Criminal Law and Practice in Scotland

DOI10.1177/0032258X3901200102
Published date01 January 1939
Date01 January 1939
Subject MatterArticle
Criminal
Law
and Practice in Scotland
LOITERING
FOR PROSTITUTION
IT
is provided by Section 381 (22) of the Burgh Police
(Scotland) Act,
1892
(and by corresponding local enactments,
e.g. Section
n6(3)
of the Edinburgh Corporation Order, 1933),
that
every person who, in any street, being acommon prosti-
tute
or street walker, loiters about or importunes passengers
for
the
purpose of prostitution is to be subject to penalties.
The
enforcement of this provision is among the most respon-
sible and exacting of the duties assigned to plain clothes
officers in our City forces.
It is perhaps
not
always sufficiently realised
that
proof
of the offence
of"
loitering"
has two distinct and independent
elements. Acourt is never justified in holding such a charge
proved unless it is satisfied (1)
that
the general character of
the
woman has been adequately established by evidence showing
that
she is in fact a prostitute, and (2) that, on the particular
occasion libelled in the complaint now before the court, (a)
she either loitered about or importuned (or
both-and
the
practice is to express
the
charge
cumulatively-"
you did
loiter about and importune passengers ") and
(b)
the
purpose
was prostitution.
The
point to seize
upon
is
that
unless
and
until the court has made up its
mind
that
the woman's general
character as a prostitute is proved, it has neither aright nor a
duty to enquire further, no matter how strong may be
the
evidence of accosting on
the
date libelled,
and
that
it cannot
convict.
Why, then, should this
be?
On
the
face of it, it seems
improper to
allow-and
still more to
demand-proof
of
the
general "bad
character"
of an accused as a condition pre-
cedent to conviction. Indeed, one frequently encounters,
among persons interested in social work, a fierce resentment
against this procedure of " labelling "prostitutes. Yet, on a
21

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