14 June 1972

Lord Reid , Lord Morris of Borth-Y-Gest , Lord Diplock , Lord Simon of Glaisdale and Lord
Kilbrandon
1972 March 7, 8, 9, 10, 13, 14, 15; June 14

*633 Knuller (Publishing, Printing and Promotions) Ltd. v Director of

Public Prosecutions
Keen v Director of Public Prosecutions
Stansill v Director of Public Prosecutions
Hall v Director of Public Prosecutions
[In the House of Lords]

(1972) 56 Cr. App. R. 633

[ Consolidated Appeals ]
Conspiracy to Corrupt Public MoralsAdvertisements in MagazineEncouragement of
Homosexual PracticesHomosexual Acts in Private Between Consenting Adults no Longer
CriminalWhether Offence Known to LawWhether Advertisements Capable of Constituting
Conspiracy to Corrupt.
Conspiracy to Outrage Public DecencyElements of Substantive OffenceOutragePublicity
Direction to JuryAdvertisements in MagazineEncouragement of Homosexual Practices
Whether Conspiracy Offence Known to the LawWhether Publication on Inside Pages of
Magazine Capable of Constituting Offence.
The defendants took part in publishing a magazine which had a fairly large circulation. On
the inside pages of the magazine appeared columns of advertisements headed Males. In
most cases the advertisements were inserted by homosexuals and their express purpose
was to attract answers from persons who would indulge in homosexual practices with the
advertisers. Sometimes persons answering the advertisements were asked to communicate
directly with the advertisers; sometimes they were asked to send their answers to the
magazine for the purpose of these being forwarded to the advertisers. The defendants
stated that they established this service to avoid the need for resorting to other methods of
solicitation. The defendants were convicted of conspiracy to corrupt public morals and of
conspiracy to outrage public decency. On appeal by the defendants the convictions on both
charges were affirmed by the Court of Appeal *634 (Criminal Division). On appeal by the
defendants to the House of Lords,
Held:

(i) (Lord Diplock dissenting) that the convictions of conspiracy to corrupt public morals
should be affirmed, since the existence of that offence was established by the decision in
Shaw v. Director of Public Prosecutions (1961) 45 Cr.App.R. 113; [1962] A.C. 220 and the
House ought to follow that decision; and that, although by virtue of the Sexual Offences Act
1967 a homosexual act between adult males in private was no longer a crime, it was open
to a jury to say that to assist or to encourage persons to take part in such acts might be to
corrupt them.
(ii) (Lord Morris of Borth-y-Gest dissenting) that the convictions of conspiracy to outrage
public decency should be quashed. On a charge of committing an act outraging public
decency a jury should be directed that outrage, like corrupt, is a very strong word, and
that the offence goes beyond offending the susceptibilities of, or even shocking, reasonable
people. Moreover, the offence is concerned with recognised minimum standards of decency
and, notwithstanding that the word public is used in a location sense, public decency must
be viewed as a whole ( perLord Simon of Glaisdale and Lord Kilbrandon). The convictions in
the present case should be quashed on the grounds (per Lord Reid) that an offence of
conspiracy in this generalised form was not known to the law; ( per Lord Simon of Glaisdale
and Lord Kilbrandon) that, though conspiracy to outrage public decency was an offence
known to the law, the jury had been insufficiently directed with regard to the
aforementioned ingredients.
Per Lord Morris of Borth-y-Gest, Lord Simon of Glaisdale and Lord Kilbrandon. The offence of
conspiracy to outrage public decency may be committed where there is an agreement to
insert outrageously indecent matter on the inside pages of a book or magazine which is sold
in public.
Appeals by the defendants against an order of the Court of Appeal (Criminal Division)
dismissing their appeals against conviction.
The appellants were convicted at the Central Criminal Court on November 10, 1970, of
conspiracy to corrupt public morals (count 1) and conspiracy to outrage public decency
(count 2). They were sentenced by His Honour Judge Sutcliffe, the company to a fine of
1,500 and an order to pay 500 costs and each *635 of the other appellants to eighteen
months' imprisonment (suspended for two years) and an order to pay 200 costs.
Appeals by the defendants against conviction were dismissed by the Court of Appeal
(Criminal Division)Fenton atkinson L.J., Roskill J. and Caulfield J. on July 16, 1971. The
Court gave leave to appeal to the House of Lords, certifying that the following points of law
of general public importance were involved in their decision: (1) as to the first count,
whether an agreement by two or more persons to insert advertisements in a magazine,
where by adult male advertisers seek replies from other adult males who are prepared to
consent to commit homosexual acts with them in private, is capable of amounting to the
offence of conspiracy to corrupt public morals; (ii) as to the second count, whether an
agreement to insert such advertisements on the inside pages of a magazine with a wide
circulation on sale in public, and which is being read individually at any one time by a
number of people in different places, is capable of amounting to the offence of conspiracy to
outrage public decency.
The appeal was heard by the House of Lords on March 7, 8, 9, 10, 13, 14, 15, 1972. Owing
to the length of this report it has been necessary to summarise very briefly the arguments
in the House of Lords.

John Hazan, Q.C. and L. Britton , for the appellants. The Court of Appeal in dismissing the
appellant's appeal felt themselves bound by the decision in Shaw v. D.P.P. (1961) 45
Cr.App.R. 113 , but that decision can be distinguished by reason of the fact that since the
Sexual Offences Act 1967 homosexual acts between adult males in private are now lawful,
and it would be inconsistent to hold that persons who merely put in touch with each other
adult males who desire to indulge in such conduct should be guilty of an offence. In any
event, the decision in Shaw v. D.P.P. ( supra ) must be regarded as unsatisfactory and
should be reconsidered by the House, particularly in view of an assurance given by the
Solicitor-General in the House of Commons on June 3, 1964, repeating an earlier assurance,
that a conspiracy to corrupt public morals would not *636 be charged so as to circumvent
the statutory defence in section 4 of the Obscene Publications Act 1959 . Section 2 (4) of
that Act should be interpreted as precluding the bringing of a charge of conspiracy to
corrupt public morals if what is alleged is that the conspiracy was in respect of a publication
which would tend to deprave or corrupt readers. Moreover, there is an element of
uncertainty attaching to the offence of conspiracy to corrupt public morals. A person should
be able to regulate his conduct with full knowledge whether that conduct will amount to a
crime or not, and this cannot be the position in the case of so vague an offence. Further, the
words or common law provision in section 1 of the Sexual Offences Act 1967 preclude the
charging at common law of conspiracy to corrupt public morals where what is contemplated
are homosexual acts in private between consenting adults. Further, the summing-up on this
count was inadequate. The jury should have been directed that, if they considered that the
advertisements were addressed only to those who already indulged in homosexual conduct,
they should acquit, and they did not receive adequate direction on the necessity of the
intent alleged in the indictment being proved.
With regard to the second count, though the existence of the common law misdemeanour of
outraging public decency is well established, it must be regarded as at least doubtful
whether there can be a conspiracy to commit the offence in a generalised form. Even if the
offence of conspiracy to outrage public decency be held to exist, it was not established in
this case. It has never been applied to a book or publication. There was nothing to which
objection could be taken on the outside of the magazines, and the advertisements held to
be objectionable would appear only to those who opened the magazines and read their inner
pages. The substantive offence can be committed only if some act (such as indecent
exposure) is done in public, and the public element here was lacking. The jury did not
receive adequate direction on the elements of the substantive offence.
John H. Buzzard, Q.C. and Richard D. L. du Cann , for the Crown. It is submitted that Shaw
v. D.P.P. ( supra ) was rightly decided and should be followed. To overrule the decision
would *637 introduce into the criminal law a wide field of uncertainty. The decision was
tacitly approved by the omission to deal with it when the amendment to the Obscene
Publications Act 1959 was made in 1964, and further recognition was given to it by section
2 (4) of the Theatres Act 1968. There have been at least thirty successful prosecutions for
conspiracy to corrupt public morals based on the decision in Shaw v. D.P.P. ( supra ) and
there has been no attempt to widen the scope of the crime.
With regard to the second count, although there has never been a prosecution for
conspiracy with regard to printed matter on sale to the public, the facts proved here
established the offence and it is quite unrealistic to draw a distinction between matter
appearing on the outside and on the inside pages of the magazine. It is immaterial whether
the alleged outrage to decency took place in public or not, provided that the public or a
substantial portion of the public were outraged by it. The jury were sufficiently directed on
this count in that they were told that they had to be satisfied that the advertisements did

outrage public decency in the light of present-day standards and that there was an
agreement to outrage public decency in this sense.
John Hazan, Q.C. replied.
The cases cited in argument are for the most part referred to in the opinions of their
Lordships.
The House took time for consideration.

June 14. The following opinions were read.

Lord Reid:
My Lords, the accused took part in publishing a magazine which contained a wide variety of
material thought to be of interest to those holding progressive views. Much of this
material is unobjectionable. Some would be distasteful to many people, some is more
objectionable. In this case we are only concerned with some columns of advertisements
appearing on inner pages of the magazine. These columns are headed Males. In most
cases these advertisements were inserted by homosexuals and their express purpose was to
attract answers *638 from persons who would indulge in homosexual practices with the
advertisers. Sometimes persons answering the advertisements were to communicate
directly with the advertisers. Sometimes they were to send their answers to the magazine
and the answers were then forwarded to the advertisers. The accused stated that they
established this service to avoid the need for resorting to other methods of solicitation, and
there is no reason to doubt that. This magazine had a fairly large circulation of over 30,000
copies. It was distributed by various means. It is not disputed that a great many copies
found their way into the hands of young students and schoolboys, but no point is made by
the prosecution that it was likely that males under twenty-one would reply to the
advertisements.
The accused were charged and convicted on two counts. The contention of the accused in
this appeal is that neither count discloses any offence known to the law. The second count
raises quite different legal issues from those involved in the first and I must deal with them
separately.
The first count charges a conspiracy to corrupt public morals. The particulars given are that
between January and May 1969 the accused conspired together and with persons inserting
the advertisements by means of the advertisements to induce readers thereof to meet
those persons inserting such advertisements for the purpose of sexual practices taking place
between male persons and to encourage readers thereof to indulge in such practices, with
intent thereby to debauch and corrupt the morals as well of youth as of divers other liege
subjects of Our Lady the Queen.
It was decided by this House in Shaw v. D.P.P. (1961) 45 Cr.App.R. 113; [1962] A.C. 220
that conspiracy to corrupt public morals is a crime known to the law of England. So if the
appellants are to succeed on this count, either this House must reverse that decision or
there must be sufficient grounds for distinguishing this case. The appellant's main argument
is that we should reconsider that decision; alternatively, they submit that it can and should
be distinguished.

I dissented in Shaw's case ( supra ). On reconsideration I still *639 think that the decision
was wrong and I see no reason to alter anything which I said in my speech. But it does not
follow that I should now support a motion to reconsider the decision. I have said more than
once in recent cases that our change of practice in no longer regarding previous decisions of
this House as absolutely binding does not mean that whenever we think that a previous
decision was wrong we should reverse it. In the general interest of certainty in the law we
must be sure that there is some very good reason before we so act. We were informed that
there had been at least thirty and probably many more convictions of this new crime in the
ten years which have elapsed since Shaw's case ( supra ) was decided, and it does not
appear that there has been manifest injustice or that any attempt has been made to widen
the scope of the new crime. I do not regard our refusal to reconsider Shaw's case ( supra )
as in any way justifying any attempt to widen the scope of the decision and I would oppose
any attempt to do so. But I think that, however wrong or anomalous the decision may be, it
must stand and apply to cases reasonably analogous unless or until it is altered by
Parliament. I hold that opinion the more strongly in this case by reason of the nature of the
subject-matter we are dealing with. I said in Shaw's case at pp. 157 and 275 of the
respective reports and I repeat that Parliament and Parliament alone is the proper authority
to change the law with regard to the punishment of immoral acts. Rightly or wrongly the law
was determined by the decision in Shaw ( supra ). Any alteration of the law as so
determined must in my view be left to Parliament.
I am not greatly impressed by the argument that Parliament must be held to have approved
that decision because in recent years there have been several occasions when Parliament
could appropriately have dealt with it if it had disapproved of the decision. Much recent
legislation on this topic has all the indications of being in the nature of a compromise and
we should, I think, accept and interpret it as such.
Although we do not normally look at Hansard , I think that I must take note of one matter
brought to our attention by counsel, if only because it shows the danger of
drawing *640 conclusions from Parliament refraining from legislating. Section 2 (4) of the
Obscene Publications Act 1959 provides: A person publishing an article shall not be
proceeded against for an offence at common law consisting of the publication of any matter
contained or embodied in the article where it is of the essence of the offence that the matter
is obscene. And section 1 (1) provides: For the purposes of this Act an article shall be
deemed to be obscene if its effect is such as to tend to deprave and corrupt persons
likely to read it. The obvious purpose of section 2 (4) is to make available, where the
essence of the offence is tending to deprave and corrupt, the defences which are set out in
the Act.
In Shaw's case ( supra ) it was argued that section 2 (4) excluded prosecution for the
offence of corrupting public morals. The matter is dealt with by Lord Tucker at pp. 175 and
290 of the respective reports. Technically the distinction which he draws is correct, but it
appears to me to offend against the policy of the Act and if the draftsman of the 1959 Act
had foreseen the decision in Shaw's case ( supra ) he might well have drafted the
subsection differently. This matter was raised in the House of Commons on June 3, 1964,
when the Solicitor-General gave an assurance, repeating an earlier assurance, that a
conspiracy to corrupt public morals would not be charged so as to circumvent the statutory
defence in subsection 4 ( Hansard , Vol. 695, col. 1212 ).
That does at least show that Parliament has not been entirely satisfied with Shaw's case
( supra ). It is not for me to comment on the undesirability of seeking to alter the law by
undertakings or otherwise than by legislation. But I am bound to say that I was surprised to

learn that nothing effective had been done to bring this undertaking to the notice of the
legal profession. Very experienced senior counsel in this case had never heard of it. It was
not said that the course of the present case would have been different if counsel had known
of the undertaking. But I cannot avoid an uneasy suspicion that ignorance of it may have
affected the conduct of some other prosecution for this crime. Although I would not support
reconsidering Shaw's case ( supra ),*641 I think that we ought to clarify one or two
matters. In the first place conspiracy to corrupt public morals is something of a misnomer. It
really means to corrupt the morals of such members of the public as may be influenced by
the matter published by the accused. Next I think that the meaning of the word corrupt
requires some clarification. One of my objections to the Shaw decision ( supra ) is that it
leaves too much to the jury. I recognise that in the end it must be for the jury to say
whether the matter published is likely to lead to corruption. But juries, unlike judges, are
not expected to be experts in the use of the English language and I think that they ought to
be given some assistance. In Shaw's case ( supra ) a direction was upheld in which the trial
judge said: 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 (see
pp. 175 and 290 of the respective reports). I cannot agree that that is right. Corrupt is a
strong word and the jury ought to be reminded of that, as they were in the present case.
The Obscene Publications Act appears to use the words deprave and corrupt as
synonymous, as I think they are. We may regret that we live in a permissive society, but I
doubt whether even the most staunch defender of a better age would maintain that all or
even most of those who have at one time or in one way or another been led astray morally
have thereby become depraved or corrupt. I think that the jury should be told in one way or
another that, although in the end the question whether matter is corrupting is for them,
they should keep in mind the current standards of ordinary decent people.
I can now turn to the appellant's second argument. They say that homosexual acts between
adult males in private are now lawful, so it is unreasonable and cannot be the law that other
persons are guilty of an offence if they merely put in touch with one another two males who
wish to indulge in such acts. But there is a material difference between merely exempting
certain conduct from criminal penalties and making it lawful in the full sense. Prostitution
and gaming afford examples of this difference.*642 So we must examine the provisions of
the Sexual Offences Act 1967 to see just how far it altered the old law. It enacts subject to
limitation that a homosexual act in private shall not be an offence, but it goes no farther
than that. Section 4 shows that procuring is still a serious offence and it would seem that
some of the facts in this case might have supported a charge under that section. I find
nothing in the Act to indicate that Parliament thought or intended to lay down that
indulgence in these practices is not corrupting. I read the Act as saying that, even though it
may be corrupting, if people choose to corrupt themselves in this way, that is their affair
and the law will not interfere. But no licence is given to others to encourage the practice.
So, if one accepts Shaw's case ( supra ) as rightly decided, it must be left to each jury to
decide in the circumstances of each case whether people were likely to be corrupted. In this
case the jury were properly directed and it is impossible to say that they reached a wrong
conclusion. It is not for us to say whether or not we agree with it. So I would dismiss the
appeal as regards the first count.
The second count is conspiracy to outrage public decency, the particulars, based on the
same facts, being that the accused conspired with persons inserting lewd disgusting and
offensive advertisements in the magazine by means of the publication of the said magazine
containing the said advertisement to outrage public decency.

