England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM LUTON CROWN COURT
HH Judge Mensah
T2010 0478

		Royal Courts of Justice Strand, London, WC2A 2LL
		09/02/2012

The Lord Chief Justice of England and Wales:

1. This is an appeal by Bernard Court and Xiufen Gu, a married couple, against their convictions on 27^th May 2011 in the Crown Court at Luton before Her Honour Judge Mensah and a jury of two counts of the ancient common law offence of keeping a disorderly house. The appellant Gu was also convicted of a third count of transferring criminal property, but that conviction depended on her conviction of the first two counts. Suspended sentences of imprisonment were imposed.
2. The facts are very simple. The appellants rented two properties in Hemel Hempstead. A term of the tenancy agreement or lease in each case was that the property should not be used for immoral purposes. This however this not a civil case in the County Court about possible breaches of the terms of the tenancy. The allegation was that between 31st January and 19^th February 2010 each property was kept as a "disorderly house".
3. To demonstrate that each house was indeed disorderly the prosecution relied on very limited evidence which related to sexual services said to be offered from both addresses. Two commonplace, unremarkable and non-descript advertisements were found by the police, along with other advertisements of a similar nature, in the personal services section of the local newspaper. No addresses were given. However two mobile telephone numbers were advertised. The officers telephoned both numbers and they were, as we understand it, offered sexual services.
4. On 18^th February 2010 the properties were visited by the police. At one house they found a scantily dressed woman and the appellant Gu. Court arrived there during the police search. No one was found at the second house. A large number of condoms were found at both addresses. In one house one vibrator was found. No other mechanical devices and no instruments were discovered. No customers were found at either house. No customers and no woman offering services were observed going to or from either house.
5. The case proceeded on the basis that only one woman was ever offering sexual services at any one time, and that only one customer at a time was ever present at either house, and that the sexual services on offer did not go further than normal sexual intercourse. When we made enquiries of the prosecution we were told that no complaint had been received and no concern expressed by people living in either neighbourhood.
6. The appellants were interviewed by the police. Effectively Court made no comment in interview, but he denied he had seen any girls at one of the properties and said that friends of his wife lived at the other. His wife gave a prepared statement. She denied that she was running a brothel. She agreed that she provided massage services, and the woman with her at the property was a friend who stayed with her from time to time.
7. The appellants were first charged with acting or assisting in the management of a brothel, contrary to section 33A of the Sexual Offences Act 1956 [Arch 20-229]. However the prosecution concluded that they could not establish that the premises constituted a brothel for the purposes of this enactment. The appropriate charge should have been that, as tenants, the appellants were guilty of using the premises for prostitution. This is a summary offence only, and the usual six month limitation period applied. It was therefore too late for this offence to be prosecuted. So the indictment alleging the management of a brothel was amended to the common law offence of keeping a disorderly house.
8. The Sexual Offences Act 2003 is vast and, taking into account a number of provisions from earlier Sexual Offences Acts which were not repealed, apparently comprehensive legislation identifying the vast number of different activities which constitute sexual crime. Counsel reminded us that there are now 35 different statutory provisions which relate to what can loosely be described as the sex trade. Comprehensive as it appears to be, the statute did not abolish the common law offence of keeping a disorderly house.
9. In the context of such detailed statutory provisions relating to sexual crime in its many different manifestations, an ancient common law offence should not normally be expanded beyond well established parameters by judicial decision. The reality is that on the evidence available in this case the conviction of the appellants represented a significant widening of the ambit of the ancient offence.
10. Our attention was focused on R v Tan and others [1983] QB 1053. Tan and others were accused of keeping a disorderly house. The difference between the facts of that case and the present are encapsulated in the advertisements, of which one example in Tan read:

"Humiliation enthusiast, my favourite past time is humiliating and disciplining mature male submissives, in strict bondage, lovely tan coloured mistress invites humble applicants, T.V., C.P., B.D. and rubber wear. …"

11. Services of this kind were indeed provided. According to the judgment, they were "of a particularly revolting and perverted kind … with the aid of a mass of equipment, some manual (such as whips and chains), some mechanical and some electrical, clients were subjected at their own wish and with their full consent, to a variety of forms of humiliation, flagellation, bondage and torture …".
12. In one of the earlier cases referred to in the judgment, R v Berg and Others [1927] 20 Cr. App. R 38, the activities in the disorderly house involved exhibitions of a perverted nature, and in R v Quinn and Others [1962] 2 QB 245 the premises were used for the performance of acts which were "seriously indecent and, in some respects, revolting", and the public was invited to resort to the premises for indulging in "perverted and revolting practices".
13. In R v Tan itself the court indicated that before a defendant could be convicted the jury had to be satisfied that the services provided were open to members of the public who wished to partake of them, and were "of such a character and conducted in such a manner (whether by advertisement or otherwise) that their provision amounts to an outrage of public decency, or is otherwise calculated to injure the public interest to such an extent as to call for condemnation and punishment". The entire judgment proceeds on the basis that the provision of what was described as "straightforward sexual intercourse" would not be sufficient to constitute this offence.
14. The researches of counsel have not found anything in the old books which suggest any case where, on facts remotely similar to those present in this case, there has ever been a prosecution, let alone a conviction for the offence of keeping a disorderly house.
15. We have reached the unhesitating conclusion that the circumstances described here, taken at their highest, were not capable of falling within the scope of the common law offence. The criminality which should have been alleged was that the appellants allowed the premises of which they were tenants to be used for prostitution. That however cannot be an appropriate basis for upholding the use of the common law charge.
16. At the trial in the Crown Court, the judge should have upheld the submission that there was no case in law for either appellant to answer. The convictions are unsafe, and we indicated at the end of the hearing that they would be quashed.
17. There were appeals against sentence, which no longer arises for consideration, but which we must mention. Both appellants were sentenced to short terms of imprisonment, suspended for 12 months, with a curfew requirement. It was most unfortunate that following the trial and the conviction of the appellants, the judge gave an unequivocal indication to them in open court that when they came to be sentenced, there would be no custodial sentence. The imposition of a suspended sentence was inconsistent with that public indication. When the issue was raised with the judge she suggested that a suspended sentence was not a custodial sentence. That was an error. Any sentence of imprisonment, even when, for particular reasons, suspended, can only be imposed if the custodial threshold is passed and must always be treated for what it is, a custodial sentence. If these convictions had not been quashed, the appeals against sentence would have been allowed on the basis that the sentences imposed were inconsistent with the judge's unequivocal indication of the eventual outcome.