of the country maybe not being of the same standard as they are in other parts. That needs to be looked at and addressed to ensure, again from the support side, that there consistency.
Operation begonia and operation waterdale are the two national operations that we ran in order to target the areas where we had an on-street prostitution footprint. Edinburgh, Glasgow, Dundee and Aberdeen are the four areas where we were aware that it existed. In each of those areas, we now have really good local and national links in place. Operation waterdale, which was the operation that ran in Glasgow, had more of an intensification period and worked hand in hand with the routes out service. That partnership was absolutely key and played a huge part when it came to judging whether we had made any difference in that space. Stepping back and reflecting is the important part.
The work that happened in Glasgow over the four or five months at the end of last year and the start of this year led to a bit of a breakthrough in challenging men’s demand, providing support and giving the best opportunity for anyone selling sex—it is all women in that area—to exit safely. Some of the challenges that the police face are around commercial sexual exploitation, which is one part of the many crimes and forms of violence against women and girls that we are trying to address. It is a constant process of juggling priorities, managing demand and assessing risk. However, a longer-term approach to that process would be really effective.
I am sorry, because I can be a bit of a talker.
I have a final question on sustaining support and, specifically, on funding. I am interested in the current picture of support across Scotland. For example, in the north-east, the fairer Aberdeen fund is used for the work to support women. I am interested in how reliable and sustainable funding is, given the context of the bill that we are looking at today and the existing support provision.
Aberdeen is the only area that gets that external funding. Everyone else uses the existing police budget in order to prioritise resources in that area. We have engaged a few times with the Scottish Government and obtained additional grants, which we have used for overtime. A lot of times, when we struggle to resource the normal working day, we put overtime in place in order to stand up patrols. I should have some of the numbers on how many patrols have been put in place, but I would need to come back to you on their cost.
That would be appreciated. Thank you very much.
Good morning. My first question is to Liliana Torres Jiménez, and I remind colleagues that I am currently regulated by the Law Society of Scotland, of which I am a member.
Liliana, in your submission and opening remarks, you talked about your concerns about the definition of sexual acts and the proposed penalties. Could you expand on your concerns and tell us what needs to be amended to address them?
In your submission, you brought up the policy memorandum, which specifically says that the bill aims to
“reduce the amount of prostitution in Scotland”.
Will the bill, as drafted and/or amended, achieve that?
To begin with the last question, we do not know. It is for the Parliament to evaluate the bill’s policy intention and to consider whether it can be achieved. I do not have an answer to that question, but I can expand on your two others.
To start with, our concern is mainly focused on the definition of
“performance of a sexual act”.
Section 9(1) provides a definition of the performance of sexual act for the terms of section 1, which is on the
“Offence of paying for the performance of a sexual act by a person”.
Section 9(1)(a) indicates that the
“performance of a sexual act”
is an act that is
“intended to cause sexual arousal, gratification, or stimulation of any person”.
However, section 9(1)(b) includes some exclusions—in particular, for
“striptease, pole dancing, lap dancing, or other erotic performances.”
Our concern is that it is not clear what is understood by “other erotic performances”, and it is crucial that that is understood, because we are talking about an exclusion from the definition.
09:45When an offence is drafted, it should be as clear as possible for everyone to understand what is and is not prohibited. We can envisage problems in drawing the line between an erotic performance and behaviour under the limits of section 9(1)(a), so we recommend either providing specific exclusions—as is provided for stripteases, pole dancing and lap dancing—or defining “other erotic performances”.
Regarding your question on penalties, we highlight in our written submission that the bill proposes penalties of, on summary conviction, imprisonment not exceeding six months and, on conviction on indictment, imprisonment not exceeding 12 months. The maximum penalty that the bill proposes—12 months in prison—can be achieved by summary proceedings, so we are not clear why the offence would be triable in both types of proceedings. The Scottish Sentencing Council also highlighted that concern in its written submission. We would welcome clarification on why that is the case for the offence as drafted.
The second concern that we raised regarding sentencing is about how such sentences match with the presumption against short sentences. If you give me a second, I will refer to my notes.
Section 204(3A) of the Criminal Procedure (Scotland) Act 1995 prevents courts from imposing
“a sentence of imprisonment for a term of 12 months or less”.
I heard Ms Regan say in her oral evidence that she envisages, based on that provision, that not many offenders will go to jail and that other types of sentences will be imposed. However, if it is not thought that the imprisonment penalty will be imposed, it is legitimate to ask why it is in the bill. I imagine that it has been included for very serious cases that probably involve other types of offences but, if there has been further criminality, there are mechanisms for addressing that in existing legislation. That is our concern.