The crucial question here is whether in this generalised form this is an offence known to the
law. There are a number of particular offences well known to the law which involve
indecency in various ways, but none of them covers the facts of this case. We were informed
that a charge of this character has never been brought with regard to printed matter on sale
to the public. The recognised offences with regard to such matter are based on its being
obscene, i.e. likely to corrupt or deprave. The basis of the new offence, if it is one, is quite
different. It is that ordinary decent-minded people who are not likely to become corrupted
or depraved will be outraged or utterly disgusted by what they read. To my mind questions
of public policy of the *643 utmost importance are at stake here. I think that the objections
to the creation of this generalised offence are similar in character to, but even greater than,
the objections to the generalised offence of conspiracy to corrupt public morals.
In upholding the decision in Shaw's case ( supra ) we are, in my view, in no way affirming
or lending any support to the doctrine that the Courts still have some general or residual
power either to create new offences or so to widen existing offences as to make punishable
conduct of a type hitherto not subject to punishment. Apart from some statutory offences of
limited application, there appears to be neither precedent nor authority of any kind for
punishing the publication of written or printed matter on the ground that it is indecent as
distinct from being obscene. To say that published matter offends against public decency
adds nothing to saying that it is indecent. To say, as is said in this charge, that it outrages
public decency adds no new factor: it seems to me to mean no more than that the degree of
indecency is such that decent members of the public who read the material will not merely
feel shocked or disgusted but will feel outraged. If this charge is an attempt to introduce
something new into the criminal law, it cannot be saved because it is limited to what a jury
might think to be a high degree of indecency.
There are at present three well-known offences of general application which involve
indecency: indecent exposure of the person, keeping a disorderly House, and exposure or
exhibition in public of indecent things or acts. The first two are far removed from sale of
indecent literature and I can see no real analogy with the third. Indecent exhibitions in
public have been widely interpreted. Indecency is not confined to sexual indecency: indeed
it is difficult to find any limit short of saying that it includes anything which an ordinary
decent man or woman would find to be shocking, disgusting and revolting. And in public
also has a wide meaning. It appears to cover exhibitions in all places to which the public
have access either as of right or gratis or on payment. There is authority to the effect that
two or more members of the public must be able to see the exhibition at the same time, but
I doubt whether that applies in all cases. *644 We were not referred to any case where the
exhibition consisted of written or printed matter, but it may well be that public exhibition of
an indecent notice or advertisement would be punishable. But to say that an inside page of
a book or magazine exposed for sale is exhibited in public seems to me to be going far
beyond both the general purpose and intendment of this offence and any decision or even
dictum in any case. I need not go farther because this offence is not charged and it was not
argued that it could have been charged in this case.
I must now consider what the effect would be if this new generalised crime were held to
exist. If there were in any book, new or old, a few pages or even a few sentences which any
jury could find to be outrageously indecent, those who took part in its publication and sale
would risk conviction. I can see no way of denying to juries the free hand which Shaw's case
( supra ) gives them in cases of conspiracy to corrupt public morals. There would be no
defence based on literary, artistic or scientific merit. The undertaking given in Parliament
with regard to obscene publications would not apply to this quite different crime. Notoriously
many old works, commonly regarded as classics of the highest merit, contain passages

which many a juryman might regard as outrageously indecent. It has been generally
supposed that the days for Bowdlerising the classics were long past, but the introduction of
this new crime might make publishers of such works think twice. It may be said that no
prosecution would ever be brought except in a very bad case. But I have expressed on
previous occasions my opinion that a bad law is not defensible on the ground that it will be
judiciously administered. To recognise this new crime would go contrary to the whole trend
of public policy followed by Parliament in recent times. I have no hesitation in saying that in
my opinion the conviction of the accused on the second count must be quashed.
The sentences imposed on count 1 stand: those imposed on count 2 go. But it is necessary
for this House to deal with the sums ordered to be paid towards the costs of the prosecution
because there no distinction was made for the different counts. Each individual convicted
was ordered to pay 200 and the company *645 was ordered to pay 500. I think that the
proper course would be to halve these sums so that each individual must now pay 100 and
the company must pay 250 towards the costs of the prosecution.
Lord Morris of Borth-y-Gest:
My Lords, in the case of Shaw v. Director of Public Prosecutions (1961) 45 Cr.App.R. 113:
[1962] A.C. 220 it was clearly recognised and affirmed that a conspiracy to corrupt public
morals is a common law misdemeanour which is indictable at common law. That was so held
by the judge at the trial after full legal argument. His ruling was upheld in December 1960
by the Court of Criminal Appeal (Lord Parker C.J., Streatfield and Ashworth JJ.) after further
full legal argument. Upon appeal to your Lordship's House, after further full legal argument
lasting some seven days, and after an examination of a large number of authorities, it was,
in May 1961, again held that the ruling had been correct. It cannot validly be asserted that
what the House did was to create a new offence. What was held was that authority showed
that the offence existed and was known to the common law. Viscount Simonds (at pp. 147
and 266 of the respective reports) said: 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. Lord Tucker, with whose speech Lord Simonds, Lord Hodson and I agreed, based
himself on what he regarded as clear and compelling authority in upholding the existence of
the crime of conspiracy to corrupt morals.
In regard to the first count upon which the appellants in the present case were convicted
there were two main streams of argument. In the first place, it was contended that the
present case is to be distinguished from Shaw's case ( supra ) and, furthermore, that there
were errors or inadequacies in the summing-up. *646 In the second place, it was
contended that Shaw's case ( supra ) was not correctly decided and should now be
reviewed. I will deal with these contentions in turn. The point of law which the Court of
Appeal certified as being of general public importance was whether an agreement by two or
more persons to insert advertisements in a magazine, whereby adult male advertisers seek
replies from other adult males who are prepared to consent to commit homosexual acts with
them in private, is capable of amounting to the offence of conspiring to corrupt public
morals.
It was contended on behalf of the appellants that, in view of the provisions of section 1 (1)
of the Sexual Offences Act 1967 , no offence had in the present case been committed. By
that subsection it is provided as follows: Notwithstanding any statutory or common law

provision, but subject to the provisions of the next following section, a homosexual act in
private shall not be an offence provided that the parties consent thereto and have attained
the age of twenty-one years. It was submitted that where Parliament has altered the law so
that certain sexual conduct which was formerly illegal becomes under certain circumstances
no longer an offence, there can be no commission of the offence of conspiring to corrupt
public morals by the insertion of advertisements which only have in view such sexual
conduct under the specified circumstances. at the trial it was said that the circulation of the
paper, International Times , in which the advertisements were inserted was about 38,000,
though some 54,000 copies of the last edition were printed. One of the appellants thought
that the readers could include up to 10,000 schoolboys and 20,000 to 30,000 students. In
considering the submission which is made I propose to leave out of account any question
whether some of the advertisements might be regarded as having been addressed to or
might have been responded to by persons under the age of twenty-one years. The
submission which is made is, I think, fallacious. What section 1 of the Act does is to provide
that certain acts which previously were criminal offences should no longer be criminal
offences. But that does not mean that it is not open to a jury to say that to assist or to
encourage persons to take part in such acts may be to *647 corrupt them. If by agreement
it was arranged to insert advertisements by married people proclaiming themselves to be
such and to be desirous of meeting someone of the opposite sex with a view to clandestine
sexual association, would it be a justification to say that adultery is not of itself a criminal
offence? A person who, as a result of perusing the Ladies Directory, decided to resort to a
prostitute was committing no legal offence: but it was open to a jury to hold that those who
conspired to insert the advertisements did so with the intention of corrupting the morals of
those who read the advertisements. So in the present case it was open to the jury to hold
that there was an intention to corrupt: it was for the jury to decide whether the
advertisements would induce readers of them to meet those who inserted the
advertisements and to meet them for the purpose of the contemplated sexual practices: it
was for the jury to decide whether readers would be or might be encouraged to indulge in
such practices: it was for the jury to decide whether those conspiring together to insert the
advertisements had the intent to debauch and corrupt the morals of the readers. The word
corrupt is a strong word: it should not be weakened by too gentle a phrase or explanation.
The situation giving rise to the question now being considered was foreseen by and referred
to by Lord Simonds and by Lord Tucker in their speeches in Shaw's case ( supra ). Thus
Lord Tucker (at pp. 169 and 285 of the respective reports) said: Suppose Parliament
tomorrow enacts that homosexual practices between adult consenting males is no longer to
be criminal, is it to be said that a cons piracy 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? It
is suggested that what was said was obiter . In a limited sense it wasbut in reality it was
merely illustrative of an issue of fact which might arise for the consideration of a jury. The
reasoning of the speeches in Shaw's case ( supra ) would have been just as fully applicable
to the situation in the present case had Lord Simonds and Lord Tucker not made the specific
references which I have mentioned. It is to be observed that Lord Tucker was
only *648 speaking of an issue which could be left to the consideration of a jury. Conviction
could only follow if the jury were satisfied that the elements of the offence were all
established.
A clear recognition and acceptance of the fact that there existed as an offence known to the
law, the offence of conspiracy to corrupt public morals, did not involve that every variety
and combination of circumstances by which the offence could be committed must in some
past period have been devised or have been known or adopted or recorded. Precedent may
be pointed to as showing that the law has known and recognised the offence. But it is idle to
say that the offence is by-passed merely because someone thinks of a new way of

committing it. I would respectfully reiterate what was said by Viscount Simonds (at pp. 148
and 267 of the respective reports) in Shaw's case ( supra ). 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.
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 was contended that the words or common law provision in section 1 (1) of the 1967 Act
were words which precluded the bringing of a charge at common law of conspiracy to
corrupt morals if what was in contemplation was a homosexual act in private between
consenting adults. The contention is, in my view, unsustainable. In their context the words
are merely part of the provision by which the law was changed so that such a homosexual
act would no longer be a criminal offence even though previously it had been an offence
either by statute or at common law.
In criticism of the summing-up of the learned judge it was submitted that the jury should
have been told that, if they considered that the advertisements were only addressed to
those who already indulged in homosexual conduct, then they (the jury) *649should acquit.
The criticism is ill-founded. In the first place, a casual perusal of the advertisements reveals
that it could not rationally be held that they were only so addressed or directed: in the
second place, it is a fallacy to assume (as was pointed out by Ashworth J. in delivering the
judgment of the Court of Criminal Appeal in Shaw's case ( supra ) at pp. 119 and 228 of the
respective reports) that someone cannot be corrupted more than once.
In further criticism of the summing-up it was contended that the jury were not adequately
directed as to the necessity of their being satisfied that the accused had the intention which
the indictment alleged. This criticism is also, in my view, ill-founded. Taken as a whole, the
summing-up, which was full, left the issues fairly to the jury. The learned judge left it to the
jury to decide whether the advertisements would induce males and encourage males to
indulge in homosexual acts. He asked them: Can you be in any doubt that the accused
persons knew that these advertisements would have just that effect and intended that they
should? Can you be in any doubt, says the Crown, that this was indeed to corrupt public
morals, bearing in mind changing values, bearing in mind everything in 1970, this was to
corrupt public morals? Can you be in any doubt, says the Crown, that these three accused
knowing all this agreed to do it? If so, they are Guilty.
There was ample recognition of the fact that it was for the jury to decide whether they
thought that the advertisements induced and encouraged readers to indulge in the sexual
practices referred to and whether there was an intention to debauch and corrupt the morals
of such readers. There are various occasions upon which a jury may have to consider
whether persons may be or may have been corrupted. Thus, if there is a prosecution under
the Obscene Publications Act 1959 for publishing an obscene article a jury may have to
decide whether its effect is such as to tend to deprave and corrupt those who are likely to
read or to see or to hear the article. It may be a difficult task for a jury to have to decide
such questions as to whether an article or a play tends to deprave and corrupt. But
Parliament has fairly and squarely *650 assigned such a task to a jury. Doubtless it has
done so with the knowledge that there is every likelihood that the collective view of a body
of men and women on a jury will reflect the current view of society. Lord Simonds pointed
out in Shaw's case ( supra ) that the same act will not in all ages be regarded in the same
way. Thus, statements concerning religion which in past centuries might have been

regarded as heresy or as blasphemy would today no longer be so regarded if the decencies

