SHAW
v.
DIRECTOR OF PUBLIC PROSECUTIONS
4th May, 1961
Viscount Simonds
Viscount Simonds
Lord Reid
Lord Tucker
Lord Morris of Borth-y-Gest
Lord Hodson
my lords,
The Appellant, Frederick Charles Shaw, was, on the 21st September, 1960,
convicted at the Central Criminal Court on an indictment containing three
counts which alleged the following offences:
(1) Conspiracy to corrupt public morals; (2) Living on the earnings
of prostitution contrary to section 30 of the Sexual Offences Act, 1956;
and (3) Publishing an obscene publication contrary to section 2 of the
Obscene Publications Act, 1959. He appealed against conviction to the
Court of Criminal Appeal on all three counts. His appeal was dismissed,
but that Court certified that points of law of general public importance
were involved in the decisions on the first and second counts and gave
him leave to appeal on them to this House. They refused so to certify
in respect of the third count. I propose, my Lords, to deal in this
Opinion in the first place with the second count, for I have had the
privilege of reading the speech which my noble and learned friend, Lord
Tucker, is about to deliver on the first count and so fully agree with
him that I find it convenient to add some general observations which
can be regarded as supplementary to what he says.
My Lords, the particulars of the offence charged in the second count were
that on divers days unknown between the 1st October, 1959, and the 23rd
July. 1960, the Appellant lived wholly or in part on the earnings of prostitu-
tion. Before I refer to the statute on which the charge is based I must refer
briefly to the relevant facts.
When the Street Offences 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
services 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
that he adopted was to publish on divers days between the dates mentioned
in the Particulars of Offences 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. Learned
Counsel for the Appellant made some point of the fact that the magazine
contained also advertisements of models and clubs. I therefore mention it,
but 1 do not think that it is of any importance. The profit derived by the
Appellant from this enterprise was twofold. From the prostitutes whom
he canvassed and advertised he received fees ranging from two guineas for
quarter-page advertisements without photographs to ten guineas for full-page
advertisements with photographs. There was evidence that one issue pro-
duced from this source a sum of £250 19s. 0d. Secondly, the Appellant sold
copies of the magazine to a Mr. Blass, the proprietor of a sweet and cigarette
kiosk, and perhaps, though this is not very clear, to other persons at a price
of two shillings per copy. The weekly sales of Mr. Blass were said by him
to have started at 30 to 40 and eventually reached about 80. It is manifest
that the Appellant received substantial sums from his undertaking. It is also
clear from the evidence that the prostitutes paid for advertisement out of
the earnings of their profession and that they or some of them obtained
custom by means of it.
It is in these circumstances that the question must be asked whether the
Appellant lived wholly or in part on the earnings of prostitution, and I turn
2
at once to the statute that makes it an offence to do so. That is now
section 30 of the Sexual Offences Act, 1956, which is as follows:
” 30.—(1) It is an offence for a man knowingly to live wholly or in
” part on the earnings of prostitution.
” (2) For the purposes of this section a man who lives with or is
” habitually in the company of a prostitute, or who exercises control,
” direction or influence over a prostitute’s movements in a way which
” shows he is aiding, abetting or compelling her prostitution with others,
” shall be presumed to be knowingly living on the earnings of prostitu-
” tion, unless he proves the contrary.”
This section stems from section I of the Vagrancy Act, 1898, as amended
by section 7 of the Criminal Law Amendment Act, 1912. The earlier of
these two Acts was itself an amendment of the Vagrancy Act, 1824, but I
do not think that any assistance is to be derived from a consideration of
its ancestry. The Act of 1824 may be regarded as a convenient peg on which
to hang divers offences to which the words ” vagabondage and roguery ”
would not be entirely appropriate. Nor do I think that subsection (2)
can throw much light on the meaning of the words ” lives on the earnings
of prostitution ” in subsection (1). It was at one time argued that the two
subsections were coextensive, but this argument was abandoned by Mr.
Rees-Davies. who presented the Appellant’s case with candour and ability.
It is. I think, clear that the second subsection is probative and explanatory of
the first but is not an exhaustive definition of it.
What, then, is meant by living in whole or in part on the earnings of
prostitution”- It was not contended by the Crown that these words in their
context bear the very wide meaning which might possibly be ascribed to
them. The subsection does not cover every person whose livelihood depends
in whole or in part upon payment to him by prostitutes for services rendered
or goods supplied, clear though it may be that payment is made out of
the earnings of prostitution. The grocer who supplies groceries, the doctor
or lawyer who renders professional service, to a prostitute do not commit
an offence under the Act. It is not to be supposed that it is its policy
to deny to her the necessities or even the luxuries of life if she can pay for
them.
I would say, however, that, though a person who is paid for goods or
services out of the earnings of prostitution does not necessarily commit an
offence under the Act, yet a person does not necessarily escape from
its provisions by receiving payment for the goods or services that he supplies
to a prostitute. The argument that such a person lives on his own earnings,
not on hers, is inconclusive. To give effect to it would be to exclude from
the operation of the Act the very persons, the tout, the bully or protector,
whom it was designed to catch. For they would surely claim that they
served the prostitute, however despicable their service might seem to others.
Somewhere the line must be drawn, and I do not find it easy to draw it. It
is not enough to say that here are plain English words and that it must
be left to a jury to say in regard to any particular conduct whether the
statutory offence has been committed. I have said enough, for instance, to
show that the wider meaning of which the words are clearly capable is
inadmissible. The jury should be directed that some limitation must be put
upon the words. What is the limitation?
My Lords, I think that (apart from the operation of subsection (2)) a person
may fairly be said to be living in whole or in part on the earnings of
prostitution if he is paid by prostitutes for goods or services supplied by
him to them for the purpose of their prostitution which he would not
supply but for the fact that they were prostitutes. I emphasise the negative
part of this proposition, for I wish to distinguish beyond all misconception
such a case from that in which the service supplied could be supplied to a
woman whether a prostitute or not. It may be that circumstances will be
equivocal, though no example readily occurs to me. But a case which is
beyond all doubt is one where the service is of its nature referable to
prostitution and to nothing else. No better example of this could be found
3
than payment by a prostitute for advertisement of her readiness to prostitute
herself. I do not doubt that a person who makes a business of accepting
such advertisements for reward knowingly lives in part on the earnings of
prostitution.
In one of the cases to which I shall refer a person receiving payment
from a prostitute for services rendered by him is described as her coadjutor
and in another as trading in prostitution. These expressions indicate the
distinction that t have in mind though neither of them accurately defines a
legal relation. Thus a man who advertises prostitutes and receives payment
from them for doing so embarks with them on a joint venture the object
of which is that they may earn money by prostitution and in turn pay
him for his services. No doubt, all that he is paid is not profit, for he
has the expenses of publishing. But his net reward is the direct and intended
result of their prostitution. If he had no other means of livelihood it would
be truly said that he lived on their earnings: if he had other means, he would
be doing so in part.
I must add a few words on the authorities that were called to our attention.