I am grateful for that answer.
Dr Forbes, you say in your written submission that the Crown Office
“is concerned that police and prosecutors in Scotland will face similar evidential barriers to enforcing the proposed new offence”
to those faced in Northern Ireland and Ireland. You also talked about evidential issues in your opening remarks. Will you expand on what you mean by that? How would the Crown Office envisage prosecuting the offences that are set out in the bill?
We must remember that the United Nations has recognised the sexual exploitation of women as a human rights violation, so our starting point would be to presume that prosecution of an offence such as the one drafted in the bill would be in the public interest, but we can prosecute only when we have sufficient evidence.
I know from hearing Ms Regan’s submissions and reading the policy memorandum that she was hopeful that we would be able to prosecute without the evidence of the women involved in prostitution. However, I have to say that, as a prosecutor, I struggle to see how we could do that consistently. There might be occasions when that might be possible, but we have to manage the committee’s expectations and say that, in reality, the women’s evidence would be important.
The other important thing to say about those women’s evidence, given that there are huge barriers to securing that evidence safely, is that the only way that we have any realistic hope of securing it safely is if the support that the bill provides for is fully resourced and available. Dealing with violence against women and girls is a strategic objective for the Crown; we are really committed to it, and we have worked hard across a lot of areas. Everything that we know about the prosecution of intimate offending, sexual violence, domestic abuse and honour-based violence points to the fact that, without proper support for women, we will not secure that evidence. Therefore, the support is critical. It is much wider than just the nuts and bolts of what, as a prosecutor, I might need to prove a case. It is also about supporting women and enabling them to safely give evidence.
You successfully pre-empted where I was going with that question about the contradiction between what Ash Regan told the committee on 25 June about not necessarily needing women’s evidence and your suggestion in your opening submissions. You referenced specifically the situations in Northern Ireland and the Republic of Ireland. Is the matter of whether people in prostitution need to give evidence the only evidential challenge that has been faced there, or have you seen other evidential challenges that cause you concern?
Like Detective Superintendent Bertram, I have had the opportunity to discuss the issue with Irish colleagues. I am not qualified in Ireland, but my understanding of the legislation there is that the definition is narrower. Their police powers are different and, although I am not qualified to answer on that question, I think that that might make a material difference. I do not think that their police have the same common-law powers as Police Scotland has, but I would want that to be clarified by someone who is an expert in policing.
The legislation in Ireland does not have a reasonable inference test, which will narrow quite substantially the scope of what they are able to prove. However, to go back to Liliana Torres Jiménez’s point about the caveats in the bill, some of what is precluded from the definition might be what would allow police to infer a reasonable inference in the first place. Does that make sense?
Yes, it does—thank you. I am going to press you, Dr Forbes, simply because your submission specifically says that the Crown Office is “mindful of the challenges” in enforcing the legislation in Ireland and is
“concerned that ... prosecutors in Scotland will face similar evidential barriers”.
What are those evidential barriers that you might face that would be similar? I am trying to understand that.
There are perhaps differences in the law that mean that Ireland faces greater evidential barriers than we do, but that does not detract from our concern that there are evidential barriers to proving such cases here. That does not mean that we should not try to prove those cases, and it does not mean that, in principle, the bill is not well founded; it just means that we have an obligation to say that these are difficult cases to prove. It is intimate offending in private.
The Women’s Support Project has done amazing research and work with women involved in prostitution in Scotland. The organisation knows that 77 per cent of those women have been the victim of serious violent offending, sexual abuse or domestic abuse, and they are victims of other offences. They are fearful of talking to the police and telling them what has happened to them, for a range of reasons. They might be involved in substance misuse or facing homelessness. They might have been convicted for lower-level offending.
I know that the bill seeks to address some of those issues, but there will be other reasons why those women might have come into conflict with the law, given the nature of their lifestyle and the limited choices and sphere of agency that they have. I imagine that, because of that, they perceive a lot of barriers to talking to law enforcement about what has happened to them. That is a reality.
Good morning. I will start with questions for Detective Superintendent Bertram. How would Police Scotland envisage policing the offence that is set out in the bill?
There are a few questions here. An important one for me is, when is the crime complete? That is where some of the issues come in Ireland in trying to identify criminality.
To make comparisons, I note that, with on-street prostitution, we do not use the evidence of any of the women; we use the observations of the police. That is really important. Dr Forbes and I—or Police Scotland and COPFS—need to look at that in a bit more detail and consider the threshold in those matters, case by case, because every case will be different, with slightly different circumstances.