of controversy are observed. Lord Tucker said that on such matters as the corruption of
morals or obscenity the jury must be the final arbiters. In our speeches in Shaw's case
( supra ) both my noble and learned friend Lord Hodson and I adverted to the fact that,
while from generation to generation there may be variations, current public standards of
morals and decency are in the keeping of juries. For my part, I do not wish to modify or in
any way to retract what I said.
I agree, therefore, with Fenton atkinson L.J. when he said in the Court of Appeal that it was
for the jury to say whether by present day standards, which they were there to represent,
these advertisements were in their view corrupting of public morals even though Parliament
had provided that acts of this kind between consenting male adults should no longer be a
crime.
I pass, then, to consider the second main submission on behalf of the appellants. It was
urged that Shaw's case ( supra ) should now be reconsidered. I reject this submission
primarily because, in my view, Shaw's case ( supra ) was correctly decided. Even had I been
of a different opinion, I would nevertheless consider it wholly inappropriate now to review
the decision. Such a course would not, in my view, be warranted or desirable within the
ambit of the statement made in this House on July 26, 1966. That statement drew attention
to the especial need for certainty as to the criminal law. It was clearly held in Shaw's case
( supra ) that there had been and that there continued to be as part of the criminal law of
England the offence of conspiracy to corrupt public morals. The decision established that
fact with certainty. If any person had previously had doubts as to this, his doubts*651 were
removed. There are some who regret that there should be such an offence and who would
wish to change the law: their course is to persuade Parliament to change it. Once this House
in its judicial capacity was satisfied that the offence was known to and existed as part of the
law it would neither have been proper nor would it have been within its judicial province to
proclaim or to suggest that the law should be forgotten or ignored or that its force should be
denied. The decision in Shaw's case ( supra ) was made nearly eleven years ago. We were
told that in one period of four years since that time there had been over thirty prosecutions
for conspiracy to corrupt public morals: we do not know how many in total there have been.
Those prosecutions were for an offence which this House had authoritatively laid down to be
a part of our criminal law. It is accepted that all relevant authorities were examined before
this House came to its decision. There comes a stage when further disputation should cease.
It was suggested and it has been suggested that there is an element of uncertainty which
attaches to the offence of conspiracy to corrupt public morals. It is said that the rules of law
ought to be precise so that a person will know the exact consequences of all his actions and
so that he can regulate his conduct with complete assurance. This, however, is not possible
under any system of law. If someone chooses to publish words in regard to another, it may
be possible to give advice as to whether the words are capable of bearing a defamatory
meaning, but there will be very many cases in which no certain advice could be given as to
whether it will be held that the words were defamatory and as to whether he might be held
liable to pay damages in a civil action. It may depend upon the collective view of twelve
people on a jury. If there is no jury, it will depend upon the view which may be formed by
one particular judge, which might well differ from that which would be formed by a different
judge. In many cases there can be no certainty as to what the decision will be. But none of
this is a reflection upon the law. Nor do I know of any procedure under which someone
could be told with precision just how far he may go before he *652 may incur some civil or
some criminal liability. Those who skate on thin ice can hardly expect to find a sign which
will denote the precise spot where they may fall in. So, when Parliament has made it an

offence to publish an article which may tend to deprave and corrupt and has left it to a jury
to decide whether an article may so tend, it is no criticism of the law to say that a man will
not be sure in advance whether he will be acquitted or convicted. Shaw's case ( supra ) is,
therefore, not open to the criticism that it created or tolerated a state of uncertainty. It
merely affirmed with certainty that an offence was known to the law. The view is advanced
by some that the law should not be used as an instrument to enforce moral standards.
Those who hold that view hold it sincerely. But whether that view should or should not
prevail is not a matter for the Courts to resolve. If there be some who think that in relation
to the publication of articles or the performances of plays there should be no restraints at all
or at least no restraints which involve or require the machinery of the law for their sanction,
it is for them to persuade Parliament to adopt their view. As recently as 1968 (by the
Theatres Act) it was provided that a play should be deemed to be obscene if, taken as a
whole, its effect is such as to tend to deprave and corrupt persons who are likely, having
regard to all relevant circumstances, to attend it. If a case is dealt with summarily, it will be
for magistrates to decide the issue as to or tending to deprave and corrupt: if there is a trial
on indictment, it will be for the jury so to decide. As I have mentioned, some criticism of
Shaw's case ( supra ) is made on the basis that a man cannot know with certainty whether
what he is doing will land him in trouble (because it could not be predicted what views a
jury would form): the criticism is, in my view, invalid, because it was not the decision in
Shaw's case ( supra ) that produced the uncertainty. The invalidity of the criticism is
highlighted when it is seen that Parliament not only enacted the Obscene Publications Act
1959 in terms to which I have referred but more recently, i.e. by the Theatres Act 1968, has
enacted that it will be or may be for a jury to determine whether a performance is obscene
because it tends to deprave *653 and corrupt. Incidentally, it is to be observed that in
creating (and requiring) concentration on the statutory offence of presenting or directing an
obscene performance Parliament excluded proceedings for certain common law offences:
and no person shall be proceeded against for an offence at common law of conspiring to
corrupt public morals, or to do any act contrary to public morals or decency, in respect of an
agreement to present or give a performance of a play, or to cause anything to be said or
done in the course of such a performance (see s. 2 of the Theatres Act 1968). It would be
hard to find a clearer indication that Parliament had fully in mind the decision in Shaw's case
( supra ) acknowledging the existence of the common law offence of conspiring to corrupt
public morals. So also was there acknowledgment of the existence of the common law
offence of conspiring to do an act contrary to public morals or decency.
It has sometimes been asserted that in his speech in Shaw's case ( supra ) Lord Simonds
was proclaiming that the Courts had power to extend the sphere of the law by devising new
extension of the operations of the criminal law: his use of the words residual power is
pointed to as a basis of what is asserted. In my view, the sustained reasoning of his speech
refutes the assertion. In the first place, he expressly and firmly repudiated any notion that
there is in the judges a right to create new criminal offences. He held, in agreement with
Lord Tucker, that the offence of conspiracy to corrupt public morals was an offence known to
the common law. He then proceeded to demonstrate that, if offending acts do reveal a
conspiracy to corrupt public morals, it is not to be said that no offence has been committed
merely because the particular acts are novel or unprepared for or are unprecedented. He
pointed out that Parliament from time to time by legislative acts alters the common law, but
that yet there are unravished remnants of it. The residual power to which he referred is
the power where no statute has yet intervened to supersede the common law to
superintend those offences which are prejudicial to the public welfare. The reasoning is
directed to the enforcement of the common law to the extent that its *654 power may
reach: the reasoning disclaims the existence of an arbitrary power to refashion the common
law.

I must refer to a submission which was based upon the statutory provisions contained in
section 2 (4) of the Obscene Publications Act 1959 , which reads: A person publishing an
article shall not be proceeded against for an offence at common law consisting of the
publication of any matter contained or embodied in the article where it is of the essence of
the offence that the matter is obscene. It was urged that this provision precludes the
bringing of a charge of conspiring to corrupt public morals if what is alleged is that the
conspiracy was one to bring about a publication which would tend to deprave or corrupt
readers. This submission must be negatived because of what was decided (and I think
rightly decided) in Shaw's case ( supra ). In regard to the argument advanced in Shaw's
case ( supra ) to the effect that count 1 in that case (which compares with count 1 in the
present case) offended against the provisions of section 2 (4) of the 1959 Act, Lord Tucker
said (at pp. 175 and 290 of the respective reports): 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.
It is relevant to have in mind that it is provided by section 4 of the 1959 Act that a person is
not publishing an obscene article if it is proved that publication of the article is justified as
being for the public good on the ground that it is in the interests of science, literature, art
or learning, or of other objects of general concern. It was not suggested that the
advertisements in the present case (nor was it suggested that the Directory in Shaw's case
( supra ) could be regarded as publications which were justifiable as being for the public
good. It may be that if a publication could be so justified, a conspiracy designed to effect, or
which contemplated, such a publication would not be a criminal conspiracy. But, whether
this be so or not, it would be quite*655 inappropriate if there could be a charge of
conspiracy to corrupt public morals which placed anyone at risk of conviction in
circumstances which circumvented the statutory defence under section 4. In 1964
Parliament passed the Obscene Publications Act of that year and we were told that before it
was passed the Law Officers of the Crown gave an assurance to the House of Commons (in
repetition of an earlier similar assurance) that a conspiracy to corrupt public morals would
not be charged so as to circumvent the statutory defence in section 4. That should be
known by all who are concerned with the operation of the criminal law. For present purposes
the relevance of this lies in the circumstance that Parliament had the decision in Shaw's
case ( supra ) fully in mind.
The result of this is that, even had I not been of the view that the decision in Shaw's case
( supra ) was as a decision correct, I would have thought it wholly inappropriate now to
review it under the freedom expressed in the statement which was made in 1966. That
would be for the following reasons: (1) the decision constituted a clear pronouncement of
this House as to what the law was and had been; (2) it was a decision in relation to the
criminal law where certainty is so desirable; (3) the decision has been acted upon and many
criminal prosecutions have been based upon the authority of it; (4) the decision was one
which attracted public attention and which on different occasions has been brought
particularly to the attention of Parliament; (5) Parliament has not altered the law; (6)
whether a change in the law could or could not have been effected as part of the provisions
of the Obscene Publications Act 1964, or of the Sexual Offences Act 1967, or of the Theatres
Act 1968, is immaterial. The provisions and contents of those Acts could well have
stimulated an alteration of the law as laid down in Shaw's case ( supra) had Parliament so
desired.

Though counsel for the appellants maintained that Shaw's case ( supra ) was wrongly
decided, he wisely refrained from embarking upon the citation and examination of the mass
of authority which was considered when Shaw's case ( supra ) was argued. To have done so
would have extended the hearing by *656 many days which would, as was agreed, have
been employed in looking again at the material previously reviewed. It suffices for me again
to record my agreement with the speech which was delivered in Shaw's case ( supra ) by
Lord Tucker.
I pass then to consider the second count. It charged the appellants with the offence of
conspiracy to outrage public decency. The particulars alleged that between certain dates the
appellants conspired together and with persons inserting lewd disgusting and offensive
advertisements in issues of the magazine and with other persons unknown, by means of the
publication of the magazine, to outrage public decency. In regard to this count a very
limited contention was presented. It was accepted that there is an offence of conspiracy to
outrage public decency, but it was argued that there was nothing objectionable on the
outside of the magazines and that as the advertisements complained of would only present
themselves to those who looked at and read the inner pages of the magazines the offence
of outraging public decency had not been committed. This contention finds its expression in
the second point of law of general public importance which was certified by the Court of
Appeal viz.whether an agreement to insert advertisements ( i.e. those whereby adult male
advertisers seek replies from other adult males who are prepared to consent to commit
homosexual acts with them in private) on the inside pages of a magazine with a wide
circulation, on sale in public places, and which was read individually at any one time by a
number of people in different places, is capable of amounting to the offence of conspiracy to
outrage public decency.
In recognising that there is a common law offence of conspiring to outrage public decency
learned counsel for the appellants was amply supported by authority. I would respectfully
adopt what my noble and learned friend, Lord Reid, said in his speech in Shaw's case
( supra ) (at pp. 164 and 281 of the respective reports): 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 *657 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. The last two
sentences related to the fact that some of the advertisements in the publication then in
question extended beyond what was called ordinary prostitution.
In Mayling (1963) 47 Cr.App.R. 103; [1963] 2 Q.B. 717 the charge in the indictment was
that by reason of certain described behaviour the accused committed an act of a lewd,
obscene and disgusting nature which outraged public decency. No question of a conspiracy
arose. Ashworth J. in delivering the judgment of the Court of Criminal Appeal held that it
was well established that there was an offence of committing an act outraging public
decency (indeed the contrary had not been contended) and that the act complained of must
be committed in public if it is to constitute the offence. Hence, if what was alleged was some
indecent act, the prosecution had to prove that such act was committed in public in the
sense that more than one person must have been able to see it.
The evidence in the present case established that the magazines were on sale in public
places. There was evidence that 15,000 copies were taken by a distributor in East London

and that those copies went to shops and newsagents: another distributor took some 6,000
or 8,000 copies which he supplied to shops and newsagents and college bookshops. Some
4,000 or 5,000 went to other smaller distributors. Some copies were sold by street sellers.
In addition there was a subscription list. What was said was that, though the sales were in
public so that any member of the public could buy, there was no outrage of public decency
because members of the public would have to read the inside rather than the outside of
what they bought before they were outraged and further that members of the public would
be outraged separately and not in collective groups. It was further said that the offence now
being *658 considered is only committed if there is some act (such as an act of indecent
exposure) which is done in public. Furthermore, that there was no exact precedent which
recorded particulars of the offence similar to those in the present case.
My Lords, I cannot accept these contentions. It seems to me to be wholly unrealistic to say
that if a magazine which is sold in public has matter on its outside cover which outrages
public decency (which means outrages the sense of decency of members of the public) an
offence is then committed, whereas if the outside cover of the magazine is plain and
innocuous but if as soon as the magazines are opened the members of the public who buy
them are outraged by all that they see, then no offence is committed.
It may well be that in this present case it would have been sufficient to prefer only count 1.
But the conceptions of the two counts are different. Count 1 alleges an intention to debauch
and corrupt. Count 2 raises the issue not whether people might be corrupted, but whether
the sense of decency of members of the public would be outraged. It is to be observed that
it is not suggested that publication of the advertisements in the magazines could be said to
have been justified as being for the public good on the ground that the advertisements were
in the interests of science or literature or art or learning or of other objects of general
concern. Though the assurance given to the House of Commons in 1964 was in reference to
a charge of conspiracy to corrupt public morals, the spirit and intendment of the assurance
would clearly apply in reference to a charge of conspiracy to outrage public decency.
The contention that no exact precedent has been produced showing that the offence (the
existence of which as an offence is accepted) has not previously been alleged to have been
committed in this precise manner is refuted by the statements in Shaw's case ( supra ) to
which I have alluded.
The books contain numerous examples of criminal conspiracies which have been held to be
such because of the particular purposes which those agreeing desired to effect. Reference
may be made to Kenny's Outlines of Criminal Law, 18th edition , *659pages 412416 et
seq. , to Russell on Crime, 12th edition , pages 14691494 , to Archbold, 37th edition, page
1343 et seq. It would be quite impracticable to seek to consider or to review all the many
cases cited. They could neither be approved nor disapproved in bulk. I take merely one
example I do not suppose that it would be contested that a conspiracy is criminal if its
purpose is to prevent or to obstruct or to pervert or to defeat the course of public justice. I
cannot think that it would be an answer to a charge to assert that the particular means
employed for perverting or obstructing the course of public justice had never before been
thought of or used so that no previous indictment could be traced the particulars of which
set out as the means employed those which only new ingenuity had devised.
In regard to count 2 the learned judge at the trial reminded the jury of all that he had said
as to the nature of a conspiracy and told them that count 2 alleged an offence quite
separate and distinct from that alleged in count 1. He told them that they had to be satisfied
that the advertisements were lewd, disgusting and offensive and that the particular accused

