Smith V Hughes, [1960] 1 Wlr 830

Facts Of The Case:
The defendant was a common prostitute who maintained a residence at 39 Curzon Street in London, W., and engaged in prostitution there. The defendant solicited men walking by the street on November 4, 1959, between 8:50 and 9:05 p.m. from a first-floor balcony of No. 39 Curzon Street in order to engage in prostitution (the balcony being some 8-10 feet above street level).

The defendant's strategy for getting the men's attention was to tap on the balcony railing with a metal object and hiss at them as they passed below her in the street, and or after doing so, to engage in conversation with them. And point to the correct door of the premises while saying "Would you want to come up here for a little bit?" to invite them inside. Both of the prostitutes had information filed against her, saying that she had solicited for prostitution in a public setting despite being a common prostitute in violation of section 1 (1) of the Street Offenses Act, 1959. Both of the prostitutes were convicted. They filed for an appeal.

Issues:

• Whether the term " streets" was included in section 1(1) of Street Offences Act, 1959
• Whether soliciting from the balconies of the houses of the common prostitutes amounted to an offence under section 1(1) of Street Offences Act, 1959

Legal Provision:

• Violation of section 1 (1) of the Street Offenses Act, 1959 which 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"
• Mischief rule of interpretation

Advanced Arguments:
Petitioner Side Argument:
The prosecutor argued, among other things, that the soliciting had occurred "in a street" as defined by section 1(1)[1]

Defendant Side Argument:
On behalf of the defendant, it was argued, among other things, that the balcony was not "in a street" as defined by section 1 (1) of the Street Offences Act, 1959, and as a result, no crime had been committed.

Cases Cited In The Judgement:
The following cases were cited in argument:

• McQuade v. Barnes[2]
• Wilson v. Skeoch[3]
• Dereham v. Strickland[4]

In McQuade v. Barnes, [1949] 65 T.L.R. 65; 1 All E.R. 154, D.C, C. J. Lord Goddard stated One of two interpretations is possible which is either the tout must be present in the street or he must be soliciting customers there. If we gave this bye-law the meaning that the appellant argued for, it would mean that a significant portion of the bye-law would be waste paper. We must interpret bye-laws in order to give effect to the intentions of the authority who made them, just as we must interpret statutes in order to give effect to the wishes of parliament."[5]

This means that if statues and bye laws are interpreted in its literal sense then most laws would not have effect and would be mere waste paper.

In Wilson v. Skeoch [6], it was held that the Police officers preferred two informations against Marie Theresa Smith and four informations against Christine Tolan alleging that on various dates, they, being common prostitutes, did solicit in a street for the purpose of prostitution contrary to section 1 (1) of the Street Offences Act, 1959.

Judgement:
The judgement in this case was given by the Queen's bench division which consisted of Lord Parker C.J., Hilbery and Donovan JJ on 16th June 1960.

Lord Parker CJ said
'She being a common prostitute, did solicit in a street for the purpose of prostitution, contrary to section 1(1) of the Street Offences Act, 1959.' It was found that the defendant was a common prostitute, that she had solicited and that the solicitation was in a street. The defendants in this case were not themselves physically in the street but were in a house adjoining the street, on a balcony and she attracted the attention of men in the street by tapping and calling down to them. At other part the defendants were in ground-floor windows, either closed or half open. The sole question here is whether in those circumstances each defendant was soliciting in a street or public place. The words of section 1(1) of the Act of 1959 are in this form: 'It shall be an offence for a common prostitute to loiter or solicit in a street or public place for the purpose of prostitution.'[7]

THE LORD PARKER C.J. These are six appeals based on statements made by one of the stipendiary magistrates sitting in Bow Street, before whom police officers had filed complaints against the defendants, alleging that each had solicited in a public place for prostitution in violation of section 1 (1) of the Street Offenses Act, 1959, despite being a "common prostitute." The magistrate fined the defendant in each case after concluding that the defendant was a common prostitute, that she had been solicited, and that the solicitation had taken place in a public place.

