In R (QSA, Broadfoot & ARB) v Secretary of State for
the Home Department & Secretary of State for Justice [2020] EWCA Civ
130 the Court of Appeal dismissed a challenge to the ECHR compliance of the
criminal offence of persistent soliciting in a public place under section 1 of
the Street Offences Act 1959, in challenge brought by three women who
successfully exited prostitution in the late 1990s, having been the subject of
trafficking and abuse.
It had been argued by the claimants that the fact that those
committing the offence were heavily disproportionately women, and that women in
street prostitution were especially likely to be vulnerable, meant that the
existence of the offence was unjustifiable indirect gender discrimination
contrary to Article 14 ECHR. The judgments of Bean and Hickinbottom LJJ
accepted the arguments of the Secretaries of State that there was no relevant
difference in treatment, that there was no consensus on criminalisation of
prostitution and that the challenge was hypothetical in the claimants’ cases in
any event (them having long since exited prostitution).
The Court also dismissed challenges to the recording of the claimants’ convictions under section 1 on the police national computer, and to the retention of those convictions as indirectly gender discriminatory and/or a breach of Article 4 ECHR as a penalty on trafficking victims. However, the Court accepted that it was arguable that the retention of all recordable convictions on the PNC until the subject reached 100 years of age was arguably a breach of Article 8 ECHR and remitted the issue to the Divisional Court, including to allow the claimants to join policing bodies as the defendants responsible for the ‘100 year’ policy. Christopher Knight acted for the Secretaries of State, led by Kate Gallafent KC, instructed by GLD. The judgment can be read here.