In Reg. v. Thomas, 41 C.A.R.117, the accused, who was charged under the
Vagrancy Act, 1898, as amended by the Act of 1912, had agreed with a
woman whom he knew to be a convicted prostitute that she should have
the use of a room between the hours of 9 p.m. and 2 a.m. at a charge of
£3 per night. He was convicted upon a direction by Mr. Justice Pilcher,
which was subsequently approved by the Court of Criminal Appeal. The
learned judge said that ” if there is evidence that the accused has let a room
or a flat at a grossly inflated rent to a prostitute for the express purpose of
allowing her to ply her immoral trade, then it is for the jury to determine, on
the facts of each particular case, whether the accused is in fact knowingly
living wholly or in part on the earnings of prostitution.” The only criticism
I would make of this direction is that it does not distinguish between rooms
and flat and in that case that it attaches undue importance to the rent being
” grossly inflated ” or, as is sometimes said, ” exorbitant”. It appears to
me that, whatever the rent, the jury might have concluded that the accom-
modation was provided for no other purpose than prostitution and would
not have been provided for her unless she was a prostitute. The exorbitance
of the rent would, in my opinion, become important only if there had been
evidence that this sort of accommodation was a necessity or luxury commonly
required by other women for other purposes than prostitution, a thing which is
not easily imaginable. In reaching this conclusion Mr. Justice Pilcher had
found it necessary to differ from a ruling given by Judge Maude at the Central
Criminal Court in Reg. v. Silver. 40 C.A.R.32, and in this too his decision
was approved by the Court of Criminal Appeal. Judge Maude in that case
held that it was not an offence for landlords and their agents to let flats
to prostitutes at what were described as exorbitant rents and by the learned
Judge as ” prostitute rents ” knowing that they would be used for the purpose
of prostitution. I find this a more difficult case. If premises are let only
for the purpose of prostitution and not also for occupation by the prostitute,
as was the room in Reg. v. Thomas, it is easy to conclude that an offence
has been committed. But, if the flat is let for occupation, I am not prepared
to say that the landlord commits an offence merely because he knows that
his tenant is a prostitute and must be assumed to know that she will there
ply her trade. The prostitute must live somewhere just as she must eat
and drink to live. It is, I think, too fine a distinction to say that a grocer
supplying her with groceries does not, but a landlord letting her a flat does,
commit an offence. It is true that the flat is the scene of her prostitution,
but, if she did not eat and drink, she would not have a body to prostitute.
Therefore, in such a case as Silver (where the flats appear to have been let
for occupation) the landlord can only be convicted of an offence upon the
ground that the rent is exorbitant. This may be a tenable view upon the
footing that, to the extent to which the rent is in excess of normal, he extorts
it from the prostitute upon no other ground than that she is a prostitute. He
may be said, therefore, knowingly to live or, as was said in the course of
the argument, to prey upon her earnings. But, as I have said. I find this
a difficult case and would express no final opinion on it.
4
A third case to which I would refer is Calvert v. Mayes [1954] 1 Q.B.342.
It was, I think, a very clear case, the substantial point in which was that
the accused received payment not from the prostitutes but from the American
airmen who availed themselves of their services. The argument that for
this reason he did not live in part on their earnings was rightly rejected by
the Court of Criminal Appeal. It is interesting in that Mr. Justice Sellers
(as he then was) in the course of his judgment referred to the accused as
” trading in prostitution “, an expression which, as I have already pointed
out, is an apt, if colloquial, way of describing a person who lives on the
earnings of prostitution.
Your Lordships were also referred to some civil cases such as Pearce v.
Brooks, L.R.1 Ex. 213, and Upfill v. Wright [1911] 1 K.B. 506. They, I
think, give little assistance upon the interpretation of the relevant words in
the Sexual Offences Act. But it is at least satisfactory to know that the con-
clusion to which your Lordships come upon that Act marches with the
view taken in civil cases of a contract made for an immoral purpose.
My Lords, as I have already said, the first count in the indictment is
” Conspiracy to corrupt public morals “, and the particulars of offence will
have sufficiently appeared. I am concerned only to assert what was
vigorously denied by Counsel for the Appellant, that such an offence is known
to the common law and that it was open to the jury to find on the facts of
this case that the Appellant was guilty of such an offence. I must say
categorically that, if it were not so, Her Majesty’s courts would strangely
have failed in their duty as servants and guardians of the common law. Need
I say, my Lords, that I am no advocate of the right of the Judges to create
new criminal offences? I will repeat well-known words: ” Amongst many
” other points of happiness and freedom which your Majesty’s subjects have
” enjoyed there is none which they have accounted more dear and precious
” than this, to be guided and governed by certain rules of law which giveth
” both to the head and members that which of right belongeth to them and
” not by any arbitrary or uncertain form of government.” These words are
as true today as they were in the seventeenth century and command the
allegiance of us all. But I am at a loss to understand how it can be said
either that the law does not recognise a conspiracy to corrupt public morals
or that, though there may not be an exact precedent for such a conspiracy
as this case reveals, it does not fall fairly within the general words by which
it is described. I do not propose to examine all the relevant authorities.
That will be done by my noble and learned friend. The fallacy in the
argument that was addressed to us lay in the attempt to exclude from the
scope of general words acts well calculated to corrupt public morals just
because they had not been committed or had not been brought to the notice
of the Court before. It is not thus that the common law has developed.
We are perhaps more accustomed to hear this matter discussed upon the
question whether such and such a transaction is contrary to public policy.
At once the controversy arises. On the one hand it is said that it is not
possible in the twentieth century for the Court to create a new head of
public policy, on the other it is said that this is but a new example of
a well-established head. In the sphere of criminal law I entertain no doubt
that there remains in the Courts of Law a residual power to enforce the
supreme and fundamental purpose of the law, to conserve 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. That is the broad head (call it public
policy if you wish) within which the present indictment falls. It matters little
what label is given to the offending act. To one of your Lordships it may
appear an affront to public decency, to another considering that it may
succeed in its obvious intention of provoking libidinous desires, it will seem
a corruption of public morals. Yet others may deem it aptly described
as the creation of a public mischief or the undermining of moral conduct.
The same act will not in all ages be regarded in the same way. The law
must be related to the changing standards of life, not yielding to every
shifting impulse of the popular will but having regard to fundamental
assessments of human values and the purposes of society. Today a denial
5
of the fundamental Christian doctrine, which in past centuries would have
been regarded by the Ecclesiastical Courts as heresy and by the common
law as blasphemy, will no longer be an offence if the decencies of controversy
are observed. When Lord Mansfield, speaking long after the Star Chamber
had been abolished, said that the Court of King’s Bench was the custos
morum of the people and had the superintendency of offences contra bonos
mores, he was asserting, as I now assert, that there is in that Court a
residual power, where no statute has yet intervened to supersede the common
law, to superintend those offences which are prejudicial to the public welfare.
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 to
which my noble and learned friend, Lord Tucker, refers. 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 offence if
even without obscenity, such practices were publicly advocated and
encouraged by pamphlet and advertisement? Or must we wait until Parlia-
ment 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. But I say that her hand is still powerful and that it is
for Her Majesty’s Judges to play the part which Lord Mansfield pointed out
to them.
I have so far paid little regard to the fact that the charge here is of
conspiracy. But, if I have correctly described the conduct of the Appellant, it
is an irresistible inference that a conspiracy between him and others to do
such acts is indictable. It is irrelevant to this charge that section 2 (4)
of the Obscene Publications Act, 1959, might bar proceedings against him if
no conspiracy were alleged. It may be thought superfluous, where that Act
can be invoked, to bring a charge also of conspiracy to corrupt public
morals, but I can well understand the desirability of doing so where a doubt
exists whether obscenity within the meaning of the Act can be proved.
I will say a final word upon an aspect of the case which was urged by
Counsel. No one doubts—and I have put it in the forefront of this Opinion
—that certainty is a most desirable attribute of the criminal and civil law
alike. Nevertheless there are matters which must ultimately depend on the
opinion of a jury. In the civil law I will take an example which comes
perhaps nearest to the criminal law—the tort of negligence. It is for a
jury to decide not only whether the defendant has committed the act com-
plained of but whether in doing it he has fallen short of the standard of
care which the circumstances require. Till their verdict is given it is uncer-
tain what the law requires. The same branch of the civil law supplies
another interesting analogy. For, though in the Factory Acts and the Regu-
lations made under them the measure of care required of an employer is
defined in the greatest detail, no one supposes that he may not be guilty of
negligence in a manner unforeseen and unprovided for. That will be a
matter for the jury to decide. There are still, as has recently been said,
” unravished remnants of the common law “.
So in the case of a charge of conspiracy to corrupt public morals the
uncertainty that necessarily arises from the vagueness of general words can
only be resolved by the opinion of twelve chosen men and women. I am
content to leave it to them.
The appeal on both counts should in my opinion be dismissed.
