ALL ENOLAND LAWREPORTB [lfl8l] 2 All Ext.

S£fAW v. DIRECTOR OP PUBLIC PROSECUTIONS. A

[£fons s or Losns (Viscount Simonds, Lord Reid, Lord Tuoker, Lord Morris of
Borth-y•Gest and Lord £fodson), March 13, l4, 16, 18, 50, 21, 22, Stay 4,
1861 ]
Griminof La C!onapir c onejMrac5 to corrupt pubic› moved—Whether an
indictable misdemeanour at cot mon Ian Whether a. 2 {41 o,f the Oboe
Publi‹:ationa Act, 1968 (7 & 8 Ritz. 2 c. 88), prohibited j›ro«eouii‹m.
Criminal La Proatituti firing on earnings of proalitvl Public:ation
cocitoiriin9 ad ertiaements by pro»titutee publialmd uith object o,f cuddling
prostitutes to c,‹srnJ ‹m their try Whether lietng on proyita derived
Ihere,from iiuinp on. comings o,f proatitut Sexual
O,fenoea Act, 1868 (4 & I
fifiz. 2 c. 8s), s. 30.
The appellant, with the object of assisting pmstitutes to ply their trade,
published a magazine called “ Ladies Directory ”. It contained the names,
addreaaes and telephone numbers of prostitutes with photographs of nude
female figures, and in some cases details which conveyed to initietea willing-
near to indulge not only in ordinary sexual intemourse but also in various
perverse practices. The appellant received feeu from 4he prostitutes
whom he canvassed and advertised and the proatitutea paid for advertise-
ments out of the earnings of their profession and some of them obtained
custom by means of the advertiaementa. The appellant also derived profit
from the magazine from certainly one person to whom he sold copieB for
re-sale. On appeal against conviction (il of conspiring with othera to
corrupt publio morals by means of the “ Ladies Directory ”, and (ii) of
living wholly or in part on the earnings of prostitution, contrary to a. 30 (1)
m
of the Sexual Offences Aet, l86fl,
Held: (i) (LORD Rem dissenting} (a) an offence of conspiracy to
corrupt publio morala exiatsd at common law, and (per Lone Tocxzs,
Loen 3foanis or Boss-v-Gzaz and Loso Honsou concurring) was
indictable as a conspiracy to commit a wrongful not which waa
ealeulated to oause public injury or, possibly, ae a conspiracy to commit
e criminal offence, the criminal offence being conduct calculated and
intended to corrupt public morala (ase p. 461, letter I, to p. 452, letter
A, and p. 488, letter G, post).
R. v. Newland ([I863) S All E.R. l0fl7) ; A. v. Defunct ((1783), 3 Burn.
1434) , B. v. MeanI Cthalk (ll86l), 4 Cox, C.C. 423) ; fi. v. Houieff ((I8ti4),
d F. & F. 180) ; and 2f. v. Berp, Britt, €!arré K Mcimiea, ((1887), 20 Mr. App.
Rep. 88) applied.
(b) section S (4) of the Obscene Publications Act, 1869, did not prohibit
the proeseution of 4he appellant therefor because the offence alleged, the
conspiracy to corrupt publio morals, did not “ consist of the publication ”
of the magazine but consisted of 8n agreement to comipt publio morals by
means of the magazine (see p. 468, letter F, post) ; and the appellant had
been rightly convicted of conspiracy to corrupt public morals.
(iil (a} (per Viacomrr Smokes; Loan Tnoxsia, Loan 2fosnis or BOR'P2i-v-
Ozs2• and LORn Honson conourring) a person “ lived ... on the earnings of
prostitution ”, within the meaning of s. 30 (1) of the Sexual Offences Act,
ltififl, if he was paid by prostitutes for goods or servioea which were
supplied by him to them for the purpose of their prostitution and which he
would not have supplied but for the faot that they were prostitutes (see p.
460, letter D, post); and, by making a business of accepting theae
advertisements for rsward 4he appellant had knowingly lived in part on the
earnings of prostitution.
it. v. 2’A‹›moe ([1967] 2 Att E.R. 342) considered.
(b) {per Lone Ram) the words " living on " normally connoted living
parasitieally, and the appellmit wea living on the earnings of prostitution
ainee his oooupation of gathering and publishing the advertisements would
 H.L. 8HAW e. DIRECTOR OP PUBLIc r+toszcuTIONS 447
zsot have existed if hia cuatoxxtera were not prostitutes (see p. 463, let.ter
R, to p. 464, letter B, poet).
Deci%onoftheCoPRiorCaaowxrAerxxrsubnom.R.v.8Amo)([188]
lAflE.R.330)afMnned.
[ Edltorlal Note. On the approach that should be made towards relating
4he application of common law oifenceo to the changing standards of life in
B succeeding generations, reference may be made particularly to the opinions of
Vncomrr Smogs at p. 452, lefter G, to p. 463, letter B, post, and of Loan
Tooxee, oiting per Pune, J., in Mlrehouae v. fienneff ((1833), 1 Gl. & Fin. at
p. 648), at p. 466, letter R, to p. 488, letter B, post.
As to criminal conspiracy affecting publio morala and decency, 8ee 10 f-
rarer’s LawS (3rd Edu.) 313, para. 670, note (e) ; and for eaaes on the subject,
aee 14 Dzozsz (Repl.) 129, 130, 916-919.
Aa to living on immoral earnings, see 10 Hai.ssser’s Lxws (3rd Edu.) g7s,
para. 1284 ¡ and for oases on the subject, see l6 DioESz (Repl.) 1023, I0S4,.
10,05Z -10,057.
For the Sezual Offenees Act, Ifl68, s. 30, see 3B Ha eaURY's Szawws (2n‹.I
Edu.) 232.
For 4he Obscene Publications Act, 1868, s. 2, ace 39 Hai.satrer’a Sa'xtsirr
(2nd Edn.} 288.]

Common v. ›Seettfnr iSocie@, Zid. [1817] A.C. 40fl, 88 L.J Ch. 588, 117 L.T.
181 ; 16 Digeat (Repl.) 880, 8d8#.
E G feeH v. I es, [1864) 1 AH E.R. 41 ; [1964] I Q.B. 348; 118 J.P. 78; (1964]
2 W.L.R. 18, 15 Digest (Repl.) 1023, 10,053.
C!ro,fhterand iPoren Marria Tu›eed C!o., Litd. v. be’Set, (1842) 1 All E.R. 145 ;.
[1842] A.C. 43fi, 111 L.J.P.G. 17 ; 188 L.T. 172, 2nd Digest Supp.
Orey'a (Word j C!aee, (1888), 9 State Tr. 127, Skin. 81 ; 80 E.R. 28, l4 Digeut
(Repl.) 129, 9i6.
Jonea v. Aocidoff, (1774), I Cowp. 17, Lofft 383, 88 E.R. 844, 70fl, 2S Digeat
(Røpl.) 288, PPdP.
Mirelsouee v. fiønrielf, (1833), 1 Cl. & Fin. 627; 7 Bli. N.S. 241 ; 8 Brug. 480,
1 Moo. & 8. 883, 6 E.R. 1016, 19 Digøst 228, 7#.
foguf S.S. f7o. v. fc‹frepor, how & Cto., [I88S] A.G. S5¡ 81 L.J.Q.B. 286 ; fl6
L.T. 1 ; 68 J.P. 101 ; 7 Aøp. M.L.C. 120 ; 43 Digøat 10, 5J.
Pearnn v. Brooks, (1888), L.R. 1 Exoh. S13 ; Z6 L.J.Ex. 134 ; ld L.T. fl88 ;

Q«tnti v. Moiñem, [1801] A.G. 496; 70 L.J.P.C. 78; 86 L.T. 289; 86 J.P. 708 t
ld Digest (Repl.) 123, 860.
B. v. Baeaey, (1831), 47 T.L.R. 22S; 22 Cr. App. Rep. 180, 14 Digest (Repl.)
159, 911.
B. v. Berg, Britt, C!owé & tummies, {1827), 20 Cr. App. Rep. 38; 16 Digest
(Repl.) 802, 87OP.
2f. v. Brailafor‹l, [1806] 2 K.B. 730; 76 L.J.It.B. 84; 93 L.T. 401 ; 88 I.P.-
370; 14 Digest (Repl.) 128, 9#8.
22. v. Court, (1757), S Stra. 788, 1 Bern. TO.B. 28, 17 Stete Tr. 163; 83 E.R-
848; 16 Dige8t (Repl.) 896, 86Pd.
7t. v. Dame, (1960), Central Criminal Court, unrepozte4.
J?. v. Dela»‹al, (1783), 3 Buzz. 1434, I Gaza. B1. 439; 97 E.R. 913; t4 Digest
(Rep1.) 129, 918.
Zt. v. Zfi gins, (1801), 2 Eaat, 6, 102 E.R. 269; I4 Digest (Repl.) 119, 832.
Jt• v. £L all, (1864), ‹ v.a s’. leo, ne z.R. 613; It Digeat (Repl.) I39, 9J9..
B. v. Meora & finch, (1861), 8 Den. 78; 20 L.J.M.G. 68, Ifl L.T.O.S. 616 L
16 J.P. 81; 4 Con, G.G. 423; 188 E.R. 458; l4 Digent (Repl.J 158, fJZ.
B. v. f\feu›focid. (I863j 2 All E.R. 1087 ; [1864] I Q.B. 168¡ 117 J.P. 673, BT
Cr. App. Rep. 164; (1863) 3 W.L.R. 828; 16 Digest (Rep1.) 813. 8Z8Zz
448 AI L ENOLA2' D I•AW REPOBTB [1981] 2 AII E.R.
7t. v. £'oNar, [1910] 1 II.B. 369i 78 I..J.TE.B. 241, 103 6.'I’. 266; 74 7.P. 169; A
22 Cos, C.C. 286j 3 Cr. App. Rep. 237; Il Digeat {Repl.) 129, 908.
B. v. i8ounder8. (1875), I Q.B.D. 16; 46 L.J.Cf.G. 11; 33 L.T. 877; 13 Cox, G.G.
ll8; 16 Digeet (Repl.l 884, 8dP#.
B. v. Eiffel, (1883), I Sid. 188, 82 E.R. 1038 ; aub nom. tSgdlpe«’ Home, 1 keb.
820; 83 E.R. 1148; l6 Digeet (Repl.) 882, 8696.
2t. v. filter, [1968] I All E.R. 718, 120.I.P. 233 ; d0 Cr. App. Ttep. 32; (»‹h B
I W.L.R. S8l; 3rd Digest Supp.
2t. v. 2'fiotnos, [1867] 2 All E.R. 181 , 41 Cr. App. Rep. 117; [1867] 1 W.L.R.
747, affd. C.C.A., [1867] 2 All E.R. 345; l2l J.P. 338, 41 Mr. App.
Rep. UI ; [1857) I W.L.R. 1081 ; 3rd Digeat Supp.
fiiiWrdaon v. Melliah, (1824), S Bing. 528, 8 Moore C.P. 436, 1 C. & P. 541;
3L.J.O.g.CP.286, l30E.R.584; 12 Digefi(Rep.)270,20F8.
V##f1v.ŒmgW,[8M]1Œ.B.606 80L.JK.B.264; 103L.T.834; l2DQæt
(RepL)308,28/P
Appeal.
Appeal by JÏ‘rederick Cbarlea Skaw froæ an order of tbe Couzt of CzJœîoaZ
.Appeal (Loan Peaxire, C.J., Some and Asawosw, JJ.), datsd Dec. 21,
1880, and reported aub nom. 2t. v. Shntr, [1881] 1 All E.R. 330, diamiasing the D
appellant's appeal against his oonviotion at the Gontral Criminal Court on
Bept. 81, 1880, before the oommiasioner (Judge Max -Tmt se) and a jury
on three counts, namely: 1. Conspiring to comipt publio morals by means of a
magazine entitled " Ladies Directory ", 2. Living wholly or in part on the
earnings of prostitution, contrary to s. 30 (1) of 4he Seaual Offences Act, 1868,
3. I'ub1lehing an obscene article, nazne1jr, an edition of " ladies Directorjr
No. 8 ” cont.razy to s. 2 (1) of the Obaeene PublioationB Act, 1869. leave to
appeal to tke Rouse of I•orde was granted by tbe Couzt of CrizoinaJ Appeal
in ze8pect of oouata 1 and 2. 'I'he facts are set out izt the opinion of Yzscooz«c

IP. fi. Reee-Daciea and P. IS. O. leslie for the appellent.

