Scottish High Court of Justiciary Decisons

LINDSAY REID v. HER MAJESTY'S ADVOCATE [1998] ScotHC 6 (6th November, 1998)

An indictment has been served on the appellant for her trial in the Sheriff Court at Edinburgh at a sitting commencing on 9 November 1998, with a first diet on 27 October. In terms of charge 2 of the indictment she was charged along with two male co-accused that between certain dates in 1997 in certain premises in Edinburgh she did knowingly live wholly or in part on the earnings of prostitution, contrary to section 11(1)(a) of the Criminal Law (Consolidation) (Scotland) Act 1995.

Section 11(1) of that Act provides:

At the first diet an objection was taken on behalf of the appellant to charge 2 so far as she was concerned, on the ground that section 11(1)(a) could not competently be libelled against her as she was female. The sheriff found the charge to be competent, and the appellant has appealed against that decision.

Mr. McBride, who appeared on her behalf, submitted that the objection which had been taken before the sheriff was supported by a sound construction of the section. Subsection (1) was extremely unusual in its terms in respect that it referred only to the liability of a male person to conviction. He compared it with the terms of subsection (4) of section 11 which provides:

While subsection (4) dealt with a separate offence, there was plainly a degree of overlap between that subsection and subsection (1). Thus the appellant could have been charged under subsection (4). It was significant that the two subsections provided for the same penalties but with reference to male and female persons respectively. If it had been intended that a female person could be charged under subsection (1), why was the subsection apparently confined to male persons?

We are not persuaded that this argument is sound. Section 293(1) of the Criminal Procedure (Scotland) Act 1995, on which the sheriff had founded his decision, provides:

That provision is expressed in general terms and is not stated to be subject to a contrary intention appearing in the terms of any statutory offence. Mr. McBride accepted that, on the basis of art and part, a woman could be convicted of rape. The case of Vaughan v. H.M. Advocate 1979 S.L.T. 49 provides an example of the application of art and part guilt to a statutory offence. In that case the accused was convicted under the Incest Act 1567 although he himself was not a person within one of the forbidden degrees relative to the complainer. If the mischief to which section 11(1)(a) is directed is the living of a male person on the earnings of prostitution, there is no reason to suppose that the guilt of a female person on the basis of her acting art and part is excluded. The submission that section 11 contains within in a structure which determines the gender of the person who can competently be convicted is attractive at first sight, but we do not consider that it has substance, when regard is had to the terms of section 293(1) to which we have referred.

In these circumstances the appeal is refused.