person was a party to an agreement to outrage public decency. He carefully reminded them
that public feeling varies from one generation to another so that what would outrage public
decency in one generation would pass un-noticed in the next: so the jury had to be satisfied
that the advertisements did outrage public decency and that there was an agreement to
outrage public decency. The matter was I think fairly and sufficiently submitted to the jury
for their consideration and their decision.
In giving the judgment of the Court of Appeal Fenton atkinson L.J. said that to establish
guilt it was not necessary to have an actual act which has to be performed in public: the
Court expressed the view that with a paper of this kind with a wide circulation being read
at any one time by numerous people in different places there is no difference in principle
between that and, let us say, a blue film which is seen by only two or three people at one
particular time.
The magazines here in question were sold in public to any and every member of the public
who cared to buy. The expectation*660 of those who in agreement arranged such public
dissemination must have been that members of the public who bought would open the
magazines that they bought and would read and peruse the inside pages. If, in the opinion
of a jury, what was inside could rationally be regarded as lewd, disgusting and offensive and
if, in the opinion of a jury, the sense of decency of members of the public would be outraged
by seeing and reading what was presented to them to see and read, I can hardly think that
a prosecution must fail if but only if and only because the outside page was by itself
harmless.
I would dismiss the appeal.
Lord Diplock:
My Lords, this appeal raises two questions of outstanding importance that call for
consideration by this House. I shall confine myself to them. The first is: whether the
decision of the majority of this House in Shaw's case upon the count which charged a
conspiracy to corrupt public morals (1961) 45 Cr.App.R. 113; [1962] A.C. 220 was right. I
think that it was wrong. The second is: ought it to be followed even if it was wrong? I think
that it should not.
For my part, I am unable to draw the distinction which has commended itself to some of
your Lordships between a conspiracy to corrupt public morals, which is the subject of the
first count against the appellants, and a conspiracy to outrage public decency, which is the
subject of the second count. The old judicial dicta which in Shaw's case ( supra ) were
treated as the historical justification for holding that an agreement to do anything which
tended to corrupt public morals amounts to a crime at common law, do not, as I hope to
show, draw any distinction between conduct or conspiracies directed against public morals
and conduct or conspiracies directed against public decency. As a matter of decision Shaw's
case ( supra ) was limited to conspiracies to corrupt public morals: as a matter of judicial
reasoning its scope cannot logically be so confined. To bow to the decision, yet to deny the
legal reasoning upon which it was based, is to draw the kind of distinction which reflects
discredit on the English legal system. To deliver the Law Lords *661 from the temptation to
do this was one of the objects of the change of policy announced in July 1966.
If the reasoning of the majority in Shaw's case ( supra ) is to be followed, I do not think
that any of the detailed criticisms which have been directed to the adequacy or accuracy of
the judge's exposition to the jury of the law on either count in the instant case justify

allowing this appeal. It is always easy to niggle at isolated words and phrases used in an
impromptu summing-up. What matters is that the jury should have had their minds fairly
directed to what it is that they have got to decide. The judge was bound to accept and to
apply the reasoning in Shaw's case ( supra ) and to direct the jury accordingly. I think he
did so adequately. Consequently this appeal can, in my view, only succeed on either count if
your Lordships are prepared to exercise the power which this House alone possesses of
saying that the reasoning in Shaw's case ( supra ) is wrong.
The relevant count in Shaw's case ( supra ) was laid in conspiracy, as are both the counts in
the instant case. The device of charging a defendant with agreeing to do what he did
instead of charging him with doing it has become fashionable in recent years. It may have
had a tendency to corrupt judicial reasoning, to which I shall revert later. But my major
criticism of the reasoning of the majority of this House in Shaw's case ( supra ) does not
depend upon the charge having been one of conspiracy. That reasoning can be reduced to a
simple syllogism. Every agreement to do any act which tends to corrupt public morals is a
crime at common law. Shaw's act of publishing advertisements for prostitutes soliciting
fornication tended to corrupt public morals. Therefore Shaw's agreement to do that act was
a crime at common law. In English law it is for the judge alone to determine whether the
major premise in such a syllogism is true. The truth of the minor premise is a question for
the jury, if there is any material upon which a rational being could hold it to be true. I do
not criticise the jury's verdict in the instant case upon the minor premise. I deny the
conclusion only because I am convinced that the major premise is false.
In Shaw's case (supra) the Court of Appeal upheld the *662 conviction on the charge of
conspiracy to corrupt public morals upon the broad ground that it is an established
principle of common law that conduct calculated or intended to corrupt public morals (as
opposed to the morals of a particular individual) is an indictable misdemeanour. On this
view, Shaw's conduct in publishing advertisements of services offered by prostitutes was in
itself a crime. Were it not for the statutory prohibition on such proceedings contained in
section 2 (4) of the Obscene Publications Act 1959, which it was held did not extend to
prosecutions for conspiracy, it would have been unnecessary to charge him with his prior
agreement with the prostitutes to publish their advertisements instead of charging him with
the substantive offence of publishing them. As I read Viscount Simonds' speech in the
appeal to this House, he too was of this opinion. What he there said was expressly
concurred in by my noble and learned friends, Lord Hodson and Lord Morris of Borth-y-Gest,
though Lord Tucker, while not rejecting this view, preferred to rest his decision upon the
ground that any agreement to do an act which is calculated to cause public injury is a
conspiracy indictable at common law. Is it not meet and just, that when the wicked sort of
men have excogitated anything with great labour of wit and cunning, so as it may seeme
they have drawne a quintessence of mischief, and set the same abroach to the remedilesse
harm of the good and quiet subject; Is it not meet and just (I say) that authoritie itselfe
also should straine the line of justice beyond the ordinary length and wonted measure to
take exquisite avengement upon them for it? Yea is it not necessary that the most godly,
honourable, wise and learned persons of the land should be appealed unto, that they may
apply new remedies for these new diseases? This anticipatory paraphrase of Viscount
Simonds' reasoning in Shaw's case ( supra ) was written by Lambard in 1591 in praise of
the development of the criminal law under the Tudor Monarchy by the Council and its
judicial arm, the Court of the Star Chamber. The new misdemeanours created, as well as
cognisable, by the Star Chamber during a period when the distinction between legislative,
executive and judicial functions had not yet been clearly *663 drawn, became part of the
common law. After the abolition of the Star Chamber in 1641 they continued to be
prosecuted, but in the Courts of common law. After the Restoration in 1663, upon an
indictment for conduct which appears to have involved blasphemy as well as indecent

exposure, the Court of King's Bench in Sidley's case (1 Sid. 168 ) asserted in unqualified
terms its function, in succession to the Star Chamber, as Custos morum de touts les
subjects le Roy and its consequent power to punish such profane actions, contrary alike to
modesty and Christianity, as those committed by Sir Charles Sidley. This is the earliest
authority relied upon in Shaw's case ( supra ) for the proposition that there is such an
offence as a conspiracy to corrupt public morals. But there was no suggestion of conspiracy
in Sidley's case ( supra ). The Court does not appear to have differentiated between
offences against religion and offences against morals. The report, one of the last to be
written in Norman French, is little more than a note about the case. It is not, in my view,
proper to regard it today as authority for any wider proposition than that indecent exposure
may amount to a common law misdemeanour.
The wide claim of the Court to be custos morum of all the King's subjects was used in the
following century principally to combat the argument that offences against religion or
morality were cognisable only in the ecclesiastical Courts, whose jurisdiction over the laity
had by that time decayed. In Curl'scase (1727) 2 Stra. 788 ; 1 Barn K.B. 29, the earliest
successful prosecution for obscene libel, the report in Strange , which contains notes of the
argument but not of the final judgment, indicates that the claim to be custos morum was
relied upon by the Court in justification of its assertion of jurisdiction over the offence. The
report inBarnardiston , which is apparently a note of the final judgment of the Court, shows
that the grounds upon which the publication of an obscene libel was held to be an offence
were that religion was part of the common law; and therefore whatever is an offence
against that is evidently an offence against the common law. Now morality is the
fundamental part of religion and therefore whatever strikes against that must for
the *664 same reason be an offence against the common law. It is significant that the
authority relied upon in Barnardiston's report of the judgment was not Sidley's case
( supra ) but Taylor's case (1676) 1 Vent. 293 which was a prosecution for blasphemythe
first to be tried in a temporal Court.
Curl's case ( supra ) is the second in the trilogy of early cases relied upon in Shaw's case
( supra ). Again, it was not one of conspiracy and the reports of the judgment are
unsatisfactory. It is authority for the proposition that it is a common law misdemeanour to
publish an obscene libel, but the reasoning by which the Court reached this conclusion
would no longer be acceptable ( cf. Bowman v. Secular Society [1917] A.C. 406 ).
The third of the trilogy of cases relied upon in Shaw's case ( supra ) is Delaval (1763) 3
Burr. 1434 . This was a case of conspiracy to procure a girl of seventeen to become the
mistress of Sir Francis Delaval. It was strenuously argued that this was an offence
cognisable only in the ecclesiastical Courts. In asserting the jurisdiction of the Court of the
King's Bench , Lord Mansfield cited as precedents Sidley's case ( supra ) and Curl's case
( supra ), both of which he referred to alike as offences against good manners. He appears
to treat this expression as synonymous with public decency, which no doubt included
morality but was not limited to that. This is borne out by the later case of Lynn (1788) 2
Term Rep. 733 where the defendant was indicted with exhuming a corpse for the purposes
of dissection. Again, it was argued that interference with a corpse was an ecclesiastical
offence only; but the Court held that the offence was cognisable in a criminal Court as
being highly indecent andcontra bonos mores . No question of morals here arose. Nor was
there anything public in the ordinary sense about the conduct of the defendants in
Delaval's case ( supra ) or Lynn's case ( supra )except that they were found out.
In Delaval's case ( supra ), Lord Mansfield relied upon the fact that the charge was one of
conspiracy as a ground for asserting lack of jurisdiction in the ecclesiastical Courts over the

offence. I shall revert to this later; but it was no more than an additional reason why
jurisdiction lay in the Court of King's Bench. The *665 three authorities, one of them
unreported, which he cited for his general proposition that the Court has the
superintendency of offences contra bonos mores were none of them cases of conspiracy.
What effect ought one to give today to general pronouncements of this kind appearing in
the rudimentary reports of seventeenthand eighteenth-century cases of offences against
public decency or morals? Viewed in their historical setting of the decay of the jurisdiction of
the ecclesiastic Courts to punish the laity effectively for sins against the precepts of the
established Church, their purpose was to assert some principle to justify the assumption by
a temporal Court of jurisdiction to treat as a common law misdemeanour the particular kind
of sinful conduct with which the defendant was charged. But for the argument that in these
particular cases the jurisdiction of the temporal Court was ousted, it would have been
considered sufficient in those days to rely upon the broader principle stated in Hawkins'
Pleas of the Crown (Bk. ii, c. 25 , s. 4) and expressly approved by Lord Mansfield in
Bembridge (1783) 3 Doug. 327 : all misdemeanours whatsoever of a public nature against
the common law may be indicted. Certain it is that the Courts were not asserting
that any conduct which was contrary to religion, morals, decency or good manners was
indictable as a misdemeanour at common law. This is apparent from the fact that adultery,
although expressly prohibited by the Seventh Commandment, never became a crime; and
from the concession made in the argument of the attorney-General in Curl's case ( supra )
as reported by Strange, that particular acts of fornication are not punishable in the
temporal Courts and bawdy Houses are. It was thus only certain kinds of conduct, which
they regarded as particularly reprehensible, that the judges of that period were prepared to
treat as crimes. It would seem to have been considered that the conduct must have some
public element in it, either in its consequences or in the manner of its commission. But
this was a concept common to other misdemeanours which originate from the same period.
There is no doubt that during this period the Court of King's *666 Bench not infrequently
asserted the power, which had previously been freely exercised by the Star Chamber, to
treat as misdemeanours conduct of various kinds which had not previously been punishable
criminally. They exercised it throughout the whole field of the criminal law not already
covered by existing felonies at common law or those created by statute. Parliament was
largely content to leave this legislative field to the Courts, by which historically it had been
developed; and the doctrine of precedent was still in its formative stage in the Courts
themselves. In Bembridge ( supra ), which was a charge of misbehaviour in a public office
under the Crown, Lord Mansfield brushed aside the argument that there was no precedent
of a prosecution for the kind of conduct with which the defendant was indicted: it is said
there is no precedent. The law does not consist of particular cases but of general principles
which are illustrated and explained by these cases. His own view, which he had advanced
as a Law Officer and had re-affirmed at the close of his life, was that reform of the law was
better undertaken by the judges than by the legislature. He did not hesitate to act upon it in
his judgments.
At a time when Parliament met infrequently and government was not provided with
adequate administrative machinery, such pretensions on the part of the judiciary to
determine what conduct ought to be punished criminally may well have been justified in the
interests of public order and proper administration of the government service. They
continued to be acted upon well into the nineteenth century. Moore (1832) 3 B. & Ad. 184 ,
which originated the misdemeanour of public nuisance, is an example.

But by the middle of the nineteenth century the concept of the separation of judicial and
legislative powers in the field of criminal law had been accepted under the influence of such
institutional writers as Bentham and Austin, who strenuously denied Lord Mansfield's claim
that the judiciary were the appropriate body to reform the law. Immediately after the first
Reform Act Parliament had turned its attention to the criminal law. After the establishment
of regular police forces summary offences, created by Act of Parliament, covered the field of
public *667 order. The first Royal Commission on the Criminal Law was appointed in 1833.
Of this Austin was himself a member. Its reports and those of its successor continued to
appear until 1845 and formed the basis of the seven consolidating and amending Acts of
Parliament of 1861. Largely because of the opposition of the judges these Acts did not
expressly repeal, and so left intact, existing common law offences even within the field of
offences with which they dealt. This was a consequence of the decision in Carlile (1819) B. &
Ald. 163 which was later incorporated in the Interpretation Act 1889 as section 33. The
criminal law Acts of 1861 did not purport to deal with offences against religion, morals or
decency. But times had changed and the pretensions of the judges to extend the criminal
law had changed with them. With the growth of reliable law reports precedent had assumed
its modern role. The use made of precedent by Parke J. and his fellow judges in Mirehouse
v. Rennell (1833) 1 Cl. & F. 527 , which was cited in Shaw's case ( supra ), is already in
marked contrast to the minor role ascribed to it by Lord Mansfield fifty years before in
Bembridge ( supra ). Crime at common law had long been fluid. Now it had crystallised.
Your Lordship's attention has not been drawn to any case decided in the next hundred
years, until Shaw's case ( supra ) itself, in which conduct has been held to constitute a
misdemeanour at common law on the ground that it was contrary to religion, morals or
decency, unless it could be brought within some narrower classification of conduct which
had previously been held to constitute a misdemeanour at common law. I will not recite the
numerous cases of this period which have been referred to in argument. Suffice it to say
that, in my view, all of those in which the defendant was held to be guilty of a criminal
offence against public decency or morals fall into one or other of the following five
categories, for all of which precedents could be found in cases decided before
1832: viz. publishing an obscene libel; conducting an obscene or indecent public exhibition;
keeping a disorderly House; indecent exposure of the person; procuring a woman to be a
prostitute.
*668
Civil liability is concerned with the relationship of one citizen to another; criminal liability is
concerned with the relationship of a citizen to society organised as a state. Society is now
able to express its collective view as to what conduct merits punishment by the state
through a legislature now representative of all adult citizens. It is not, in my view,
compatible with the development of English constitutional and criminal law over the past
century that your Lordships should assume the role of the most godly, honourable, wise
and learned persons of the land and re-assert a power to straine the line of justice beyond
the ordinary length and wonted measure to take exquisite avengement upon those whose
conduct you regard as particularly reprehensible, though Parliament has not found it
necessary to proscribe it and no previous precedent for punishing it can be found.
Nor do I think that it was open to the House in Shaw's case ( supra ) to select some
particular field of mischief in which the power of the judiciary to create new crimes survives.
The general statements to be found in the cases up to the first part of the nineteenth
century as to why the judges thought fit to punish some particular kind of conduct, if they
justify anything, justify too much. If these are to be the authority for what was done in