Lord Reid
my lords,
I agree with my noble and learned friend that the appeal on the second
count ought to be dismissed, but I regret that I am unable to concur in his
reasons and I feel bound to express my own view, because in my opinion
6
those reasons could result in cases not within the scope of the Act being
brought in and cases within its scope being left out. I would begin by
asking two questions: What was the mischief which Parliament must have
had in mind? and: What is the natural meaning of the words ” to live on
” the earnings of prostitution “?
The mischief is plain enough. It is well known that there were and are
men who live parasitically on prostitutes and their earnings. They may be
welcome and merely cohabit, or they may bully women into earning money
in this way. They prey or batten on the women. Such men are clearly
living on the earnings of prostitution: if they have or earn some other
income then they are living in part on such earnings. The question, to
my mind, is how much further the Act must be held to go, bearing in mind
that it is a penal statute and therefore should not be extended to apply to
cases which its terms do not clearly cover.
Such men may render services as protectors or as touts, but that cannot
make any difference even if their relationship were dressed up as a contract
of service. And a man could not escape because he acted in some such
capacity for a number of women. His occupation would still be parasitic:
it would not exist if the women were not prostitutes. It appears to me
that the accused in this case comes well within this class. His occupation
of gathering and publishing these advertisements would not exist if his
customers were not prostitutes. He was really no more than a tout using
this means of bringing men to the prostitutes from whom he received money.
If this were an ordinary case I would be content to leave it there because,
if I go further, I am in effect prejudging cases which are not before us and
of which the facts may be beyond the sphere of common knowledge. But
I appreciate the desirability of giving some general guidance as to the
meaning of this Act. So I pass to my second question, the natural meaning
of the words in the Act. ” Living on ” normally, I think, connotes living
parasitically. It could have a wider meaning, but if it is to be applied at
all to those who are in no sense parasites, then I think its meaning must
be the same whether we are considering the earnings of prostitution or of
any other occupation or trade.
If a merchant sells goods to tradesmen is he living on the earnings of
their trades? Or if a landlord lets premises for business purposes is he
living on the earnings of those businesses? Or if he lets to a man of leisure
is he living on that man’s dividends? Those are the sources of the rent
which he receives, but I do not think that one would normally say that he
is living on those sources. It is not an impossible use of the words—only
unusual. And a penal statute ought not to be widened by reading its
words in an unusual sense unless there is a very good reason for doing so.
And would it make any difference if the merchant supplied goods which
could only be used for the purposes of the purchaser’s trade or which he
knew that the purchaser could not require if he were not engaged in that
trade? I do not think so. I find it impossible to say that a merchant who
sold goods to a farmer would be living on the earnings of agriculture if
the goods could only be used for agriculture, but would not be living on
the earnings of agriculture if the goods, though paid for out of the profits of
agriculture, were for purely personal use or might be used either for
agriculture or for some other purpose. Why, then, should the words mean
something different when we are dealing with the earnings of prostitution?
One reason would be that the context requires it, but I find nothing in
this context to require it. Another might be that otherwise cases plainly
within the mischief would escape. But even if that were a good reason I
do not think that it applies here.
What kind of case would escape if one takes what I think is the natural
meaning of the words? I take first the landlord. Suppose a landlord lets
a flat to an apparently respectable woman and later discovers that she is
carrying on prostitution there as her means of livelihood. Is he thereafter
knowingly living on the earnings of prostitution? And would it make a
7
difference if when he let it he either suspected or expected that she would
use it for prostitution? We were informed that prostitutes sometimes live
in one flat and use another for prostitution, and sometimes they live and
carry on their tirade in the same place. Is a landlord guilty in the former
case but innocent in the latter? And if in the latter case the woman decides
to go somewhere else to live does the landlord thereupon become guilty
if he continues to take rent from her? I can find nothing in the words or
the policy of the Act to require us to pick and choose in such cases.
But I am far from saying that a landlord can never be guilty of living on
the immoral earnings of his tenant. To my mind the most obvious case is
where he takes advantage of her difficulty in getting accommodation to
extract from her in the guise of rent sums beyond any normal commercial
rent. In reality he is not then merely acting as landlord; he is making her
engage in a joint adventure with him which will bring to him a part of
her immoral earnings over and above rent. And there may well be other
ways in which he can make himself a participator in her earnings and not
merely a recipient of rent. The line may sometimes be difficult to draw,
but juries often have to decide broad questions of that kind.
Then I takes the tradesman. Is the criterion to be whether he supplied
goods or services which he knew that this woman would not require if she
were not a prostitute, or is it to be whether the goods or services are of a
kind which no honest woman would require? I doubt very much whether
either distinction would be easy to draw in practice. Presumably Brooks
in Pearce v. Brooks, L.R. 1 Ex. 213, would not have required the brougham
if she had not been a prostitute. Whether the brougham was of a kind
which some honest woman might have required I do not know. If a case
of that kind occurred today would it depend on such niceties whether
Pearce was living on Brooks’s immoral earnings? We were informed that
sometimes decorators or furnishers are asked to do or supply something
which it is at least unlikely that an honest woman would require. But it is
perhaps difficult to set limits to honest eccentricity.
I suppose there might be a tradesman who was as purely parasitical as
the accused and there might be a tradesman who used his trade as a means
to become a joint adventurer with prostitutes. But leaving such possible
cases aside, I could not hold that a tradesman who supplies goods or services
to a prostitute in the ordinary course of his business is living on her immoral
earnings. I cannot find or think of any case which cannot be adequately
dealt with on what I think to be the ordinary and natural meaning of the
words of the Act.
My Lords, I turn to the first count. With regard to it I have had the
advantage of reading the speech about to be delivered by my noble and
learned friend, Lord Tucker, but I regret to say that I find myself in
fundamental disagreement with it. I must therefore state my reasons with
some particularity.
In my opinion there is no such general offence known to the law as
conspiracy to corrupt public morals. Undoubtedly there is an offence of
criminal conspiracy and undoubtedly it is of fairly wide scope. In my
view its scope cannot be determined without having regard first to the history
of the matter and then to the broad general principles which have generally
been thought to underlie our system of law and government and in par-
ticular our system of criminal law.
It appears to be generally accepted that the offence of criminal conspiracy
was the creature of the Star Chamber. So far as I am able to judge the
summary in Kenny’s Outlines of Criminal Law. Section 59. is a fair one.
There it is said that the criminal side of conspiracy was ” emphasised by the
” Star Chamber, which recognised its possibilities as an engine of government
” and moulded it into a substantive offence of wide scope, whose attractions
” were such that its principles were gradually adopted in the common law
” courts “. The Star Chamber perhaps had more merits than its detractors
will admit, but its methods and principles were superseded, and what it did
is of no authority today. The question is how far the common law courts
in fact went in borrowing from it.
8
I think that Lord Goddard, L.C.J. was repeating the generally accepted
view when he said: ” A conspiracy consists of agreeing or acting in concert
” to achieve an unlawful act or to do a lawful act by unlawful means”
(Reg. v. Newland [1954] 1 Q.B. 158 at p. 166). But what is an ” unlawful
” act”? To commit a crime—yes, but what about offences which can
only be dealt with summarily and punished lightly: they are certainly
unlawful acts but ( I quote from the Law of Criminal Conspiracies by R. S.
Wright, J. p. 83) they ” are not in themselves of grave enough consequence
” to be matters for indictment; and, if so, it must in general be immaterial
” whether the results are produced by one person or by two or more persons.
” To permit two persons to be indicted for a conspiracy to make a slide in
” the street of a town, or to catch hedge-sparrows in April, would be to
” destroy that distinction between crimes and minor offences which in every
” country it is held important to preserve”. To commit a tort—yes, in
certain cases, but for somewhat similar reasons it seems to be at least
doubtful whether it is an offence to conspire to commit a tort which is neither
malicious nor fraudulent nor accompanied by violence.