!Phe HoïFitar-äe ecdl lfii• Jocetyn ›Siwu›n, 9.O.1, J. H. Buszard and M. D. Li.
Worsley for the Crown.
Their Lordships took time for
consideration. May 4. The following
opinions were read.
VISCOUNT SIMONDS: film Lords, the appellant, P'rederick Charles
Shtiw, was, on Sept. 21, 1880, eonvicted at the Cientral Griminal Court on en
indiotment oontaining three counto which alleged the following offenses:—
tiJ conspiracy to oorrupt publio morale, (ii) lrving on the earnings of prostitution
oontrary to a. 30 of the £iexual Offencen Act, 1868; and {iü ) publishing en obaoeno
publioation contrary to s. 8 of the Obscène Publications Aet, 1868. He
appealed againet conviction to the Court of Criminel Appeal on all thrse
counts. ïïia appeal waa diemiased, but that court oer(ified thet points of law
of general publio importance were involved in the decisions on the first and
asoond counts and gave him leave to appeal on them to thia Houae. They
refused so to certify in mspect of the third count. I propose, my Lords, to
deal in this opinion in the Brut place with the aecond count, for Z havo had
the privilège of reading the speech which my noble and learned friend, Love
Ttroxen, in about to deliver
on the firut oount and ao fully agree with him that I Bud it convenient to add
aome general obaervationa whioh can be regarded ac supplementary to what he aays. I
bly bords, the partieulars of the offenoe oharged in the seoond eount were
that, on divore daya uaknown between Oct. 1, 1968, and July 23, 1880, the
eppellaot lived wholly er in part on the earningn of prostitution. Before I refer
to the atatute on which the charge is baaed, I must rsfer briefly to the relevant
faote. When the £itreet Offeneoo Aot, 1868, cæne into operation, ib wan no longer
possible for proatitutea 4o ply their trade by solioi4ing in 4he admets, and it
beoame neoeeeary for them to 8nd aome other menus of advertising the
aervioee that
 R.L. ßTIAW ii. DIREC’fOR OF PUBLIC PROBECUTIONS (Viaconuz Siuouns) 449
A they were prepared to render. It occurred to the appellant that he could with
advantage to himself a88i8t them to this end. The dovice that he adopted
waa to publish on divers days between the dates mentioned in the partieulars
of offences a magasine or booklet which waa called “ Ladies Directory ”. It
contained the nnmee, addresses und telephone numbers of prostitutes with
photographs of nude female figureo, and in some caees details which conveyed
B to initiates willingness to indulge not only in ordinary sexual intercourse but
also in various perverse practices. Learned counsel for the appellant made
some point of the fact that the magasine contained also advertisements of
modela and clube. I, therefore, mention it, but I do not think that it ia of any
importance. The profit derived by the appellant from this enterprise wan
twofold. From the prostitutes whom he eanvaaaed and advertised, he received
fees ranging from two guineas for quarter-page advertisements without photo-
graphs to ten guineas for full-page adverti8emente with photographs. There
wan evidence that one iasue produced from this aource a sum of £260 18s.
Secondly, the appellant 8old copies of the magasine to a Mr. Blasa, the proprietor
of a aweet and cigarette kiosli, and, perhaps, though thia ia not very clear, to
other persons at a price of 6B. per copy. The weekly aales of Mr. Blaea were aaid
D my him to have started at thirty to forty and eirentually reached about eighty.
It is manifest that the appellant received substantial aums from hia undertaking.
It i8 also olear from the evidence that the proatitutea paid for advertisement out
of the earnings of their profession and that they or some of them obtained
oustom by means of it.
his intheee crcuDaGsnces that he quwflonmuet beemked wheher
the E appellant lived wholly or in part on the earnings of prostitution, and I
turn at onoe to the statute that makea it an offenoe to do ao. That ia now s. 30
of the
Sexual Offences Act, l86fl, which is as follows:
“ (1) It is an offence for a man knowingly to live wholly or in part on
the earnings of prostitution.
“ {2) For the purposes of this section a man who lives with or ie habitually
F in the company of a prostitute, or who exereiaes control, direction or
influence over a prostitute'a movements in a way which shows he ia aiding,
abetting or eompelling her prostitution with others, ahall be presumed to
be knowingly living on the earninga of proatitution, unleas he proves the
contrary.”
This seotion stems from ß. 1 of the Vagr8aicy Act, 1888, es amended by s. 7 of
the Criminal Law Amendment Act, 1812. The earlier of these two Acte wae
it8elf an omendment of the Vagrancy Act, 1824, but I do not think that uny
aßsistanee is to be derived from a oonaideration of ita anoestry. The Act of
1824 may be regarded aß a oonvenient peg on which to hang divera offenoea to
which the worde “ vagabondage and roguery ” would not be entirely appropriate.
H “ livedo...I think
Nor that sub-a. {2) oan throw mueh light on the meaning of the words
on the earnings of proatitution ” in aub-B. (I). lt was at one time argued
that the two subaeotions wers eo-extensive, but this argument won abandoned
by counsel who presented the appellant's case with candour and ability. lt is,
I think, clear that the aeoond aubseotion ia probative and explanatory of the
ßret but is not an exhau8tive definition of it.
What, then, is meant by living in whole or in pert on the earnings of proatitu-
tion? lt war not contended by the Crown that these words in their oontezt
bear the very wide meaning which might poaoibly be aecribed to them. The
eubaeetion doea not cover every person whoas livelihood depsndB in whole or
in part on payment to him by prostitutes for services rendered or gooda
supplied, clear though it may be that payment is made out of the earninge of
prostitution. The grooer who auppliea groueriea, the dootor or lawyer who rondera
professional service, to e proatitute do not oommit an oifenoe under the Act. It
is not to be suppoeed that it is ite polioy to deny to her the neoeoaitim or eren
the luxurim
450 ALL ENOLAND LAW TtEPORTS [1981] 2 All E.R.
of life if she can pay for them. I would say, howøvør, that, though a perøon
who is paid for goods or services out of th8 Oarriings of prOBtitution doeø not
nøoeeaarily commit an offence under the Act, yet a person does not necessarily
escape from its provisions by receiving payment for the gooda or ßervicea that
hø supplies to a prostitute. The argument that such a person lives on hiB OWIi
earnings not on høTB lB inconclusive. To give effeot to it would be to exclude
from the operation of the Act the very persons, the tout, the bully or protector, B
whom it wøø designed to catch. For thøy would øurøly claim that they servød
the prostitute, however deapicablø their ßørvice might seem to others. Some-
where the line muøt be drawn, and I do not find it øøøy to draw it. It iø not
enough to øay that here are plain English words ønd that it must bo left to a
jury to say in regard to any particular conduct whether the statutory offønoø
høø been committed. I have said enough, for instance, to show that the wider
meaning of which thø worda arø clearly capable iø inadmissible. The jury
should be directed that some limitation must be put on the wordø. What iß
the limitation ł
My Lordø, I think that (apart from the operation of øub-ø. (2)) a pørson may
fairly be said to be living in whole or in part on thø øarningø of prostitution
if he is paid by proøtitutøn for goods or ßørvioøs supplied by him to thøm for D
the purpose of their prostitution which he would not øupply but for thø faot
that they were prostitutes. I emphasißø the negative part of this proposition,
for I wish to distinguish beyond all misconception auch a oase from that in which
the service auppliød could be supplied to a woman whether a proatiŁutø or not.
It may be that circumstøncee will bø equivocal, though no example readily
ocourø to me. But a cøsø which iß beyond all doubt iø one where the service is E
of itø nature referablø to prostitution and to nothing else. No better example
of this oould be found than payment by a prostitute for adV8rtİBement of her
readiness to prostitute herself. I do not doubt that a perßon who makes a
business of aocøpting such advørtisømønta for reward knowingly lives in part on
the earnings of prostitution. In one of the oøøøa to which I shall reføer, pøraon
reoeiving payment from a prostitute for services rendered by him is described
øs her coadjutor and in another øs trading in prostitution. Theae øxpre88ions
indicate the diatinotion that I have in mind, though neither of them accurately
definea a legal relation. Thus, a man who advertises prostitutes ønd reoøiv8B
payment from them for dOlfl TO Bmbarkø with them on a j°int venture, the
objøcŁ of which iß that thøy may earn money by prostitution and in turn pay
him for
his services. No doubt, all that he is paid is not profit, for he has the expenses
of publishing. But hia net reward is the direct and intended røsult of their
prostitution. If he had no other means of livelihood it would be truly flaid
that hø lived on their earnings ; if he had other means, be would be doing so in

