Shaw v Director of Public Prosecutions (R v Shaw)

The common law recognises an indictable conspiracy to corrupt public morals. An agreement may be criminal although the acts contemplated would not themselves be criminal or tortious if performed by an individual. The courts retain a residual power to protect public morality from novel forms of public injury, while the jury determines whether the conduct was calculated to corrupt contemporary public morals.

A man knowingly lives on the earnings of prostitution where prostitutes pay him for services directed specifically to their prostitution which he would not otherwise provide. A business accepting payment to advertise prostitutes falls within that rule. A statutory bar on proceedings for a common law publication offence does not prevent prosecution for an antecedent agreement to corrupt public morals by means of a publication.

The appellant published the Ladies Directory, which contained prostitutes’ contact details, photographs and indications of the sexual services offered. He received advertising fees from the prostitutes and income from sales of the publication.

He was convicted at the Central Criminal Court of conspiracy to corrupt public morals, knowingly living on the earnings of prostitution contrary to section 30 of the Sexual Offences Act 1956, and publishing an obscene article contrary to section 2 of the Obscene Publications Act 1959. The Court of Criminal Appeal dismissed his appeal and certified points of law concerning the first two counts, but not the obscenity count.

The questions before the House were whether conspiracy to corrupt public morals was an offence known to the common law, whether the appellant’s advertising income amounted to living on the earnings of prostitution, and whether section 2(4) of the 1959 Act barred the conspiracy count.

1. Appeal dismissed by a majority of four to one on the conspiracy count and unanimously on the living-on-earnings count. Viscount Simonds, Lord Tucker, Lord Morris of Borth-y-Gest and Lord Hodson held that conspiracy to corrupt public morals was an indictable common law offence. Lord Reid dissented on that count.

2. Per Viscount Simonds, the common law retained a residual power, where statute had not superseded it, to protect the safety, order and moral welfare of the state against novel and insidious attacks. Applying an established general principle to new conduct did not depend upon an exact factual precedent. An agreement to publish material calculated to encourage prostitution and sexual practices could therefore fall within conspiracy to corrupt public morals.

3. Per Lord Tucker, an agreement may be criminal where its object, though not independently criminal or tortious, is outrageously immoral or extremely injurious to the public. Earlier authorities concerning conspiracies to procure prostitution and corrupt morals established the relevant principle. The evidence of advertisements inviting sexual perversion was sufficient to require the jury’s decision, although Lord Tucker did not hold that the case would otherwise have been withdrawn.

4. Per Lord Morris and Lord Hodson, current public standards were appropriately entrusted to a properly directed jury. Lord Hodson considered that the advertisements’ tendency to glamorise and encourage prostitution itself was capable of corrupting public morals; the conviction did not depend solely upon invitations to sexual perversion.

5. Lord Reid dissented because criminal offences should be sufficiently certain and should not be extended into controversial fields of morality by judicial decision. He considered that the evidence could have supported the narrower offence of publicly outraging decency through invitations to sexual perversion, but not the general offence charged.

6. On section 30 of the Sexual Offences Act 1956, Viscount Simonds held that a person lives on the earnings of prostitution when prostitutes pay him for goods or services supplied for their prostitution which he would not have supplied but for their status as prostitutes. The appellant’s advertising business was a joint venture directed solely to obtaining prostitution custom. Lord Tucker, Lord Morris and Lord Hodson agreed. Lord Reid reached the same result by treating the appellant as a parasitic tout, although he rejected the broader service-based formulation.

7. Per Lord Tucker, section 2(4) of the Obscene Publications Act 1959 did not bar the conspiracy prosecution. The offence consisted of the agreement to corrupt public morals by means of the magazines, not the publication itself. The publications need never have appeared for the agreement to exist.

1. House of Lords: Dismissed the appeal from the Court of Criminal Appeal. The decision on conspiracy to corrupt public morals was by a majority of four to one; the appeal concerning section 30 of the Sexual Offences Act 1956 was dismissed unanimously.
2. Court of Criminal Appeal: Dismissed the appeal against all three convictions. It certified points of law of general public importance concerning the conspiracy and living-on-earnings counts and granted leave to appeal on those counts. It refused certification on the count under section 2 of the Obscene Publications Act 1959.
3. Central Criminal Court: Convicted the appellant of conspiracy to corrupt public morals, living on the earnings of prostitution and publishing an obscene article.