In the on-street space, when we have the observations of police officers seeing somebody who is quite clearly in an area to buy sex, the threshold is met, which is when the offender is stopped and charged. Off-street prostitution is more difficult, because, behind closed doors in a block of flats, we might not always see which door somebody has gone into. Are they new to the area? Do they have links to another part of the building?
However, there are cases in which the police are in attendance at an address that has been reported by a member of the public, because they suspect that a brothel is operating from the address, which could be anywhere in Scotland. The police attend to make inquiries and to check safety, and, while they are there, they might be faced with a situation in which there are two women, or whatever, in the house, as well as a guy who has no link to the address.
That is the part that we need to explore in a bit of detail, because taking mobile phones is challenging. If we look at other offending—the abuse of children through mobile phones, say—we see that the work that police teams do to extract the downloads from phones stretches them beyond capacity. To put the capacity of such teams under further stress due to the scale that we are looking at with this issue would be problematic and challenging.
We would need to find a model that allows us to be satisfied that the crime of the purchase of sex is complete. Would that be when, as happens in some cases, we find the offender in an area or house where we know that sex is being sold and there are certain circumstances from which we can infer that they were in the act shortly before the police came? Would that be the threshold? That is probably the part that we need to thrash out, using individual case studies to say, “The threshold is met here; it is absolutely not met there,” and consider what more we would have to do.
Given the issues that police currently have in trying to arrest or charge somebody, can we work with the bill as drafted, or do we need something totally different? Could we make amendments to the bill that would help the police to be able to arrest and charge people who are causing harm to women and girls?
10:00
Possibly. You must consider the issue of scale. A scoping exercise that we undertook showed that, last year, there were just under 1 million adverts in Scotland for sex. I think that the ballpark number was 962,000, and we struggle to police that volume of adverts. Almost daily, somebody phones Police Scotland to report a potential brothel, for lots of different reasons, including concern for the women in the house and concerns about a number of guys coming into a particular area. Even trying to police that demand is a challenge, and, if we were looking at surveillance, that would be very resource intensive, given the numbers involved.
That is where we probably need to look at the policing approach and consider the implications. For example, if police action on those 962,000 adverts and the almost daily calls about potential brothels were to involve going to the address to do a “safe and well” check and investigate the circumstances, could we deal with the number of guys that we would encounter in those places? That would be the starting point, before we got to any surveillance, which, as I said, would be extremely resource intensive.
Your submission states:
“Police Scotland recognise that we have sound legislation in place to be able to challenge demand for ‘on street’ prostitution”
and that there is
“appropriate legislation”
to address situations where trafficking is apparent. That suggests that we need to strengthen the legislation regarding off-street prostitution. However, the submission says that Police Scotland is fully supportive of the bill’s proposal to repeal section 46 of the Civic Government (Scotland) Act 1982.
Everybody talks about the need for tools in their toolbox, but would repealing that section not remove some tools, causing you issues?
That section involves criminalising the seller, and we are not really doing that at all—that is not the model that we are operating under just now, so I do not think that that would impact on us.
So, you are fine with that.
My final question is for all three witnesses. Can you estimate the scale of any costs for your organisations arising from the bill, and are they adequately represented in the financial memorandum?
I ask Dr Forbes to respond first, as she said that the Crown Office and Procurator Fiscal Service had not been consulted in advance of the preparation of the financial memorandum.
In fairness, I think that the member who introduced the bill made efforts to seek that information in advance, but there was a breakdown in communication and their request went to the wrong place. I want to clarify that it is not the case that that was not done.
At this stage, when there are questions about, for example, the appropriate forum for procedures, how the cases would be prosecuted and what would be in scope, it is difficult to narrow those issues down and make an estimate of costs. We would anticipate that, as with any new criminal legislation, the case load would be absorbed within existing resources, but I think that the answer to your question depends very much on how the bill looks at the end of the legislative process. I am sorry, but it is difficult today to give a definitive answer on the cost.
On the question that you asked Detective Superintendent Bertram about the repeal of section 46, Police Scotland reported 46 charges to us between 1 April 2020 and August this year, across 10 cases. Of those, we have prosecuted two, which were at the solemn level, because there were other charges. That scale demonstrates that there is a principled approach by the police and the Crown not to criminalise the seller.
Our legislative team looked at two specific costs. One involved the physical update that is required to add an additional charge or offence to the crime management system, and the other involved building the training package and then taking officers off the front line to self train using that package. I think that the figure in total was £636,700.