Then there is undoubtedly a third class of act which an individual can
do with impunity but a combination cannot. Perhaps the best known example
is conspiring to injure a man in his trade if done without justification. I
need only refer to the series of cases in this House from Mogul Steamship
Company v. McGregor, Gow & Co. (1892) A.C.25 to Crofter Hand Woven
Harris Tweed Company, Limited, and Others v. Veitch and Another [1942]
A.C. 435. No one has ever attempted to define what makes an act ” unlawful ”
so as to bring it within this class ; the law seems to be haphazard, depending
largely on historical accident. Perhaps as good a summary as any is that which
goes back to early editions of Professor Kenny’s book (now section 451):
” certain other acts which …. are not breaches of law at all, but which
” nevertheless are outrageously immoral or else are, in some way, extremely
” injurious to the public “. One thing does, however, appear to be reason-
ably clear. So far as I have been able to trace, all who took part in the
Mogul Steamship Company series of oases and who mentioned the matter,
except Lord Esher, were of opinion that to make or carry out a contract
which is unenforceable by reason of immorality or otherwise is not an
unlawful act in this sense.
There are two competing views. One is that conspiring to corrupt public
morals is only one facet of a still more general offence, conspiracy to effect
public mischief; and that, like the categories of negligence, the categories of
public mischief are never closed. The other is that, whatever may have been
done two or three centuries ago, we ought not now to extend the doctrine
further than it has already been carried by the common law courts. Of
course. I do not mean that it should only be applied in circumstances precisely
similar to those in some decided case. Decisions are always authority for
other cases which are reasonably analogous and are not properly distinguish-
able. But we ought not to extend the doctrine to new fields.
I agree with R. S. Wright, J. when he says (op. cit. p. 86): ” …. 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 agreement.” And I think, or at least I hope, that it is now established
that the courts cannot create new offences by individuals. So far at least
I have the authority of Lord Goddard, L.C.J. in delivering the opinion of
the Court in Newland (p. 167): “The dictum in Rex v. Higgins, 2 East 5,
” was that all offences of a public nature, that is, all such acts or attempts
” as tend to the prejudice of the public, are indictable, but no other member
” of the Court stated the law in such wide terms. It is the breadth of that
” dictum that was so strongly criticised by Sir Fitzjames Stephen in the
” passage in his History of the Criminal Law ” (vol. 3, p. 259) “. . and
” also by Dr. Stallybrass in the Law Quarterly Review, vol. 49, p. J 83. In
” effect it would leave it to the judges to declare new crimes and enable
” them to bold anything which they considered prejudicial to the community
” to be a misdemeanour. However beneficial that might have been in days
” when Parliament met seldom or at least only at long intervals it surely
” is now the province of the legislature and not of the judiciary to create
9
” new criminal offences.” 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.
But there is this historical difference. The judges appear to have continued
to extend the law of conspiracy after they had ceased to extend offences by
individuals. Again I quote from R. S. Wright, J. (p. 88): ” In an imperfect
” system of criminal law the doctrine of criminal agreements for acts not
” criminal may be of great practical value for the punishment of persons for
” acts which are not. but which ought to be made punishable irrespective of
” agreement.”
Even if there is still a vestigial power of this kind it ought not, in my view,
to be used unless there appears to be general agreement that the offence to
which it is applied ought to be criminal if committed by an individual.
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. Some think that the law already goes too far, some that it does not
go tar enough. 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
tears to tread it is not for the courts to rush in.
Before turning to the question whether the authorities on a fair construction
warrant indictment on this charge, I must notice the offence of conspiring
to effect public mischief. The most recent authority is Newland’s case.
There I do not think that the Court went beyond the ambit of earlier
decisions. One of the early uses of this doctrine of conspiracy appears to
have been to deal with various forms of cheating which no one would say
ought not to be punished but which the common law had not made offences
if done by an individual. Newland had conspired to obtain advantage for
himself by using false and deceptive documents and devices to obtain for
sale on the home market goods which manufacturers were only allowed
to sell for export. Lord Goddard, L.C.J. said (p. 164): ” It is enough to
” shew that they ” (the suppliers) ” would not have acted as they did but
” for the false representations and dishonesty of the persons who obtained
” the goods from them.”
In my judgment this House is in no way bound and ought not to sanction
the extension of ” public mischief ” to any new field, and certainly not if
such extension would be in any way controversial. Public mischief is the
criminal counterpart of public policy and the criminal law ought to be
even more hesitant than the civil law in founding on it in some new aspect.
I think that the following comments are as valid today as they were in
1824: “Iam not much disposed to yield to arguments of public policy:
” I think the courts of Westminster Hall …. have gone much further
” than they were warranted in going in questions of policy: they have taken
” on themselves, sometimes, to decide doubtful questions of policy: and they
” are always in danger of so doing, because courts of law look only at the
” particular case, and have not the means of bringing before them all those
” considerations which ought to enter into the judgment of those who decide
” on questions of policy.” (per Best, C.J. in Richardson v. Mellish 2 Bing 229
at p. 242). ” I for one protest …. against arguing too strongly upon
” public policy; it is a very unruly horse, and when once you get astride it
” you never know where it will carry you. It may lead you from the sound
” law. It is never argued at all but when other points fail.” (per Burrough, J.
ibid at p. 252).
It may perhaps be said that there is no question here of creating a new
offence because there is only one offence of conspiracy—agreeing or acting
in concert to do an unlawful act. In a technical sense that is true. But in
order to extend this offence to a new field the Court would have to create
a new unlawful act: it would have to hold that conduct of a kind which has
not hitherto been unlawful in this sense must now be held to be unlawful.
It appears to me that the objections to that are just as powerful as the objec-
tions to creating a new offence. The difference is a matter of words; the
10
essence of the matter is that a type of conduct for the punishment of which
there is no previous authority now for the first time becomes punishable
solely by a decision of a Court
I therefore proceed to consider the authorities on the footing that the
Courts cannot now create a new offence or a new kind of criminal con-
spiracy, or at least that if any such power still exists this is not a proper
sphere in which to exercise it.
The majority of the cases cited to us were instances of one or other of
four well-established offences; offences which can be committed by an
individual as well as by a combination. They are publication of an obscene
libel, indecent exposure, exhibition in public of indecent things or acts,
and keeping a disorderly house. I shall deal with the relevance of these in
a few moments when I come to the facts of the present case.
But there is a group of four cases which are more directly relevant here—
Lord Grey’s case, 2 St. Tr. 519, Delaval’s case, 3 Burr. 1434, Mears’ case,
4 Cox 423, and Howell’s case, 4 F. & F. 160. These were all cases of
conspiracy to seduce a girl under 21 or to induce a young girl to become
a prostitute. I would agree that they are good authority for it being criminal
to conspire to seduce a young girl. But I would not agree that by analogy
they must be held to be good authority for it being criminal to conspire to
” seduce ” a man of mature years. Indeed I think that the Judges who
decided these cases would have been very surprised to learn that they had
thereby decided that conspiring to seduce a man is a crime. And it must be
observed that there was no public element in these cases: they were
conspiracies to seduce a particular girl. So if we are to proceed by analogy
it must be a crime today to conspire to seduce a particular man and the
offence cannot be limited to a conspiracy to corrupt public morals.
