Shaw v Director of Public Prosecutions
| Jurisdiction | England & Wales |
| Judge | Viscount Simonds,Lord Reid,Lord Tucker,Lord Morris of Borth-y-Gest,Lord Hodson |
| Judgment Date | 04 May 1961 |
| Docket Number | Parliamentary Archives, HL/PO/JU/4/3/1089 |
| Court | House of Lords |
| Date | 04 May 1961 |
[1961] UKHL J0504-1
Viscount Simonds
Lord Reid
Lord Tucker
Lord Morris of Borth-y-Gest
Lord Hodson
Parliamentary Archives, HL/PO/JU/4/3/1089
HOUSE OF LORDS
my lords,
The Appellant, Frederick Charles Shaw, was, on the 21st September, 1960, convicted at the Central Criminal Court on an indictment containing three counts which alleged the following offences:
(1) Conspiracy to corrupt public morals; (2) Living on the earnings of prostitution contrary to section 30 of the Sexual Offences Act, 1956; and (3) Publishing an obscene publication contrary to section 2 of the Obscene Publications Act, 1959. He appealed against conviction to the Court of Criminal Appeal on all three counts. His appeal was dismissed, but that Court certified that points of law of general public importance were involved in the decisions on the first and second counts and gave him leave to appeal on them to this House. They refused so to certify in respect of the third count. I propose, my Lords, to deal in this Opinion in the first place with the second count, for I have had the privilege of reading the speech which my noble and learned friend, Lord Tucker, is about to deliver on the first count and so fully agree with him that I find it convenient to add some general observations which can be regarded as supplementary to what he says.
My Lords, the particulars of the offence charged in the second count were that on divers days unknown between the 1st October, 1959, and the 23rd July. 1960, the Appellant lived wholly or in part on the earnings of prostitution. Before I refer to the statute on which the charge is based I must refer briefly to the relevant facts.
When the Street Offences Act, 1959, came into operation it was no longer possible for prostitutes to ply their trade by soliciting in the streets and it became necessary for them to find some other means of advertising the services that they were prepared to render. It occurred to the Appellant that he could with advantage to himself assist them to this end. The device that he adopted was to publish on divers days between the dates mentioned in the Particulars of Offences a magazine or booklet which was called "Ladies Directory". It contained the names, addresses and telephone numbers of prostitutes with photographs of nude female figures and in some cases details which conveyed to initiates willingness to indulge not only in ordinary sexual intercourse but also in various perverse practices. Learned Counsel for the Appellant made some point of the fact that the magazine contained also advertisements of models and clubs. I therefore mention it, but 1 do not think that it is of any importance. The profit derived by the Appellant from this enterprise was twofold. From the prostitutes whom he canvassed and advertised he received fees ranging from two guineas for quarter-page advertisements without photographs to ten guineas for full-page advertisements with photographs. There was evidence that one issue produced from this source a sum of £250 19s. 0d. Secondly, the Appellant sold copies of the magazine to a Mr. Blass, the proprietor of a sweet and cigarette kiosk, and perhaps, though this is not very clear, to other persons at a price of two shillings per copy. The weekly sales of Mr. Blass were said by him to have started at 30 to 40 and eventually reached about 80. It is manifest that the Appellant received substantial sums from his undertaking. It is also clear from the evidence that the prostitutes paid for advertisement out of the earnings of their profession and that they or some of them obtained custom by means of it.
It is in these circumstances that the question must be asked whether the Appellant lived wholly or in part on the earnings of prostitution, and I turn at once to the statute that makes it an offence to do so. That is now section 30 of the Sexual Offences Act, 1956, which is as follows:
"30.—(1) It is an offence for a man knowingly to live wholly or in part on the earnings of prostitution.
(2) For the purposes of this section a man who lives with or is habitually in the company of a prostitute, or who exercises control, direction or influence over a prostitute's movements in a way which shows he is aiding, abetting or compelling her prostitution with others, shall be presumed to be knowingly living on the earnings of prostitution, unless he proves the contrary."