Shaw's case ( supra ), they must likewise be authority for a general power to punish any
conduct which the Court considers injurious to the public. And if, as I think, it is not open to
your Lordships upon these authorities to select conduct affecting decency or morals as the
only field of conduct in which a power to create new offences survives, a fortiori it seems to
me impossible to narrow the field still further so as to exclude conduct which offends
decency while including conduct which corrupts morals. Is, then, the claim that Shaw's
conduct, or that of the defendants in the instant case, amounted to a misdemeanour
improved by attaching to it the protean label of conspiracy? The suggestion that it is finds
some support in the judgment of Lord Goddard C.J. in Newland (1953) 37 Cr.App.R. 154;
[1954] 1 Q.B. 158 . But the breadth of Lord Goddard's statement of what amounted to a
criminal conspiracy was disapproved of by your *669 Lordship's House in Director of Public
Prosecutions v. Bhagwan [1972] A.C. 60 at p. 81.
The crime of conspiracy in its modern sense was a creation of the Star Chamber which
was later adopted by the Courts of common law. It would appear to have been the result of
the confluence of three streams of development which led to its including a wide variety of
offences of which the common characteristic was that the overt act, which was a
necessary ingredient of any crime at common law, was provided by the conduct of the
conspirators in agreeing with one another to do that which they agreed to do. This was
established as early as 1611 in The Poulterers' case (9 Co.Rep. 55b ).
The stream which has the earliest historical source is that which originated in the writ of
conspiracy instituted by thirteenth-century statutes to provide a remedy against two or
more persons who had acted in concert to indict or appeal another person of felony, and
that other person had been acquitted by the verdict of a jury. In the field of civil wrongs this
was the origin of the modern tort of malicious prosecution from which the need to show an
agreement between two or more persons ultimately disappeared. But where agreement
could be shown it also became in the sixteenth century a misdemeanour the scope of which
was extended by the Court of Star Chamber to include any conspiracy between two or more
persons to injure another by misuse of the process of the Courts. The Poulterers' case
( supra ) itself is an example. Today these would be classified as conspiracies to pervert the
course of justice. In the eighteenth century, however, this kind of conspiracy was extended
to agreements to inflict unjustifiable economic injury upon another person in the way of his
trade or livelihood, in other ways than by misuse of the process of the Courts. The earlier
instance appears to be Macklin's case (1809) 2 Camp. 372n ., a decision of Lord Mansfield
that a conspiracy to hiss an actor off the stage was indictable. It was cases involving this
kind of conduct that were cited by Lord Goddard C.J. in Newland , at pp. 163 and 165 of the
respective reports, to illustrate his proposition: It is well known that there may be acts
which, if done by an individual, *670 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. In the second half of the nineteenth century this gave rise to the
modern tort of conspiracy; but there is no modern instance of an indictment for it as a
misdemeanour. In any event neither Shaw's case ( supra ) nor the instant case can be
brought within this category.
The second and main stream which contributed to the misdemeanour of conspiracy has no
remoter source than the Court of Star Chamber itself. The criminal law in medieval times
took account only of completed crimes. An attempt to commit a crime, if it was
unsuccessful, was not in itself any offence. It was the Court of Star Chamber which first
punished attempts as being in themselves misdemeanoursinitially, Sir William Holdsworth
suggests, with the object of putting down the practice of duelling. An attempt required
some overt act of preparation for the substantive crime and it was a natural development of

this concept to treat an agreement between two or more persons to do something as an

overt act by each of them preparatory to doing it. Viewed as analogous to an attempt, an
agreement in order to be indictable as a misdemeanour had to be a step towards doing
something which, if accomplished, would itself be indictable either as a felony or a
misdemeanour. But in the period in which the misdemeanour of conspiracy was being
developed by the Star Chamber, the distinction between transgressiones which were only
private wrongs and those which were only crimes or were both private wrongs and also
crimes was in the course of being drawn. Some there were for which the former criminal
remedy obtainable by presentment to a jury had in late medieval law fallen into desuetude
in favour of the more effective civil remedy provided by original writ of trespass or trespass
on the case. For these, particularly in the field of trespass to the person, new criminal
remedies were provided in the form of misdemeanours involving violence cognisable by the
Court of Star Chamber. For other wrongs, particularly in the field of fraud, the medieval
common law gave no remedy either civil or criminal. A man was regarded as having only
himself to blame *671 if he did not take sufficient precautions to avoid being deceived by
another. As the law was developed in the Star Chamber and later by the common law
Courts, all fraudulent practices in which there were some public element became the
misdemeanour of a common law cheat. I shall return to this particular offence when I
discuss the third stream which has contributed to the misdemeanour of conspiracy. In
connection with the second stream it is sufficient to take note that, by treating conspiracies
as constituting attempts to do what the conspirators had agreed upon, any enlargement of
the categories of acts which constituted misdemeanours also operated to enlarge the
categories of agreements which constituted indictable conspiracies, and this process
continued throughout the sixteenth to the early nineteenth century, as I have already
mentioned.
The classical definition of agreements which became criminal conspiracies under this
doctrine was that propounded by Willes J. inMulcahy v. R. (1868) L.R. 3 H.L. 306 at p. 317:
A conspiracy consists in the agreement of two or more to do an unlawful act, or to do a
lawful act by unlawful means. So long as such a design rests in intention only it is not
indictable. When two agree to carry it into effect, the very plot is an act in itself, and the
fact of each of the parties, promise against promise, actus contra actum , capable of being
enforced if lawful, punishable if for a criminal object or for the use of criminal means. It is
clear, from the words that I have italicised, that in the earlier oft-quoted part of this citation
Willes J. was using the word unlawful in the sense of criminal. But because there are
certain categories of acts which are not criminal if done by one person alone but are
criminal if done by two or more acting in concert, there has been a tendency to regard
unlawful act and unlawful means in the definition as including acts which, though not
criminal in themselves, are discouraged by the common law in other ways, either by
affording a civil right of action for damages in tort to the victim of them or even by mere
refusal of the aid of the Court to the enforcement of a contract to commit them.
My Lords, it may be rational to hold that there are some *672 kinds of acts which, if done
by a number of people acting in concert, have consequences sufficiently harmful to call for
punishment by the State, but which, if done by one person acting on his own, have
consequences that are not grave enough to demand penal sanctions. But it is the height of
sophistry to say that the doing of the acts in concert which alone can have harmful
consequences is not what the law regards as meriting punishment, but that the prior
agreement to do them is. This is to turn the common law doctrine of overt act, which was
the origin of the crime of conspiracy, upon its head. In most cases of conspiracy the prior
agreement is itself only inferred from the acts which have been done in pursuance of it.
They are a consequence of the conspiracy, not a step taken towards it; whereas a

conspiracy, like an attempt, became a crime because it was a step taken towards the
commission of a crime.
This misconception, as I believe it to be, results from a failure to identify a third stream
which added its waters to those of the other two I have already mentioned to produce the
modern crime of conspiracy. This was the recognition in earlier centuries of certain limited
categories of conduct which were treated as crimes if done by persons acting in concert, but
as giving rise only to a civil remedy if done by one person alone. These were mainly, if not
exclusively, within the growing field of trade and commerce and of employment.
With the decay of the medieval guild system as an effective means of regulating the
practices of those engaged in particular trades the growing void was filled in many instances
by statute, but also by the Courts, using as means of control the new misdemeanour of
conspiracy. The power of the feudal magnate had been broken, but with the growth of trade
under the Tudor monarchy lesser men, acting in combination to promote their sectional
interest, could, it was thought, injure the economy of the realm. In Starling (1664) 1 Sid.
170 a conspiracy among brewers to brew small beer instead of strong in order to reduce the
revenue from excise was held to be criminal; and in Journeyman Tailors of Cambridge
(1721) 8 Mod. 10 a conspiracy among workmen to raise their wages was held to be
indictable *673 as a misdemeanour. It was stated in that case (at p. 11): a conspiracy of
any kind is illegal, although the matter about which they conspired might have been lawful
for them, or any of them, to do if they had not conspired to do it, as appears in the case of
The Tubwomen v. The Brewers of London . Despite the sweeping nature of this statement
this type of misdemeanour was later confined to agreements affecting trade or employment.
It is to be distinguished from the narrower conspiracy to injure an individual in his trade or
employment to which I have previously referred. The bitter legacy it left in the field of
industrial relations in the nineteenth century is not likely to encourage your Lordships to
extend it to other fields.
The second category of offence which was indictable only if committed by two or more
persons acting in concert was the product of the more general misdemeanour of a common
law cheat. Fraud was a wrong for which there was also a civil remedy. The distinction
between fraud that was indictable and fraud for which the only remedy was a civil action
depended upon there being some public element in the fraud. In Wheatly (1761) 2 Burr.
1125 , which was an indictment for selling short measure of beer, Lord Mansfield (at p.
1127) stated the reasons why this was only a civil wrong and did not amount to a criminal
offence: The offence that is indictable must be such a one as affects the public. As if a man
uses false weights and measures and sells by them to all or many of his customers, or uses
them in the general course of his dealing; so if a man defrauds another under false tokens.
For these are deceptions that common care and prudence are not sufficient to guard
against. So if there be a conspiracy to cheat: for ordinary care and caution is not guard
against this. This statement that the existence of a conspiracy can supply the necessary
public element to convert a civil wrong into a criminal offence is restricted to cases of
deceit and the reason by which it is justified is similarly restricted. The doctrine was not
extended to other civil wrongs, as for instance to trespass to land (see per Lord
Ellenborough in Turner (1811) 13 East 228 at p. 231) unless there was an intention to use
force, which would amount to a criminal offence in its own right. See *674 Rowlands
(1851) 17 Q.B. 671 where Lord Campbell C.J. criticised the actual decision in Turner
( supra ) but only upon the ground that the offence charged had been of a conspiracy to use
force in the course of trespass.

This was the origin of the common law misdemeanour of conspiracy to defraud as illustrated
in Berenger (1814) 3 M. & S. 67 , a conspiracy to raise the price of public funds by
spreading false rumours, and Aspinall (1876) L.R. 2 Q.B. 48 a similar conspiracy to obtain a
quotation on the Stock Exchange for the shares of a company. But the essential element in
all these conspiracies was an intention to deceive not merely an individual, but a section of
the public. Distinguishable from these are cases of conspiracy to deceive a department of
government. Here, independently of conspiracy, it had been laid down in Bembridge
( supra ) that, if the victim of the deception were a government department, this sufficed to
supply the public element. Where there is breach of trust, fraud or imposition in a matter
concerning the public, though as between individuals it would only be actionable, yet as
between The King and the subject, it is indictable. The cases cited by Lord Goddard in
Newland ( supra ), other than Manley (1932) 24 Cr.App.R. 25; [1933] 1 K.B. 529 and those
about conspiracies to injure a man in his trade or employment to which I have already
referred were all examples of this kind of fraudulent deception, and could have been
justified upon this ground even if the charge had not been also one of conspiracy.
My Lords, these authorities for holding that agreements to do acts not in themselves
criminal if done by one person on his own may nevertheless amount to criminal conspiracies
have, I believe, always been restricted to the field of trade and employment and, in the case
of those which have survived into the twentieth century, to agreements to defraud or to
deceive. Save to this limited extent, they do not, in my view, justify the continued existence
in the Courts of any power to create new criminal conspiracies to do acts of a kind which
have not previously been held to be criminal in themselves. This is not to say that new ways
of fraudulent deception may not be devised. Agreements *675 to embark upon them will
fall within the category of criminal conspiracies. But, as in Director of Public Prosecutions v.
Bhagwan [1972] A.C. 60 , so in the instant case, there is no question of there having been
any fraud or deception in what the defendants did. If what they did was not criminal in
itself, the law of criminal conspiracy does not, in my view, enable this House to convert what
they did do into a crime by attaching to their prior agreement to do it the label of
conspiracy and charging them with that instead.
My Lords, this survey of the old authorities, of which I have chosen for citation only a few,
has driven me to the conclusion that until the decision of this House in Shaw's case ( supra )
there never had been a generalised crime known to the common law as a conspiracy to
corrupt public morals, which embraces every agreement to do anything which a jury thinks
is likely to have that effect. A number of different kinds of conduct which had this tendency
or were offensive to public decency had, by the mid-nineteenth century, crystallised into
specific crimes; and agreements to commit these specific crimes were criminal conspiracies
which, after the passing of the Indictments Act 1915 , came to be charged under the
generic description of a conspiracy to corrupt public morals or a conspiracy to outrage
public decency. The constitutional setting in which judges in earlier centuries claimed the
power to create new criminal offences has long since passed away. To have re-asserted it in
1962 was, in my view, an unacceptable judicial usurpation of what has now become an
exclusively legislative power.
If the decision in Shaw's case ( supra ) was wrong, as I am satisfied it was, should it
nonetheless be followed, or ought it to be overruled? The Courts should be the vigilant
guardians of the liberty of the citizen. If this House in its judicial capacity has mistakenly
curtailed the liberty of the citizen to do what he wants to do, by holding that if he does it he
is liable to be punished by the State, it seems to me self-evident that this House should
correct its mistake unless there are compelling reasons to the contrary. It is suggested that
to overrule Shaw's case ( supra ) would bring uncertainty to the criminal lawa field of

law *676where certainty is particularly desirable. Shaw's case upon the count which
charged him with conspiring to corrupt public morals did make it certain that to publish
advertisements offering the services of prostitutes was a crime irrespective of whether the
advertisements themselves were obscene within the meaning of the Obscene Publications
Act 1959. To overrule Shaw's case (supra ) will make it equally certain that it is not. The
vice of Shaw's case ( supra ) was that it opened a wide field of uncertainty as to what other
conduct was also criminal. Previously it was possible for a citizen to regulate his conduct in
the knowledge that if what he was minded to do was not specifically prohibited by a criminal
statute and did not fall within any of those equally specific categories of conduct which had
already been held to constitute offences at common law, he could do it without risk of
incurring punishment even though most of his fellow-citizens might be shocked at it as
immoral or indecent. As a result of Shaw's case ( supra ) it would seem that any conduct of
any kind which conflicts with widely held prejudices as to what is immoral or indecent, at
any rate if at least two persons are in any way concerned with it, may ex post facto be held
to have been a crime.
It is urged that even if the decision in Shaw's case ( supra ) was an improper exercise of
legislative power by the House acting in its judicial capacity, it has now been ratified by the
legislature itself, because the legislature has allowed ten years to pass without taking steps
to overrule it. It seems to me that to infer parliamentary approval from parliamentary
inaction is to take an unrealistic view of the pressure on parliamentary time under party
government and of the way in which priorities in competing claims for time for legislation
are settled. The suggestion that Parliament tacitly approved Shaw's case ( supra ) by
omitting to deal with it when the Obscene Publications Act 1959 was amended in 1964 has a
particularly hollow ring in the light of the disclosure of the assurance given to Parliament by
a law officer of the Crown in the course of the debates on the amending Bill that a
conspiracy to corrupt public morals would not be charged so as to circumvent the
statutory *677 defence in section 4 of the Act of 1959which was precisely what had been
done in Shaw's case ( supra ).
Since every private citizen has the right to initiate a prosecution for criminal conspiracy and
the executive government has no power to prevent his doing so, it is difficult to see how
effect could be given to this assurance except, perhaps, by unprecedented use by the
attorney-General of the power of entering a nolle prosequi after the indictment had been
drawn, and no steps seem to have been taken to draw the assurance to the attention of the
police authorities by whom prosecutions are generally undertaken in the way in which the
case was presented to the jury. The instant prosecutions appear to be in breach of it. Yet it
seems not improbable that it influenced Parliament in deciding on the contents of the
amending Act.
Reliance is also placed upon section 2 (4) of the Theatres Act 1968 , as parliamentary
recognition, since Shaw's case ( supra ), of the existence of an offence at common law of
conspiring to corrupt public morals in respect of an agreement to present or give a
performance of a play. But paragraph ( a ) of the same subsection also recognises that if
such a performance were obscene it would fall within the category of conducting an obscene
public exhibition, which is one of the five categories of conduct which constitute crimes
against public decency or morals. An agreement to commit any such crime has, since the
Indictments Act 1915, been charged under the general description of a conspiracy to
corrupt public morals. Section 2 (4) of the Theatres Act 1968 in my view, does no more
than adopt this description of the offence of conspiring to conduct an obscene or indecent
public exhibition. It does not constitute any parliamentary approval of the more general
offence which was held to exist in Shaw's case.

