Vetting the message

Although sharing the characteristics of a louche folk art form, there is no doubt that the messages and illustrations accompanying the telephone numbers will be, if not obscene per se (and they are concisely explicit), at least offensive to those not disposed to finding them trivially amusing. Just like the dog dirt on pavements that people want dealt with most urgently by their elected representatives, this sort of thing seems to create a degree of annoyance out of proportion to its capacity for harm. This may be another example of how, when something is prohibited, other concomitant evils follow, which tend to affect those not otherwise directly involved, just as drug abusers contrive to involve the rest of us in their scene by breaking into our cars and stealing our stereos.

If you forbid the distribution of a product it becomes difficult to control the illicit advertising of it. And vice must advertise, be it by the traditional method of the street arab offering introductions to his sister (''very nice schoolteacher''), or by a notice in a newsagent's window announcing that actresses have large chests for sale or French maids are seeking new positions. One distributor of telephone cards has been successfully prosecuted under English legislation dealing with litter in public places, although not without something of a dispute about the applicability of the relevant statutes to the inside of a privately owned phone box.

This is just the sort of thing that happens when you try to use an Act passed for one purpose to deal with something quite different. While we do not have such things disfiguring the chaste interiors of Scottish phone boxes, there can be little doubt that the national advertising of prostitution is at a level previously unknown. In particular it has moved from the paper shop windows to the papers themselves.

At one time the personal column of the Times was said to have carried the message ''See You In Tea: Waiting'' with a phone number, at least until a sub-editor with a quicker eye or a dirtier mind took a tumble to what was going on.

But what we have now as a matter of routine ranges from the breezy and bland health studio stuff to the downright obvious, the latter mostly in what one Herald writer recently and felicitously described as ''soft porn newspapers''. Some of these are quite unequivocal; one must assume that the authorities, who can read too, are thereby alerted and will be keeping an eye or perhaps an ear on what is going on. But presumably, if one can stay on the right side of decent discretion, all will be well. And indeed there may be much to be said for keeping things quietly on the printed page where only those interested will find them, compared with scattering around a lot of literature garish enough to frighten the horses.

Prostitution in itself is not a criminal offence, but many activities associated with it are. These include soliciting and living in whole or part on the earnings of prostitution. By and large, what has always been the greater perceived evil, to lawmakers if not to moralists, is not the business itself but the nuisance and annoyance caused to people who do not want to be bothered.

Further, there is a widespread school of thought that while it may be all right for someone to sell their own body, it is all wrong for anyone else to profit thereby. This is what Mr Shaw, publisher of The Ladies Directory, found out all those years ago, as is revealed in the report of Shaw v the Director of Public Prosecutions in 1962 Appeal Cases. He published a guide telling people how to contact prostitutes. He was charged with conspiring to corrupt public morals, living on the earnings of prostitution, and publishing an obscene article.

In what was widely seen as a bit of law bending, in which the great Scottish judge Lord Reid declined to have a part, it was held that he was guilty of all three. Lord Reid's dissenting view was to the effect that while what Shaw did might be offensive, it was up to Parliament, and Parliament alone, to make it criminal. As it happens, the Scottish courts do have a residual power to declare something to be a crime, but it is sparingly used and in a circumscribed way. What is rather more likely to happen is what was described by the late Lord Justice Clerk Thomson when he spoke of the Scottish legal system's tendency to take tentative steps to modify the existing law-reform coming later.

This appears to have happened as regards Lord Fraser's announcement when Lord Advocate that no-one over 16 would in practice be prosecuted for homosexual acts committed in private, albeit that strictly speaking, the law was being broken.

It is widely believed that this may be happening in respect of possession of cannabis for private use. The judgment of Lord Reid, incidentally, is a model of judicial felicity and is strongly recommended. For our present purposes he makes one point that is particularly apposite: in the context of living on immoral earnings, he says, we must understand this to mean living parasitically.

On the analogy that someone who sells goods to a farmer is not said to be living on the earnings of agriculture, why should things be different for someone who supplies something to a prostitute which he or she needs to carry out

their trade?

To come back to the defacement of phone boxes it may be that the socio-

economics of Scottish vice will render that sort of thing inappropriate here. So far as other advertising goes, that it should be permitted may not be so much a case of turning a blind eye as keeping one open to identify the real mischief.

Obviously an advertisement that goes too far will have to be dealt with: you could no more advertise that you were running a brothel than that you were available to carry out kidnapping or assassinations. So it may be that if editors of newspapers behave like Mr Shaw and publish details that are either offensive in themselves or constitute an announcement of on-going crimes, they can expect the same treatment (nine months); unless the views of Lord Reid prevail, that is.