NOTES OF CASES
| Published date | 01 September 1961 |
| DOI | http://doi.org/10.1111/j.1468-2230.1961.tb02194.x |
| Date | 01 September 1961 |
NOTES
OF
CASES
THE
LADIES’ DIRECTORY
AND
CRIMINAL
CONSPIRACY
THE
JUDGE
AS
CUSTOS
MORUM
WHEN
Parliament attempted to drive prostitutes off the streets by
imposing heavier penalties for solicitation
in
the Street Offences Act,
1959,
it was foreseen that there would be an increase in the number
of dubious advertisements
in
shop-windows by persons offering their
services as models, masseuses, and the like.
It
was also feared by
some that the activities
of
touts and ponces would increase and the
whole business would become highly organised. But few can have
imagined that someone would produce a magazine giving the names,
addresses and telephone numbers of prostitutes, and in some cases
photographs, and in others, references to the services offered to
sexual perverts.
No
provisions were inserted in the Act
of
1059
dealing with such activities.
Frederic Charles Shaw saw the possibilities of exploiting the
situation to make some money by publishing the booklet
or
maga-
zine called the
Ladies’
Directory,
which landed him in the dock at
the Old Bailey. He was charged on an indictment containing three
counts, as follows
:
(1)
conspiracy to corrupt public morals (the conspiracy being
with those who inserted the advertisements, and certain
other persons unknown)
;
(2)
living on the earnings of prostitution, contrary to section
30,
Sexual Offences Act,
1956;
(8)
publishing an obscene article, contrary to section
2,
Obscene
Publications Act,
1959.
At the trial, the late Judge Maxwell Turner had ruled that a con-
spiracy to debauch and corrupt public morals was a common law
misdemeanour and was indictable as such. He also held that there
was evidence
for
the jury to consider
on
the count relating to living
on the earnings of prostitution, and directed them on the test to
be
applied
in
relation to the obscenity charge. The jury convicted
Shaw on al! three counts, and he was sentenced to nine months’
imprisonment
.
He appealed to the Court of Criminal Appeal against conviction,
claiming that
(1)
there was no such offence at common law as a
conspiracy to corrupt public morals unless the acts alleged were
offences against the criminal law
or
amounted to a civil wrong;
(2)
in regard to the count
for
living on the earnings of prostitution,
a distinction should have been drawn between services supplied to
a prostitute for reward and the mere receipt of the earnings of a
prostitute;
(3)
there was a misdirection on the count alleging an
626
SEPT.
1961
NOTES
OF
CASES
627
obscene publication. There were several other less important
grounds of appeal, including one which claimed that the publication
of the magazine was
in
the public interest, and therefore not
criminal
!
Shaw also appealed unsuccessfully against sentence.
In a reserved judgment delivered by Ashworth
J.,l
the Court of
Criminal Appeal, consisting of Lord Parker
C.J.,
Streatfeild and
Ashworth
JJ.,
dismisskd the appeal on all grounds, and leave to
appeal to the House of Lords was granted, limited to the first two
grounds. In argument, the prosecution had conceded that, in
regard to the conspiracy count, the conspiracy alleged was to do an
unlawful act, and not a conspiracy to do a lawful act by unlawful
means, The unlawful act which was alleged was the common law
misdemeanour of corrupting public morals, which might arise in two
ways, either
(1)
any act calculated
or
intended to corrupt the morals
of the public in general,
or
(2)
any act calculated
or
intended to
outrage public decency. The Court of Criminal Appeal held that it
was an established principle
of
the common law that conduct calcu-
lated
or
intended to corrupt public morals (as opposed to the morals
of a particular individual) is an indictable offence.
The House of Lords upheld the conviction on counts
1
and
2,
but
there was an interesting and important divergence of opinion
between the majority and Lord Reid on the precise grounds on
which such a decision should rest.2
Living
on
the earnings
of
prostitution
Dealing with the offence
of
living on the earnings of prostitution
first, Viscount Simonds said that the law does not seek to include
"
every person whose livelihood depends in whole
or
in
part upon
the 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
pro~titution.~'
It
must be left to a jury to say in
regard to any particular conduct whether the statutory offence has
been committed.
A
person does not necessarily escape, however, by
receiving payment
for
the goods
or
services that he supplies to a
prostitute which he would not have supplied but for the fact that
she was a prostitute.
Lord Reid expressed the scope
of
the offence more clearly when
he described the statute as being aimed at persons in a parasitic
relationship to the prostitute
or
to a number of them.* He is a little
alarmed at the wide import of the remarks made by Viscount
Simonds on this subject, especially in relation to their possible
application to landlords letting premises to prostitutes, and to
tradesmen supplying goods
or
services to a prostitute.
For
his part,
1
The judgment
of
the Court
of
Criminal Appealis printed before the report
of
the
case
in the House
of
Lords,
Bee
Shaw
v.
D.P.P.
[196l]
2
W.L.R.
897
at
902
et
sea.
2
Ibid.
p.
612
et
seq.
3
p.
913.
4
p.
919.
628
THE
MODERN
LAW
REVIEW
VOL
24
Lord Reid could not hold that there should be any severe limitation
on
the tradesman supplying goods
or
services to a prostitute in the
ordinary course of his business. Presumably this would extend to
the more unusual commissions, provided they are received and dealt
with in the course
of
a normal, respectable, business. Both the
learned lords found great difficulty in knowing where to draw the
line over this business of living on the earnings of prostitution, and
Viscount Simonds said that the jury must be directed that some
limitation must be pht on the while Lord Reid thought that
if
they were given their ordinary and natural meaning, that would
be
a
clear enough limitation.c
It
is conceived that the two speeches
give a useful guide for the future, if taken together, though there
might have been some difficulty
if
Lord Reid had not qualified what
Viscount Simonds said.
Conspiracy to corrupt public morals
It
is
on
the subject of the conspiracy count that the views of their
lordships diverged most markedly. Viscount Simonds and the
majority were prepared to assert quite strongly that there was an
offence of conspiracy to corrupt public morals which was known to
the common Iaw, but it is not quite clear whether this assertion
carries with
it
the finding that there is an offence of corrupting
public morals where there is only one person involved.
It
would
appear from Viscount Simonds’ speech that he assumed that there
is. He entertained no doubt that in the sphere of criminal law
there remained 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.”
He accepts Lord Mansfield’s claim that the courts are
custodes
morum,
without placing this in its historical context. He is willing
to concede that the occasions for the exercise of such residual power
by the judges will be rare today,
“
for Parliament has not been slow
to legislate when attention has been sufficiently aroused.” But
gaps remain, and the judges can and must
fill
these gaps by means
of
judicial legislation.
In
a curious sentence at the outset of his
speech he prefaces his sweeping claims to judicial power by a
rhetorical question to the effect that he need not say that he is not
an advocate of the right of the judges to create criminal
offence^.^
Somehow the double negative here seems to be a little misplaced
!
Where in the books will one find the common law misdemeanour of
corrupting pubIic morals
7
In none to my knowledge. Where in the
5
p.
914.
6
p.
921.
7
p.
917.
9
p.
916.
8
p.
918.
To continue reading
Request your trial