Next it is said that the circumstance that there have been at least thirty successful
prosecutions for conspiracies to corrupt public morals following the decision in Shaw's case
( supra ) supplies an additional reason for not overruling it. Your Lordships were informed
that most of these arose out of the exhibition of obscene films to members of the public,
which is not a statutory*678 offence under the Obscene Publications Acts 1959 and 1964.
This conduct too would constitute the well-established common law misdemeanour of
conducting an obscene or indecent public exhibition and a conspiracy to commit it would
have been a misdemeanour apart from the decision in Shaw's case ( supra ).
Your Lordships need have no fear that to overrule Shaw's case ( supra ) would subject an
unwilling public to forced participation in immoralities of exposure to indecencies which are
indulged in by a minority in a permissive age. Most conduct which is offensive to public
morals or public decency is prohibited by statute or falls within the ambit of some specific
misdemeanour at common law which has long been recognised in decided cases. Having
regard to the contents of some of the advertisements which were the subject-matter of the
charges in the instant case and to the provision of facilities for forwarding to the advertisers
answers to such advertisements, the defendants might well have been guilty of an offence
under the Obscene Publications Acts of 1959 and 1964 or of the common law misdemeanour
of inciting or procuring the commission of the statutory offence of doing acts of gross
indecency with male persons under the age of twenty-one. But, if they were to be found
guilty of those offences, they were entitled to be charged with them and to have the verdict
of a jury properly instructed by a judge upon the legal character of those particular
offences. They were not so charged, the jury was not so instructed. The consideration that
the defendants in the instant case may have been undeservedly lucky if Shaw's case
( supra ) is overruled ought not, in my view, to deter this House from correcting an
unfortunate mistake as to the common law which for the reasons that I have given I believe
it made ten years ago.
I, for my part, would have allowed these appeals on the first count as well as on the second.
Lord Simon of Glaisdale
My Lords, Count 1 : Conspiracy to corrupt public morals . This count, on which the
appellants were convicted, reads as follows in the indictment: Statement of offence:
Conspiracy to corrupt public morals. Particulars *679 of offence: Knuller (Publishing,
Printing and Promotions) Ltd., David Hall, Peter Stansill and Graham Keen, between January
1 and May 30, 1969, within the jurisdiction of the Central Criminal Court, conspired together
and with persons inserting advertisements in issues of a magazine entitled IT under the
heading MALES, and with other persons unknown by means of the said magazine and the
said advertisements to induce readers thereof to meet those persons inserting such
advertisements for the purpose of sexual practices taking place between male persons and
to encourage readers thereof to indulge in such practices, with intent thereby to debauch
and corrupt the morals as well of youth as of divers other liege subjects of Our Lady the
Queen.
In Shaw v. D.P.P. (1961) 45 Cr.App.R. 113; [1962] A.C. 220 your Lordship's House,
dismissing an appeal from the Court of Criminal Appeal, upheld a conviction on a count of
conspiracy to corrupt public morals; and in so doing established as a matter of law that
such an offence is known to the common law (Viscount Simonds at pp. 147 and 266 of the
respective reports). In that case the conspiracy consisted of an agreement to publish a
pamphlet (entitled The Ladies' Directory) in which female prostitutes advertised their
various sexual services. In the course of the speeches in that case Viscount Simonds said

(pp. 149 and 268): 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 Parliament finds time to deal with such
conduct? I say, my Lords, that if the common law is powerless in such event, then we
should no longer do her reverence, and Lord Tucker said (pp. 169 and 285): 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? Lord Morris of Borth-y-Gest (pp. 176 and 291) and Lord Hodson (pp. *680 178 and
292) expressly agreed with the speeches of Lord Simonds and Lord Tucker. But the
passages I have just cited were obiter . Obiter dicta are a source of law, though not a
compelling source in the way that the ratio decidendi of a case is within the doctrine of
precedent; and the Court of Appeal in the instant case naturally attached importance to
the dicta I have cited coming from the sources they did and concurred in as they were.
However, the trial judge in the instant case did not direct the jury with reference to these
passages; but left it at large to the jury to determine on the evidence whether a conspiracy
to corrupt public morals had been proved. One of the advertisements ran: Young gay
[ i.e. homosexual) male desperately needs to earn 40 as soon as possible. Will do anything
legal. Genuine replies only please. In its context this could hardly be read as other than an
offer of sexual prostitution; it differs from the advertisements in The Ladies' Directory only
in that it was apparently made by a male rather than a female. Another of the
advertisements in the instant case ran: Young dolly boy seeks sugar daddy. Photo
appreciated.
It was at one stage argued before your Lordships on behalf of the appellants that the Sexual
Offences Act 1967 , had as regards the instant case abrogated the decision in Shaw v. D.P.P.
( supra ) or had made the instant case distinguishable from it. Section 1 (1) of the Sexual
Offences Act 1967 reads: Notwithstanding any statutory or common law provision, but
subject to the provisions of the next following section, a homosexual act in private shall not
be an offence provided that the parties consent thereto and have attained the age of
twenty-one years. (The next following section provided that homosexual acts between
members of the crews of United Kingdom merchant ships should continue to be offences.)
The argument for the appellants based on the Sexual Offences Act 1967 was twofold: first,
that the words Notwithstanding any common law provision were inserted in order to
refer to the common law offence of conspiracy to corrupt public morals by an agreement to
encourage or facilitate private homosexual acts between male persons over twenty-one
i.e. in order to overrule the decision *681 in Shaw v. D.P.P. (supra ) pro tanto ; secondly,
and alternatively, that, Parliament having sanctioned such conduct, it could not be a
conspiracy to corrupt public morals to agree to encourage or facilitate it.
But the phrase Notwithstanding any common law provision was required because
buggery was an offence at common law before it became a statutory offence by virtue of
section 12 of the Sexual Offences Act 1956 . The enactment of a statutory offence, even
though co-terminous with a previous common law offence, does not abrogate such common
law offence (see Interpretation Act 1889, s. 33 ); so that in turn the statutory abrogation of
a statutory offence does not carry with it automatically the abrogation of the (even coterminous) common law offence. The opening phrase was thus required by the very purpose
of section 1otherwise Parliament would have been abolishing the statutory offence of
buggery between consenting adults in private only to leave a coincident common law
offence in beingand this requisite demonstrates the meaning of Parliament in enacting the
opening phrase. But it is in any event inherently improbable that Parliament would have
sought to abolish pro tanto the common law offence of conspiracy to corrupt public morals,

so recently affirmed in your Lordship's House (accompanied by the dicta I have cited on its
application to the situation which would arise after the passing of such a measure as the
Sexual Offences Act 1967 ), in such an oblique and obscure a wayespecially as the
decision of your Lordship's House had in the meantime been a subject of some controversy.
On the contrary, the parliamentary mode in such circumstances is to be seen in a statute
passed in the following session, the Theatres Act 1968 . Section 2 of that Act makes it
generally a punishable offence to present obscene performances of plays (obscene being
statutorily defined). Subsection (4) of section 2 precludes proceedings at common law in
respect of such performances. The relevant words are as follows: (4) No person shall be
proceeded against ( a ) for an offence at common law where it is of the essence of the
offence that the performance was obscene, indecent, offensive, disgusting or injurious to
morality and no person *682 shall be proceeded against for an offence at common law of
conspiring to corrupt public morals, or to do any act contrary to public morals or decency, in
respect of an agreement to present or give a performance of a play. I therefore reject the
argument for the appellants, that the opening words of section 1 (1) of the Sexual Offences
Act 1967 pro tanto reversed the decision of your Lordship's House in Shaw v. D.P.P. ( supra )
and made inapplicable the offence of conspiracy to corrupt public morals pro tanto .
As for the second argument for the appellants founded on the Sexual Offences Act 1967
(namely, that conduct sanctioned by Parliament could no longer be considered as
susceptible of corrupting public morals), although Parliament decided that homosexual acts
in private between persons over the age of twenty-one should no longer be offences either
at common law or by statute, it does not appear that Parliament was even neutral in its
attitude towards such conduct. In the first place, there is the exception of homosexual acts
in merchant ships to which I have already referred. In the second place, notwithstanding
the recommendation of the Wolfenden Committee on which the statute was founded (Cmnd.
247 of 1957), the Act did not extend to Scotland. In the third place, by section 4 it
continues to be an offence for A to procure a male B to commit buggery or an act of gross
indecency with a male C, notwithstanding that both B and C are consenting adults over
twenty-one years of age and that the act is in private. (Indeed, counsel for the Crown
before your Lordships indicated that, if the offence of conspiracy to corrupt public morals
had not been apparently available for indictment of the appellants, he would have included
in the indictment a count of conspiracy to procure homosexual acts; although, since counsel
for the appellants indicated that there would be an answer to such a charge, I must not be
taken as expressing any opinion whether an indictment so framed would be likely to
succeed.) It is, in my view, impossible to spell out of the Sexual Offences Act 1967 any
indication that Parliament regarded the sort of conduct which was the subject-matter of
the *683 indictment in the instant case as no longer susceptible of corruption of public
morals.
In the end counsel for the appellants abandoned any argument that the instant case was
distinguishable from Shaw v. D.P.P. (supra ), either by reason of the Sexual Offences Act
1967 or otherwise; and rested his case on the contention that your Lordships should decline
to follow Shaw v. D.P.P. ( supra ). He did not traverse the field of the case law which was
closely covered in the speeches in Shaw v. D.P.P. ( supra ), but rather argued that it was
objectionable that our law should recognise any such offence as conspiracy to corrupt public
morals. I do not myself find it necessary for judgment in this appeal to express any opinion
whether the decision in Shaw v. D.P.P. ( supra ) was (in an abstract juridical sense) correct
in law or as to its desirability. In my view, the appeal turns on how far your Lordships are
justified in altering the law as previously established.

The sanction for your Lordship's departure from a rule of law laid down by a previous
decision of your Lordship's House rests on an announcement made on July 26, 1966, by
Lord Gardiner L.C. with the approval of all the Lords of Appeal in Ordinary at that time
([1966] 1 W.L.R. 1234 ). The background to, the mode of, and the terms of this
announcement are all of importance to the decision of the instant appeal. Before that
announcement there had been judgments in your Lordship's House to the effect that your
Lordships, sitting judicially, were bound by a previous decision of your Lordship's House in
that capacity: see e.g. Radcliffe v. Ribble Motor Services [1939] A.C. 215 at pp. 226 (Lord
atkin), 235 (Lord Macmillan), 238 (Lord Wright); Nash v. Tamplin & Sons Brewery (Brighton)
Ltd. [1952] A.C. 231 at p. 250 (Lord Reid). This was put on two grounds: first, that a
decision of your Lordship's House, sitting judicially, established the law in such a way that it
was binding on all subjects of the Crown, including your Lordships, so that it could only be
altered by a decision of the entire Parliament ( Beamish v. Beamish (1861) 9 H.L.C. 274 ,
especially at p. 338 (Lord Campbell)); and, secondly, such a rule was necessary *684 in
order to provide the law with desirable certainty ( London Tramways v. L.C.C. [1898] A.C.
375 , especially at p. 380(Lord Halsbury)). The declaration of July 26, 1966 was not made in
the course of decision of a judicial appeal to your Lordshipseven though it is in fact
arguable that, notwithstanding anything said in previous cases, your Lordships are entitled
at common law to depart from previous decisions: cf.the judgment of the Supreme Court of
the United States in Linkletter v. Walker, 381 U.S. 618 (1965) . Nor was the declaration of
July 26, 1966, the subject-matter of statutory enactment. But, since the announcement was
made by the Lord Chancellor, it must be taken to have had general executive approval; nor
was any objection raised elsewhere in Parliament. The new practice announced in the
declaration of July 26, 1966, must therefore, in my view, be considered to be one of those
conventions which are so significant a feature of the British Constitution, as Professor Dicey
showed in his famous work. But it follows, in my respectful submission, that the actual
terms of the declaration must provide essential guidance to your Lordships in making use of
the new freedom vouchsafed by it. These terms were as follows: Their Lordships regard the
use of precedent as an indispensable foundation upon which to decide what is the law and
its application to individual cases. It provides at least some degree of certainty upon which
individuals can rely in the conduct of their affairs, as well as a basis for orderly development
of legal rules. Their Lordships nevertheless recognise that too rigid adherence to precedent
may lead to injustice in a particular case and also unduly restrict the proper development of
the law. They propose therefore to modify their present practice and, while treating former
decisions of this House as normally binding, to depart from a previous decision when it
appears right to do so. In this connection they will bear in mind the danger of disturbing
retrospectively the basis on which contracts, settlements of property and fiscal
arrangements have been entered into and also the especial need for certainty as to the
criminal law. This announcement is not intended to affect the use of precedent elsewhere
than in this House.
*685
I draw particular attention to the words the especial need for certainty as to the criminal
law. I would also cite what my noble and learned friend on the Woolsack said about this
declaration in Jones v. Secretary of State for Social Services [1972] 1 All E.R. 145 at p.
149C: My understanding of the position when this resolution was adapted was and is that
there were a comparatively small number of reported decisions of this House which were
generally thought to be impeding the proper development of the law or have led to results
which were unjust or contrary to public policy and that such decisions should be
reconsidered as opportunities arose. But this practice was not to be used to weaken existing
certainty in the law. The old view was that any departure from rigid adherence to precedent
would weaken that certainty. I did not and do not accept that view. It is notorious that

where an existing decision is disapproved but cannot be over-ruled Courts tend to