The legislative team did not look at the operational side. I do not have figures for that side in front of me, but I could certainly get them pulled together. However, again, the cost is dependent on the approach that is taken. If somebody phones the police to say that they suspect that a brothel is operating at an address and police officers go to that house, they will do work there—they will not just walk away. Even now, though this legislation is not in place, if they catch somebody in that house, a lot of work will be done, mainly around support. If the approach involved setting up an investigation around every incident, that would involve a lot of officers, which would have an impact on cost. It is quite tricky to work out the costs on the policing side of things, but the absolutely bolt-on figure is that sum of £636,700 for the change in the crime management system and the production of a training package around the adoption of the legislation.
If you could send us any other figures, that would be helpful. However, as things stand just now, do you think that the figures in the financial memorandum will rise?
Yes.
Emma Forbes, you referred to 46 prosecutions. Is that correct? Would you perhaps clarify exactly what that number refers to?
I referred to 46 charges that were reported to us by the police.
What was the nature of those charges?
They were for contraventions of section 46 of the Civic Government (Scotland) Act 1982.
I am grateful for that clarification. I was going to ask you about that legislation, because this bill provides for the repeal of the offences that are set out in that section of the 1982 act, which criminalises street prostitution.
You have given us an indication of the number of charges that have been brought. Can you say a little bit more about the use of that offence in recent years and whether you support its repeal?
The last time that the Parliament’s justice committee looked at that offence was prior to the Human Trafficking and Exploitation (Scotland) Act 2015 coming into force. The policy memorandum and the evidence that was placed before the committee at that time said that, in Scotland, we were prosecuting more women for prostitution than men. We can see that there has been a real cultural shift in society, the police and the prosecution service over the subsequent decade.
As I said, we have prosecuted two women under that section since the start of lockdown in 2020. I do not know the details of those cases, but I can see that they were prosecuted at the solemn level, which means that there were other charges to warrant that being on indictment—that is, there was significant other offending to justify the prosecution. We have not prosecuted any women for selling sex, as a stand-alone offence, in the past five years.
That is helpful. Do you support the repeal of that legislation?
As prosecutors, we recognise our obligations under the United Nations conventions. We see violence against women and girls as a human rights violation, and we support the repeal of that section of the law.
That is helpful. Do any of the other witnesses have a view on whether the offences in the 1982 act should be repealed?
In the activity that we are engaged in through operation waterdale, our focus is absolutely on the buyers. I am aware that there have been a couple of arrests of women, which we responded to after we became aware of them the following day, and we have told officers that that was not the focus of the operation. Sometimes, that comes down to a lack of training, but it does not match the messaging around what we are trying to achieve. We understand that there are a lot of vulnerabilities in those situations, and we are not focused on prosecuting those women.
That is helpful.
The bill seeks to quash existing convictions. I know that Emma Forbes has concerns about that, and one alternative that has been suggested is that people who have been convicted should be pardoned. What are your views on the quashing of existing convictions and the alternative of a pardon?
I will go to Dr Forbes to start, given that she has already expressed a view.
I do not think that it was me who expressed a view.
Apologies. Perhaps it was Liliana Torres Jiménez.
It is fine. I am happy to respond.
We would prefer a statutory pardon, because that would be consistent with other acts that had a similar intention to the one in the bill—in particular, the Historical Sexual Offences (Pardons and Disregards) (Scotland) Act 2018. There have been two cases in which the Parliament has provided a statutory pardon. The 2018 act was the first, and the second was the Miners’ Strike (Pardons) (Scotland) Act 2022. However, after reading the policy memorandum for the latter, I do not think that the situation was the same as or similar to the situation that is covered in the bill that we are studying today.
The bill is more similar to the Historical Sexual Offences (Pardons and Disregards) (Scotland) Act 2018. Basically, in that legislation, the Parliament took a dual approach. It first provided a statutory pardon that had a symbolic effect on those who were convicted of sexual offences—in particular, for same-sex activity between men. The 2018 act also provided a scheme for people who had been convicted of historical sexual offences to apply for a conviction to be disregarded in order to perhaps diminish any negative impact that the convictions might have had in their lives.
The bill proposes quashing convictions, as happened in the Post Office (Horizon System) Offences (Scotland) Act 2024, but we do not think that that is the appropriate way to address the problem that is raised in the policy memorandum. That is because we think that it is not a matter for the Parliament to quash convictions that were safe in principle and were made by a Scottish court. With the 2024 act, there was compelling evidence that challenged the evidence that was used to convict postmasters at the time that the offences were prosecuted. Accordingly, a redress scheme was needed to allow people who were wrongly convicted to access compensation.
However, we understand that that is not what is proposed in the bill. The bill proposes to remove any record for those who were convicted under section 46 of the Civic Government (Scotland) Act 1982. The aim is to provide better services and to allow women who are involved in prostitution to carry out other activities that allow them to exit prostitution.
