By Rob Jerrard LLB LLM (London)

Prostitution, "Common Prostitutes", "Living" and "loiter" what do they mean?

S.1(1) of the Street Offences Act 1959 states

It shall be an offence for a common prostitute to loiter or solicit in a street or public place for the purpose of prostitution.

S.30 of the Sexual Offences Act 1956 states

"It is an offence for a man knowingly to live wholly or in part on the earnings of prostitution

These sections appear on face value to be easy to understand: however, what does the law mean by "common and "loiter"; what is "Living on the earnings of"?

Cases have shown that it might not be as simple as it looks.

The term "Common" prostitute often appears in early enactments. It has been part of statute law since 1824. The term was criticised during the debates on the Street Offences Bill, which became the Street Offences Act 1959. The Criminal Law Revision Committee Working Paper on "Offences relating to Prostitution and allied offences" published in December 1982 said, inter alia," the word 'Common' should be removed from the expression,'Common prostitute' but we are divided upon whether the words 'being a prostitute should be removed'".

In R v De Munck (1918) 82 J.P.160 CCA, it was said, "the term 'common prostitute' is not limited so as to mean only one who permits acts of lewdness with all and sundry, or with such as have her, when such acts are in the nature of ordinary sexual connection. We are of the opinion that prostitution is proved if it is shown that a woman offers her body commonly for lewdness for payment in return." The mother permitted her daughter of 14 years to take men to her room and to be alone with them in her bedroom in circumstances which would have led anyone to believe that the girl had sexual intercourse with them.

The ratio of the case is that prostitution does not necessarily involve normal sexual intercourse but that any act of lewdness suffices.

The decision was followed in the same court in R v Webb [1964] 1 QB 357 where the proprietor of a massage establishment was charged, inter alia, with procuring and attempting to procure masseuses to become common prostitutes. The question was whether such acts amounted to prostitution and whether the girls were common prostitutes? The court followed De Munck and dismissed a contention that the definition should be confined to cases where a woman takes a passive rather than an active role in the lewd activities.

In R v Morris-Lowe [1985] 1 ALL.E.R. 400 Morris-Lowe had placed an advertisement in a newspaper shop for young girls to train as masseuses for excellent pay. He hired a room and carried out interviews, so called, of some of the girls. Each girl was told he was going to set up a massage business; some were told he already did operate in Cambridge. Each girl was told she might be expected to provide relief massage (Masturbation). The girls were invited to masturbate him in the Hotel room.

He was convicted on three counts of attempting to procure a woman to become a common prostitute, contrary to s.22 (1) Sexual Offences Act 1956, and Criminal Attempts Act 1981.

His defence was that the whole thing had been a deception. He had no massage business, nor was he about to set one up, and he certainly had no intention of employing the girls. Initially he pleaded not guilty. The trial Judge ruled that even if the defendant's account was believed the offences were still made out because he held out the hope of reward to the girls (future employment) in exchange for acts of lewdness to be committed in the hotel room, even though he had no intention of employing them. He then changed his plea to guilty. He appealed.

(As to the word procure R v Broadfoot (1976) 141 J.P. 58 [1976] 3 ALL.E.R. 753, was authority for stating that it might mean simply to persuade, which was plainly what the appellant was attempting to do.)

However a fresh argument was mounted that had he succeeded and if the girls had masturbated him, they would become "Common" prostitutes? A "Common" prostitute was any woman who offered herself commonly for lewdness for reward. The court said the performance by a woman of a single act of lewdness with a man on one occasion for reward did not make her a "Common" prostitute. (The court did not consider whether or not it was even sufficient to make her a prostitute). That had to mean someone who was prepared for reward to engage in acts of lewdness with all and sundry or with anyone who might hire her for that purpose. The court followed R v De Munck (1918) 82 J.P.160. His conviction was quashed.

In R v Brown [1984] 3 ALL.E.R. 1013. CA. Brown was also charged with attempting to procure a woman to become a "Common" prostitute. He had thought he was talking to a prostitute standing on a street corner - she was in fact a woman police officer on duty in mufti. His defence was, that since he believed she was already a common prostitute, how could he procure her? A very bold assertion by the Crown, that it was an offence of strict liability failed. His conviction was quashed. The court stated in its judgment, that the intention necessary for an offence of attempting to procure a woman to become a common prostitute, contrary to s.1(1) of the Criminal Attempts Act 1981, is the same as is necessary for an offence under s.22(1)(a) Sexual Offences Act 1956, therefore R v Morris-Lowe remains good law, since if the defendant thought the woman was not a common prostitute, this may have been sufficient to found a conviction for attempt.

In Regina v McFarlane (1993) The Times, 20 December, Court of Appeal the word "Prostitution" was judicially defined for the first time.

The Court of Appeal dismissed an appeal by a man convicted of living on the earnings of prostitution and determined that, in considering the mischief of harassment and nuisance to members of the public on the streets,the distinction between ``a clipper'' and ``a hooker'' was immaterial.

THE LORD CHIEF JUSTICE, giving the judgment of the court, said that the appellant had lived together as man and wife with Miss Joseph who, on the judge's ruling was a prostitute.

She maintained that she was not a prostitute but a ``clipper'', one who offered sexual services for reward and pocketed the reward in advance, never intending to provide the services.

The point of law in the appeal was the meaning of prostitution which, surprisingly, had not been the subject of judicial decision with any finality before this.

The issue on the appeal was whether, as a matter of law, the judge was correct to rule and direct the jury that a woman who offered herself sexual services and took the money and failed to provide the services was engaged in prostitution within section 30 of the 1956 Act.

The prosecution submitted that the essence of the offence was the offer of sexual services in return for reward. The words ``prostitute'' and ``prostitution'' were not defined in any statute. Their Lordships' attention had been drawn to dictionary definitions and R v De Munck; R v Webb and R v Morris-Low, considered above.

