UK: A Very Bad Case Of Brothel-Keeping

Last Updated: 19 October 2018
Article by Natalie Smith

The laws relating to sex often dominate headlines. Of late those sexual offences concerning the lack of consent are particularly under scrutiny. But the law can be broken even when it involves consenting adults, particularly when there's money involved. Natalie Smith writes

Soon the legal profession will celebrate the 100-year anniversary of women being legally allowed to participate in the justice system in this country as jurors, judges, lawyers and magistrates. But women have been involved in the law for as long as there have been crimes and one of the oldest professions for women has always been in conflict with the law.

Forty years ago at 3.50PM on a Wednesday afternoon in December, police raided an unusual Christmas party that was being held in a five bedroom Victorian house in a south London suburb. Inside were 53 men and 13 women. Everyone was questioned but only one was charged, Cynthia Payne the hostess, whose notoriety soon brought her the nickname Madame Cyn.

Cynthia was a middle-aged madam and business woman, she had been a prostitute herself but generally preferred the role of running an establishment where prostitutes could trade. She'd already been convicted of running a brothel on four previous occasions. Cynthia was motivated to fulfil the sexual fantasies of middle class men and to be paid for doing so. Her arrest and exposure caused a great deal of public interest due to the clients she offered personal services to.

A very British carry on

In her home at Ambleside Avenue, Streatham she held sex parties, offered discounts for pensioners and took a flat fee from her customers of £25, which included food (often poached eggs), drink, a film, a live show and the sexual services of one woman. As part of the package the men were issued with luncheon vouchers to the value of 10p and 15p which would be given to the women who provided the sexual service so she in turn could provide her slips to Cynthia for payment. The fame of Cynthia's parties spread and women who sought to sell sexual services were attracted to her establishment, some of those present at the premises on 4th December 1978 were there simply to earn extra cash for Christmas. But this very British carry on came to an end after an anonymous letter was sent to police.

When Cynthia Payne appeared at the Inner London Sessions, now Inner London Crown Court, in April 1979 she faced 21 charges and was represented by the prominent human rights barrister, Geoffrey Robertson. She pleaded guilty to only three charges of controlling prostitution and one of keeping a disorderly house. The facts put before the court, which were undisputed, were that those present on the day of her arrest were all consenting adults who chose to be there.

It was accepted by the prosecution that Cynthia had not recruited the women. There was no question of coercion or corruption by her. The clients knew perfectly well what they were doing, none of the neighbours complained and the women were not obliged to have sex and could say no. It was a safe establishment for them to trade in with no dangers. The police superintendent in charge of the case gave evidence to the court of Cynthia's previous convictions of running brothels and when her own defence advocate enquired of him, more interesting details emerged. The police officer confirmed that Cynthia's clients were principally middle aged and elderly business men, managing directors, accountants, barristers, solicitors, a member of parliament for Ireland, a member of the House of Lords and not to forget several vicars.

Cynthia was sentenced to 18 months imprisonment. It was the first time she'd ever been to prison. None of Cynthia's clients who sought the personal services she offered were prosecuted. Judge David West-Russell also fined her £650 and she was to pay for the costs of her own prosecution to the sum of £2,000. A significant amount 40 years ago when a loaf of bread cost 28p and a pint was 40p. The court showed contempt for her behaviour and punished her accordingly.

The men who paid in luncheon vouchers for their sexual fantasies to be fulfilled weren't judged but the women who indulged them was. At the time, there was public outcry that no man stood in the dock and the scorn of what they considered to be a permissive society fell on a middle-aged madam.

The Court of Appeal felt the need to right a wrong, but not necessarily the one that some members of the public at the time perceived. There were complaints that trading sex for money was not a crime, that there was no offence of prostitution on the statute books and therefore the law as it stood was inherently unfair to the women who provided the services if they sought to work together for a sense of safety as the law would not allow for establishments such as Cynthia's to operate lawfully.

A disorderly house

Cynthia Payne's legal team appealed her sentence on the basis it was excessive and her case appeared before the Court of Appeal in 1980. Cynthia had of course run brothels for a living and the offence of keeping a brothel had not in the prosecution's view given them sufficient scope to prosecute her. The simple offence of keeping a brothel would have only allowed a magistrate to sentence her at most to six months in prison and so they relied on an offence which existed at common law, one that was so old that it was not even in statute, the offence of keeping a disorderly house. The definition of that offence dated back to 1751 but the offence itself dated back to the time of Henry III, when parliament became concerned that a group of women had set up a brothel just south of Fleet Street and close to a Friary.

The Court of Appeal accepted that Cynthia's case amounted to no more than keeping a brothel and it seemed excessive for any sentence to be more than the maximum allowed in law, namely six months imprisonment. The Court of Appeal described Cynthia's case as a particularly bad case of brothel keeping but still just a case of brothel keeping and so duly reduced her sentence to six months imprisonment. But what is most fascinating in the Court of Appeal judgment is that they went out of their way to clarify exactly what type of men had actually been found to have frequented the suburban brothel.

The court were concerned with the appearance of men, specifically legal men. The Court of Appeal stated, 'Before parting with this case we wish to call attention to what we consider to be the most unfortunate aspect of this case.'