To summarise, we do not think that quashing convictions should be the path, as that would have an implication for the rule of law and the principle of separation of powers. In particular, it would give the Scottish Parliament the ability to quash safe convictions. We understand that that happened in the past in the very exceptional circumstance of the Post Office case, but we do not think that the circumstances are the same with the bill because, in this case, we are not discussing the conviction itself; we are discussing the fairness of the consequence of a safe conviction.
I understand the distinctions that you make. Are there any other reasons why you feel that it would be wrong to quash existing convictions? I have heard other reasons given for that, and I want to be absolutely clear whether that is the reason that the Law Society of Scotland takes the position that it is taking, or whether it has any other concerns. Is it just that the Law Society believes that, if the evidence was there at the time and there was an offence at the time, it would be inappropriate to quash the conviction, although it is appropriate to pardon. I fully understand the point that you make, but does the Law Society of Scotland have any other reason for its point of view, or have you articulated the position?
10:15
That is the main reason. However, when I was preparing for this evidence session, I saw a discussion that took place about the Historical Sexual Offences (Pardons and Disregards) (Scotland) Act 2018. One of the reasons that was provided at that time for going down the statutory pardon route was that a proactive record search would be unnecessary. I understand that avoiding a record search is proposed to diminish the negative impact and, in particular, the retraumatisation that might be experienced by women involved in prostitution who receive a communication saying, for example, that they need to apply for a scheme in order to have their conviction disregarded.
I understand that, but, at the time of the discussion on the 2018 act, for which the policy issue is similar, two reasons were provided for avoiding a record search. The first was that many of the men who had been convicted had passed away, so it would be a waste of resources to try to reach them. The second, which I think is more relevant here, is that many of them would not want to know anything about the disregard of their conviction because they would have passed through that episode of their life and would not want to be involved. Therefore, contacting them to say, “You don’t need to do anything, but your conviction has been disregarded” could retraumatise them.
We can learn from that experience for the bill. It could provide the choice for women to apply to a potential scheme. The Government would not need to identify the women and send them a communication saying that they need to apply; there are technological tools that could address the problem of identification better.
We are straying from the central issue about whether it should be a pardon or quashing, but I understand the point that you have made. Do any of the other witnesses want to make any points on quashing convictions or a pardon?
I do not have anything to add.
There are currently a range of offences that deal with issues such as human trafficking and the running of brothels, which the bill does not seek to change. Is there a need to strengthen or otherwise reform other offences that are relevant to prostitution?
The human trafficking legislation is good, and we use it effectively. There is still work to do on benchmarking human trafficking cases, but we would not change many things in that legislation.
A lot of the ground that I hoped to touch on has been covered already. I will focus on the proposed repeal of section 46 of the Civic Government (Scotland) Act 1982.
It was instructive to hear from Detective Superintendent Bertram that, in effect—I am paraphrasing his evidence—Police Scotland is not currently operating cases under that section. The figures that Dr Forbes has provided certainly seem to substantiate that. Just to drill into those a little further, Dr Forbes, you mentioned that there were 46 charges in 10 cases during the period from April 2020 until August this year. Does the figure of 10 cases mean that 10 individuals were involved?
Yes, unless there was more than one—
If you do not have that information just now, that is okay.
You could perhaps follow that up later.
There were probably multiple charges against one person, but I would need to check that.
I was interested in the gender breakdown, so I did check that, and the individuals reported in all 10 cases were women.
The fundamental point is that there were two prosecutions. You said that that would probably have been because there were other associated charges.
There must have been, because those prosecutions were on indictment.
This might be a difficult question to answer, but in circumstances in which section 46 of the 1982 act did not exist, is it likely that there would have been enough grounds for those prosecutions still to have proceeded?
I cannot answer a hypothetical question.
That is fair. I recognise that that might not be a question that could have been answered. I also understand that we do not want to stray too much into individual cases. However, if you were able to provide more information on the context, that would be useful.
I am not suggesting that you will have this information to hand, but it would also be useful and instructive to have a historical comparison. Clearly, you are referring to the basis on which the system has operated for the past five years, if not longer, but it would be useful to find out what the experience was over a longer period of time. I presume that there would have been far more prosecutions, but it would be useful to have the evidence to back that up.
There was evidence that I looked at just prior to introduction of the human trafficking legislation, which I think it would be easy to provide to the committee. I can do that. It painted quite a stark picture of a change.
That would be useful in helping our understanding.
There are two ways of looking at the issue. Given the basis on which cases are operating at the moment, the obvious question might be: what would be the purpose of repealing section 46 of the 1982 act? Maybe that gets to the heart of Sharon Dowey’s question about whether it is still useful to have that provision as part of what we might call the armoury that is available for use in investigations. Alternatively, if it is not being used, why should we keep it on the statute book? What is your perspective on that?