I must add a few words on the authorities that were called to our aHention.
In fi. v. 2'ò omos (1), the accused, who waø charged undør thø Vagrancy And, H
1898, as amended by the Act of 1812, had agreed with a woman whom he knew
to be a oonvicted prostitute that she øhould have the uße of a room between the
hours of 9 p.m. and 2 a.m. at a charge of f3 pør night. Hø wøø convicted on a
direction by PizoHER, J., which wae subsequently approved by the Court of
Criminal Appøal. The learned judge said (8) that
I
“ . if there iø evidence that the accused hes let a room, or a flat, at e
grossly inflated rent to a prostitute for the express purpose of allowing
her to ply her immoral trade, then it is for the jury Ło determine on the facts
of each particular casø, whether the scoured iø in fact knowingly living
wholly or in part on the earnings of prostitution.”
(1) [1957] 2 All E.R. 181; nod. G.C.A., [1957] 2 All E.R. 34S.
(2) (1867] 2 All E.R. at pp. 182, 183.
 H.L. SHAW ø. DIREGTOR OF PUBLIC PROSECUTIONS (Visoomrr Srøom›øJ 451
A The only criticism that I would make of this direction iø thøt it doøs not diø•
tinguish between rooma and a flet, and in that oase that it attøchøø undue
importance to the rent being “ grossly inBatød ” or, øø iø øometimeB seİd,
“ exorbitant ”. It appears to me that, whatever the rønt, the jury might have
concluded that the accommodation wøø provided for no other purpose thøn
prostitution, and would not have been provided for her unløeø she wøø a prosti-
B tute. The exorbitance of the rent would, in my opinion, become important
only if there had been evidence that this sort of oeeommodation wøs a nøoøøøity
or luxury commonly required by other women for other purposøø than prostitu-
tion, a thing which iß not easily imaginable. In reaching this oonoluøion,
PZŁGBER, J., had found it neoeøsøry to differ from e ruling givøn by Jtrooø
May:os at the Central Criminal Court in fi. v. lSil»er (3), and in this, too, hiø
deoiøion was approved by the Court of Criminal Appeel. Jvrooø from in
that ease held that it wøs not øn offence for løndlordø and their agøntø 4o let
flatø to prostitutes at what were described as exorbitant rentø and by the
learned judge as “ prostitute rentø ” knowing that they would be used for the
purpoøø of prostitution. I flnd this a morø difficult oøøø. If prsmieeß are let
only for the purpose of prostitution and not also for occupation by the
prostitute, øø wøø the
D room in fi. v. Pfiomae (4), it is eaøy to conclude that an offence haø bøøn eom•
mittød. But, if the fløt is let for oecupetion, I am not prepared to Bay that the
lanćtlord commits an oífønoe merøly because he knows that his tenønt ia a prosti-
tute ønd muøt be øsøumød to know that she will there ply her tradø. The
prostitute muøt live somewhere just øø øhe muet eat and drink to live. It is, I
think, too flne a distinotion to say that a grocer supplying her with groceries
E doøø not, but a landlord letting her a ßat does, commit øn offence. Zt is true
that the flat iø the scøne of her prostitution, but, if she did not eat ønd drink,
øhe would not have a body to prostitute. Therefore, in ßuoh a cøøe øø B. v.
Siluer (3) (where the fløtø appear to have been let for occupation), the landlord
own only be convicted of an offence on the ground that the rent is exorbitant.
This may be a tenable viøw on the footing that, to the extent to which the rønt is
in excøas of normal, he extorts it from the proetitute on no other ground thøn
that øhe is a prostitute. He may be said, therøforø, knowingly to live or, øø wøø
said in the courøe of the argument, to prey on her earnings. But, aø I have øaid,
I fìnd this a difficult oaøe and would exprøøs no final opinion on it. A third eøøe
to whioh I would refer in £7oft›erł v. Sales (6). It wøs, I thinøk, very oleør
caøe, the substantial point in whioh wøø that the aoouøød reoeived payment not
from the prostitutes but from thø American airmen who availed themøelvøø of
their services. The argument that for thiø reøøon he ‹lid not live in part on their
earnings wøø rightly rejected by the Court of Criminal Appøal. It is intørøsting
in that Smmzes, J., in thø course of his judgment referred to the øccusød aø (8)
“ trading in prostitution ”, øn exprøøsion which, as I have ah•eødy pointed out,
iø øn apt, if colloquial, way of describing a pørßon who lives on the øarningø of
prostitution. Your Lordshipe were also røferrød to some civil CØB0B 8tloh øø
Peacne v. ìroof (7) and U pfdl v. lPriğ żìt (8). They, I think, give little øøøistanoe
on the interpretation of the relevant words in the Sexual Offenoøs Aot, 1868.
But it iø at least satiøfaøtory to know that the conclusion, to which your
Lordøhipa como on that Aot, marohes with the view taken in oivil oøøeø of a
contract møde for an immoral purpose.
J My Lordø, ae I have alrsødy said, the firøt count in the indictment is “ 0on•
spirøcy to corrupt publio moralø ”, and the pertieularø of offenoe will have
sufficiently appøørød. I am coneemed only to assert what wøø vigorously
denied by counsel for the appellant, that øueh an offence is known to the oommon
law and thnt it wae open to the jury to find on the facts of this eøse that the
(3) (1956] î All E.IN. 716. (‹) [1957] s u E.a. isı.
(5) [1654] I AJI E.R. 41 ; [1654] 1 Ø.B. 342.
(8) [1954) 1 All E.R. at p. 48 ; [1964) 1 Q.B.æŁp.348.
(7) (1866), L.n. i z h. 213. (8)[l8N]lE.B.508.
452 AI Ł ENOLAND LAW REPORTS [1981) 2 AH E.R.
appellant was guilty of such an offence. Z must say categorically that, if it were A
not so, Her Majesty’s courta would etrøngely have failed in their duty øs servants
ønd guardians of the øommon law. Neød I say, my Lords, that I am no ødvoeøtø
of the right of the judgeB to oreate new czżmînal offencœt. I wül repeøt well-
known words:
“ Amongst many other points of happinøøs and frøødom which your
Alajøøty'ø stibjeets have ønjoyød therø is none whioh they have accounted B
more døar ønd preeious thøn thia, to be guidød and governed by certain
ruløs of law which giveth both to the høad ønd mømbere that which of right
belongeth to them and not by any arbitrary or uncertain form of
government.”
Thøse words are øø true today øø they were in the saventøenth century ønd C
command the allegiance of us all. But I am at a 1oøs to underøtønd how it can
bø said either that the law doøs not recognise e oonspiracy to corrupt publio
morals or that, though there may not be an exaøt prøeødent for such a
conspiracy øø thiø eøøo reveals, it doeø not føłl feirly within the general
words by whioh it is described. I do not propose to ezømine all the rølevønt
authorities. Thet
will be done by my noble and learned friend. The faMøcy in the argument D
that was øddrøaøed to ua lay in the attempt to exclude from the scope of general
wordB £lOb8 well calculated to corrupt publio morals just because they had not
bøøn committøćt or had not beøn brought to the notieø of the court before. It ia
not thus that the common law høø døvelopød. We are, pørhapø, morø øcouatomed
to høar this matter diaouased on the quøøtion whether øueh ønd such a trønøaotion
is contrary to public policy. At onoe the controversy arisøø. On the one hand E
it iø øaid that it is not poøøiblø in the twentieth oøntury for the oourt to orøate
a new heød of public policy, on the other it iø eaid that thiø ifi but a nøw
example of a well-eøtablishød head. In the øphørø of criminal law, I entørtein
no doubt tha4 there remains in thø courtø of law a røøidual power to enfome thø
BU]3reme and fundamental purpose of the law, to conserve not only the øafety
and order
but also the moral welfare of th0 Bł'8t0, øRd th&t it İB their duty to guard it F
against attacks which may be the more insidious beoauøe they arø novel ønd
unprepared for. That iø the broød høød (call it public policy if you wish) within
which the present indictment falls. It matters little what label iø given to the
offending act. To one of your Lordships it may appear øn affront to pubû o
decency, to another, oonøidøring that it may øuccøød in itø obvious intention of
provoking libidinous døsirøø, it wü l øeem a corruption of publio morals. Yøt Ø
otherø may deem it aptly described øø the creation of a publio misohief or the
undermining of moral conduct. The same øct wifi not in all agøø be regarded in
the same way. The law mus4 be rølatsd to the changing øtøndards of life, not
yielding to every shifting impulse of the popular will but having rsgard to funda-
mental øøøeøøments of humøn valuøs ønd the purposes of øooiety. Today a
denial of the fundamental Chriatiøn doctrine, which in pøøt centuries would havØe
bsen røgardød by the øccløøiøøtical courtø as heresy ønd by the common law øø
bløøphømy, wiß no longer be an offenoe if the decenoies of controversy arø
observed. When LORD srrszD, spøøking long after thø Star Chamber had
been aboliahød, said (8) that the Court of Kin@'B Bench wøø the custoø morum
of the people ønd hød the øuperintendenoy of offences eontra bonoø mores, he
waø øøserting, øs I now øeøert, that thøre is ù i that oourt a røoidual power, where Ț
no statute høø yet intervened to supereøde the common law, to øuperintend those
oífencøø whioh are prøjudioiøl to the publio welfare. Such oceasionø will be
rarø, for Parliament høø not bøsn slow to løgiølate when attention has been
øufficiøntly aroused. But gapa rømain ønd will ølwayø remøin øinee no one cøn
forøsøø every way in which the wickedness of man may disrupt the order of
society. Let me take a single instance to which my noble and learned friend,
(9) In 7t, v. Złe/ó vot, (1763), 3 Buzr. at p. 1438,
 B.L. 6HAWoDIRECTOROFPUBLICPROSECUTION8(VscoowiBxowos 433
@ Loco Tucxen, refers. Let it be suppoaed that, et some future, perhaps, early,
date homosexual practioea between adult conaenting males ars no longer a
orime. Would it not be an o8enoe if, even without obaoenity, suoh practioes were
publioljr advocated and encouraged by pamphlet and advertisementl Or muat
we watt until Parliament finds time to deal with such conduot? I aay, my
Lorda, that, if 4he oommon lsw is powerleas in suoh an event, then we ahould
no longer do
B her reverenoe. But I aay that her hand ia atill powerful and that it is for Tfer
Ifajeaty's judges to play the part which Loan Mwsrmno pointed out to them.
I have so far paid little regard to the faot that the charge here is of oonnpiracy.
But, if I have correetly described the conduot of the appellant, it is an irresistible
reference that a oonapiracy between him and others to do suoh aota is indictable.
lt is irrelevant to this oharge that s. 2 (4) of the Obaoene Publieatione Act, 1868,
C might bar proeeedings against him if no oonspirany were alleged. Zt may be
thought auperfluous, where that Act oan be invoked, to bring a eharge alno of
conspiracjr to corrupt public morals, but I oan well understand the deoirability
of doing so where a doubt exista whether obaeenity within the meaning of the
Act can be proved.
I will aay a final word on an aapect of the oaee which wau urged by eounsel.
D No one doubta—end I ha.ve put it in the forefront of thiß opinion—that certainty
is a most deairable attribute of the oriminal and civil law alike. Nevertheleas,
there are matters which must ultimetely depend on the opinion of a jury. In
bhe oivil law I will take an example whioh comes, perhepo, neareet to the oriminal
law—the fort of negligenee. lt is for a jury to deoide not only whether the
defendaait has oommitted the aot eomplained of but whether, in doing it, he haa
E fallen short of the standard of care which the ciroumstanoeu require. Till their
verdiot ia given, it ia uncertein what the law requirea. The same brauch of the
oivil law supplieu another interesting analogy. For, though in the Faetory
Aots and the regulntions made under them the meaaure of oare required of war
employer is defined in the greatest detail, no one aupposea that he majr not be
guilty of negligenee in a manner unforeseen and unprovided for. That will be e
F matter for the jury to deeide. There are atill, as hae recently been aaid, “ un-
ravished remnanta of the oommon lsw ”. So, in the oaes of a eharge of oon•
spiraey to eorrupt public morals, the unoerteinty that necessarily ariaes from the
vagueneas of general words can only be reaolved by the opinion of twelve ohosen
men end women. I am content to leave it to them.
The appeal on both counts should, in my opinion, be dismisaed.
LORD REID: MyLords, Z agree with my noble and learned friend that
the appeal on the second count ought to be dismiased, but I regret that I em
unable to oonour in his reasona and I feel bound to expresa my own view
because, in my opinion, thoae reasoriu could reault in caeea not within the
ecope of the Act being brought in und caees within ite ßoope being left out. I
would begin
j::( by asking two questions: What waa the miuchief which Parliament muat have
had in mind t and: What is the natural meaning of the worde “ to live ... on
the earnings of prostitution ” ?
The mischief is plain enough. Zt is well known thet thers wers, and are,
men who live paraeitically on proßtituteß und their earninge. They may be
weloome and merely cohabit, or they may bully women into earning money in
I thethis wey. They prey or batten on the women. Suoh men are clearly living on
earnings of prostitution ¡ if they have or earn some other income, then
they are living in part on aueh earnings. The question, to mm mind, is how
muoh further the Sexual Offences Aot, 1868, must be held to go, bearing in mind
that it is a penal statute and, therefore, should not be extended to apply to eases
whioh ita terma do not olearly cover. Suoh men mey render aervioee as protectors
or ae touts, but that cannot make any difference, even if their relationship were
dressed up as a contract of service; and a man could not eaoape because he acted
in aome such capacity for a number of women. Hio occupation would still be
454 ALL ENGLAND LAW REPORTS [1881) 2 .421 E.R.
parasitic , it would not exist if the women were not prostitutes. It appears to
me that the accused in this eaae eomes wefl within this cla8s. Hi8 occupation
of gathering and publishing theae advertisements would not exist if his ou8-