distinguish it on inadequate grounds. I do not think that they act wrongly in so doing; they
are adopting the less bad of the only alternatives open to them. But it is bound to lead to
uncertainty for no one can say in advance whether in a particular case the Court will or will
not feel bound to follow the old unsatisfactory decision. On balance it seems to me that
over-ruling such a decision will promote and not impair the certainty of the law. I have also
had the advantage of reading what my noble and learned friend has said about this matter
in the speech which he has prepared in the instant appeal and I agree with it.
But it was argued for the appellants that Shaw v. D.P.P. ( supra ) itself introduced
uncertainty into the law; that overruling it would introduce a greater certainty; so that your
Lordships would not be thereby offending against the limitations of the declaration of July
26, 1966. It was urged, in particular, that leaving it at large to the jury to say whether the
conduct alleged is corrupting of public morals involves that no one can know until a
particular jury returns its verdict whether or not an offence has been committed; whereas
certainty in law demands that any citizen should know in advance whether a contemplated
course of conduct offends against the law. To this argument *686 there are, I think, two
answers. First, this sort of certainty cannot be vouchsafed by a system of law such as ours
which depends in so many of its rules on the finding by a tribunal of fact whether the
conduct in question viewed as a whole has reached a certain standard or degree
frequently, the standard of the reasonable man. Secondly, the type of certainty alleged to be
wanting as a result of the decision in Shaw v. D.P.P. ( supra ) was not the type of certainty
referred to in the declaration of July 26, 1966.
Certainty is a desirable feature of any system of law. But there are some types of conduct
desirably the subject-matter of legal rule which cannot be satisfactorily regulated by specific
enactment, but are better left to the practice of juries and other tribunals of fact. They
depend finally for their juridical classification not upon proof of the existence of some
particular fact, but upon proof of the attainment of some degree. The law cannot always say
that if fact X and fact Y are proved (both of which will generally be known not only to the
tribunal of adjudication, but also, in advance, to the persons involved) legal result Z will
ensue. Often the law can only say that if conduct of a stipulated standard is attained (or
more often, is not attained) legal result Z will ensue; and whether that standard has been
attained cannot be with certainty known in advance by the persons involved, but has to
await the evaluation of the tribunal of fact. This is, indeed, so characteristic a feature of
English law that examples, even though drawn from many different spheres of
jurisprudence, give an inadequate impression of how pervasive it is. Has an act been done,
or a contract performed, or a duty discharged, within a reasonable time? Are goods
reasonably fit for a particular purpose? Are they of merchantable quality? Has the defendant
so conducted himself that a reasonable person would assume that he was making a
representation of fact meant to be acted on? What is a fair price in a quantum meruit ? Has
A exercised proper care for the safety of those to whom the law says he owes a duty of care
(the standard varying according to the legal relationship of the persons in question)? Had B
reasonable and probable cause for arresting C, or preferring a prosecution *687against
him? What sum is required to compensate D for the injuries he has suffered? Has
reasonable notice to quit been given? Has consent to assignment been unreasonably
withheld? Is the proposed assignee a proper and responsible person? Is the damage due to
fair wear and tear? Is the dwelling-house reasonably fit for human habitation? Is it
reasonably required by the landlord for his own occupation? Has a testator made reasonable
provision for a dependant; and, if not, what would be reasonable provision? Is a child in
need of care and protection? Whose custody does the welfare of the child indicate? Has a
husband wilfully neglected to provide reasonable maintenance for wife or child? Has one
spouse behaved in such a way that the other cannot reasonably be expected to continue in

cohabitation? For the purpose of a charge to tax in respect of shortfall in distribution by a

close company, how much was necessary or advisable for the maintenance and
development of the business? Was the expenditure on entertaining an overseas customer
reasonable having regard to all the circumstances? Has the fact that a bankrupt's assets are
not equal to half his unsecured liabilities arisen from circumstances for which he cannot
justly be held responsible? Has he been guilty of culpable neglect in his business affairs?
Has an employer complied with the manifold requirements of the Factories Acts so far as is
reasonably practicable? What is reasonable overtime in industrial law? For the purpose of
the Regulations for Preventing Collisions at Sea, was there in general due regard to the
observance of good seamanship? Was the vessel proceeding at a moderate speed? Was a
proper look-out being maintained? Is it just and equitable that a company should be wound
up or a partnership dissolved? Is a trade mark likely to cause confusion? Is an alleged
infringement of copyright no more than fair dealing with the work? Should a certain
document be disclosed, holding in balance the conflicting public interests of executive
confidentiality on the one hand and the administration of justice on the other? Has E made
reasonable efforts to effect personal service of a writ? Has an applicant under the Limitation
Act 1963 sought advice from a competent person; or *688 alternatively was it reasonable
for him to refrain from doing so? The law does not return an answer in advance to any of
these questions, which arise both at common law and under statute: all must await the
answer of the tribunal. They could be almost indefinitely multiplied.
Nor are such situations limited to the civil law. The breaches of duty under the Factories
Acts give rise to criminal as well as civil liability. Whether conduct causing death falls so far
short of a proper duty of care as to amount to manslaughter cannot be known until the jury
returns its verdict. (In order to establish criminal liability the facts must be such that, in
the opinion of the jury, the negligence of the accused went beyond a mere matter of
compensation between subjects and showed such disregard for the life and safety of others
as to amount to a crime against the State and conduct deserving punishment. It is
desirable that, as far as possible, the explanation of criminal negligence to a jury should not
be a mere question of epithets. It is, in a sense, a matter of degree, and it is for the jury to
draw the line. Bateman (1925) 19 Cr.App.R. at pp. 11, 16, 28 Cox 33 at pp. 36, 40 (Lord
Hewart C.J.)) The driver of a motor vehicle may be accompanied by leading and junior
counsel and by his solicitor as well; but he will still not know whether or not he has
committed the offence of driving in a manner dangerous to the public or without due care
and attention or without reasonable consideration for others or at an excessive speed until
jury or justices so find. Again, in criminal libel everyone must await the jury's adjudication
before it can be ascertained whether the statement complained of was defamatory of the
prosecutor; or, if justification is pleaded, whether publication was for the public benefit.
Similarly with those many offences which depend on whether admitted conduct was
perpetrated dishonestly. Again, did the accused convene an assembly in such a manner as
to cause reasonable people to fear a breach of the peace? Did the alleged blackmailer have
reasonable grounds for making the demand and was the use of menaces a proper means of
reinforcing it? ( Theft Act 1968 , s. 21 .) Was it a public mischief that the accused conspired
to effect? Did the accused publish *689 an article or perform a theatrical play which had a
tendency to deprave or corrupt? If so, was its publication or performance nevertheless on
balance for the public good by reason of any of the matters set out in section 4 of the
Obscene Publications Act 1959 , or section 3 of the Theatres Act 1968 ? In none of these
cases, which again could be greatly multiplied, can it in advance be said with certainty
whether an offence has been committed: and those who choose, in such situations, to sail
as close as possible to the wind inevitably run some risk.
But, in any case, the type of uncertainty invoked by the appellants is not that with which
the declaration of July 26, 1966, was concerned. The context was the doctrine of precedent.

The declaration was, in other words, concerned with that certainty which comes from
following rules of law already judicially determined, not with any such certainty as may
come from the abrogation of those judicially determined rules of law which involve issues of
fact and degree. Shaw v. D.P.P. ( supra ) laid down with certainty that the offence of
conspiracy to corrupt public morals was part of our criminal law. Parliament, in the Theatres
Act 1968 , recognised that this had been so established. A number of persons have been
prosecuted and convicted on this basis. It was not contended that the rule had led to any
injustice.
But over and above the limitations constitutionally imposed by the terms and context of the
declaration of July 26, 1966, there are three additional features in the instant case which
render it particularly undesirable, in my respectful submission, for your Lordships to depart
from the decision in Shaw v. D.P.P. ( supra ). In the first place, your Lordships are concerned
with highly controversial issues, on which there is every sign that neither public nor
parliamentary opinion is settled. It is a matter of high debate how far the law should
concern itself at all with morality. The ambivalence in society's attitude towards
homosexualism is sufficiently indicated by the provisions of the Sexual Offences Act 1967,
to which I have already drawn attention. Nor has the decision itself in Shaw v. D.P.P.
( supra ) lacked critics and champions. Of course, Courts of law do not shrink *690 from
decisions which are liable to be controversial when judicial duty demands such decisions.
But your Lordships are here in a field where the decisionsat any rate, policy decisionsare
better left to Parliament, if such is possible. Certainly, it is the sort of matter in which it is
most undesirable that there should be, in effect, an appeal from one Appellate Committee of
your Lordship's House to another. In default of any decision by Parliament to reverse the
judgment in Shaw v. D.P.P. ( supra ) the determination in particular cases is in the hands of
that microcosm of democratic society, the jury.
A second particular reason why this is, over and above constitutional convention, in my
view, an unsuitable issue for the exercise of your Lordship's law-making powers is that there
have been several occasions when Parliament itself had the opportunity, had it wished to
avail itself of it, to abrogate the decision in Shaw v. D.P.P. ( supra )the Obscene
Publications Act 1964 (when Parliament instead accepted the reiteration of the limited
undertaking on behalf of the Crown to which my noble and learned friend on the Woolsack
has referred), the Sexual Offences Act 1967 and the Criminal Law Act 1967. As my noble
and learned friend, Lord Reid, said in Shaw v. D.P.P. (at pp. 158 and 275 of the respective
reports): Where Parliament fears to tread it is not for the Courts to rush in.
Thirdly, virtually all the objections which have been advanced against the offence of
conspiracy to corrupt public morals are equally applicable to the offence of conspiracy to
effect a public mischief. The two offences may, indeed, both be sub-classes of a more
general class, or conspiracy to corrupt public morals may be a species of the genus
conspiracy to effect a public mischief. (This appears to have been the view of Lord Tucker
in Shaw v. D.P.P. (see pp. 169 and 285), with whose speech the rest of the majority
agreed). It would hardly be possible to reconsider Shaw v. D.P.P. ( supra ) without also
reconsidering the offence of conspiracy to effect a public mischief.
A special aspect of the rule of precedent in your Lordship's House arises on the powerful
argument on behalf of the appellants based on section 2 (4) of the Obscene
Publications *691 Act 1959. The construction and applicability of this subsection was a
matter of direct decision in Shaw v. D.P.P. ( supra ); and, since it was a matter of statutory
interpretation, the views of the majority in Jones v. Secretary of State for Social Services

( supra ) constitute a further reason for not departing from the decision in Shaw v. D.P.P.
so far as this point is concerned.
It follows, in my view, that your Lordships should follow Shaw v. D.P.P. ( supra ) on the
matter as to which it constituted a direct authoritynamely, that the offence of conspiracy
to corrupt public morals is part of the criminal law of England. But there are certain other
matters which either appear in that case as obiter dicta or which have been ascribed to the
decision (in my view, unnecessarily and wrongly) to which I would wish to refer. First, there
are some expressions in the majority speeches which indicate that not only was the offence
of conspiracy to corrupt public morals established as a matter of continuous legal history in
English law, but also that it was desirable that this should be so. I do not think that those
expressions of view were necessary for the decision. Although Courts of law are sometimes
faced with making policy decisions (in the sense that there is sometimes a choice to be
made between two tenable views of the law), I have already indicated that I think that in
the instant field they should if possible be avoided and rather left to Parliament. Secondly,
there are some suggestions in the speeches in Shaw v. D.P.P. ( supra ) that the Courts have
still some role to play in the way of general superintendence of morals. This was a phrase
used in various eighteenth and nineteenth century cases, superintendence of meaning
jurisdiction over. Whatever may have been the position in the eighteenth centuryand
there is more than one clear indication that the Courts of common law then assumed that
they were fitted for and bound to exercise such a roleI do not myself believe that such is
any part of their present function. As will appear, I do not think that conspiracy to corrupt
public morals invites a general tangling with codes of morality. Thirdly, in this connection, it
has been suggested that the speeches in Shaw v. D.P.P. ( supra ) indicated that the Courts
retain a residual power to create new offences. I *692 do not think they did so. Certainly, it
is my view that the Courts have no more power to create new offences than they have to
abolish those already established in the law; both tasks are for Parliament. What the Courts
can and should do (as was truly laid down in Shaw v. D.P.P. ( supra )) is to recognise the
applicability of established offences to new circumstances to which they are relevant.
Fourthly, I have already indicated my view that Shaw v. D.P.P. ( supra ) is not authority for
the proposition that male homosexualism, or even its facilitation or encouragement, is itself
as a matter of law corrupting of public morals. It is for the jury to decide as a matter of fact
whether the conduct alleged to be the subject-matter of the conspiracy charged is in any
particular case corrupting of public morals. Lastly, it was suggested in argument before your
Lordships that, if Shaw v. D.P.P. ( supra ) were not overruled, it would be open to juries to
convict if they thought that the conduct in question was liable to lead morally astray. But
all that was decided in Shaw v.D.P.P. ( supra ) was that, in the general context of the
whole of the summing-up in that case, the use of the phrase leads morally astray was not
a misdirection. Shaw v. D.P.P. ( supra ) must not be taken as an authority that corrupt
public morals and lead morally astray are interchangeable expressions. On the contrary,
corrupt is a strong word. The book of Common Prayer, following the Gospel, has where
rust and moth doth corrupt. The words corrupt public morals suggest conduct which a
jury might find to be destructive of the very fabric of society.
Having scrutinised the summing-up in the instant case in the light of the foregoing
reservations, in my view there was no misdirection; the conviction on count 1 must be
upheld; and the appeal on this part of the case dismissed.
Count 2 : Conspiracy to outrage public decency . This count, on which the appellants were
also convicted, reads as follows in the indictment: Statement of offence: Conspiracy to
outrage public decency. Particulars of offence: Knuller (Publishing, Printing and Promotions)
Ltd., David Hall, Peter Stansill and Graham Keen between the 1st day of January and the