As long as the provision is still on the statute book, it can still competently be used, and there are occasions when it is used. We should not underestimate the declaratory power of the law and the fact that, at the moment, the message is that, if acts of prostitution are going on behind closed doors, the law defines the women involved as criminal, whereas the men are not. Given our UN obligations, our commitment to the equally safe strategy across all justice partners, and the landscape in which we operate in Scotland, whereby, through multi-agency relationships, we work to strengthen our response to violence against women and girls, that is an unfortunate message.
Do others have a perspective on that?
It is probably just a reflection of the changing times. We now have a better understanding of the issue. As Dr Forbes said, we now recognise the violence that is perpetrated against women and girls, but in the past—I do not know how long ago—we probably did not have the same clarity of understanding of the issue. Although the provision is still there, we look at the Lord Advocate’s guidance on the matter, which gives the police discretion. It is not as though we turn a blind eye; the police have discretion, in recognition that there are many vulnerabilities and a great deal of violence in the background.
There have been differences of opinion in the evidence that we have taken thus far. Some people feel strongly that, if the proposed new law were to be introduced, it would drive activity underground. As a consequence, that could make the environment less safe and more violent for those who are involved in the selling of sex. That is pretty concerning to hear. I accept the point that others have made, which is that we can never make the environment truly safe. I understand that. Some say that the evidence suggests that the approach that the bill advocates would not lead to an upturn in violent behaviour, but we have heard that it would. Have you a perspective on the likely outcome?
I am happy to answer that. Huge levels of violence already happen behind closed doors. We are already in a situation where such violence is happening, including sexual violence, and I do not think that it would be pushed any further underground.
With regard to women who sell sex, there is a lot of underreported criminality, for many different reasons. I go back to the point about the volume of calls that Police Scotland gets. Almost daily, somebody will phone the police with concerns about a suspected brothel, so I do not think that we could ever push that activity underground. People understand exploitation a lot better than they did a long time ago, and they now feel more encouraged to phone the police, depending on why they want to report something. I go back to those figures of just under a million adverts in Scotland last year, right across just about every community in the country. I do not think that we would push things any further underground.
Do you dismiss the notion that such a change could increase the risk of violence against those involved in selling sex? That is the fundamental question—would it increase that likelihood?
That is a difficult question—it is hypothetical. What we can say is that we see high levels of violence already. Much of that goes unreported to the police, and it is only by looking elsewhere that reports actually come in. Just because something has not been reported does not mean that it is not there. The aim is to open doors to rebuilding people’s trust and confidence and to say, “Our goal is to have those reports coming in so that we can actually target the dangerous offenders who are out there.”
It is clear that there is a perception of that risk, though. Is that something that your officers will hear when engaging with those involved in the selling of sex? Will they have heard that this change is coming in, and would they be concerned about that?
I hope so. Through the educational aspects of policing work, we have been very vocal about what we are trying to do.
With respect, I do not think that “I hope so” would be your answer to the question I was asking. I asked whether your officers hear from those involved in the selling of sex about whether, if this change comes in—
No, we have not heard that.
Do others have a perspective on the likelihood of the proposed changes making the environment more dangerous?
I seems that no one has such a perspective. That is okay.
If not, I will move on, because we are slightly tight for time and others members want to come in. May I interject and move you on to your next question?
Certainly. This will be my final one. Only Police Scotland responded to the point about whether there should be a statutory right for people involved in selling sex to access support services. Everyone on the panel is entitled to answer, of course, but I put my question to Detective Superintendent Bertram in particular. What should such support look like?
We heard evidence that experience of such changes in Sweden did not result in an improved relationship between those selling sex and the police there, but that the Irish experience was different and the change has improved that interaction. How would the situation here link to those experiences?
We understand that we can work hand in hand with key agencies to put that support in place. We also understand that not everybody wants to speak to the police, so it becomes a question of knowing when to withdraw, while being happy that we have good support in place that builds confidence and that people know that the police’s door is always open. As I said earlier, those things work hand in hand, but support needs to be in place first.
What sort of support should there be?
To give a snapshot across the country, some areas of Scotland have good support in place now, and we are examining the work that is already on-going. I have made reference to that already. There is an impression that there can be a postcode lottery in achieving the same provision of support across the country, but I do not think that there is. We have seen those gaps. If there were to be a good operating model for support services in, for example, Glasgow, it would be good to replicate that. It would absolutely be the right thing to replicate that across the country.
I do not know whether other witnesses have a perspective on what that support should look like.
