Shaw v DPP [1961] UKHL 1

Shaw published 'Ladies Directory' containing advertisements for prostitutes with photographs and details of services offered. He was convicted of conspiracy to corrupt public morals, living on earnings of prostitution, and publishing an obscene publication. The House of Lords upheld the conviction, affirming that conspiracy to corrupt public morals is an indictable common law offence.

Facts

Frederick Charles Shaw was convicted at the Central Criminal Court on three counts: (1) conspiracy to corrupt public morals; (2) living on the earnings of prostitution contrary to section 30 of the Sexual Offences Act 1956; and (3) publishing an obscene publication contrary to section 2 of the Obscene Publications Act 1959. Shaw had published a magazine called ‘Ladies Directory’ containing names, addresses and telephone numbers of prostitutes, with photographs of nude female figures and details indicating willingness to engage in various sexual practices. He received payment from prostitutes for advertisements (ranging from two guineas to ten guineas) and sold copies of the magazine to retailers.

Issues

First Count: Conspiracy to Corrupt Public Morals

Whether conspiracy to corrupt public morals is a recognised offence known to the common law.

Second Count: Living on Earnings of Prostitution

Whether a person who receives payment from prostitutes for advertising their services can be said to be ‘living wholly or in part on the earnings of prostitution’ within the meaning of section 30 of the Sexual Offences Act 1956.

Judgment

On the Second Count

Viscount Simonds held that the statutory provision covers those who provide services specifically referable to prostitution:

“a person may fairly be said to be living in whole or in part on the earnings of prostitution if he is paid by prostitutes for goods or services supplied by him to them for the purpose of their prostitution which he would not supply but for the fact that they were prostitutes.”

He concluded that advertising prostitutes’ services was clearly within this definition:

“I do not doubt that a person who makes a business of accepting such advertisements for reward knowingly lives in part on the earnings of prostitution.”

On the First Count

Viscount Simonds emphatically affirmed the existence of the offence of conspiracy to corrupt public morals:

“In the sphere of criminal law I entertain no doubt that there remains in the Courts of Law a residual power to enforce the supreme and fundamental purpose of the law, to conserve not only the safety and order but also the moral welfare of the State, and that it is their duty to guard it against attacks which may be the more insidious because they are novel and unprepared for.”

He referred to Lord Mansfield’s assertion that the Court of King’s Bench was the custos morum of the people:

“When Lord Mansfield, speaking long after the Star Chamber had been abolished, said that the Court of King’s Bench was the custos morum of the people and had the superintendency of offences contra bonos mores, he was asserting, as I now assert, that there is in that Court a residual power, where no statute has yet intervened to supersede the common law, to superintend those offences which are prejudicial to the public welfare.”

Lord Tucker supported the conviction on the basis that conspiracy to corrupt public morals constitutes a conspiracy to effect public mischief. He cited Rex v Delaval as compelling authority.

Lord Reid dissented on the first count, expressing concern about judicial law-making:

“Even if there is still a vestigial power of this kind it ought not, in my view, to be used unless there appears to be general agreement that the offence to which it is applied ought to be criminal if committed by an individual… Where Parliament fears to tread it is not for the courts to rush in.”

Implications

This case established that conspiracy to corrupt public morals remains a viable common law offence in English law. The majority held that courts retain residual power to punish conduct prejudicial to public welfare even where Parliament has not legislated. The case affirmed judicial authority as guardians of public morality, though Lord Reid’s dissent raised important concerns about certainty in criminal law and the proper limits of judicial power. The decision has been controversial for potentially allowing courts to create new criminal offences by reference to evolving moral standards, leaving considerable discretion to juries to determine what conduct corrupts public morals.

Verdict: Appeal dismissed on both counts. The House of Lords upheld Shaw’s convictions for conspiracy to corrupt public morals and for living on the earnings of prostitution (by a majority of 4-1 on the first count and unanimously on the second count).

Source: Shaw v DPP [1961] UKHL 1