Shaw v. Director of Public Prosecutions

Viscount Simonds.

Appellant was convicted on an indictment containing three counts that alleged the following offenses: (1) conspiracy to corrupt public morals, (2) living on the earning of prostitution contrary to Sec. 30 of the Sexual Offenses Act, 1956, and (3) publishing an obscene publication contrary to Sec. 2 of the Obscene Publications Act, 1959. The appeal on all three counts was dismissed, and the conviction upheld. . .

When the Street Offenses Act, 1959, came into operation it was no longer possible for prostitutes to ply their trade by soliciting in the streets, and it became necessary for them to find some other means of advertising the service that they were prepared to render. It occurred to the appellant that he could with advantage to himself assist them to this end. The device he adopted was to publish . . . a magazine or booklet which was called 'Ladies Directory.' It contained the names, addresses and telephone numbers of prostitutes with photographs of nude female figures, and in some cases details which conveyed to initiates willingness to indulge not only in ordinary sexual intercourse but also in various perverse practices.

[The first count charged the appellant in the following terms:

State of offense: Conspiracy to corrupt public morals. Particulars of offence: Frederick Charles Shaw on divers day between the 1st day of October, 1959, and 23rd of July 1960, within the jurisdiction of the Central Criminal Court conspired with certain persons, who inserted advertisements in issues of a magazine entitled "Ladies' Directory" numbered 7, 7 revised, 8, 9, 10 and a supplement thereto, and with certain other persons who names are unknown, by means of the said magazine and the said advertisements to induce readers thereof to resort to the said advertisers for the purposes of fornication and of taking part in or witnessing other disgusting and immoral acts and exhibitions with intent thereby to debauch and corrupt the morals as well of youth as of divers other liege subjects of Our Lady the Queen and to raise and create in their minds inordinate and lustful desires.]

[. . .]

. . . I am at a loss to understand how it can be said either that the law does not recognize a conspiracy to corrupt public morals or that though there may not be an exact precedent for such a conspiracy as this case reveals, is does not fall fairly with the general words by which it is described . . . In the sphere of criminal law I entertain no doubts that there remains in the courts of law a residual power to enforce the supreme and fundamental purpose of the law, to converse not only the safety and order but also the moral welfare of the State, and that it is their duty to guard it against attacks which may be the more insidious because they are novel and unprepared for . . . Such occasions will be rare, for Parliament has not been slow to legislate when attention has been sufficiently aroused. But gaps remain and will always remain since no one can foresee every way in which the wickedness of man may disrupt the order of society. Let me take a single instance . . . Let it be supposed that at some future, perhaps early, date homosexual practices between adult consenting males are no longer a crime. Would it not be an offense if even without obscenity, such practices were publicly advocated and encouraged by pamphlet and advertisement? Or must we wait until Parliament finds time to deal with such conduct? I say, my Lords, that if the common law is powerless in such an event, then we should no longer do her reverence. . .

The appeal on both counts should, in my opinion, be dismissed.

Lord Morris of Borth-y-Gest . . . It is said that there is a measure of vagueness in a charge of conspiracy to corrupt public morals, and also that there might be peril of the launching of prosecutions in order to suppress unpopular or unorthodox views. My Lords, I entertain no anxiety on these lines. Even if accepted public standards may to some extent vary from generation to generation, current standards are in the keeping of juries, who can be trusted to maintain the corporate good sense of the community and to discern attacks upon values that must be preserved. If there were prosecutions which were not genuinely and fairly warranted juries would be quick to perceive this. There could be no conviction unless 12 jurors were unanimous in thinking that the accused person or persons had combined to do acts which were calculated to corrupt public morals. . . I would dismiss the appeal.

Lord Reid. . . In my opinion there is no such general offense known to the law as conspiracy to corrupt public morals. . .

I agree with R.S. Wright, Jr., when he says . . . "There appear to be great theoretical objections to any general rule that agreement may make punishable that which ought not to be punished in the absence of an agreement." And I think, or at least I hope, that it is not established, that the courts cannot create new offences by individuals. So far at least I have the authority of Lord Goddard, C.J., in delivering the opinion of the court in Newland: "[The power to create new offenses] would leave it to the judges to declare new crimes and enable them to hold anything which they considered prejudicial to the community to be a misdemeanor. However, beneficial that might have been in the days when Parliament met seldom or at least only at long intervals it surely is not the province of the legislature and not of the judiciary to create new criminal offenses." Every argument against creating new offences by an individual appears to me to be equally valid against creating new offences by a combination of individuals.

. . . Notoriously, there are wide differences of opinion today as to how far the law ought to punish immoral acts which are not done in the face of the public. . . . Parliament is the proper place, and I am firmly of opinion the only proper place, to settle that. When there is sufficient support from public opinion, Parliament does not hesitate to intervene. Where Parliament fears to tread it is not for the courts to rush in. . . .

Finally I must advert to the consequences of holding that this very general offence exists. It has always been thought to be of primary importance that our law, and particularly our criminal law, should be certain: that a man should be able to know what conduct is and what is not criminal, particularly when heavy penalties are involved. Some suggestion was made that it does not matter if this offence is very wide: no one would ever prosecute and if they did no jury would ever convict if the breach was venial. Indeed, the suggestion goes even further: that the meaning and the application of the words . . . "debauch" and "corrupt" in this indictment ought to be entirely for the jury, so that any conduct of this kind is criminal if in the end a jury think it so. In other words, you cannot tell what is criminal except by guessing what view a jury will take, and juries' views may vary and may change with the passing of time. Normally the meaning of words is a question of law for the court. For example, it is not left to a jury to determine the meaning of negligence: they have to consider of evidence and on their own knowledge a much more specific question- Would a reasonable man have done what this man did? . . . If the trial judge's charge in the present case was right, if a jury entitled to water down the strong words "deprave," "corrupt" or "debauch" so as merely to mean lead astray morally, then it seems to me that the court has transferred to the jury the whole of its functions as censor morum, the law will be whatever the jury may happen to think it ought to be, and this branch of the law will have lost all the certainty which we rightly prize in other branches of our law.