The West Lothian Courier for 18 December 2008 reports a decision of Linlithgow Sheriff Court clearing two accused of brothel-keeping because where the services of only one prostitute were available there was no brothel.
The two accused were a man and a woman charged with managing or assisting in the management of a brothel in Bathgate. The female admitted being a prostitute, but the male accused claimed to be only a live-in cleaner at the flat where the brothel was allegedly located. Sheriff Donald Muirhead acquitted the male, saying “In order to constitute a brothel it is necessary to have more than one prostitute operating at any one time. I am satisfied that there is not enough evidence here that there was more than one prostitute operating and accordingly the charge cannot fall within the statute.”
Scots Law News confesses to puzzlement. The Stair Memorial Encyclopaedia Reissue on Criminal Law rightly says at para 311 that section 11 of the Criminal Law (Consolidation) (Scotland) Act 1995 (the relevant statutory provision) contains no definition of a brothel, and the author has to go back to Hume’s Commentaries (I, 468-469): “an open and notorious house of lewdness, for the reception of loose and dissolute visitors”. No mention of two or more prostitutes there; but perhaps we need to read further?