But in argument more stress was put on words which are reported to
have been used by the Judges than on the actual decisions, and in particular
on the statement by Lord Mansfield and others that the Court of King’s
Bench was custos or censor morum. It was said that they thereby decided
or recognised that any conspiracy to corrupt morals or, as the learned
trial Judge put it in the present case, ” to lead morally astray “, was an
indictable offence. I do not think so. As the reports of those days are not
full reports of the judgments we do not have the precise context, but I
think it much more probable that these Judges were intending to say that
they then had power to create new offences, that this power extended to
the moral field, and that the acts in these particular cases should be held
to be punishable. It must be observed that these references to the Court
being censor or custos morum occur equally in decision in cases of con-
spiracy and in cases against individuals. In the eighteenth century Courts
created new offences in the field of morals both against individuals (see,
for example, Curl’s case, 2 Strange 788) and against combinations. So if,
contrary to my view, the references established a general offence of con-
spiring to corrupt public morals, then surely they must also have established
that it is a general offence for an individual to act so as to corrupt public
morals or to attempt to do so. If it was established in the eighteenth
century that there was a general offence of conspiring to corrupt public
morals (or to lead members of the public morally astray) then, as the essence
of criminal conspiracy is doing or agreeing to do an unlawful act, it must
follow that for two centuries every act which has tended to lead members
of the public astray morally has been an unlawful act, and the Respondent’s
argument would apply equally to make unlawful every act which tends to
lead a single individual morally astray. In the unending controversy about
the proper relationship between law and morals no one seems to have
suspected that. Hitherto I think there has been a wide measure of agreement
with Professor Kenny’s view that only certain acts which are outrageously
immoral are unlawful in this sense.
I claim little knowledge of the history of English criminal law any such
knowledge that I may have is of a different system. But it seems that most
crimes must have been the creation of Judges of a remoter time, because
11
Parliament played a comparatively small part and there was no reception
of any foreign system. And it seems that they proceeded piecemeal, taking
care, no doubt, not to move in advance of contemporary opinion, and that
they did not first invent a general theory or a general offence and then apply
it at once to a wide variety of particular cases. A somewhat similar situation
arose in connection with equally general statements by equally eminent
Judges that Christianity is part of the law of England. That was dealt with
in this House in Bowman and Others v. Secular Society, Limited [1917]
A.C.406, where it seems to me that more attention was paid to what the
Courts had in fact done than to the language that Judges had used in
doing it
But the best test appears to me to be to look at the views expressed by
the authors and later editors of standard works on crime. Passages were
cited to us from Hawkins’ Pleas of the Crown, East’s Pleas of the Crown,
and Blackstone, as well as from later standard works. None of them
appears to have realised that any such general and far-reaching offence had
been established. Hawkins refers to open lewdness grossly scandalous
(p. 358), Blackstone (Book IV, II] to open and notorious lewdness, East
to scandalous and open breaches of morality exhibited in the face of the
people (p. 3), and Russell (ch. 97) deals separately with each of the specific
offences which I have already mentioned. We were referred to no passage
supporting the view for which the Respondent now contends, and I cannot
think that it is only now, after nearly two centuries, that it has been vouch-
safed to us to discover the true meaning of these old cases.
I must now deal with the particulars of the first count and the facts proved
to see whether they disclose that the accused committed some offence of
more limited scope than conspiracy to corrupt public morals. It is alleged
that the accused and others conspired by means of the publication of certain
advertisements to induce readers thereof to resort to prostitutes named in
these advertisements for the purposes of (a) fornication, (b) taking part in
” other disgusting and immoral acts ” or (c) witnessing ” other disgusting
and immoral exhibitions “. I shall not deal with (c) because no attempt was
made to prove this. The intent alleged is twofold—(a) with intent thereby
to debauch and corrupt the morals of certain of the lieges and (b) with intent
thereby to raise and create in their minds inordinate and lustful desires. I
find this very obscure. Which of the lieges are referred to? Is it only
those persons who are induced to resort to the prostitutes or is it all persons
who read the publication? If it means that debauching and corrupting
only occur (or may occur) when a man resorts to a prostitute, that is one
thing: but if it means that a man may be debauched and corrupted merely
by reading the advertisements, that appears to me to raise a different and
wider question and to involve a consideration of the Obscene Publications
Act. 1959. I am inclined to think that these intents are stated in the wrong
order and that what is meant is with intent to raise inordinate and lustful
desires in the minds of those who read the advertisements and then to
debauch and corrupt those who are thereby induced to resort to the
prostitutes. I am not at all sure whether the proposition is that an offence
is committed merely by conspiring to publish matter which tends to raise in
the minds of readers inordinate and lustful desires, or whether the real
offence is said to be conspiring to publish matter which tends to induce
men to resort to prostitutes.
No authority was cited to us which goes so far as to hold that any writing
could be held to be an obscene libel merely on the ground that, although its
language is in itself decent and inoffensive, it may tend to raise in the minds
of its readers some lustful desire—I leave aside for the moment the word
” inordinate ” in the particulars. In Victorian times very strict views were
held about books or pictures that were in any way ” suggestive “, but no
authority was cited to us which in any way indicates that it was held to be
an indictable offence merely to publish such matter without there being
something more to bring it into the category of being obscene.
Section 1 of the 1959 Act defines ” obscene’ by enacting that an article
(which includes all matter to be read or looked at) shall be deemed to be
12
obscene if its effect is to tend to deprave and corrupt. But I cannot find
any intention to widen the old law of obscene libel or to make it possible
for a prosecutor to charge as obscene libel publication in wholly inoffensive
terms of any matter which tends to raise lustful desires in the mind of a
reader, whether that matter be allusion to or commendation of fornication
or merely the name and address of a prostitute.
But I need not pursue that matter because, as I understood the Solicitor-
General, he did not argue that these advertisements were obscene libels, and
that must mean that merely reading them does not tend to deprave or
corrupt—if it did they would be obscene libels by virtue of the definition in
the Act, conspiracy to publish them would obviously be a crime, and the
point now in controversy would never have arisen.
So any depraving and corrupting must be the result of resorting to the
prostitutes and the offence, if any, must be conspiring to tempt the lieges
to resort to prostitutes. Prostitution is not an offence: it is not said that
the woman or any man resorting to her is guilty of any offence. The
argument is that if two or more persons (who may include the prostitute
herself) combine to issue such an invitation to members of the public they
are guilty of an offence. It could not matter whether the invitation was
made by words or in some other way. So both Pearce and Brooks in
Pearce v. Brook cit. sup. would today be guilty of an indictable offence by
reason of having acted in concert to enable Brooks to attract men for the
purpose of prostitution. That seems to me to be novel doctrine. It hardly
seems to accord with views expressed in the Mogul series of cases to which
I referred earlier, and I cannot believe that it is right.
But the advertisements also contain much more objectionable matter.
The particulars refer to inducing readers to take part in ” other disgusting
” and immoral acts”. and with this I think there must be coupled the
reference in the intent charged to ” inordinate ” desires. The evidence shows
that the invitations were to resort to certain of the prostitutes for the purpose
of certain forms of perversion. That I would think to be an offence for a
different reason.
I shall not examine the authorities because I think that they establish that
it is an indictable offence to say or do or exhibit anything in public which
outrages public decency, whether or not it also tends to corrupt and deprave
those who see or hear it. In my view it is open to a jury to hold that a
public invitation to indulge in sexual perversion does so outrage public
decency as to be a punishable offence. If the jury in this case had been
properly directed they might well have found the accused guilty for this
reason. And the offence would be the same whether the invitation was made
by an individual or by several people acting in concert. But it appears
to me to be impossible to say the same with regard to ordinary prostitution.
The common law has never treated the appearance of a prostitute in public
as an indictable offence however obvious her purpose might be, and an
Act of Parliament has been found necessary to stop the nuisance of
prostitutes parading in the public street.
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 sug-
gestion 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 application of the words ” deprave” and ” corrupt” (the
traditional words in obscene libel now enacted in the 1959 Act) or 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
13
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 on evidence
and on their own knowledge a much more specific question—Would a
reasonable man have done what this man did? I know that in obscene
libel the jury has great latitude, but I think that it is an understatement
to say that this has not been found wholly satisfactory. If the trial Judge’s
charge in the present case was right, if a jury is 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
any 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.
Lord Tucker
my lords,
With regard to the conviction of the Appellant under Count 2 of the
Indictment I am in complete agreement with the speech of my noble
and learned friend on the Woolsack.