30th day *693 of May 1969 within the jurisdiction of the Central Criminal Court, conspired
together and with persons inserting lewd, disgusting and offensive advertisements in issues
of a magazine entitled IT under the heading MALES, and with other persons unknown, by
means of the publication of the said magazine containing the said advertisements to outrage
public decency. Until a very late stage of the argument before your Lordships counsel for
the appellants accepted (consonantly, with his grounds of appeal to the Court of Appeal)
that conspiracy to outrage public decency was an offence at common law. He argued,
however, that it was not applicable to the present case for three reasons: first, the offence
had never yet been applied to a newspaper or book, and it was undesirable that it should be
now; secondly, section 2 (4) of the Obscene Publications Act 1959 excludes it; and, thirdly,
the necessary public element in the offence is missing, since the advertisements
complained of were tucked away from public view in the middle of the newspaper. But at a
late stage in his reply counsel accepted the suggestion that there was no such offence
known to the common law; there were merely certain specific offences violating public
decency which were not applications of any more general classnamely, keeping a
disorderly House, mounting an indecent exhibition and indecent exposure. Apart from his
arguments on law, counsel argued that the jury was insufficiently directed as to the
necessary element of publicity, and that the Court of Appeal was wrong in holding that the
facts proved established sufficient publicity to constitute the offence.
The following questions, therefore, arise on this part of the case: (1) is there a general
common law offence of outraging public decency, or only the particular offences which the
cases establish?; (2) is there a common law offence of conspiring to outrage public
decency?; (3) if (1) or (2) are answered in the affirmative, are they inapplicable to
newspapers or books either (a) because they have never been so applied, or (b) because of
section 2 (4) of the Obscene Publications Act 1959 ?; (4) if (1) or (2) are answered in the
affirmative, what are the requirements of the law as to publicity in order for the offence(s)
to be established?*694 In particular, is there sufficient publicity if either (a) the object in
question is not seen simultaneously by more than one person, but only by one at a time, or
(b) it is on the inside of a newspaper or book?; (5) do any other ingredients of the
offence(s) (if they exist) need emphasis?; (6) was the direction to the jury on this part of
the case misleading or inadequate?
(1) It is, in general, the difference between mature and rudimentary legal systems that the
latter deal specifically with a number of particular and unrelated instances, whereas the
former embody the law in comprehensive, cohesive and rational general rules. The law is
then easier to understand and commands a greater respect. Fragmentation, on the other
hand, leads to anomalous (and therefore inequitable) distinctions and to hedging legal rules
round with technicalities that are only within the understanding of an esoteric class. The
general development of English law (like that of other mature systems) has been towards
the co-ordination of particular instances into comprehensive and comprehensible general
rules. The evolution of the compendious tort of negligence from a number of disparate
forms of action is a well-known example from the common law: the Theft Act 1968 may be
regarded as a statutory counterpart. (I must, however, add the rider that English law has
never felt bound to carry every rule to its logical conclusion in the face of convenience). But
the common law proceeds generally by distilling from a particular case the legal principle on
which it is decided, and that legal principle is then generally applied to the circumstances of
other cases to which the principle is relevant as they arise before the Courts. As Parke B.
said, giving the advice of the judges to your Lordship's House on Mirehouse v. Rennell
(1833) 1 Cl. & F. 527 at p. 546 (cited with approval in Shaw v. D.P.P. ( supra ) by Lord
Tucker (pp. 174 and 289), Viscount Simonds (pp. 141 and 261) and Lord Morris of Borth-yGest (pp. 178 and 291) concurring, and by Lord Hodson (pp. 178 and 292293)): 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 *695 those rules, where
they are not plainly unreasonable or inconvenient, 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.
Secondly, the decided cases look odd standing on their own. Indecent exposure ( Crunden
(1809) 2 Camp. 89 ), acts of sexual indecency in public ( Mayling (1963) 47 Cr.App.R. 103;
[1963] 2 Q.B. 717 ), indecent words ( Saunders (1875) 1 Q.B.D. 15 ), disinterring a corpse
( Lynn (1788) 2 Durn. & E. 733 ), selling a wife (cited in Delaval (1763) 3 Burr. 1434 , at p.
1438), exhibiting deformed children ( Herring v. Walrond (1682) 2 Ct.Cas. 110), exhibiting a
picture of sores ( Grey (1864) F. & F. 73 ), procuring a girl apprentice to be taken out of the
custody of her master for the purpose of prostitution ( Delaval ( supra ): see also count 4 in
Howell and Bentley (1864) 7 F. & F. 160 , 161 conspiracy to procure a girl of seventeen to
become a common prostitute)all these have been held to be offences. They have a
common element in that, in each, offence against public decency was alleged to be an
ingredient of the crime (except Grey ( supra ), where it was said to be disgusting and
offensive, so disgusting that it is calculated to turn the stomach); but otherwise they are
widely disparate; this suggests that they are particular applications of a general rule
whereby conduct which outrages public decency is a common law offence. Even keeping a
disorderly House can be considered a manifestation of conduct which outrages public
decency. (The alternative is to regard all as manifestations of public nuisance.)
Thirdly, in Delaval (the case of the female apprentice) the Court proceeded on the basis that
Sidley (1663) sub nom. Sir Charles Sidley, 1 Sid. 168 (where the accused stood naked on a
balcony and urinated on the crowd below) and Curl (1727) 2 Str. 788 (obscene and indecent
libel) were precedents (they had both been guilty of offences against good manners (p.
1439)): this strongly suggests a general class embracing all three decisions, rather than a
number of isolated instances.
*696
Fourthly, my noble and learned friend, Lord Morris of Borth-y-Gest, in Shaw v. D.P.P.
( supra ) where, though there was no count of conspiracy to outrage public decency, most of
the cases were reviewed, said (pp. 177 and 292): The cases afford examples of the
conduct of individuals which has been punished because it outraged public decency. And
my noble and learned friend, Lord Reid, though dissenting on the main issue, said (pp. 164
and 281): I think that they [the authorities] 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.
Fifthly, in Mayling ( supra ) the offence charged in the indictment was committing an act
outraging public decency (pp. 104 and 723). It was common ground there, and expressly
held by the Court (at pp. 105 and 724), that this was an offence at common law.
I would add, lastly, that, subject to the riders to which I refer later, it does not seem to me
to be exorbitant to demand of the law that reasonable people should be able to venture into
public without their sense of decency being outraged. I think that the authorities establish a
common law offence of conduct which outrages public decency.

(2) If there is a common law offence of conduct which outrages public decency, a conspiracy
to outrage public decency is also a common law offence, as an agreement to do an illegal
act. In Shaw v. D.P.P. Viscount Simonds (pp. 148 and 267) seems to have considered that
the conduct there in question was indictable also as a conspiracy to affront public decency.
In my view, counsel for the appellants was right to concede that there is a common law
offence of conspiring to outrage public decency.
(3) As for whether such an offence is applicable to books and newspapers, the argument
based on section 2 (4) of the Obscene Publications Act 1959 is concluded against the
appellants by the construction put upon that subsection in Shaw v. D.P.P. ( supra). The
passage I have cited from Mirehouse v. Rennell ( supra ) indicates that the fact that the
authorities show no example of the application of the rule of law in circumstances
such *697 as the instant does not mean that it is not applicable, provided that there are
circumstances, however novel, which fall fairly within the rule. Counsel for the appellants
could not suggest any demarcation in principle. To attempt delimitation would produce
absurd anomalies. The newspaper placard would presumably fall within the offence: it would
be odd if similar material on the exposed front page of the newspaper did not do so. A
picture fly-posted in a small village would fall within the offence; but, on the argument for
the appellants, not the same picture contained in a newspaper or book of mass circulation.
Safeguards are to be found in the requirement of publicity for the offence to be established,
and in the parliamentary undertaking to which my noble and learned friend on the Woolsack
has referredthis must be taken to apply to conspiracy to outrage public decency as much
as to conspiracy to corrupt public morals.
(4) I turn, then, to the requirement of publicity. Mayling ( supra ) shows that the
substantive offence (and therefore the conduct the subject of the conspiracy) must be
committed in public, in the sense that the circumstances must be such that the alleged
outrageously indecent matter could have been seen by more than one person, even though
in fact no more than one did see it. If it is capable of being seen by one person only, no
offence is committed.
It was at one time argued for the appellants that the matter must have been visible to two
or more people simultaneously; and that an article in a newspaper did not fulfil this
requirement. But this point was rightly abandoned, and I need not examine it further.
It was argued for the Crown that it was immaterial whether or not the alleged outrage to
decency took place in public, provided that the sense of decency of the public or a
substantial section of the public was outraged. But this seems to me to be contrary to many
of the authorities which the Crown itself relied on to establish the generic offence. The
authorities establish that the word public has a different connotation in the respective
offences of conspiracy to corrupt public morals and *698 conduct calculated to, or
conspiracy to, outrage public decency. In the first it refers to certain fundamental rules
regarded as essential social control which yet lack the force of law: when applicable to
individuals in other words public refers to persons in society. In the latter offences,
however, public refers to the place in which the offence is committed. This is borne out by
the way the rule was framed by my noble and learned friend, Lord Reid, in Shaw v. D.P.P.
( supra ) in the passage which I have just cited. It is also borne out by what is presumably
the purpose of the legal rulenamely, that reasonable people may venture out in public
without the risk of outrage to certain minimum accepted standards of decency.
On the other hand, I do not think that it would necessarily negative the offence that the act
or exhibit is superficially hid from view, if the public expressly or impliedly invited to

penetrate the cover. Thus, the public touting for an outrageously indecent exhibition in
private would not escape: see Saunders ( supra ). Another obvious example is an
outrageously indecent exhibit with a cover entitled Lift in order to see. This sort of
instance could be applied to a book or newspaper; and I think that a jury should be invited
to consider the matter in this way. The conduct must at least in some way be so projected
as to have an impact in public: cf. Smith v. Hughes [1960] 2 All E.R. 859 .
(5) There are other features of the offence which should, in my view, be brought to the
notice of the jury. It should be emphasised that outrage, like corrupt, is a very strong
word. Outraging public decency goes considerably beyond offending the susceptibilities of,
or even shocking, reasonable people. Moreover the offence is, in my view, concerned with
recognised minimum standards of decency, which are likely to vary from time to time.
Finally, notwithstanding that public in the offence is used in a location sense, public
decency must be viewed as a whole; and I think the jury should be invited, where
appropriate, to remember that they live in a plural society, with a tradition of tolerance
towards minorities, and that this atmosphere of toleration is itself part of public decency.
*699
(6) The Court of Appeal said of the direction on count 2 that it might be that it was not
wholly satisfactory. I would myself go further. I regard it as essential that the jury should be
carefully directed, on the lines that I have ventured to suggest, on the proper approach to
the meaning of decency and outrage and the element of publicity required to constitute
the offence. The summing-up was generally a careful and fair one, but I think it was
defective in these regards; and I therefore do not think it would be safe to allow the
conviction on count 2 to stand.
Lord Kilbrandon:
My Lords, I have had the advantage of reading in advance the speech prepared by my noble
and learned friend, Lord Simon of Glaisdale, and since I find myself in agreement with it I
would avoid repeating in detail in my own words the conclusions at which he has arrived.
On the first charge it has been conceded that this case is indistinguishable from that of
Shaw v. D.P.P. ( supra ) in this sense, that the appeal could not succeed unless the House
were to hold both that that case was wrongly decided, and also that it is proper for this
House, under the direction of 1966, to overrule it. Since, in my opinion, the first of these
propositions has not been made out, I do not need to deal with the second.
Shaw was convicted of conspiring, with persons who procured the insertion of
advertisements in his paper The Ladies' Directory, to corrupt public morals, in the
particulars set out in the charge. It was held inter alia by the Lord Chief Justice of England,
Streatfeild J., Ashworth J., and by four of the five noble Lords who heard the appeal in this
House that a conspiracy to corrupt public morals is a common law misdemeanour. It is this
decision which, for the present appeal to succeed, must be set aside.
My Lords, it would in any event be a strong step indeed to hold that a pronouncement on
principle in a criminal matter made so recently and so authoritatively was wrong, but for my
part I would find such a course impossible to contemplate in view of an even more recent
Act of the Legislature. By the Theatres Act 1968, s. 2 (4) it is provided that: No person
shall *700 be proceeded against for an offence at common law of conspiring to corrupt
public morals in respect of an agreement to present or give a performance of a play. I

do not see how Parliament could have used this phrase except by way of recognition that
conspiring to corrupt public morals was at that time a crime, and of provision that in certain
circumstances charges of having committed that crime were not to be proceeded with.
Nothing has happened since 1968 to alter the law in this respect; it is accordingly, in my
opinion, impossible to say as a matter of law that the crime to which Parliament so recently
referred is non-existent.
Most of the criticism, some of it severe, which has been levelled at the case of Shaw v.
D.P.P. ( supra ) has been occasioned by certain obiter dicta , in particular of Viscount
Simonds, from the purport of which my noble and learned friend, Lord Reid, strongly
dissented in his speech. Viscount Simonds declared (at p. 267) 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 again
at p. 268 referred to a passage in which Lord Mansfield had described the Court of King's
Bench as custos morum of the people, having the superintending of offences contra bonos
mores , and asserted, as I now assert, that there is in that Court a residual power to
superintend those offences which are prejudicial to the public welfare. In view of the
emphatic disclaimer, made by Viscount Simonds earlier in his speech, of any power in the
judges to create new criminal offences, it seems at least probable that in these dicta the
noble Lord was intending to give an account of how the crime of conspiracy to corrupt public
morals first came to be recognised, rather than to originate a crime in order that the
appellant's clearly immoral conduct might be punished. Certainly if a contemporary
authority were claimed for the judges to superintend human conduct and to declare criminal
such instances as they regarded as inimical to the moral welfare of the State, I would be
among those who would deny it. But the present appeal is not affected by the repudiation of
such erroneous doctrine.
*701
I have dealt with this part of the case on a narrow front, not only because it has been more
widely and carefully considered by the noble Lords who preceded me, but also because I
think that as far as possible it is expedient so to do. I suppose that every citizen who takes
an interest in the kind of society in which he lives is bound to form views about, for
example, what should be the limits of the controls permitted to be put by the State on those
things to which a man may lawfully expose his neighbours. But the authority to decide such
questions, and the forum where they must be discussed, is emphatically not the Courts of
justice, but the legislature. Again I have profited by the advantage of seeing in print the
speech of my noble and learned friend, Lord Diplock. Much of what he has to say about the
law of conspiracy is bound to be attractive to one who is not trained to a familiarity with the
subject. But the situation as regards conspiracy is the same as that of corrupting public
morals; both form part of the criminal law, and it would be as improper to attempt to
change the one by a judicial decision as it would be the other. The very reproach which was,
by some, levelled at the decision in Shaw v. D.P.P. ( supra ) would be heard again, though
perhaps from different voices.
The only other matter to which I desire specially to refer is the concession given by one of
the Law Officers in the House of Commons, to the effect that a conspiracy to corrupt public
morals would not be charged so as to circumvent the statutory defence of public good made
available by section 4 of the Obscene Publications Act 1959 to a person charged with
publishing an article which tends to deprave and corrupt persons who are likely to read, see
or hear it. I think that in this appeal we are in a region necessarily unaffected by the
concession. We are not here concerned primarily with an obscene publication; the corrupting

and depraving which are here alleged do not arise from the articles themselves. They arise
from the whole apparatus of liaison organised by the appellants. The subject-matter of the
conspiracy was not the production of a piece of pornography. It was the introduction of
males to one another for sexual gratification. In a few instances this was to be in the
confessed *702 relationship of prostitute and client; in a very large number of cases indeed
the emphasis is on the requirement by the advertiser of youth in his partner, and in many
cases also of inexperience. When one of the accused admittedor perhaps boastedin the
witness-box that his publication was read by some 10,000 schoolboys, it could only be some
person utterly ignorant of the world of adolescence who would fail to appreciate the
inevitable consequences. These, not the publication of the article, constituted the corruption
and the depravity.
A regards the second charge, the relevance of a charge of outraging public decency by a
public invitation to indulge in sexual perversion appears to be supported by all the speeches
in Shaw v. D.P.P. ( supra ). But I agree with my noble and learned friend, Lord Simon of
Glaisdale, without elaborating his reasons, that the summing-up was on the whole defective
in the respects which he has set out, and that it would be safer to set aside the conviction
on the second charge.
I would dismiss the appeal as regards the first charge, allow it as regards the second.

Representation

Solicitors: Seifert, Sedley & Co. , for the appellants.

Conviction on first count affirmed. Conviction on second count quashed.

2014 Sweet & Maxwell