Interpretation of Statutes

Smith v. Hughes

[1960] 1 WLR 830; [1960] 2 All ER 859

Facts

The Street Offences Act, 1959 made it an offence for a common prostitute to loiter or solicit “in a street or public place for the purpose of prostitution.”
Several women attracted prospective customers who were physically present in the street.
The women themselves were not standing directly on the street.
They solicited men by:
tapping on windows;
calling from balconies;
speaking through open windows; or
gesturing from doorways situated on private premises.
They argued that they could not be convicted because the statutory words required the prostitute herself to be physically present “in a street or public place.”
The prosecution argued that the Act was intended to prevent public solicitation and the resulting nuisance to persons using the street.
The interpretative dispute therefore concerned whether the statutory location referred to the woman’s position or to the place where the solicitation operated.

Whether a prostitute solicited “in a street” when she addressed persons standing in the street while remaining on private premises.
Whether the provision should be interpreted literally according to the woman’s physical location.
Whether the mischief and purpose of the legislation justified a broader construction.

Under the mischief rule, the Court considers:
the state of the law before the legislation;
the defect which the old law failed to remedy;
the remedy adopted by Parliament; and
the reason for that remedy.
Statutory language should be interpreted so as to suppress the identified mischief and advance the legislative remedy.
Words describing conduct may refer to the place where the conduct has its effect, not merely the physical location from which it originates.
A purposive construction must remain reasonably connected to the language used.

The Court identified the mischief as the public nuisance caused by prostitutes openly approaching and troubling persons using streets.
Parliament was concerned with the effect of solicitation upon people in public places.
That nuisance existed whether the woman:
stood on the pavement;
leaned from a doorway;
called from a balcony; or
tapped from behind a window.
A narrow reading would make the statute easy to evade.
A prostitute could simply remain a few centimetres inside private property while carrying on precisely the same public solicitation.
Such an interpretation would preserve the mischief while defeating the remedy.
The words “solicits in a street” were therefore interpreted as covering solicitation directed to and operating upon persons in the street.
The relevant location was the place in which the prospective customer was approached and the public nuisance occurred.
The Court did not hold that the phrase covered all private solicitation.
The connection with the street remained essential:
the person solicited had to be in the street or public place; and
the conduct had to be directed there.
The interpretation therefore enlarged the provision only enough to achieve its statutory purpose.
It did not create a general offence covering private negotiations conducted entirely away from public places.

The convictions were upheld.
The women had solicited “in a street” because their words and gestures were directed at men using the street.
Their physical position inside a building did not remove the conduct from the statute.
The case is a classic modern illustration of the mischief rule.
Use this case for: interpreting legislation according to the public harm it was designed to prevent rather than through an easily evaded literal reading.