tomera were not prostitutes. He was reelly no more than a tout using this
means of bringing men to the proatitutea from whom he reoeived money.
If this were an ordinary case, I would be content to leave it there beeause,
if I go further, 1 am in effect pre-judging caaes which are not before us and of
which the facts may be beyond the aphere of common knowledge; but I appreciate
the deairobility of giving some general guidanoe ae to the meaning of this Aot.
So I pace to my aecond question, the natural meaning of the worda in the Act.
“ living on ” normally, I think, connotes living paraaitieally. It could have a
wider mea.ning but, if it is to be applied a4 all to those who are in no sense
para-
sites, then I think ita meaning must be the same, whether we are oonaidering the
earnings of prostitution or of any other ocoupation or trade. If a merohant
aells goods to tradesmen, is he living on the earnings of their tradesl or if a land-
lord lets premises for business purpoaea, is he living on the earnings of those
businesaest or if he leta to a man of leisure, is he living on that man’8 dividends?
Those are the sources of the rent which he receives, but I do not think that one
would normally say that he ia living on those sources. It ia not an impossible D
uae of the worda—only unusual. And a penal statute ought not to be widened
by reading ita worda in an unusual sense unlees there is very good reaaon for
doing ao. And would it make any difference if the merohant supplied gooda
which could only be used for the purposes of the purchaser’s trade or whioh he
knew that the purchaser could not require if he were, not engaged in that trade I
I do not think ao. I rind it impossible to aay that a merchant who sold gooda to a E
farmer would be living on the earnings of agriculture if the goods could only be
used for agriculture, but would not be living on the earnings of agrioulture if the
goods, though paid for out of the profits of agriculture, were for purely personal
use or might be used either for agriculture or for some other purpose. Why,
then, ahould the words mean something different wheri we are dealing with the
earnings of proatitutiont One reason would be that the context rsquirea it,
but I find nothing in thia context to require it. Another might be that otherwise
oaees plainly within the mischief would eaoape. But, even if that were a good
reason, I do not think that it applies hers.
What kind of oaoe would eecape if one takea what I think is the natural meaning
of the wordat I take firat the landlord. Suppose a landlord lets a But to an
apparently reapeotable woman, and later discovers that she is carrying on
pmstitution there ae her means of livelihood. Is he thereafter knowingly living
on the earnings of prostitution? And would it make a difference if, when he let
it, he either suspected or expected that ahe would uae it for prostitution7 We were
informed that prostitutes aometimea live in one flat and use another for prostitu-
tion, and sometimes they live and carry on their trade in the aame place. Is a
landlord guilty in the former ence but innocent in the lattert And if, in the latter
case, the woman decides to go somewhere else to live, doea the landlord thereupon
become guilty if he continues to take rent from her? I own find nothing in the
words or the poliey of tlye Act to require us to pick and choose in auoh caaea.
But I am far from eaying that a landlord can never be guilby of living on the
immoral earnings of his tenant. To my mind, the most obvious oaae ia where he
takes advantage of her difficulty in getting aecommodation to extract from her I
in the guise of rent sums beyond any normal commercial rent. In reality, he
is not then merely eating aa landlord; he ia making her engage in a joint adven-
ture with him which will bring to him a part of her immoral earnings over and
above rent.. And there may well be other ways in which he oan make himself a
participator in her earnings and not merely a recipient of rent. The line may
aometimea be difficult to draw but juries often heve to decide broad questions
of that kind,
 R.L. 8BAWu.DIRECTOROFPUBLICPRO8ECDTIONB(LoxoRsm) 455
A en I take the tradeemao. Is the oriterion to be whether he supplied goods
or aerviceu which he knew that thie woman would not require if ahe were not a
proatitute, or ia it to be whether the goods or services are of a kind which no
honest woman would required I doubt very much whether either dietinction
would be eaay to draw in practice. Preaumably Brooks in Pearee v. Brooke (10)
would not have required the brougham if she had not been a prostitute. Whether
B the brougham was of a kind which aori e honest woman might have required I
do not know. If a case of that kind occurred today, would it depend on suoh
nioeties whether Pearce wae living on BEOOks’ immoral eamings. We were
informed that aometimea deuorators or furnishers are aaked to do or supply
something whioh it is at least imlikely that an honeat woman would require.
But it is, perhaps, di8icult to set limite to honest eccentrioity. I suppoee there
{j might be a tradesman who was ca purely parasitioal ac the accußed, and there
might be a tradosman who uaed hie trade as a means to become a joint
adventurer with prostitutes. But, leaving such poflaible oases aside, Z could not
hold that a tradeaman who aupplies goods or aervicea to a prostitute in the
ordinary couroe of his business is living on her immoral earnings. I cannot find
or think of any caee which cannot be adequately dealt with on what I think to
be the ordinary
@ und natural meaning of the worda of the Aot.
Oh Lords, I tum to the firat count. With regard to it, I have had the ad-
vantage of reading the apseoh about to be delivered by my noble und learned
friend, Loco Tooxze, but I regret to say that I find myself in fundamental dis-
agreement with it. I muat, therefore, stats my reasons with aome partieularity.
In my opinion, there is no such general offenen known to the law es conspiracy
E to corrupt publie morals. Undoubtedly there is an offenoe of eriminal conspiracy
and undoubtsdly it iß of feirly mü de soope. In my view, its seope eannot be deter-
mined without having regard irrst to the hiatory of the matter and 4hen to
the broad general prinoipleß which have generally been thought to underlie our
sys4em of law and government and in partioular our ayetem of criminal law.
lt appears to be generally accepted that the offence of criminal conspiraoy
waa the oreature of the Star Chamber. So far as I em able to judge, the summary
in Kzimrv's Ou'rn s:s or Cenrnrxx. Leer (17th Edn.), a. 68, is a fair one. There it
is said that the oriminal aide of oonspiracy wae
“. . emphaeiaed bm the 8tar Chamber, which recognised ita posßibilitieu
as an engine of government and moulded it into a substantive offenen of wide
soope, whose attraotions were such that its principles were gradually adopted
by *be oocroon law couzts. . .”
The fitar Chamber, perhaps, had more merits than ite detractors will admit,
but ita methods and principles were superseded and what it did is of no
authority today. The question is how far the common law courts in fact went in
borrowing from it. I think that Losn GonnwD, C.J., was repeating the
generally accepted view when he said: “ A conspiracy consists of agreeing or
aoting in conoert to
mhieveenixflamfulmoioriodosBmfulsctbyumlamfulmemne”(W.v.Nswbmd
(11)). But what ia an " unlawful ttct "? To commit a crim yes, but what
about offences which oan only be dealt with summarily and punished lightly;
they are certainly unlawful acts but (Z quote from the Lw or Carx
Conarreacxes on Ao wzs by R.S. WRIoier, p. 83) they
" are not in themselves of grave enough consequenoe to be matters for
indictment; and, if so, it must in general be immaterial whether the reaulta
are produced by one peraon or by two or more persons. To permit two
persons to be indicted for a conspiracy to make a slide in the street of a
tomi, or to oatch hedge aperrows in April, would be to destroy that
distinction between crimea and minor offences which in every country it is
held important to preserve."
(10) ( l88fl), L.R. l Exoh. 213.
(11) [l8ö3] ß All E.R. at p. 1071 ; [1864] 1 Q.B. at p. lfl0.
456 ALLENOLAND LAWREPORT8 186]2M1E.R.
To commit a to yes in certain caaes, but for somewhat similar reasons it A
aeems to be at least doubtful whether it is un offence to conspire to commit a
tort which is neither malicious nor fraudulent nor accompanied by violence.
Then there is undoubtedly a third claea of au4 which on individual can do with
impunity but a oombination cannot. Perhaps the best known example is con-
spiring to injure a man in his trade if done without justification. I need only
ze/er to the series of ce8ee in thia ITouae from J'lfiogal 8.S. Co.v. Moonagor, ao» B
Oo. (l2l to C!rofhterand Woven Marrta S’u›eed two., Ltd. v. Feifch (13). No one has
ever attempted to define what makes an act “ unlawful ” so aa to bring it within
this class, the law seems to be haphazard depending largely on historical accident.
Perhaps aa good a summary aa any is that which goes back to early editions of
Professor Kenny's book know s. 461):
”... certain other acta ... whioh ... are not breaabes of law at ag, but.
wbicb neveztheteaa are outrageously immoral or else are, in some way,
extrexoely injurious to the public.”
One thing does, however, appear to be reasonably clear. So far we I have been
able to traoe, all who took part in the fopuf ›S. S. two. aeriea of caeea (12} and who
mentioned the matter, except LORD E8ZtBR, If.R., were of opinion that to make
or oarry out a oontract which i8 unenforceable by reason of immorality or other-
D
wise is not on unlawful aot in thia sense.
There are two oompeting views. One ie that conspiring to corrupt public
morals ia onljr one facet of a still more general offence, conspiracy to effect
publio mi8chief¡ and that, like the oatsgoriea of negligence, the oategoriea of
publio misohief are never closed. The other in that, whatever may have been
done two or throe centuries ago, we ought not now to extend the dootrine further E
than it has already bsen carried by the common law oourta. Of courae I do not
meaai that it should only be applied in ciroums4ances preoisely similar to thoae
in some decided oaee. Deuiaions ars alwaya authority for other oaseo which are
reasonably analogous and are not properly dietinguiahable. But we ought not to
eztend the doctrine to new fields. Z agree with R. S. WRIOam, when he aays
(LW OP O«ZAO«A» CO«sP£aACI«8 AND A0B«B«wz8, p. 80):
" there appear to be great theoretical objections to any general rule that
agreement may make punishable that which oughb not to be punished in
the absenoe of agreement."
And I think, or at least I hope, that it is now established that the courts cannot
oreate new offences by individuals. So far at least I have the authority of LORD
klODDARD, C.J., in delivering the opinion of the court in B. v. Newland (14):
“ The diotum in B. v. Hippirta (16) wee that all olfencee of a publio nature,
that ia, all auoh rots or attempts ae tend to the prejudice of the publio
are indiotable, but no other member of the court atated the law in suoh
wide terma. It i8 the brettdth of that diotuin that was ao strongly
critioiaed by Set Prrzas Smraxu in the passage in hia Hiszoav or
z+re Cniurnnx. Lw (Vol. 3, p. 368] and also by De. Szwvena8a in 34
L.Q.R., p. 183. In effect, it would leave it to the judges to deolaro new crimea
and enable them to hold anj;'thing which they considered prejudicial to
the communitjr to be a misdemeanour. However beneficial that might have
besn in days when Parliament met seldom, or at least only at long intervals,
it aurely is now the
province of the legialature and not of the judiciary to create new criminal I
oHenomi”
Every argument against creating new offences by an individual appears to me
to be equally valid against creating new offences by a combination of individuals.
But there ia this historical difference. The judges appear to have continued
(IS) [18ti2] A.C. 25 ; 7 Aap. M.L.C. 120.
(13) [1842] 1 AH E.R. 142 ; [1842] A.C. 435.
(14) [1 t53] S All E.R. at p. 1072; [1864J 1 Q.B. at p. 187. (15) (1801), 2 Eaat, 6.
 TT.L. flBAW v. DIREGTOR OP PUBLIC PROSEGUTIONS {Losn Rsan) 457
A to estend the law of conspiracy after they had ceaaed to eztend of£enoea by
individuals. Again› I quote From R. g. WRloaz (Law or Cezszzxaz. Cozzsz'zeaczzs
wn Aonnamms, p. 88} :
“ In an imperfect syetem of oriminal law the dootrine of oriminal
agreements for acts not criminal may be of great practical value for the
punishment of persons for' acts which are not, but which ought to be made
B punishable irrespeetively of agreement.”
Even if there ia still a veatigial power of this kind, it ought not, in my view, to be
used unleas there appears to be general agreement that the offence to which it
is applied ought to be oriminal if committed by an individual. Notoriously there
are wide differences of opinion today how far the law ought to puniah immoral
acts whieh are not done in the face of the publio. Some think that the law
already goes too for, aome that it doea not go far enough. Parliament is the
proper place, and I am firmly of opinion the only proper plane, to aettle thet.
When there is 8ufiioient support from public opinion, Parliament doea not
hesitate to intervene. Where Parliament fears to tread it is not for the eourto to
rush in.
Before turning to the question whether the authorities on a feir construction
warrant indictment on thia charge, I must notice the offence of oonepiring to
effect public mischief. The moat recent authority is A. v. Neu›fond (lfl). There
I do not think that the court went beyond the ambit of earlier decisions. One of
the early uses of this dootrine of conspiracy appears to have been to deal with
various forms of cheating which no one would say ought not to be punished but
which the oommon law had not made o8ences if done by an individual.
Newland
had conspired to obtain advantage for himself by using false and deceptive
E documents and devious to obtain for aale on the home market goods whioh
manufaoturers were only allowed to sell for export. LOSD Gorman, CLJ., said