We are coming up to around 15 minutes left. Two committee members are looking to come back in, and one wants to come back in with a follow-up question, so I must ask for succinct questions and responses if possible.
Good morning. Dr Forbes, you have spoken to the committee many times about violence against women and girls, and you have given us excellent evidence. What you have said to us about the harm to women is clear. As you have told us many times, the backdrop to the proposed legislation is the rising trend in serious and violent crime against women and girls.
10:30Would such harm to women extend to those who are not involved in prostitution or in the sale of sex? We have heard evidence about the decriminalisation of sexual services. If we did that, and selling sex were to be legalised, would harm be caused to women and girls more widely and not just to those who are involved in prostitution?
You are not talking about the criminalising of the buyer, but about repealing—
A lot of witnesses have presented evidence to the committee that we should decriminalise the sale of sex, for the reasons that Jamie Hepburn mentioned, including the safety of women, but others have said that they believe in choice.
You are asking about decriminalising it altogether.
Yes. We have heard a lot of evidence that we should just decriminalise it. However, if we did that, my concern would be that the harm to women who are involved in prostitution that we have spoken about—
It is not just about the harm to individual women who are involved in prostitution. Whether that is a harm is not a question for me as a prosecutor; it is a sociological question.
As prosecutors, however, we know that women who are involved in prostitution are more likely than others to be the victims of other offending such as serious violent offences, sexual violence and domestic abuse. We also know that those who are involved in buying sex, whether on the street or off it, are more likely to be perpetrators of domestic abuse and involved in other forms of violence against women and girls more broadly in our society through their treatment of other women. From a public interest point of view, the issue needs to be seen through a wider lens.
Liliana Torres Jiménez, you have spoken about the technicalities involved in the framing of the legislation. What is your view of the issue of consent, which is an issue in sexual offences such as rape?
Outside the committee, I went to a meeting held by Ash Regan, which was attended by women who had been involved in the sex trade in various countries such as Canada and Sweden. I appreciate that those countries have different laws. However, the women spoke about the difficulties there in prosecuting crimes of rape and other sexual offences that turn on the question of consent when the sale of sex is legal and—to use the phrase that they did—a contractual matter.
Do you see similar problems in Scotland for women who face the same threats as others who are involved in the sex trade and who might be the victims of crime even if the act of selling sex were to be lawful?
To clarify, are you talking about a scenario in which there is no prohibition of any prostitution activity or about the law as it is right now?
If the sale of sex were to be lawful, would the issue of consent cause any difficulties in dealing with sexual crimes?
I will need to come back to you on that. It is a good question, but it might require further investigation.
Yes; it is not a straightforward question. I asked it only because, in the briefing for the meeting that I mentioned, the women said that, in their countries, where the selling of sex had been legalised, it became difficult to prove consent in a court of criminal law. I would be interested to hear whether you have any views on that.
I want to ask Detective Superintendent Bertram about cases where the sale of sex happens in brothels. We have looked at the situation in Germany, where an estimated 1.2 million men buy sex every day and where sex work was legalised in 2002. We have heard evidence that legalising or decriminalising sex work does not really affect brothels, and would not lead to a proliferation of them, but the experience in Germany would suggest otherwise. Do you have a view on that? As we have heard evidence on decriminalisation, I would be interested to hear your view on whether that would lead to more brothels, for example.
That is a tough one. On the decriminalisation side, police would still be needed to act as a barrier.
I base that view on aspects of the operational work that we have done. I go back to operation waterdale in Glasgow, which was a prolonged initiative that sought to criminalise the buyer on the street. A worrying trend was that a lot of the guys we were interacting with had really bad criminal histories involving violence against women, both within and outwith domestic settings, including a lot of serious offending through sexual crime. We would not want those guys to come into contact with any women. We certainly would not want them to come into contact with women who sell sex, who have a particular vulnerability. Decriminalising the buyer side would make it difficult for the police to engage with those guys. I think that the work that the team in Glasgow did prevented a lot of offending and violence.
I do not know the answer to the question whether we would see more brothels. I would imagine so, because people would make money. With the scale of activity that we see just now—moving away from the off-street side and looking at the human trafficking side, which my team actively investigates, where there is organised crime and we see exploitation at the highest level that is happening in plain sight—lots of money is being made. I fear that, if the buyer side were to be decriminalised, people would capitalise on that right away and say, “There’s money to be made here. Let’s move in.” When there is no threshold for the police to investigate criminality on the purchase side, does it give us, as the police, a fighting chance to be able to target dangerous offenders?
Thank you. For completeness, does Dr Forbes want to contribute anything from the prosecutor’s perspective in response to my question to Liliana about consent?
