Court, R. v

The common-law offence of keeping a disorderly house must remain within its established limits. Sexual services must be available to the public and provided in a way that outrages public decency, or otherwise injures the public interest sufficiently to require criminal punishment. Limited arrangements for straightforward sexual intercourse, without further aggravating features, do not meet that threshold. A common-law charge cannot be used to punish conduct properly falling within a statutory or summary offence merely because that alternative charge cannot be prosecuted. A suspended sentence of imprisonment is a custodial sentence. It may be imposed only where the custodial threshold is passed and cannot follow an unequivocal indication that no custodial sentence will be imposed.

Court and Gu, a married couple, appealed against jury convictions at Luton Crown Court for two counts of keeping a disorderly house. Gu was also convicted of transferring criminal property, a count which depended on the first two convictions.

The prosecution alleged that two rented properties were used to offer sexual services. Its evidence was limited to advertisements, telephone calls, condoms, and the presence of one scantily dressed woman at one property. The case proceeded on the basis that only one woman offered services at a time, only one customer was present at a time, and the services did not exceed normal sexual intercourse.

The appellants had initially been charged under section 33A of the Sexual Offences Act 1956, but the prosecution could not establish that either property was a brothel. The indictment was amended to allege the common-law offence. The central issue was whether the proved circumstances were capable in law of constituting a disorderly house.

1. The appeals against conviction were allowed and the convictions quashed. The evidence, taken at its highest, was not capable of bringing either property within the common-law offence of keeping a disorderly house.

2. The court applied the limits stated in R v Tan and others [1983] QB 1053. The services must be open to members of the public and must be of a character, and conducted in a manner, which either outrages public decency or otherwise injures the public interest sufficiently to justify criminal condemnation and punishment.

3. The earlier authorities concerned conduct of a markedly different character, including perverted, seriously indecent and revolting practices. R v Tan and others proceeded on the basis that straightforward sexual intercourse did not suffice. The present case involved, at most, one woman offering normal sexual intercourse to one customer at a time. There was no evidence of customers at the properties, observations of customers attending them, complaints, or neighbourhood concern. Those circumstances could not satisfy the established threshold.

4. The conduct alleged was more properly characterised as permitting tenanted premises to be used for prostitution. The inability to prosecute that summary offence within its limitation period did not justify expanding the ancient common-law offence to secure convictions.

5. The sentence appeals therefore did not arise. The court nevertheless stated that a suspended sentence is a custodial sentence. It requires the custodial threshold to be passed and was inconsistent with the trial judge's unequivocal indication that no custodial sentence would be imposed.

• Court of Appeal (Criminal Division): Allowed the appeals and quashed all convictions: [2012] EWCA Crim 133.

• Crown Court at Luton: On 27 May 2011, a jury convicted the appellants of keeping a disorderly house. Gu was also convicted of transferring criminal property. Suspended sentences of imprisonment with curfew requirements were imposed.