“ It is enough to ahow that they [the suppliers] would not have acted aa
they did but for the false representations and dishonesty of the persons who
obtained the gooda for them.”
In my judgment, this Ttouae ie in no way bound and ought not to aanotion the
extension of “ publie mischief ” to any new field, and certainly not if euoh
extension would be in my way controversial. Publio miaohief is the criminal
counterpart of public policy, and tire criminal law ought to be even more
hesitant than the civil law in on it in aome new aapeot. I think that the
follow- ing comments are aa va\id today aa t?tey were in 1824:
" I am not much disposed to yield to arguments of public policy: I
think the oourts of Westminster TTaIl have gone much further than they
were warranted in going in questions of policy: they have taken on them-
selves, sometimes, to decide doubtful questions of policy, and thoy are
always in danger of so doing, because courts of law look only at the partioular
ease, and have not the mea.ne of bringing before them all those considerations
which ought to enter into the judgment of thoae who deoide on questions of

“ I ... protect ... against arguing too strongly upon public poliojr;—it
I is a very unruly horse, and when once you get astride it you never know
where it will carry you. Zt may lead you from the sound law. It is never
argued at all but when other points fail."
(per Bossoooa, 1. (19)).
IN msjr, perhaps, be said that there is no queat‹ozz ftere of creatinga new offence
(16[863]2AME.R.1087; 1864]IQ.B.Id8.
(17) [1863] S All E.R. at p. 1070; [1854) 1 Q.B. at p. lfl4.
(t8) (1824), 2 Biog. et p. 242. (19) (1824), 2 Biog. st. p. 262.
458 ALL ENOLAND LAW REPORTB [l8fll] 2 All E.R.
beoause there is oiily one offenen of conspiraoy—agreeing or acting in concert A
to do an unlawful act. In a technieal aense, tha.t iß true. But, in order to extend
this offenen to a new deld, the court would have to oreate a new unlawful ect;
.it would have to hold thet conduot of a kind which haa not hitherto been un-
lawful in thia aenoe must now be held to be unlawful. lt appears to me that the
objectionn to tha.t are juet es powerful ca the objeetiotts to creating a new offenoe.
The difference is a matter of worda, the essence of the matter is that a type of B
conduet for the puniahment of whioh there is no previous authority now for the
first time beoomes punishable solely by a deciaion of a oourt.
I, therefore, proceed to eonsider the authorities on the footing thet the courts
eannot now oreate a new olfence or a new kind of criminal conepiracy, or at leaat
that, if any auch power atill exiats, this is not a proper aphere in which to exereise
it. The majority of the eaues cited to us were instanoes of one or other of four
well-eetabliahed offenoes; offenoea which oan be committed by an individual an
well ac by a combination. They are publioation of an obscene libel, indecent
exposure, oxhibition in public of indecent thinga or acts, and keeping a disorderljr
house. I shall deal with the relevanoe of these in e few moments when I oome to
4he facts of the preaent caae. But theT8 iB a group of four caaea which are more
directly relevant h.er Word Oren's Nase (20), A. v. Dekanat (51), A. v. Meara
‹k C!hälk {52}, und fi. v. Z:fo off (23}. Theee were aß oaeea of conapiracy to seduce a
girl under twenty-one or to induce a young girl to become a proatitute. I would
agree that they are good authority for it being oriminal to eonspire to seduce a
young girl. But I would not agree that, by analogy, they must be held to be good
authority for it being criminal to conapire to “ aeduoe ” a man of mature years.
Indeed, I think thet the judgee who decided theee easea would have been very E
aurpriaed to learn that they had thereby decided that oonspiring to seduoe a
man is a crime. And it must be obaerved that there waa no publie element in these
cases; they wem oonspiraciea to seduco a particular girl. So, if we are to proeeed
by uaialogy, it must be a crime today to conspire to aeduce a partioular man and
the offenoe cannot be limitad to e conspiracy to corrupt pu6fü morals.
But in argument more streas waa put on worde whioh are reported to have been
used by the judges than on the actual decisiona, und in particular on the atate-
ment by LoRn Mwsrni.o (24) aaid others that the Court of King's Bench wus
oustos er censor morum. lt war aaid that they thereby decided or reoognised that
any eonspiraoy to corrupt morala or, aa the learzied trial judge put it in the preaent
case, “ to lead morally aßtray,” war an indictable offence. I do not think ao. An
the reports of those days are not full reporte of the judgmenta, we do not have Ehe
preoi8e conbezt, but I think it muoh more probable thot these judges were
intending to Boy that they then had power to create new offences, that thiß power
eatended to the moral field, and that the acts in theue particular eaeea should be
held to be punishable. lt must be obaerved that these roferences to the court
being censor or ouatoa morum occur equally in deciaions in caaes of oonspiracy
and in oases against individuell. In the eighteenth oentury, courta created new
olfences in the field of morals both againat individuals (see, for example, B. v.
Html (26)) and against eombinatione. So if, oontrary to my view, the references
established a general offenee of conspiring to corrupt public morala, then aurely
they must alao have eatabliahed that it is a general olfenoe for an individual to
aot ao aa to corrupt public morals or to attempt to do so. If it won established
in the eighteenth century that there wttu a general offence of oonapiring to oorrupt I
public morela (or to lead members of the publio morally a.stray), then, as the
esasnee of criminal conspiracy ia doing or agreeing to do an unlawful act, it must
follow that for two centuries evory act which has tended to lead members of the
publie astray morally has been on unlawful act, and the Crown'a argument
would apply equally to make unlavrful every act which tenda to lead a aingle
(20) (1685), 9 8tete ’I'r. 127. (21) (1763), 3 Burr. 1434.
(22) (1861), 4 . C.c. 423. (23) (i864), 4 E’. ’. 1 0.
(S4) 8ee B. v. DelouoJ, (l7fl3), 3 Burr. a.t p. lß38. (26) (1727), S Stra. 788.
 H.I.. SHAW v. DIREGTOR OF PUBLIC PROSECUTIONS (LORD Rzi») 459
individual morally astray. In the unending controversy about the proper
relationship between law and morale, no one seema to have suspected that.
Hitherto I 4hink there haa been a wide measure of agreement with Profeaaor
Kenny'a view that only eertoiti ucta which are outrageously immoral are tinlawful
in this aenae.
I claim little knowledge of the history of English criminal law—any such
B knowledge that I may have ia of a diiferant ayetem. But it seems. that moat
crimes must heve been the orea4ion of judges of a remoter time, because Parlia-
ment played a oomperatively amall part and there was no reception of any foreign
syatem. And it seems that they proceeded piecemeal, taking care, no doubt,
not to move in advance of contemporary opinion, end that they did not 8rst
invent a general theory or a general offence and then apply it at once to a wide
{j variety of particular oaaes. A somewhat similar situation aroae in connexion
with equally general statements by equally eminent judges that Christianity is
part of the law of England. That was dealt with in thia House in Bou›man v.
,Securer Society, fifd. (28), where it seems to me that more attention waa paid to
xehat 4he courts had in feot done than to the language that judgea had used in
doing it. But the best teat appears to me to be to look at the views expressed by
D the authors and later editors of standard works on orime. Passages were cited
to us from Hawxms’ Pass or -ins Grown, Exam’s PiasA8 OP TH2ii kROwa,
and
Bmexszow's Co uzwres, an well as from later standard works. None of
t&emappearsio have reslfiedchatsnyeuch genealendfar-zmohmg o&ence
hM been eeteb%hed. Ilxwmws refere M openlewdoee grwMy
ecmdMoue (Yol. 1, p. 368), Bye scorn: (Book IV, p. 8d) to open and
notorious lewdneas,
E Ease to scandalous and opsn breaches of morality exhibited in the face of
the people (Vol. 1, p. 3), and Rasse or Cerme tl lth Edu.) (Vol. 2, oh. 87)
deels separately with eaoh of the apecifio offences which I have already mentioned.
We were referred to no passage supporting the view for which the Crown now
contends and I cannot think that it ia only now, af4er nearly two centuries, that
it haa been vouchsafed to us to discover the true meaning of theae old caaos.
I must now deal with the particulars of the firat count and the facts proved
to ace whether they disclose that the appellant committed aome offence of more
limited scope than conspiracy to corrupt public morals. It is alleged that the
appeßant and others conspired by means of the publication of certain
advertioe- mente to induoe readero thereof to re8ort to proatitutea named in
these advertise- ments for the purposea of (a) fornication, (b) taking part in “
other disgußting
und immoral aots " or {o1 witneasing “ other disgusting and immoral exhibitions
”. I ahall not deal with (o) becauae no attsmpt war made to prove thiß. The
intent alleged is twofold—{a) with intent thereby to debauch and oomupt the
morala of oertain of the liegeß and (b) with intent thereby to reise and create in
their minds inordinate and lustful deaires. I find this very obscure. Which of the
lieges are referred tot la it only thoae peraons who are induced to reaort to the
proßtitutea
or is it all psraons who read the publication t If it means that debauching and
corrupting only occur (or may occur) when a man resorts to a prostitute, that is
one thing; but if it means that a man may be debauched and corrupted merely
by reading the advertisemente, that appears to me to raiße a different and wider
questioii and to involve e consideration of the Obacene Publications Act, 1969.
I am inclined to think that. these intents are atated in the wrong order, und that
I what is meant is with intent to raise inordinate and lustful deeirea in the minds
ofthosewhoreadthemdvertbemenMend*hen*odebauchandcomuptthosewho
are thereby induced to reaort to the prostitutes. I am not ct all sure whether the
proposition ia that an offence ia committed merely by conspiring to publish matter
which tsnds to raise in the minda of readers inordinate and lustful desires, or
whether the real offence ie said to be conspiring to publish matter which tends
to induce men to resort to prostitutes. No authority wan cited to us which goea
(ie} [1»i7] A.G. 408.
460 ALL ENOLAND I•AW REPORTS [188i] 2 All s.R.
no far as to hold that any writing could be held to be an obscene libel merely on A
the ground that, although its language is in itaelf decent and inoffensive, it may
tend to raiae in the minds of ita readers aome lustful deair I leave aeide for the
moment the word " inordinate " in the particulars. In Victorian timea, very
strict viewa were held about books or pictures that were in any way " sugges-
tive ", but no authority wae cited to us which in any way indicates that it was
ever held to be an indictable offence merely to publish such matter without B
there being something more to bring it into the category of being obaoene.
Section 1 of the Act of 1869 defines " obaoene " by enacting that an artiole
(which includes all matter to be read or looked at) shall be deemed to be obscene
if ita elfeot is to tend to deprave and corrupt. But I cannot 8nd any intention to
widen the old law of obscene libel, or to make it possible for a prosecutor to obarge
aa obacene libel publieation in wholly inoffenßive terms of any matter which
tends to raise lustful desires in the mind of a reader, whether that matter be
allusion to or oommendation of fomication or merely the name and addreoa of a
proßtitute. But I need not purßue that matter benause, es I und9rstood oounsel
for the Crown, he did not argue that these advertisements were obacene libels,
and that must mean that merely reading 4hem docs not tend to deprave or
corrupMif it did, they would be obseene libela by v'irtue of the definition in the
Aot, conspiracy to publish them would obviously be a crime, and the point now
in eontroveray would never have ariasn. So, any depreving and eorrupting must
be the resiilt of resorting to the prostitutes und the offence, if any, must be
conspiring 4o tempt the lieges to resort to prostitutea. Prostitution is not an
offence, it ia not aaid that the woman or any man resorting to her is guilty of my
offenoe. The argument iß that, if two or more peroons (who may include the E
proatitute herseF) combine to isaue such an invitation to membera of the public,
they are guilty of an offence. lt could not matter whether the invitation was
made by words or in some other way. So both Pearoe and Brooks in Pearca v.
Brooka {21 j would today be guilty of an indietable offenoe by reaaon of haviiig
acted in concert to enable Brooka to attraot men for the purpoao of prostitution.
Thet aeems to me to be novel doctrine. lt ha.rd1y seems to aecord with views
exprossed in the 3foput aeries of oaoes (28) to whioh I referred earlier, and I
oannot believe that it is right.
But the advertisements also contain muoh more objeotionable matter. The
particulars refer to inducing readers to take part in “ other disgusting end
immoral acte ”, and with this I think there must be eoupled the referenoe in the
intent oharged to “ inordinate ” desires. The evidence ahows that the invitations
were to reoort to certain of the prostitutes for the purpose of certain forma of
perversion. Zhat I would think to be an offence for a different reauon. ’ I shall
not examine the authorities, because I think that they eatabli8h that it ia an
indietable o8enoe to aay or do or exhibit anything in publio whioh outrages
publio decency, whether or not it alao tends to corrupt and deprave those who
see or hear it. In my view, it ie open to a jury to hold that a public invittstion
to indulge in aezual perversion does ao outrage publio decency aa to be a punish-
able offence. If the jury in this case had been properly directed, they might well
have found the appellant guilty for thia reason. And the offence would be the
same whether the invitation was made by an individual or by several people
acting in concert. But it appears to me to be impossible to say the aame with
regard to ordinary prostitution. The oommon law hae never treated the appear- I
ance of a prostitute in publio ae an indictable offence, however obvious her pur-
pose might be, and on Aot of Parliament has been found neceaoary to stop the
nuiaenoe of proatitutee parading in the publio street.
Finally, I must advert to the conaequencea of holding that this very general
offence existe. It has always been thought to be of primary importance that our
low, and particularly our oriminal law, should be certain, that a man ahould be
(37) I888),L.R.IExoR.fiJ (38)
[882]A.C26; 7Amp.M.Lf.20.
 H.L. SHAW e. DIRECTOR OP PUBLIG PROSECUTIONS (Loss Run 461