The only issue at hand is whether each defendant was soliciting under such circumstances in a street or other public area. It shall be unlawful for a common prostitute to loiter or solicit on a street or other public place with the intent to engage in prostitution, according to section 1 (1) of the Act of 1959. It is important to note that it is not stated there that the soliciter needs to be on the street. Also, it is not stated that it is sufficient whether the person who receives the solicitation or the person to whom it is addressed is on the street.

According to Lord Parker CJ everyone was aware that the purpose of this Act was to make the streets safer for individuals to go down without being harassed or approached by common prostitutes. His perspective was by applying the mischief was it doesn't really matter if the prostitute is soliciting while on the street, at a doorway, on a balcony, or at a window, or whether the window is closed, open, or partially open; in each scenario, her solicitation is directed at and projected towards a person who is walking down the street. He believed that in each case, the magistrate reached the appropriate verdict, and that these appeals should be denied.

HILBERY J. said,
"I agree. 39 Curzon Street, from the papers in front of us, appears to be let to prostitutes who practise their profession from that address, and the way of practising it is shown by the cases stated, as my Lord has said, and in one case by tapping on the window pane with some metal object as men passed by in the street in front of her, and then openly inviting them into her room. In the other cases it was done by tapping on the windows of various rooms occupied by these prostitutes and then, if the window was open, giving invitations by way of solicitation or signals representing solicitation. In each case signals were intended to solicit men passing by in the street."

This means that he agrees that the said street indeed let the prostitutes solicit regardless of how they did. It could be done by tapping on the window pane with some objects and inviting the passersby or leaving the windows open, it would still be soliciting and would amount to an offence.

DONOVAN J. said that he agrees with both the judgments that were delivered.
Hence the appeal was dismissed and both the prostitutes were convicted for soliciting in the street as per Section 1(1) of the Street Offenses Act, 1959.

Ratio Decidendi:
The judgement in this case was arrived at by applying the mischief rule of interpretation. Judges use a specific rule known as the "Mischief Rule" when interpreting statutes to determine the Parliament's intent. In contrast to the literal and the golden rule, the application of this rule allows the court more discretion because it enables the judge to determine the intent of Parliament.

It could be claimed that this diminishes Parliament's authority and is undemocratic because it removes the legislative branch from drafting laws. Secondary sources, such as committee reports, treatises, law review articles, and related statutes, are used to ascertain the legislative intent. This rule has frequently been used to clear up problems when the literal rule cannot be used, but the connected issue is that usage of this rule is restricted as a result of legislative purpose.

The earliest of the rules for statutory interpretation is the mischief rule. In Heydon's Case, the mischief rule was established. In Re Sussex Peerage[8], it was decided that the mischief rule should only be used in cases when the statute is ambiguous. The purpose of the court is to advance the cure and suppress the mischief that the Act is intended to prevent, according to the mischief rule.In this significant case it was reported by Lord Coke and decided by the Barons of the Exchequer in the 16th century, the following guidelines were established:

No matter whether a legislation is penal or advantageous, restricting or enlarging the common law.
The four characteristics listed below must be taken into account for an appropriate and right reading.

• Before the Act was passed, what was common law?
• What wrongdoing and defect did the common law not address?
• What remedy has Parliament decided upon and named to address the "disease" of the Commonwealth?
• The treatment's real reasons.

In order to repress the wrongdoing and progress the remedy, it is the purpose of every judge to render their decisions in this manner.In his study, Lord Coke used the same terminology—"disease of the Commonwealth"—but it is critical to keep in mind that at the time, words had distinct connotations. During the time of composition, it's critical to determine their significance. During the fourteenth and the farthest reaches of the seventeenth centuries, the absence of ease, unease, or pain was regarded as a sign of illness, and the Commonwealth, unsurprisingly, signified the Country.

An early example held that an act must be interpreted as though it were being done on the day it was passed[9]. The best way to demonstrate the significance of the mischief rule in criminal law is by using examples. An Act of Parliament will specify its intent when it is passed. In Parkin v. Norman[10], the court determined that the Public Order Act of 1936 was not intended to address gay activity in public restrooms.

The long title to the Act reads:
"An Act to prohibit the wearing of uniforms in connexion with political objects and the maintenance by private persons of associations of military or similar characters; and to make further provision for the preservation of public order on the occasion of public processions and meetings and in public places."