In their Lordships' judgment, both the dictionary definitions and the cases showed that the crucial feature in defining prostitution was the making of an offer of sexual services for reward.

The defence submitted that the mischief against which section 30 was aimed was the exploitation of women. Here the appellant was not exploiting Miss Joseph sexually, only dishonestly. However, if his arguments were right, the mischief at which that and other statutes requiring proof of prostitution would be defeated. If it were a defence that the woman was acting as a clipper and not as a hooker, proof of such offences would be extremely difficult.

The mischief being simply the harassment and nuisance to members of the public on the streets, the distinction between a clipper and a hooker was immaterial.

For a man to live on the earnings of a woman who habitually offered sexual services, took the money and then reneged on the offer, if she did, was, in their Lordships' view, to live off the earnings of prostitution, or,as it used to be termed, immoral earnings.

Indeed, most people would regard such earnings as doubly immoral.

"Loiter", not a male!

In Director of Public Prosecutions v Bull [1994] 158 J.P. 1005 Queen's Bench Division, the question was whether the term "common prostitute " in S. 1(1) of the Street Offences Act 1959 is confined to women prostitutes

The defendant was charged that he, being a common prostitute did loiter in a street or public place for the purpose of prostitution, contrary to s.1(1) of the Street Offences Act 1959. At the conclusion of the prosecution case the stipendiary magistrate upheld a submission by defence counsel that there was no case to answer on the basis that s.1(1) applied only to female prostitutes. On appeal by way of case stated:

The court examined the differences between S.32 and S.1 and in their opinion there are differences between the components of an offence under s.32 ( offence for a man to solicit or importune in a public place for immoral purposes) and those of an offence under s.1(1)


(1) Section 32 requires actual soliciting or importuning; s.1(1) requires either actual soliciting or loitering;

(2) Section 32 requires persistence; s.1(1) does not, and

(3) Section 32 requires an immoral purpose; s.1(1) requires a prostitutional purpose.

The court held (dismissing the appeal): The term "common prostitute" in s.1(1) of the Street Offences Act 1959 was confined to women prostitutes, so that the section excluded from its scope the activities of male prostitutes.

Living on the earnings of

Section 30 is directed at a male person who is wholly or partly kept by a prostitute. The usual form it takes is an arrangement by which a man lives with a prostitute and is wholly or mainly kept by her. However it may not follow the usual pattern: three methods are illustrated by these cases.

R v Farrugia, Borg, Agius, and Gauchi, (1979) 69 Cr.App.R 108, concerned an escort agency. The defendant Agius thought up the system and considered they would not be guilty of any offence. Girls went to and sat at the agency which was advertised widely. Those who knew would telephone and ask for "escorts". Mini cab drivers, two of whom were Farrugia and Gauchi, were under the directions of Agius.

A driver would take girls on an assignment. On arrival at the destination the driver would introduce the girl to her assignment and collect the agency's fee, usually 17.50, and his fare. There was no evidence that the fare was excessive. Nearly all the activities were late at night.

At the trial an attempt was made to prove that the agency was genuine, although evidence to the contrary was overwhelming. The defence submitted that this did not prove the defendants "knowingly lived wholly or in part on the earnings of prostitution". They may well have made part of their living out of prostitution but that was not the same as living on the earnings of prostitution.

All four were convicted. Their appeal to the Court of Appeal was dismissed on the basis that all four knew what the girls intended to do. What they received came from intended prostitution - as earnings, no direct payment had to be proved.

R v Stewart (1986) 83 Cr.App.R.327,(CA), concerned the letting of flats at high rents to prostitutes. The landlord was aware of their calling. The principal witness was a prostitute (Anita) who said that she became a prostitute in the early '70s when she formed a relationship with the appellant. He arranged a mortgage on her house and loaned her money. She said he agreed to transfer the property into her name, (he never did).

She also stated she collected rents from other prostitutes, on his behalf.

The main issues on appeal were:- (A) The Judge's directions to the jury on the meaning of the words, "knowingly to live wholly or part on the earnings of prostitution". (B) The fact that it had been left open to the jury to convict where the premises were let at a normal market rent. (C) A direction had been given that if the letting was referable to prostitution and nothing else, it was immaterial whether or not the letting was at a higher than normal rent. (D) The Judge's direction had developed along the lines of a joint venture: the object was for the woman to earn money by prostitution, the man taking a reward from the prostitute, in some cases by extracting from her in the guise of rent sums beyond any commercial rent. Evidence was given that Anita had paid eight times the ordinary rent.

The appeal was dismissed, as there was nothing in the directions to which exception could be taken. The Court of Appeal stated that a good working test, sufficient to deal with many cases, is whether the facts of supply means that the supplier and the prostitute were engaged in the business of prostitution together: and, "the fact of supply" will include the scale of supply, the price charged and the nature of the goods or services. The trial Judge should identify for the jury the flavour of the words, "living on", and then express this general concept in the shape of guidance more directly referable to the case in hand.

R v Howard (1992) 94 Cr.App.R. 89, concerned an appellant who produced cards and adhesive stickers to be used by prostitutes to advertise their services and telephone numbers. He knew that his products were to be used by prostitutes to obtain clients and that the payments he received came from the earnings of prostitution. That profitable business was his sole source of income at that time. The trial Judge found that he earned 700 to 800 per week, and he would not have supplied them with the products but for the fact that they were prostitutes.

It was held, by the Court of Appeal, that the facts were indistinguishable from the example given by Viscount Simmonds in Shaw v DPP (1961) 125 JP 237. The facts fell within the definition given in s.30 and a prima facie case was made out. He was guilty.

Rob Jerrard