A able to know what conduct ia and what ia not criminal, partioularly when heavy
penalties are involved. Some 8uggestion waa made that it doea not matter if thia
offence ia very wide ; no one would ever proaeouta and if they did no jury would
ever convict if the breach was veninl. Indeed, the suggestion goes even further;
that the meaning and application of the worda “ deprave ” and “ corrupt ”
(the traditional wordB in obscene libel now enacted in the Act of 1959) or the
B worda “ debauoh ” and “ corrupt ” in thi8 indictment ought to be entirely
for the jury, ao that any conduct of thia kind ia criminal if in the end a jury
think it ao. In. other worda, you cannot tell what is criminal except by guessing
what view a jury will take, and juriea’ viewa may vary and may ch8nge with the
passing of time. Normally, lihe meaning of words ia a question of law for the
COUTt'. lOr 8Xample, if iB TlOt left to a jury to determine the meaning of negligence ,
they have to consider on evidence and on their own knowledge a much more
specific question—Would a reasonable man havo done what this m8n didt I
know that in obscene libel the jury has great labitude, but I think that it ia an
understatement to say that this has not been found wholly satisfactory. If the
Trial judge'a charge in the present case waa right, if a jury i8 entitled to water
down the atrong worda “ deprave ”, “ corrupt ” or “ debauoh ” ao aa merely to
D mean lead aatray morally, then it seems to me that the court ha8 transferred to
the jury tlie whole of its functions as censor morum, the law will be whatever
any jury may happen to think it ought to be, and this branch of the law wiM
have loat all tire certainty which we rightly prise in other branches of our low.

LORD TUCKER: MyLorda, with regard to tha conviction of the appellant

E under count 2 of the indictment, I am in complete agreement with the apeech
of my noble and learned friend on the Woolaack. The firat count charged the
appellant in the following terms:
“ Statement of Offence: Conspiraoy to corrupt publio morals. Particulars
of Offence: Fredericli Charles Shaw on diver8 days between Oct. 1, 1858,
and July 23, 1960, within the jurisdiction of the Central Criminal Court,
F conspired with certain persons who inserted adverti8ement8 in i88ues of a
magazine entitled ‘ Ladiea Directory ’ number 7, 7 Revised, 8, 9, 10 and a
supplement thereto, and with certain other persona whoae narnea are
unknown, by means of the acid magazine and the eaid adverti8ementa ‘ to
induce readers thereof to reaort to the 8aid advertiaera for t.he purpoaea
of fornication and of taking part in or witnessing other disgusting and
immoral acts and exhibitions, with intent thereby to debauch and corrupt
the morala as well of youth as of divera other liege aubjecta of Our Lady the
Queen and to raise ctnd create in their minds inordinate and lustful desires
’.”
It should, I think, be atatad at the outaet that the words “ or wibneaaing ” in the
above particulars were not relied on by the prosecution at the trial a8
constituting an essential ingredient in the alleged conspiracy, nor wae there any
evidence that the advertisements constituted an invitation to the public to reaort
to tha addreaaea of’ the adverti8BFa aa speotatora for the purpose of witnessing
disgusting ancl immoral aot8 and exhibitions. The case made by the prosecution
waa that the advertisements constituted invitations to the male public Of all agea
to vi8it the addresses of prostitutes for the purpoaa of fornication and in aome
instances taking part in. perveraive practices. I ahall, accordingly, treat the
indictment as if the worda “ or witnessing ” had been omitted.
Gounsel for the appellant put in the forefront of hie addre88 the aubmiaaion
that there i8 no 8uoh offence known to the law as a conspiracy to corrupt public
morals. Before turning to authority, I would invite your Lordahipa to pauae to
consider for a moment hciw far-reaching are the consequences of auch a propo-
sition if it be correct. It haa for long been accepted that there are some oon-
apiracies xrhioh are criminal although the acta agread to be done are not per ae
criminal or tortious if done by individuals. Such con8piraoiea form a third olas8 in
462 ALL ENGLAND LAW REPORTS [1961] 2 AH E.R.

addition to the wøß-known and more clearly definød conspiracies to do actø A

which are imlawful, in the sense of criminal or tortious, or t.o do lawful aotø by
unlawful means. Assuming that the corruption of public morals by the acts of
an individual miiy not be criminal or Tortious, does it follow that a conspiracy
by two or more pørsonø to thiß end is not indictable? The difficulty with regard
to this third cløsø of conspiracy haø alwayß bøøn to døfìne its limitø or give it a
lebel which will inoludø all itø maniføatations. It was referred to by Vlsooœrz B
Simon, L.C., in C!rofler Hand Wouen Harris 2'need Oo., Ltd. v. Peitcń (29) ttB
one in which “ the purpose aimed øt, though not perhaps specifically illegal, was
one which would imderminø principles of commercial or moral conduct ”. Thø
UtA ßROPESSOR Rmîv in hiø Oum2wiïiS OP Û RIMInAL LAw (1 Uh Edu.), at p. 290,
in a paøsagø which is repeated in later editions, wrote:
“ An unlawful purpose. Thø tørm ‘ unlawful ’ is hørø used in a senee which
iß uniquø; and, imhappily, has never yet been definod precisely. The
purpoaeß which it COmpriøøB appear IO be of the following apeoies: ... (iv)
Agreements to do certain other acta, which (unlike all those hitherto men-
tioned) are not breaches of law at all, but which nevertheless are outrageously
immoral or elsø are, in some way, extremely injurious to the public.”
Hø givea a number of øaampløs.
An inøtøncø in modern timøa is to be found in fi. v. Newland (30), where the
appellants had bøen convicted of conspiring to effect a public mischief by ob-
taining and distributing on the home market for eventual rotaiI sale døooratød
domestic pottery which, by orders made under thø Defence (General) P egulationa,
manufacturers ønd regiatørød exporters were permitted to supply for export E
only. The orders did not in terms deal with pøraona who obtained such goods
fmm a manufacturer representing that they were for export and then having
obtained them sold them on the domestic market. It was contended on behalf
of tha appellants that thøre wøø no ßuch offence known to the law as set out in the
indictment. In delivering the judgment of the Gourt of Criminal ppø£il, LORD
GonnwD, G.J., øaid (31) :
“ It ia much too late to object that a conspiracy to effect a public mischief
is an offence unknown to the law. There have been at least thrøe reported
oøøøs during the prosønt century in which that charge haa been made and
convictions uphøld. Wø refer to fi. v. Brailsford (32), fi. v. T•orter (33) and
2t. v. Baaaeg (34) ... The court is wøll awarø of the caution with which bhøy
should approach the consideration of an offence which iø alleged to cOnBİSC
of doing acts which tend to effect public mischief as, if extended, it might
enable judges to døolarø new offøncøa which should be tho business of the
legislature. The objections to such a course wørø forcibly pointed out by
Srø Fmzzams SWPBxn, the most prominent institutional writer on the
criminal law in the laøt century, in his Hi9TORY OF TBE Cnlmuw Law,
Vol. 3, p. 359. We think we may 8ay that. the court should approach the
subject at leaøŁ with the same degree of caution øø must be exercised whøn
considering a plea in a civil action that something has been done contrary to
public polioy ... No one has evør attempted to defìne what may or may nod
constitute a publio mischief and we have certainly no desire to increase the
number of criminal offences by adding to The category of misdemeanoiirs,
but there are two points which, in our opinion, do not make it nøc$s§ ry for I
uø to consider whether There is herø any attempt to creøate new offønoø. In
the firøt place, it is well known that thørø may be many octø which, if donø by
an individual, would not be indictable, or øvøn aotionablø as a tort, and
yet may becomø both actionable and criminal if done by a combination of
(29)[1942] l All E.R. at p. 146 ; [1942] A.C. at p. 439.
(30)[1953] 2 All E.R. 1067 ; [1854] I Q.B. 158.
(31)[1863] 2 All E.R. at p. 1071 ; [1954] I Q.B. ttt p. 1fl5.
(32) [1906] 2 T£.B. 730. (33) (1910] 1 K.B. 389. (34) (193I). 47 T.L.R. 222.
 H.L. SHAW v. DIRECTOR OE PUBLIC PROSECU'PIONS (Losn Tocxx») 463
persons as the re8ult of a conapiraoy, and for this reaßy elementary propo-
ßition we need only refer to 9uicin v. fientAsm (35).”
My Lords, I have referred to this caae es, in my opinion, the deoision of the present
and other similar eaaea doea not depend on tho label which is to be attached to
a partloular oonspiracy. Can it be doubted that a oonspiraoy to corrupt publio
morals is a conspiracy to effeet a public mischieft Iß it to be said that a con-
B spirttcy to aell deoorated domeatio pottery in the home market by means of devices
contrived to evade the object of Board of Trade ordera is a oriminal oonspiraoy
but an agreement to do acta oalculeted to corrupt publie morals is notT Suppose
Parliament tomorrow enacts that homoaexual practices between adult oon8enting
malea is no longer to be criminal, ia it to be eaid that a oorispirany to further and
encourage auch practioeo amongst adult malee could not be the subject of a
criminal oharge fit to be left to a jury7 Similarly with regnrd to a conspiracy to
encourage and promote lesbianism today, or incestuous sexual intercourse in the
year 1807 t My Lorda, if there questions are to be answered in the negative, I
would expect to find aome clear authority during the pa8t oenturiea which would
juatify such an ariewer. Z know of none.
I have, I think, auffioiently indicated my view that the deoision of this care
D
does not depend on a detailed examination of the old authoritiee in order to
aacertain whether, in every case, the act or acts in question, whether performed
or proposed, constituted common law misdemeanouru in themselves at the date
of the decisions. Zf they did, then the conapirany alleged wae admittedly
criminal, but, if they did not, it would, in my view, be equally criminal if the acts
were of a nature to satisfy a jury that they were wrongful in the aenae of being
celoulated
E
to corrupt and deprave publio morals. I, therefore, do not propooe to refer to the
cases where individualß ha.ve been convicted of the oornmon law misdemeanour of
publio indeeenoy by exposure or other indecent acts in the face of the publio
euoh es that in 2t. v. Sü ffey (38) in the year 1883, or other similar caaw oulmin-
ating in 1876 with that of B. v. Pounders (37), where the defendanta were held to
have been properly oonviotsd on counts charging them with keeping a booth on
Epsom Downa for the purpose of a disgusting and indecent exhibition to which
they invited all persons within the reach of their voices. Thia wae held to oon•
atitute a common law misdemeanour. Counsel for the appellant argued with
force that such caaes are distinguishable from the present and other caaea
where the acts, though immoral, were not acts of indeoenoy done in the face of
bhe publie, but, an I do not consider it neceaaery to explore this aepect of the
cane, I turn,
G therefore, to the authorities which are more immediately relevant, viz., those in
which conspiracy wcs charged. In A. v. Detavisl (38) in the year 17fl3, the oharge
wae thai the defendants had joined in on unlawful combination and conspiracy
to remove a girl, an infant of about eighteen, out of the hands of the defendant
Batea (a musician) to whom ahe waa bound an apprentice by her father (a gentle-
man'a coachman) without the knowledge or approbation of her father and to
n place her in the hands of Sir Francia Delaval for the purpose of prostitution.
For which purpose, she was discharged by Bates, her maater, from the
indentures of her apprenticeship to him, in consideration of £200 (the penalty of
them) paid to him by Sir Francia ; and wan then bound, by the uaual indentures
of appren- ticeship, to Sir Francis. The oharge went on to act out the part played
by Fraine the attorney in drawing up the indontures and the agreement between
Sir Franois
and Batea. Having adjourned the motion for an information against the defend-
ants for conspiracy in order that the court might be aatiafied that the girI'a father
was not a party to the conspiracy and being aatiafied that auoh waa not the oaae,
Loan srrscn delivered the judgment of the oourt. He desoribed the con-
spiracy as one (39)
(3s)1901]A.C495
(38) Refaedtoin1WdeSnandtheErghshReportsee”SkChaztesSedeysCsee”,
(1883), 1Sid108. (7)1875,l3Cba,CClI6 (38)(M83,9Bmr14J4.
(39)(783),3Bucr.a0p.1437.
464 ALL SNOLAND LAW REPORTS [1881] S All E.R.
“ ... to put this young girl (an apprentice to one of them), into the handa A
of a gentleman of rank and fortune, for the purpose of prostitution ; contrary
to decency and morality, and without the knowledge or approbation of her
father, who proaecutea them for it, and haa now oleared himself of all
imputation, and appears to be an innocent and an injured man ... Thus
she has been played over, by Bates, into his hands, for thia purpose. No
man can avoid aeeing all thia; let him wink ever so much. I remember a B
cauae in the Court of Chancery, wherein it' appeared, that a man had formally
assigned his wife over to another man : and LORD HnnDWIcK:e: direCt0d a
prosecution for that transaction, as being notoriously and grossly against
publio decency and good manners. And ao is the present case. It is true that
many offences of the incontinent kind fall properly under the jurisdiction of
the eccle8iaatieal court, and are appropriated to it. But, if you except thoae
appropriated caseB, this court ie the cuatos morum of the people, and haa
the superintendency of offenoea contre bonos morea: and upon thia ground,
both Sir Charles Sedley and Curl, who had been guilty of offences against
good manners, were prosecuted here. Mowe»er, besides thie, there ia, iti tfte
pre«enI case a conspiracy and eonfederony amongst the defendants : which
are Nearly and indteputably within the proper jvriediclion of Mrs court.”
The italics are mine.
lily Lords, some writers have been at pains to point out gmunds on which
this case might have boen decided, but I suggest it ia not neceaaary or even
permissible to go outside the expressed reasons of LORD MwSPIZiLD. Furthermore,
it is to be observed that, at thet date, not only waa there no orime of abduction
of a girl over sixteen, not being on heireaa (see KOLDSWOR3 H's Hi8'TORY OP E
Enozisa Lw, Vol. 4, pp. 504 and fi14), but the girl's maater was willing and
she wan not in the ouetody of her fether. There ia no such tort aa reduction in
the absence of loas of services which waa not, and could not have been, alleged,
and thore ia no mention of breach of contract anywhere in the ease. It ia clear
and compelling authority in support of the existence of the crime of conspiracy
to corrupt the morals of on individual and a fortiori of the public.
In B. v. 3fears ‹k Gñ otk (40), the indictment contained three counts. The third
oount alleged that the amused
“ did between themselves oonspire, combine, confederate, and agree
together wickedly, knowingly, and designedly to procure by falae pretences,
false representations, and other fraudulent menus, the aaid Johanna Carroll,
then being a poor child under the age of twenty-one years, to wit, of the
age of fifteen yeara, to have illicit carnal connexion with a man, to wit, a
certain man whose name ia to the jurora aforesaid unknown, contrary to the
form of the statute in such case made and provided, and against the peace
of Our Lady the Queen, her Croom and dignity.”
JERVIS, G.J., in giving judgment, said (41):
“ It ia unnecessary to diecues the first and second counts, and upon them
we give no opinion, because we all thinlt that the third ia a good count; the
court being olenrly of opinion that a conspiracy to solicit prostitution, being
against good mornls and public decency, is, inilepen ently off the at‹sIuIe, an
indictable offence.”
The italics are mine. I
fi. v. Hou›sJf (42) was a oaee of conspiracy to solicit, persuade and prooure an
unmarried girl of the age of seventeen to become a common prostitute. A
count ao framed was upheld. Bnxuwszc, B., acid (43):
“ I believe that it is not an offence at common low for a woman to be a
common pro8tituts. But, in my opinion, that ia not the criterion. There
(4oj t i 8s 1 j, 4 cox, c.o. 4*3. (4 i j ( i 8.s i), 4 cox. c.c. at p. 4_›7.
(42) (18B4), 4 F. & F. 180. (43) ( 1804), 4 P. 4t F. t p. 184.
 ii.z. sHAw . DFescron or PUBLIC PROSECUTIONS (Long Txroxnn} 465
A are many unlawful things whioh are not the aubjeot of criminal prooeedinge
of pany kind ... We have all the neceaaary ingredients of the offence of con-