The first count charged the Appellant in the following terms:
” Statement of Offence
Conspiracy to corrupt public morals
” Particulars of Offence
” Frederick Charles Shaw on divers days between the 1st day of October,
” 1959, and the 23rd day of July, 1960, within the jurisdiction of the Central
” Criminal Court, conspired with certain persons who inserted advertise-
” ments in issues of a magazine entitled ‘ Ladies Directory’, numbered 7,
” 7 Revised, 8, 9. 10 and a supplement thereto, and with certain other
” persons whose 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 “.
It should, I think, be stated at the outset that the words “or witnessing”
in the above particulars were not relied upon by the prosecution at the trial
as constituting an essential ingredient in the alleged conspiracy nor was
there any evidence that the advertisements constituted an invitation to the
public to resort to the addresses of the advertisers as spectators for the
purpose of witnessing disgusting and immoral acts and exhibitions. The
case made by the prosecution was that the advertisements constituted invita-
tions to the male public of all ages to visit the addresses of prostitutes for
the purpose of fornication and in some instances taking part in perversive
practices. I shall accordingly treat the indictment as if the words ” or
witnessing ” had been omitted.
Counsel for the Appellant put in the forefront of his address the sub-
mission that there is no such offence known to the law as a conspiracy to
corrupt public morals. Before turning to authority I would invite your
Lordships to pause to consider for a moment how far-reaching are the
consequences of such a proposition if it be correct. It has for long been
accepted that there are some conspiracies which are criminal although the
acts agreed to be done are not per se criminal or tortious if done by indi-
viduals. Such conspiracies form a third class in addition to the well known
and more clearly defined conspiracies to do acts which are unlawful, in the
14
tense of criminal or tortious, or to do lawful acts by unlawful means.
Assuming that the corruption of public morals by the acts of an individual
may not be criminal or tortious does it follow that a conspiracy by two or
more persons to this end is not indictable? The difficulty with regard to
this third class of conspiracy has always been to define its limits or give
it a label which will include all its manifestations. It was referred to by
Viscount Simon in Crofter Hand Woven Harris Tweed Company, Limited,
and Others v. Veitch and Another [1942] A.C. at page 439, as one in which
” the purpose aimed at, though not perhaps specifically illegal, was one
” which would undermine the principles of commercial or moral conduct”
The late Professor Kenny in the llth Edition of his Outlines of Criminal
Law at page 290, in a passage which is repeated in later editions, wrote:
” An unlawful purpose. The term ‘ unlawful’ is here used in a sense which
” is unique; and unhappily has never yet been defined precisely. The pur-
” poses which it comprises appear to be of the following species:
” (1) . . .
” (2) …
” (3) …
” (4) Agreements to do certain other acts which (unlike all those
” hitherto mentioned) are not breaches of law at all. but which never-
” theless are outrageously immoral or else are in some way extremely
” injurious to the public.”
He gives a number of examples.
An instance in modern times is to be found in the case of Reg v. Newland
& ors. [1954] 1 Q.B. 158, where the Appellants had been convicted of con-
spiring to effect a public mischief by obtaining and distributing on the home
market for eventual retail sale decorated domestic pottery which by orders
made under the Defence General Regulations manufacturers and registered
exporters were permitted to supply for export only. The orders did not in
terms deal with persons who obtained such goods from a manufacturer
representing that they were for export and then having obtained them sold
them on the domestic market. It was contended on behalf of the Appellants
that there was no such offence known to the law as set out in the indictment.
In delivering the judgment of the Court of Criminal Appeal Lord Goddard,
L.C.J. said: “It is much too late to object that a conspiracy to effect a
” public mischief is an offence unknown to the law. There have been at
” least three reported cases during the present century in which that charge
” has been made and convictions upheld: Rex v. Brailsford [1905] 2 K.B.
” 730; Rex v. Porter [1910] 1 K.B. 369; and Rex v. Bassey [1931] 47
” T.L.R. 222 The Court is well aware of the caution with which
” they should approach the consideration of an offence which is alleged
” to consist of doing acts which tend to effect public mischief as, if extended,
” it might enable judges to declare new offences which should be the business
” of the legislature. The objections to such a course were forcibly pointed
” out by Sir Fitzjames Stephen, the most prominent institutional writer on
” criminal law in the last century, in his History of the Criminal Law, vol. 3,
” page 359. We think that we may say that the Court should approach the
” subject at least with the same degree of caution as much be exercised
” when a plea in a civil action that something has been done contrary to
” public policy … No one has ever attempted to define what may or
” may not constitute a public mischief and we have certainly no desire
” to increase the number of criminal offences by adding to the category of
” misdemeanours. But there are two points which in our opinion do not
” make it necessary for us to consider whether there is here any attempt
” to create a new offence. In the first place it is well known that there may
” be many acts which if done by an individual would not be indictable, or
” even actionable as a tort, and yet may become both actionable and criminal
” if done by a combination of persons as the result of a conspiracy, and
” for this really elementary proposition we need only refer to Quinn v.
” Leathern [1901] AC 495.”
My Lords, I have referred to this case as in my opinion the decision of
the present and other similar cases does not depend upon the label which
15
is to be attached to a particular conspiracy. Can it be doubted that a
conspiracy to corrupt public morals is a conspiracy to effect a public
mischief? Is it to be said that a conspiracy to sell decorated domestic
pottery in the home market by means of devices contrived to evade the
object of Board of Trade Orders is a criminal conspiracy but an agreement
to do acts calculated to corrupt public morals is not? Suppose Parliament
tomorrow enacts that homosexual practices between adult consenting males
is no longer to be criminal is it to be said that a conspiracy to further and
encourage such practices amongst adult males could not be the subject of
a criminal charge fit to be left to a jury? Similarly with regard to a
conspiracy to encourage and promote Lesbianism today, or incestuous sexual
intercourse in the year 1907? My Lords, if these questions are to be
answered in the negative I would expect to find some clear authority during
the past centuries which would justify such an answer. I know of none.
I have, I think, sufficiently indicated my view that the decision of this
case does not depend upon a detailed examination of the old authorities
in order to ascertain whether in every case the act or acts in question,
whether performed or proposed, constituted common law misdemeanours
in themselves at the date of the decisions. If they did. then the conspiracy
alleged was admittedly criminal, but if they did not it would in my view
be equally criminal if the acts were of a nature to satisfy a jury that they
were wrongful in the sense of being calculated to corrupt and deprave
public morals. I therefore do not propose to refer to the cases where
individuals have been convicted of the common law misdemeanour of
public indecency by exposure or other indecent acts in the face of the
public such as that of Sir Charles Sedley, 1 Siderfin 168, in the year 1663,
or other similar cases culminating in 1875 with that of Reg. v. Saunders &
Hitchcock 1 Cox 116 where the Defendants were held to have been properly
convicted on counts charging them with keeping a booth on Epsom Downs
for the purpose of a disgusting and indecent exhibition to which they invited
all persons within the reach of their voices. This was held to constitute a
common law misdemeanour. Counsel for the Appellant argued with force
that such cases are distinguishable from the present and other cases where
the acts though immoral were not acts of indecency done in the face of
the public, but as I do not consider it necessary to explore this aspect of
the case I turn, therefore, to the authorities which are more immediately
relevant, namely, those in which conspiracy was charged. In Rex v. Delaval
& ors., 3 Burr. 1435, in the year 1763, the charge was that the Defendants
had joined in an unlawful combination and conspiracy to remove a girl,
an infant about eighteen, out of the hands of the Defendant Bates (musician)
to whom she was bound an apprentice by her father (a gentleman’s coach-
man) without the knowledge or approbation of her father and to place her
in the hands of Sir Francis Delaval for the purpose of prostitution, for
which purpose she was discharged by Bates, her master, from the indentures
of her apprenticeship to him, in consideration of £200 (the penalty of them)
paid to him by Sir Francis ; and was then bound by the usual indentures
of apprenticeship to Sir Francis. The charge went on to set out the part
played by Fraine, the attorney, in drawing up the indentures and the
agreement between Sir Francis and Bates.