Only to say that we are keen to learn more about issues of consent for women who are involved in selling sex. We have been working with the Women’s Support Project and have lined up training that will take place through a workshop model. The project has provided some really complicated scenarios based on lived experience, where consent comes into play as an issue. We plan to run training for prosecutors on those. We want to make sure that we are as well informed as we can be and are able to prosecute cases, because we want women to feel able to report issues and that they will be taken seriously.
Good morning. Our witnesses’ evidence thus far has been really useful. I have just a couple of direct questions, given the convener’s point about time.
My first question is for Detective Superintendent Bertram. Police Scotland’s submission says—and you mentioned it earlier—that there is a gap in the legislation that affects your ability to police of off-street criminal sexual exploitation. Would the bill fill that gap?
If the legislation were to be absolutely clear on criminality and about when a crime had been committed, it could do so.
How would you police that if the bill were to be passed? I know that because Sharon Dowey touched on that earlier there is a risk of your repeating yourself in reply—I am sorry about that; it sometimes happens when you are asked to respond to the last questioner on the committee. How would you fill that gap?
We are doing lots of work in that space already. We are trialling various approaches across different areas.
For example, we will always respond if someone calls the police to report that a brothel might be operating. We deal with what is in front of us. We have looked at doing joint “safe and well” visits. Those involve going along with support in place so that if someone does not engage with the police they can withdraw, leaving support with the person to ensure that they are safe and well. Such an approach could build trust and confidence and could target any exploitation or sexual offences that were happening.
There is also work to target landlords and people who give up their addresses to short-term lets to facilitate such activity. That work is on-going and is another area for us to look at. We are also looking at adult services websites and at the part that they play in facilitation. We need to look at all those areas.
Such work is part of a phase that we have moved into fairly recently. We used to concentrate on what was happening on the streets, but we now focus on off-street activity. It will be interesting to see what works well and what is not effective.
I have a question for Dr Forbes and Liliana Torres Jiménez. As Jamie Hepburn pointed out, neither of your submissions commented on the proposal for a statutory right to assistance and support.
Dr Forbes, if the bill is enacted, would such a provision help with the other concern that you raised, which was about women being witnesses? If they were given trauma-informed support, would that help them to be witnesses?
Yes, absolutely.
What do you think, Liliana?
I have nothing to add. That would be supportive, but there must be resources to provide such services if the support is to be meaningful and fulfil the bill’s purposes.
Liam Kerr has a quick supplementary question.
I will direct my supplementary, which follows Sharon Dowey’s earlier line of questioning, to Detective Superintendent Bertram. You were asked about the cost to the police. On 1 October, the Daily Record reported—this is not a quote; it is just my summary—that Police Scotland had warned that it could not afford to enforce a crackdown on paying for sex if MSPs were to back criminalisation, and that the force had not budgeted for such a change. It said that the force estimated that the bill could cost more than £500,000 in the first three years of its implementation, including capital and opportunity costs. Do you recognise that as a fair reflection of the implications for Police Scotland if the legislation were to be passed?
I did some digging into that article, because people would usually come to me for a comment about the crackdown.
We are doing work in that space. The figure is probably not entirely accurate but, as we discussed earlier, how that looks could have an impact on policing. As of now, though, work is on-going, day by day and in every city across Scotland, to target prostitution offences.
Thank you.
Rachael Hamilton has a brief question, and I ask witnesses to be brief with their answers.
My question is for Detective Superintendent Bertram. You spoke about having the powers to deal with trafficking, but we have heard that terrifying numbers of women are being enslaved, raped and financially controlled. My question is one that I asked previous witnesses: should the bill extend criminalisation to those who facilitate prostitution rather than criminalising only the buyers?
That is certainly one of our focuses just now. We are looking at landlords and also keeping an eye on adult services websites, because the problem is much wider than just the buyers.
Your written evidence says:
“There is a gap in the current legislation though with being able to police ‘off street’ CSE”—
which means child sexual exploitation—
“when there are no Human Trafficking indicators present.”
Is there any mechanism within the bill that would allow that gap to be filled?
I point out that CSE means “commercial sexual exploitation” as opposed to “child sexual exploitation”.
I am sorry; I meant to say that. I am reading the acronym wrongly.
It is important to recognise that the gap is there. We have to nail our colours to the mast and know what the legislation would look like. That is the important part. I go back to the issue of when the commission of such a crime would be considered complete, because that would have a massive impact on how we police such activity and on our ability to bridge that gap.
We have run out of time. I thank everyone for their contributions, which have been really helpful. We will now have a brief pause to allow for a change of witnesses.
10:45 Meeting suspended.Previous
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