In fi. v. Berg, Brim, C!awé & Lummiee (44}, the aecond count in the indictment
charged the above named and three others with conspiracy to corrupt publio
morals and the partioulara thereof were that they on divers dsya therein atated
B
" conspired together with other persons unlmown to debauch and
corrupt the minds and morals of such persons as ahould be induced or
permitted to come to certain premises being the basement flat No. 26
Fitzroy Square in the said county and there remain Rippling, shoring ttnd
behaving in on obscene and disorderly manner."
Berg pleaded not guilty to both counts. He wan found not guilty on oount 1
which charged him with aiding and abetting Britt and Carré in keeping a dis-
orderly house, but guilty on count 2. The Gourt of Criminal Appeal in the preasnt
caae were in error in saying thet all the aroused named in thet oount pleaded guilty.
Inspection of the original indiotment ahows that Berg in faot pleaded not guilty
to both eounta. The report of tho hearing before the Court of Criminal Appeal
D
is not very satisfactory, but, we Berg had been aoquitted oh count 1, he must
have been appealing against his conviction on count S and this is confirmed by
the argument of his counsel (Mr. Byrne) (46). The original indiotment shows
that the report is inaccurate in ita description of the conspiracy count. The
worda “ disorderly house ” do not in fact appear in count 2 but only in count
I. All the appealB were dismissed by o court presided over by Avonr, J., who
stated
E
{48) that the giat of the indictment waa that the accused were lewd and immoral
persona aaaembled for the purpose of unnatural practicee. Finally, in i8to,
there waa the unreported case of fi. v. Dale (47), in which the aooused were oon-
victed at the Central Criminal Court on a count in an indiotment charging a
corapiracy to corrupt and debauoh such persons aa ahould reaort to a oertain
disorderly house therein named.
It wae further contended for the appellant that, in any event, the particular
in the indictment and the evidence adduoed in support thereof were insu8ioient
to support a conviction for oonspiring to corrupt publio morals. It wae card that
neither fornication nor prostitution are illegal and thot, in any event, there ia no
precedent for holding that suoh oonduot tends to corrupt and deprave adult
males.
My Lords, I think that theae were matters for the decision of the jury and that
the learned judge was right in ruling that there was a case to be left to them.
There was material in this once to support the view that some of the advertise-
ments in the magasinea indicated bhat the advertisers were willing to take part
iR 8OtB Of aexual perversion. This element wae, I think, conclusive against the
appellant'a aubiniasion, but I am not to be taken ae expreaaing the view that, in
the absence of this feature, the cane should have been withdrawn from the
jury who must be the final arbiters in such mettera, an they are on the question
of obscenity. They alone can adequately reflect the changing public view on
BilCh matters through the centuries. As regards lack of precedent, apart from
fi. v. Burp, Brits, Gorré ‹fc £urn•nier {44) in 1927 and 2t. v. Dale (47) in 1880, I
would remind your Lordships of the words of Panxn, J., in firehouee v. Bennett
{48):
“ The case, therefore, is in some sense new, as many othern are which
continually occur; but we have no right to consider it, because it is new, ae
one for which the law has not provided at all, and because it hao not yet
been decided, to deeide it for ourselvos, acoording to our own judgment of
what ia just and expedient. Our common law syatem ooriaista in the
applying
(44) ( 1927). 20 Cr. App. Step. 38. (46) (1927), 20 Cr. App. Itep. at p. 40.
4fi) ( 1927). Ptt €1r. App. Rep. at p. 42.
t47) Central Criminal Gourt. 1880, unreported. (48) (1823}, 1 Cl. & Fin. ct p. 648.
 466 ALL EN€ILA24D EAW REPORTi5 [I8BI] S AH E.R.
to new combinations of oimumatanoeu those rules of law which we derive A
from legal principles find judicial precedents, and for the sake of attaining
uniformity, consistency and certainty, we must apply those rules, where they
are not plainly unreasonable and inconvenient, to all oaaes whioh arise, and
we are not at liberty to reject them, and to abandon all analogy to them, hi
those to which they have not yet been judicially applied, because we think
that the rules are not as oonvenient and reasonable an we ourselves could
have devised. It appears to me to be of great importance to kesp this
principle of decision steadily in view, not merely for the determination of
the particular cane, but for the interests of low an a aoienoe.”
My Lords, counsel for the Cmwn supported the oonviotion and the judgment
of the Gourt of Criminal Appeal on coimt 1 of the present indictment on two
alternative grounds, (i) that conduct caloulated and intended to oomipt publio
morals is indieteble an a substantive offenoe and consequently a eonspiraoy to
this end is indiotable as a conspiracy to commit a criminal offence, alternatively
(ii) a conspiracy to corrupt morals is indictable as a conspiracy to commit a
wrongful act whioh is oalculated to oauae publio injury. The Court of Criminal
Appeal diamiased the appeal on the ground that the caBe fell well within the first
of theas propositions. 1 have, I hope, suffioiently indioated that I prefer to base
my decision on the second, but, in so saying, I must not be teken an rejecting the
first.
A further eubmission by the appellant must now be mentioned. It was argued
that, in any event, count 1 offended against the provisions of s. S (4) of the
Obscene Publications Act, l85ti, which reads:
E
”A poreon pubishbg an zdideshalnotbeproc dedagabmtfor xn
oAenceatconxnonlawcondeflngofthepubboaflonofanymaderoontamed
orembodedintbearflcewheeitieoftheemenoeoftheo8ence*hatthe
matterisobecene.”
JYfy Lords, I agree with the judgment of the Court of Criminal Appeal that the
ahort answer to thiß ergument is that the offence at oommon lew alleged, namely
conspiraoy to oomupt public morals, did not “ eonsist of the publication ” of the
magazines, it conaieted of an agreement to corrupt publio morals by means of
the magazines which might never have been published.
Finally, it war aaid that the learned judge did not suffieiently direot the jury
ca to the meaning of the words “ debauch aaid oorrupt ” in count 1, and one
paesage in partioular in his charge to the jury war subjeoted to criticißzp in which
he said:
“ Well, members of the jury, no doubt you will take the view that
whatever else you mey have to decide in 4his oaae it ia quite unneoeasary
for you to deoide the merits or demerits of extra-marital intorcourse. And,
really, the meaning of debauched and corrupt is again, just aa the meaning
of the word induee ia, essentially a matter for you. After all the arguments,
Z wonder really whether it means in this case and in this context much
more than lead astray morally. You will have to consider it in your own
minda and, as I say, you must put your own interpretation on the meaning
of the worda.”
The words “ lead aatray morally ” were objected to and were said to amount to a
misdireotion. In this and other paooagee later in his judgment, he maken it clear I
that it in for the jury to construe and apply theae words to the facts proveét in
evidence and reaoh their own decision, and neither in the passage cited nor in
4he judgment ma a whole oan I find anything that amounts to misdirection.
For these reasons, I am of opinion that the appeal with regard to the
conviction on count 1 alao fails.
LORD MORRIS CiF BORTH-Y-GEST: My Lord8, I have had the
privilege of reading in advance the apeeohea whioh have been delivered by my
 H.L. 8HAW t›. DIREOTOR OF PHBLIG PROSECUTIONS (Loan Ifoaaia} 467
noble and learned friend on the Woolsack and by my noble and learned friend,
Loan Tocxzs, and I em in agreement with them.
The appellant was convicted not only on the two oounts which mrs before
your Lordahipa but alao on a third count, whieh w a one of publishing on
obscene article contrary to s. fl of the Obscene Publications Act, 1868. The
artiole in question consisted of one iasue of the “ Ladies Directory ”. Before
they could
B convict of that eharge, the jury hed to be satisfied that the appellant published
the article and that it waa obscene. It is provided by the Act 4hat, for the purpoem
of the Aet, on article is deemed 4o be obaeene if ite effect, taken aa a whole, is
auoh an to tend to deprave and oomipt perform who are likely, having regard
to all relevant ciroumstanees, to resd, see or hear the matter contained or embodied.
in it. The jury must have bsen satisBed that the effeot of the article was to tend
to deprave and corrupt thoae who were likely to read or see it. While I ooncur
with your Lord8hipa in thinking that the provision contained in a. 2 {4) of 4he
Act iiid not debar the prosecution from presenting and passing the charge
contained in count 1, I heve wondered whether they might not in this partioular
case have been content to put mattsre to the test by reference only to the other
eounte. It was the appellant who conceived and carried out the plan of producing
D the publications in question. He did so for his own gain. The conspiraoy features
of his conduct added little in this case to the real gravity of his actions. I join,
however, with those of your Lordships who aflirm that the law is not impotan4
to convict thoae who conspire to corrupt publio morals. The deolaration of
Loan MnuBrizzn (aee Jonea v. Aondofi (48)) that
" Whatever is contrary, bonos morea eat deoorum, the principles of
E our law prohibit, and the King's oourt, aa the general cenaor and guardian
of the public manners, is bound to restrain and punish "
is eohoed and finda modem expreaaion in Kzuuv's One as oz Cause Mw
{l7th Edu.) in the statement that. agreements by two or more persons may be
oriminal if they are agreements to do acts which are outrageously immoral or
else are in aome way extremely injUfiOua to the public. There are certain mani-
festations of conduct which ars an affront to and on attack on recognized publio
standards of morals and deoenoy, and which all well-diapoeed persons would
stigrnatise and condemn ma deserving of punishment. The oaaea afford examples
of the conduct of individuals which haa been punished because it outraged publio
deoanoy or because ite tendency waa 4o oorrupt the public morala.
G It is aaid that there ia e measure of vagueneaB ill a charge of conspiraoy to
corrupt public morals, and also thet there might be peril of the launohing of
prosecutions in order to supproau unpopular or unorthodox views. htm Lords, Z
entertain no anxiety on those linea. Even if acoepted publio standards may to
aome extent vary from generation to generation, current standards ere in the
keeping of juries who can be trusted to maintain the oorporate good aenae of the
community find to discern attaoks on values that must be preserved. If there
were prosecutions which were not genuinely and fairly warranted, juries would be
quick to perceive this. There could be no conviction unleas twelve jurors were
unanimous in thinking that 4he accused peraon or persons had combined to do
ucta which wers calculated to corrupt public morals. Qty Lords, wu time proceeds,
our criminal law is more and more being codified. Though it may be tha.I the
occasions for presenting a charge auch ae that in count I will be infrequent, I
concur in the view that auch a charge is contained within the armour of the law
and that the jury were in the present caee fully entitled to decide the case as
they did.
I would diamias the appeal.
(48) (177d). Lofft at p.•386. The quotation above exactly accords with the report;
but it eeezoe that /or ”est ”tbe oonjunotioo “et ”abould be zead. ’he correepoodiag
paa8age in the report in 1 Cowp. a4 p. 88 reads “ for the law of England prohibits
every• thing which ie oontra bonoa mores ; or it must be against principles of aound
policy j ".
 448 AI•L ENOLAND LAW REPORT£i [19fll] 2 All E.R.
LORD HODSON: Qty Lords, I am in full agreement with the apeeehea A
which have been delivered by my noble and learned friend on the Woolsank
and by my noble and learned friend, Lose Tocxzit, and wish only to add a
few sentences on the first count.
I am wholly satiafied that there is a oommon law miademeanour of oonspiraey
to eomipt publio morals. The judioial precedenta which have been cited ahow
oonclusively to my mind that the courta have never abandoned their funetion B
an cuetodes morum by surrendering to the legislature the right and duty to apply
established prinoiples to new combinations of ciroumstanesa. The words of
Panxe, J., in NIireJ«›use v. Bentieff (60}, read by my noble and learned friend,
Loan Tnexse, ere not out-detsd and, in my opinion, are applicable to this oase.
I would atress that, in applying the law to the faete whioh now faß for
considera-
tion, I do not reef on the narrow ground that here was a conspiracjr to iasue a
publio invitation to indiilge in sexual perveraion whieh so outrages publio
deoeney as to oorietitute a punishable offence. lt iß unneceaaery to dwell on
the detaila of the publieatioos at which your Lordships have been obliged to
look. lt is suAioient to sey that, although there are desoriptiona of aexual eccen-
trioities which to peroons of normal instinota may be fairly described an perverted,
theae ecoentrioities add nothing to the substance of the oharge of oonspiraey to
oomipt public morala. They amount in the main to the use of theatrical trap•
pings usually aasooisted with prostitution and irregular aexual interoourse, but
ars in themaelves seither more nor leaa unlawfiil than proatitution itaelf.
I will not add to what haß already been aaid about the word “ unlawful ”,
agreeing ca I do that it hoc not to be narrowly construed es connoting the
commiasion of a criminal offenco.
lt has been contended before your Lordahips that these advertiaements
ought to be Created as if they tended only to comipt the morals of men and
should be treeted on a different footing from advertisementß which would tsnd
to corrupt the morals of women, ainoe the Maw haa ahown anxiety to proteot
women from predatory maleß who have eonspired to debauch them, whereas
there is no instenoe of ariy anxiety in the converae direction. Even if there is
any validity in this distinotion, which in these days when mueh is heard of the
equality of the sezes I em not disposed to admit, it hoc no application to the
present care. The advertisemento, no doubt, are primarily directed to male
peraons but are not so limited They were expoaed for sale and available to
botb sexes. They are, as a curaory examination revealß, deaigned to glamoriae
prostitution und to show by the prices charged to proatitutea for advertising G
their wares the profits likely to be realiaed from engaging in their oeoupation.
In the ordinary use of language, it aeems to me to be plain that the publioation
of these advertisemente to both sexeß may properly be held by a jurjr to tend to
comipt publio morals. That prostitution is not a punishable offenoe docs not
itivolve, au I have already indicated, that it iß regarded as a lawful activity.
If it were lawful such a care as Pearoe v Brook:a {51) must have been differentl r
decided. Even if Christianity be not part of the law of England, yet the oommon
law has ita rooto in Chrißtianity and haß alwaye regarded the institution of
marriage es worthy to be aupported as an easential part of the structure of the
sooiety to which we belong. I do not see any reaoon why a corispiraey to en-
oourage fornieation und adultsry should be regarded us outside the ambit of
a oonspiraey to comipt publio morals. It is auggeated, as I underetand it, that I
this throwa the net too wide, and in some way it ia desirable to show a tenderness
towarde prostitution as a reeognised and neceaaary evil. Z do not aecept this
approach.
Since a criminal indiotment is followed by the verdict of a jury, it is true
4hat the function of ouutos morum is in criminal cases ultimately performed
by the jury by whom on a proper direction eaeh oase will be decided. This,
(SI) (l88fl), L.R. 1 Exch. 213.
 H.L. 8HAW v. DIRECTOR OF PUBLIC PROSECUTIONS (Loss Honsou) 469
A I think, is oonsonant with the oourse of the development of our law. One may
take, as an eaample, the case of negligence where the standard of care of the
reasonable man ia regarded ae fit to be determined by the jury. In the field
of public morals, it will thus be the morality of the man in the jury box that
will determine the fate of the acouaed but this should hardly disturb the
equanimity of anyone brought up in the traditions of our common law.
B I would dismiee the appeal.