Having adjourned the motion for an information against the Defendants
for conspiracy in order that the Court might be satisfied that the girl’s father
was not a party to the conspiracy and being satisfied that such was not the
case. Lord Mansfield delivered the judgment of the Court. He described
the conspiracy as one ” to put this young girl (an apprentice to one of
” them) into the hands of a gentleman of rank and fortune, for the purpose
” of prostitution ; contrary to decency and morality, and without the know-
” ledge or approbation of her father ; who prosecutes them for it, and has
“now cleared himself of all imputation, and appears to be an innocent
” and an injured man.”
” Thus she has been played over, by Bates, into his hands, for this purpose.
” No man can avoid seeing all this ; let him wink ever so much.
16
” I remember a cause in the Court of Chancery, wherein it appeared.
” that a man had formally assigned his wife over to another man: and Lord
” Hardwicke directed a prosecution for that transaction, as being notoriously
” and grossly against public decency and good manners. And so is the
” present case.
” It is true that many offences of the incontinent kind fall properly under
” the jurisdiction of the Ecclesiastical Court, and are appropriated to it
” But, if you except those appropriated cases, this Court is the custos
” morum of the people, and has the superintendency of offences contra
” bonos mores: and upon this ground, both Sir Charles Sedley and Curl,
” who had been guilty of offences against good manners, were prosecuted
” here.
” However, besides this, there is, in the present case, a conspiracy and
” confederacy amongst the defendants: which are clearly and indisputably
” within the proper jurisdiction of this Court.” (The italics are mine.)
My Lords, some writers have been at pains to point out grounds upon
which this case might have been decided, but I suggest it is not necessary
or even permissible to go outside the expressed reasons of Lord Mansfield.
Furthermore, it is to be observed that at that date not only was there no
crime of abduction of a girl over sixteen, not being an heiress (see
Holdsworth, Vol. 4, pages 504 and 515), but the girl’s master was willing and
she was not in the custody of her father. There is no such tort as seduction
in the absence of loss of services which was not and could not have been
alleged, and there is no mention of breach of contract anywhere in the case.
It is clear and compelling authority in support of the existence of the crime of
conspiracy to corrupt the morals of an individual and a fortiori of the public.
In Reg. v. Means and Chalk (1851) 4 Cox 425 the indictment contained
three counts. The third count alleged that the accused ” did between them-
” selves conspire, combine, confederate, and agree together wickedly, know-
” ingly, and designedly to procure by false pretences, false representations.
” and other fraudulent means, the said Johanna Carroll, then being a poor
” child under the age of twenty-one years, to wit the age of fifteen years, to
” have illicit carnal connexion with a man, to wit, a certain man whose
” name is to the jurors aforesaid unknown, contrary to the form of the statute
” in such case made and provided, and against the peace of Our Lady the
” Queen, her Crown and dignity.”
Chief Justice Jarvis, in giving judgment at page 427, said : ” It is unneces-
” sary to discuss the first and second counts, and upon them we give no
” opinion, because we all think that the third is a good count; the court
” being clearly of opinion that a conspiracy to solicit prostitution, being
” against good morals and public decency, is, independently of the statute,
” an indictable offence.” (Italics are mine.) Reg. v. Howell and Bentley
(1864) 4 F. & F. 160 was a case of conspiracy to solicit, persuade and
procure an unmarried girl of the age of seventeen to become a common
prostitute. A count so framed was upheld. Bramwell, B., said: ” I believe
” that it is not an offence at common law for a woman to be a common
” prostitute. But, in my opinion, that is not the criterion. There are many
” unlawful things which are not the subject of criminal proceedings of any
” kind. … We have all the necessary ingredients of the offence of con-
” spiracy.” In Rex. v. Britt, Carre, Berg & ors. (1927) 20 Grim. App.
Reps. 38 the second count in the indictment charged the above-named and
three others with conspiracy to corrupt public morals and the particulars
thereof were that they on divers days therein stated ” conspired together and
” with other persons unknown to debauch and corrupt the minds and morals
” of such persons as should be induced or permitted to come to certain
” premises being the basement flat No. 25 Fitzroy Square in the said county
” and there remain tippling whoring and behaving in an obscene and dis-
“ orderly manner.” Berg pleaded not guilty to both counts. He was found
not guilty on count 1 which charged him with aiding and abetting Britt and
Carre in keeping a disorderly house, but guilty on count 2. The Court of
17
Criminal Appeal in the present case were in error in saying that all the
accused named in that count pleaded guilty. Inspection of the original
indictment shows that Berg in fact pleaded not guilty to both counts. The
report of the hearing before the Court of Criminal Appeal is not very satis-
factory, but as Berg had been acquitted on count 1 he must have been
appealing against his conviction on count 2, and this is confirmed by the
argument of his Counsel (Mr. Byrne) at page 40. The original indictment
shows that the report is inaccurate in its description of the conspiracy count.
The words ” disorderly house ” do not in fact appear in count 2 but only in
count 1. All the appeals were dismissed by a court presided over by
Avory, J., who stated that the gist of the indictment was that the accused
were lewd and immoral persons assembled for the purpose of unnatural
practices.
Finally, in 1960 there was the unreported case of Reg. v. Dale & ors. in
which the accused were convicted at the Central Criminal Court on a count
in an indictment charging a conspiracy to corrupt and debauch such persons
as should resort to a certain disorderly house therein named.
It was further contended for the Appellant that in any event the particulars
in the indictment and the evidence adduced in support thereof were
insufficient to support a conviction for conspiring to corrupt public morals.
It was said that neither fornication nor prostitution are illegal and that in
any event there is no precedent for holding that such conduct tends to corrupt
and deprave adult males.
My Lords, I think that these were matters for the decision of the jury
and that the learned Judge was right in ruling that there was a case to
be left to them. There was material in this case to support the view that
some of the advertisements in the magazines indicated that the advertisers
were willing to take part in acts of sexual perversion. This element was,
I think, conclusive against the Appellant’s submission, but I am not to be
taken as expressing the view that in the absence of this feature the case
should have been withdrawn from the jury who must be the final arbiters
in such matters, as they are on the question of obscenity. They alone can
adequately reflect the changing public view on such matters through the
centuries. As regards lack of precedent, apart from the recent cases of
Britt & ors. in 1927 and Dale & ors. in 1960, I would remind your Lordships
of the words of Parke, J. in Mirehouse v. Rennell (1 Cl. & Fin. 527) at
page 546: ” The case, therefore, is in some sense new, as many others are
” which continually occur ; but we have no right to consider it, because
” it is new, as one for which the law has not provided at all; and because
” it has not yet been decided, to decide it for ourselves, according to our
” own judgment of what is just and expedient. Our common-law system
” consists in the applying to new combinations of circumstances those rules
” of law which we derive from legal principles and judicial precedents; and
” for the sake of attaining uniformity, consistency and certainty, we must
” apply those rules, where they are not plainly unreasonable and incon-
” venient, to all cases which arise; and we are not at liberty to reject
” them, and to abandon all analogy to them, in those to which they have
” not yet been judicially applied, because we think that the rules are not
” as convenient and reasonable as we ourselves could have devised. It
” appears to me to be of great importance to keep this principle of decision
” steadily in view not merely for the determination of the particular case,
” but for the interests of law as a science.”
My Lords, the Solicitor-General supported the conviction and the judg-
ment of the Court of Criminal Appeal on count 1 of the present indictment
on two alternative grounds, (1) that conduct calculated and intended to
corrupt public morals is indictable as a substantive offence and consequently a
conspiracy to this end is indictable as a conspiracy to commit a criminal
offence, alternatively (2) a conspiracy to corrupt morals is indictable as a
conspiracy to commit a wrongful act which is calculated to cause public
injury.
18
The Court of Criminal Appeal dismissed the appeal on the ground that
the case fell well within the first of these propositions. I have, I hope,
sufficiently indicated that I prefer to base my decision on the second, but
in so saying I must not be taken as rejecting the first.