This section stems from section I of the Vagrancy Act, 1898, as amended by section 7 of the Criminal Law Amendment Act, 1912. The earlier of these two Acts was itself an amendment of the Vagrancy Act, 1824, but I do not think that any assistance is to be derived from a consideration of its ancestry. The Act of 1824 may be regarded as a convenient peg on which to hang divers offences to which the words "vagabondage and roguery" would not be entirely appropriate. Nor do I think that subsection (2) can throw much light on the meaning of the words "lives on the earnings of prostitution" in subsection (1). It was at one time argued that the two subsections were coextensive, but this argument was abandoned by Mr. Rees-Davies. who presented the Appellant's case with candour and ability. It is. I think, clear that the second subsection is probative and explanatory of the first but is not an exhaustive definition of it.
What, then, is meant by living in whole or in part on the earnings of prostitution"—It was not contended by the Crown that these words in their context bear the very wide meaning which might possibly be ascribed to them. The subsection does not cover every person whose livelihood depends in whole or in part upon payment to him by prostitutes for services rendered or goods supplied, clear though it may be that payment is made out of the earnings of prostitution. The grocer who supplies groceries, the doctor or lawyer who renders professional service, to a prostitute do not commit an offence under the Act. It is not to be supposed that it is its policy to deny to her the necessities or even the luxuries of life if she can pay for them.
I would say, however, that, though a person who is paid for goods or services out of the earnings of prostitution does not necessarily commit an offence under the Act, yet a person does not necessarily escape from its provisions by receiving payment for the goods or services that he supplies to a prostitute. The argument that such a person lives on his own earnings, not on hers, is inconclusive. To give effect to it would be to exclude from the operation of the Act the very persons, the tout, the bully or protector, whom it was designed to catch. For they would surely claim that they served the prostitute, however despicable their service might seem to others. Somewhere the line must be drawn, and I do not find it easy to draw it. It is not enough to say that here are plain English words and that it must be left to a jury to say in regard to any particular conduct whether the statutory offence has been committed. I have said enough, for instance, to show that the wider meaning of which the words are clearly capable is inadmissible. The jury should be directed that some limitation must be put upon the words. What is the limitation?
My Lords, I think that (apart from the operation of subsection (2)) a person may fairly be said to be living in whole or in part on the earnings of prostitution if he is paid by prostitutes for goods or services supplied by him to them for the purpose of their prostitution which he would not supply but for the fact that they were prostitutes. I emphasise the negative part of this proposition, for I wish to distinguish beyond all misconception such a case from that in which the service supplied could be supplied to a woman whether a prostitute or not. It may be that circumstances will be equivocal, though no example readily occurs to me. But a case which is beyond all doubt is one where the service is of its nature referable to prostitution and to nothing else. No better example of this could be found than payment by a prostitute for advertisement of her readiness to prostitute herself. I do not doubt that a person who makes a business of accepting such advertisements for reward knowingly lives in part on the earnings of prostitution.
In one of the cases to which I shall refer a person receiving payment from a prostitute for services rendered by him is described as her coadjutor and in another as trading in prostitution. These expressions indicate the distinction that t have in mind though neither of them accurately defines a legal relation. Thus a man who advertises prostitutes and receives payment from them for doing so embarks with them on a joint venture the object of which is that they may earn money by prostitution and in turn pay him for his services. No doubt, all that he is paid is not profit, for he has the expenses of publishing. But his net reward is the direct and intended result of their prostitution. If he had no other means of livelihood it would be truly said that he lived on their earnings: if he had other means, he would be doing so in part.
I must add a few words on the authorities that were called to our attention. In Reg. v. Thomas, 41 C.A.R.117, the accused, who was charged under the Vagrancy Act, 1898, as amended by the Act of 1912, had agreed with a woman whom he knew to be a convicted prostitute that she should have the use of a room between the hours of 9 p.m. and 2 a.m. at a charge of £3 per night. He was convicted upon a direction by Mr. Justice Pilcher, which was subsequently approved by the Court of Criminal Appeal. The learned judge said that "if there is evidence that the accused has let a room or a flat at a grossly inflated rent to a prostitute for the express purpose of allowing her to ply her immoral trade, then it is for the jury to determine, on the...
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