Solicitors: Oerald Blask ‹P Oo. {for the appellant); DiretWn' o,f Public Pro eeu•
(for the Crown1.
{Reported by C•. A. I£moan, Freq., Borrieter-or-Your.]

JEFFREY (INSPECTOR OF TAXES) v. ROLL8-ROYCE, LTD.

INLAND REVENUE COEIHS8IONERSr. SAAE.
[GooxcosAres*r(IIokoydPeameUpohnsmdDonovsn,L.JJ.),ApGlS4,26,
26, 1061.]
£»sotrfedge
—War income or mptfol receip June ne Ta:n Act, I86S (16 ‹F 18 6
' E R/*z. 2 c. 10), Dels. D, I'aee /.
At the wteh of the Britiah government zoanufactureze ot aero englaea
ezttered into ao agreexxtent with China uztder w?ricb tbejr uodeztook to
Buppty complete drawings and manufactuxJng axed engineering deta aod
iaformatioo neeeeaazy to eneb1e engines ofa paz'ticu1at' type to be maaufao-
E tured by the Chinese aad to provide full information froza time to time wit.h
regard to izaprovezaents and zaodi6cations of its ozaaufacture and desiga.
3'ftere was provision for the aubstitutiozr ofa di 'Ferent type of engiae. Tbey
alao agreed to receive into theiz' worlcs traizteea f\'ora China and to re1eaee
cozxtpetent membeza of their own atafF to undertake exxtployment with the
Chizteae. The agreezxtent was to laat for 6ve yeaza with aa option by tbe
Cbineae to extend it fora f\Art.her 6ve yeaz's. 'I'be manufacturers received
a speci6ed zoyatty on esiginea and pazts o:I ezzgtaes zaaztufactured by t1se
Chinese and the agceeznent provided for payment to tlteza o£a lump aura
of
£60,000 aa ” cooeideratioxt I:or ltte righta gzented " uoder the agreezoeztt.
Tltie aum w•s described io tbe agreement asa capit.al su¥a. In the following
six years they entered iztto similar agreements witb govemzaextta aod
companies ia E‹‘cance, the Vztited States of Azaezica, tbe Azgezttlae, Belgium,
Auetz'a1ia and 9wedezx, all countriea whick they oould not bope to pex etrate
for the sale of their enginea by arty otber zxtethod. ’Z'beir cltalrtoao pa bie
annUal Btateznente made several references to I.he demaad for licezzoea to
manufacture their engToea an4 to the royalties zasuJting. Their were
aeaeaae‹1 to incozoe tax uztder Caae I of g«Is.D to the Io,coae Tax Aot,
18G2, on the baaiB tkat the £60,000 waaa revenue zeoeipt. Oo appeal,
Held: tbe£60,000 w'ag rightly brought ioto aooount io ae8aeeing tbe pro6te
or gaizia of the zoanufacturors for izicozne tax purposes, space it w'ae one
of several auch sums regularly received in pursuance of a deliberate and
coxttinuoua policy of mekiog zoanufactuziog agreeixtez›t8 IO BBouze royalty
revenue to which the dJaclosing of technical knowledge waaa neceaaazy
adjunct asa zaeane rat?ter titan as act eod, and it was Qtezoforea revenue,
aad ztota capital, receipt.
JIJ'orfarfy v. 6txsee I edfaaf /2upjsfiéa, Z/d. ([1967] 3 AII E.R. ’718) ¿t;a•

Deoiaion of Pmmrrouiaz, J. ([1flB0] 2 All E.R. fl40) reversed.

}AeiowharconethuteeWedereoepMemdimmmessoppwedMoapiIfor
Mcome*sxpurposm,aee SOBmesosx'sL&ms(3rdEdn.) 148,pwa. 583;
and foroasesonihesubjc\see38Droxsz(Repl)20-38,28J23,60-
68,JPA32fi]