A further submission by the Appellant must now be mentioned. It was
argued that in any event count 1 offended against the provisions of section
2 (4) of the Obscene Publications Act, 1959, which reads :
” 2.—(4) A person publishing an article shall not be proceeded
” against for an offence at common law consisting of the publication o!
” any matter contained or embodied in the article where it is of the
” essence of the offence that the matter is obscene.”
My Lords, I agree with the judgment of the Court of Criminal Appeal
that the short answer to this argument is that the offence at common law
alleged, namely, conspiracy to corrupt public morals, did not ” consist of
” the publication ” of the magazines, it consisted of an agreement to corrupt
public morals by means of the magazines which might never have been
published.
Finally it was said that the learned Judge did not sufficiently direct the
jury as to the meaning of the words “debauch and corrupt” in count 1,
and one passage in particular in his charge to the jury was subjected to
criticism in which he said: ” Well. Members of the Jury, no doubt you will
” take the view that whatever else you may have to decide in this case
” it is quite unnecessary for you to decide the merits or demerits of extra-
” marital intercourse. And, really, the meaning of debauched and corrupt
” is again, just as the meaning of the word induce is, essentially a matter
” for you. After all the arguments, I wonder really whether it means in
” this case and in this context much more than lead astray morally. You
” will have to consider it in your own minds, and, as I say, you must
” put your own interpretation on the meaning of the words.” The words
” lead astray morally ” were objected to and were said to amount to a
misdirection. In this and other passages later in his judgment he makes
it clear that it is for the jury to construe and apply these words to the facts
proved in evidence and reach their own decision, and neither in the passage
cited nor in the judgment as a whole can I find anything that amounts to
misdirection.
For these reasons I am of opinion that the appeal with regard to the
conviction on count 1 also fails.
Lord Morris of Borth-y-Gest
My lords,
I have had the privilege of reading in advance the speeches which have
been delivered by my noble and learned friend on the Woolsack and by
my noble and learned friend, Lord Tucker, and I am in agreement with
them.
The Appellant was convicted not only on the two counts which are
before your Lordships but also on a third count, which was one of
publishing an obscene article contrary to section 2 of the Obscene Publica-
tions Act, 1959. The article in question consisted of one issue of the
Ladies Directory. Before they could convict of that charge the jury had
to be satisfied that the Appellant published the article and that it was
obscene. It is provided by the Act that for the purposes of the Act an
article is deemed to be obscene if its effect taken as a whole is such as to
tend to deprave and corrupt persons who are likely, having regard to all
relevant circumstances, to read, see or hear the matter contained or
embodied in it. The jury must have Been satisfied that the effect of the
article was to tend to deprave and corrupt those who were likely to read
or see if. While I concur with your Lordships in thinking that the provision
19
contained in section 2, subsection (4). of the Act did not debar the prosecu-
tion from presenting and passing the charge contained in Count 1, I have
wondered whether they might not in this particular case have been content
to put matters to the test by reference only to the other counts. It was
the Appellant who conceived and carried out the plan of producing the
publications in question. He did so for his own gain. The conspiracy
features of his conduct added little in this case to the real gravity of his
actions.
I join, however, with those of your Lordships who affirm that the law
is not impotent to convict those who conspire to corrupt public morals.
The declaration of Lord Mansfield (see Jones v. Randall, 1774, Lofft. 383)
that ” whatever is contrary, bonos mores est decorum, the principles of
” our law prohibit, and the King’s Court, as the general censor and guardian
” of the public manners, is bound to restrain and punish “, is echoed and
finds modern expression in Kenny’s Outlines of Criminal Law (17th Edn.)
in the statement that agreements by two or more persons may be criminal
if they are agreements to do acts which are outrageously immoral or else
are in some way extremely injurious to the public. There are certain
manifestations of conduct which are an affront to and an attack upon
recognised public standards of morals and decency and which all well-
disposed persons would stigmatise and condemn as deserving of punishment.
The cases afford examples of the conduct of individuals which has been
punished because it outraged public decency or because its tendency was
to corrupt the public morals.
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 those 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 twelve jurors were unanimous in thinking that the
accused person or persons had combined to do acts which were calculated
to corrupt public morals. My Lords, as time proceeds our criminal law
is more and more being codified. Though it may be that the occasions
for presenting a charge such as that in Count 1 will be infrequent, I concur
in the view that such a charge is contained within the armour of the law
and that the jury were in the present case fully entitled to decide the case
as they did.
I would dismiss the appeal.
Lord Hodson
my lords,
I am in full agreement with the speeches which have been delivered
by my noble and learned friend on the Woolsack and by my noble and
learned friend, Lord Tucker, and wish only to add a few sentences on the
first count.
I am wholly satisfied that there is a common law misdemeanour of con-
spiracy to corrupt public morals. The judicial precedents which have been
cited show conclusively to my mind that the Courts have never abandoned
their function as custodes morum by surrendering to the Legislature the right
and duty to apply established principles to new combinations of circum-
stances. The words of Parke. J. in Mirehouse v. Rennell (1 Cl. & Fin. 527)
at page 546 read by my noble and learned friend, Lord Tucker, are not
out-dated and in my opinion are applicable to this case. I would stress
that in applying the law to the facts which now fall for consideration I do
not rest upon the narrow ground that here was a conspiracy to issue a
20
public invitation to indulge in sexual perversion which so outrages public
decency as to constitute a punishable offence. It is unnecessary to dwell
upon the details of the publications which your Lordships have been obliged
to look at. It is sufficient to say that although there are descriptions of
sexual eccentricities which to persons of normal instincts may be fairly
described as perverted, these eccentricities add nothing to the substance of
the charge of conspiracy to corrupt public morals. They amount in the
main to the use of theatrical trappings usually associated with prostitution
and irregular sexual intercourse but are in themselves neither more nor less
unlawful than prostitution itself.
I will not add to what has already been said about the word ” unlawful “,
agreeing as I do that it has not to be narrowly construed as connoting the
commission of a criminal offence.
It has been contended before your Lordships that these advertisements
ought to be treated as if they tended only to corrupt the morals of men and
should be treated on a different footing from advertisements which would
tend to corrupt the morals of women, since the law has shown anxiety to
protect women from predatory males who have conspired to debauch them
whereas there is no instance of any anxiety in the converse direction. Even
if there is any validity in this distinction, which in these days when much is
heard of the equality of the sexes I am not disposed to admit, it has no
application to the present case. The advertisements no doubt are primarily
directed to male persons but are not so limited. They were exposed for sale
and available to both sexes. They are, as a cursory examination reveals,
designed to glamorise prostitution and to show by the prices charged to
prostitutes for advertising their wares the profits likely to be realised from
engaging in their occupation. In the ordinary use of language it seems
to me to be plain that the publication of these advertisements to both sexes
may properly be held by a jury to tend to corrupt public morals.
That prostitution is not a punishable offence does not involve, as I have
already indicated, that it is regarded as a lawful activity. If it were lawful
such a case as Pearce v. Brooks, L.R. 1 Ex. 213, must have been differently
decided. Even if Christianity be not part of the law of England, yet the
common law has its roots in Christianity and has always regarded the institu-
tion of marriage as worthy to be supported as an essential part of the
structure of the society to which we belong. I do not see any reason why
a conspiracy to encourage fornication and adultery should be regarded as
outside the ambit of a conspiracy to corrupt public morals. It is suggested,
as I understand it, that this throws the net too wide and in some way it is
desirable to show a tenderness towards prostitution as a recognised and
necessary evil. I do not accept this approach.
Since a criminal indictment is followed by the verdict of a jury it is true
that the function of custos morum is in criminal cases ultimately performed
by the jury by whom on a proper direction each case will be decided. This,
I think, is consonant with the course of the development of our law. One may
take, as an example, the case of negligence where the standard of care of the
reasonable man is regarded as fit to be determined by the jury. In the field
of public morals it will thus be the morality of the man in the jury box
that will determine the fate of the accused, but this should hardly disturb
the equanimity of anyone brought up in the traditions of our common law.
I would dismiss the appeal.
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