The purposes of the Act and the mischief rule are, therefore, closely connected, and it is very genuine to look at the long title. In Ohison v. Hylton[11], the mischief rule is used yet again as an illustration. An outline of the events is as follows: a carpenter was returning from work. He stepped onto a busy train. As one passenger objected, the two ended up on the platform. The defendant, a carpenter, attacked the other man with a hammer that he had pulled out of his briefcase.

Observation:
In this case it is clear that the judges have interpreted Section 1(1) of Street Offenses Act, 1959, not in its literal sense but in a way to give meaning and effect to it thereby convicting the defendants for the offence of soliciting from the balcony. If it is to be interpreted in its literal sense then as stated by Hilbery J, by applying the mischief it does not really matter if the prostitute is soliciting on the street, at a doorway, on a balcony, or at a window, or whether the window is closed, open, or partially open; in each scenario, her solicitation is directed at and projected towards a person who is walking down the street. He also believed that in each case, the magistrate reached the appropriate verdict, and that these appeals should be denied.

The main purpose of the mischief rule of interpretation is to give effect to the statute or act when there is any ambiguity or uncertainty by analysing the purpose for which the same was enacted and to use the discretion of judges while interpreting laws and delivering justice.

On analysing Section 1(1) of Street Offenses Act, 1959, it is understood that this section was implemented to clean the roads and enable the general innocent public to walk around the town without being attacked or harassed or approached by a prostitute. If it was interpreted to mean soliciting from streets and only streets then the sole purpose of this provision is lost.

Reference:
Webliography:

1. "Facts of Smith v Hughes." LawTeacher.net, 28 September 2021, https://www.lawteacher.net/cases/smith-v-hughes.php. Accessed 9 March 2023.
2. "Smith v Hughes [1960]." E-lawresources, http://www.e-lawresources.co.uk/Smith-v-Hughes-%5B1960%5D.php. Accessed 9 March 2023.
3. Rao, Subhyanka. "Mischief Rule of Statutory Interpretation - Academike." Lawctopus, 5 September2014,https://www.lawctopus.com/academike/mischief-rule-statutory-interpretation/Accessed 9 March 2023.
4. Rogers, Graham. Smith v. Hughes, http://www.uniset.ca/other/cs3/19601WLR830.html . Accessed 9 March 2023.
5. Sinha, Abhishek. "Mischief Rule Of Statutory Interpretation." Indian Legal Solution, 30 December 2021, https://indianlegalsolution.com/mischief-rule-of-interpretation/. Accessed 10 March 2023.
6. "Smith v Hughes: QBD 1960." swarb.co.uk, 16 July 2021, https://swarb.co.uk/smith-v-hughes-qbd-1960/ . Accessed 11 March 2023.
7. "McQuade v. Stoneham | Case Brief for Law Students | Casebriefs." CaseBriefs, 16 july 2021, https://www.casebriefs.com/blog/law/business-associations/business-associations-keyed-to-hamilton/management-and-control-of-the-corporation/mcquade-v-stoneham-3/ . Accessed 11 March 2023.
8. Teja Singh vs The State on 20 August, 1951, Punjab-Haryana High Court, 20 august 1951, https://indiankanoon.org/doc/1562228/ . Accessed 10 March 2023.

End-Notes:

1. it shall be an offence for a common prostitute to loiter or solicit in a street or public place for the purpose of prostitution
2. [1949] 65 T.L.R. 65; 1 All E.R. 154, D.C.
3. (1949) 65 T.L.R. 418; 113 J.P. 294, D.C.
4. (1911) 75 J.P. 300.
5. Teja Singh vs The State on 20 August, 1951, Punjab-Haryana High Court, 20 August 1951, https://indiankanoon.org/doc/1562228/. Accessed 11 March 2023.
6. (1949) 65 T.L.R. 418; 113 J.P. 294, D.C.
7. Rogers, Graham. Smith v. Hughes, http://www.uniset.ca/other/cs3/19601WLR830.html. Accessed 9 March 2023.
8. (1844) 11 Cl&Fin 85
9. The Longford(1889) 14 P.D. 34
10. (1982) 2 All E.R. 583 (reserved judgement)
11. [1975] 2 All E.R. 490