Upon reading the papers the court decided to check as best it could whether information given before the lower court was correct and concluded, 'There were 49 names [of male clients] on the was decided to check the list of names of barristers on the Bar List. There was not one barrister on that list of names. Unfortunately the facilities have not enabled us to check whether the same can be said of other categories.' (R v Cynthia Payne (1980) 2 Cr.App.(S) 161).

The priority for the court was clear, the reputation of men, although that brotherly interest did not extend to solicitors, businessmen or accountants. Of course, commentators at the time pointed out that any male barristers caught at Ambleside Avenue might well have known that the law as it stood would not criminalise what they were doing and so might have decided to give a false name to a police officer to save their blushes.

What relevance does a case that took place nearly 40 years ago have today? Well, simply that the legal position concerning the sale of sexual services is pretty much the same. We have a jumble of old laws, mixed with some new (aimed specifically at preventing the exploitation of the vulnerable) spread over a number of statutes that the criminal justice system uses to police the sale of sex for money. Although the CPS guidance makes it clear that the reduction of prostitution is one of its aims what makes this area so difficult to comprehend for some is that there is no law, which explicitly bans the sale of sexual services for money.

People often therefore think it's a 'grey area'. Actually, it isn't, it's certainly confusing but there are a clear number of criminal offences that are committed when someone sells sex for money particularly when they work with others in a brothel and if they seek to manage that business in some way. The law of keeping a disorderly house, keeping a brothel, controlling prostitution are defined legal lines that cross each other like a spider's web aimed at catching anyone who profits from the sale of sex for money. The focus is not the person who seeks the service but the person who manages the premises where the sale of sex takes places, or those who make a living from the provision of those services.

This area of law many feel is ripe for review but remains untouched whilst the various governments of the day try to work out what the appropriate public policy should be and how to ensure the protection of the vulnerable and children who are often exploited to become sex workers. Women cannot work together to sell sex even if they do it to ensure they are safe and protected. The law pushes them towards working alone which can make them vulnerable and isolated. A new offence was imported into the 1956 Sexual Offences Act in 2003 so that the offence of keeping a brothel used in prostitution is an offence that now carries a maximum sentence of 7 years imprisonment.

Cynthia Payne was the focus of her prosecution. She was blamed and punished but the men who gave her business the ability to thrive were not. And you can't help but feel that the way the criminal justice system treated her was cruel. Cynthia Payne smiled in the face of humiliation and cultivated her image as Madam Cyn, but it must have cut her deeply that men had judged her so harshly given her intention was to please them. Cynthia's choice of profession gave her the opportunity to earn the type of money she could never have achieved from the low paid jobs she was born in to.

As a young woman she was exposed to a world where sex could be traded as a commodity as opposed to her previous world where it was provided free and in the pursuit of love. She'd been left without a mother as a child, her father worked away at sea; she had a child very young who she couldn't provide for. Another child followed but he was adopted and she had several abortions because her boyfriend of the time insisted on unprotected sex and she obliged in a hope he wouldn't leave her. It was when she was working in a café in Victoria, London as a waitress that a smartly dressed woman in her forties asked to use her digs to see clients whilst she worked. She received payment for her service and earned more than she did as a waitress. So began a change in her life, where she tried to take control of it in a man's world. Given how enterprising and engaging Cynthia was, imagine how her life might have been different had she lived in an age where women had genuine equality.

It's nearly a hundred years since women were allowed to enter the law as lawyers, judges, magistrates and jurors. Just one hundred years since women were allowed to vote, become members of parliament and have a direct say about the laws in this country. But women have been in the law for many years, as those accused of crimes and criminals.

Prostitution is predominately a female profession although not exclusively so. The laws relating to prostitution as they currently stand heavily impact women. They force them to live on the edge of the law meaning they will not turn to the police or the criminal justice system for help because of fear of judgement or arrest. It is not just about more women in law, it's also about how the law treats women. Whether you condone the sex industry or not, it exists. Society has to decide what we think is appropriate with regards to sexual freedom. Until decisions are made we remain with the law as it pretty much stood 40 years ago and as it was years before that, laws that define many women as criminals.

Four decades ago when Cynthia Payne faced the courts, commentators made the point that if we are seeking to prevent prostitution why is there no law outright banning it? Surely those who create the demand are more culpable than those who supply it? Some took the view that there would never be enacted a law which made prostitution illegal because it meant that the men who sought the personal services would finally be named.

Women like Cynthia entered her profession as a way to provide for themselves, she became a criminal in order to financially survive. Before she was freed, Cynthia Payne spent several months in Holloway prison although when finally released was escorted home in a client's Rolls Royce or so her legend goes. Whilst in prison she was surrounded by female criminals like her, and gave us a little insight as to what it must be like and why they were there,

"Sometimes the girls go mad at night and scream...sometimes girls cry in their sleep for their children. Others make a scene to get attention from the Officers...they have no families or friends who visit them so they feel lonely and rejected." From An English Madam by Paul Bailey (Fontana/Collins)

Forty years isn't so long ago. We have fortunately moved on and the Court of Appeal would no longer consider making the statements they made in Cynthia's case but we still have a way to go. Figures collected suggest that over half of the women in prison report having experienced emotional, physical or sexual abuse. Despite women only accounting for 5% of the prison population they accounted for 21 % of incidents of self-harm in prisons in 2016 and the vast majority of the female prison population have committed non-violent offences ( Perhaps Cynthia can act as a reminder to all, the need to temper our judgment of women.

This article first appeared on The Justice Gap, May 2018

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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