The case of Shaw v DPP [1962] AC 220 is a significant and controversial decision in English criminal law. The case brought to the forefront the question of whether the courts had the authority to create new offences not explicitly codified in statutes. In particular, the case dealt with the issue of conspiracy to corrupt public morals, a charge that had never before been recognised in English law. The decision in Shaw v DPP has had lasting implications, especially in relation to the balance between protecting public morality and preserving individual freedoms, such as freedom of expression. This case stands as a landmark in English legal history, particularly in the context of common law and its ability to evolve to address societal changes.
Facts of Shaw v DPP
In Shaw v DPP, the defendant, Charles Shaw, was the publisher of several magazines that contained “ladies’ advertisements”. These advertisements were personal ads for prostitutes, including their names, addresses, photographs, and descriptions of the services they offered. The ads were explicit in promoting prostitution, and Shaw was profiting from the sales of these magazines by charging the prostitutes for the inclusion of their ads.
At the time, solicitation of prostitution was criminalised by the Street Offences Act 1959. However, this legislation did not specifically address the act of publishing such advertisements for prostitution. Furthermore, Shaw’s actions went beyond merely publishing the adverts—he was also receiving a direct financial benefit from the prostitutes’ activities, which led to additional charges.
Shaw was charged with two key offences:
- Conspiracy to corrupt public morals: This charge was novel and had not previously been recognised in English law. The prosecution argued that Shaw’s magazines promoted prostitution, which was deemed to be immoral and a threat to public morality.
- Living on immoral earnings: Under Section 30 of the Sexual Offences Act 1956, Shaw was also charged with living off the earnings of prostitution, as he was making money from the advertisements for prostitutes.
The existing legislation, including the Street Offences Act 1959 and the Sexual Offences Act 1956, did not specifically deal with the nature of Shaw’s activities. Consequently, the prosecution resorted to the charge of conspiracy to corrupt public morals as a way to address the gap in the law.
Issues of the Case
The central issue in Shaw v DPP was whether the charge of conspiracy to corrupt public morals could be validly recognised by the courts. This issue raised two significant legal questions:
- Recognition of a Common Law Offence: Did the English common law allow the courts to create new offences, especially one as vague as conspiracy to corrupt public morals? The courts had traditionally recognised offences that were either codified in legislation or developed over time through case law. However, the question was whether judges had the authority to create a new charge that was not explicitly defined in any existing statute.
- Balancing Rights and Morality: The case also raised concerns about balancing individual rights, especially the freedom of expression, with the need to protect public morality. Shaw’s defence argued that his actions fell within the realm of legitimate commercial speech and that he should be protected by the principles of free expression. On the other hand, the prosecution maintained that Shaw’s publications posed a direct threat to public morals and should not be protected under freedom of expression.
Arguments Presented
The arguments presented in Shaw v DPP focused on the legality and implications of recognising a charge like conspiracy to corrupt public morals.
- The Prosecution’s Argument: The prosecution contended that Shaw’s magazines were explicitly promoting prostitution, which was a harmful and immoral activity. The conspiracy to corrupt public morals charge was argued to be necessary because no existing statute adequately addressed the harm caused by Shaw’s actions. The prosecution further argued that the common law had always adapted to societal needs, and the creation of a new offence was consistent with this evolution. Shaw, they argued, could not hide behind the principle of free speech when he was profiting from activities that undermined public morality.
- Shaw’s Defence Argument: Shaw’s defence argued that the charge of conspiracy to corrupt public morals was not recognised by any existing statute or law. They contended that creating such an offence was an overreach of judicial power and that the courts did not have the authority to establish vague and broad offences without clear legislative backing. Additionally, Shaw’s defence argued that his activities should be protected as legitimate commercial speech under the principles of freedom of expression. There was no clear legislative provision forbidding the publication of such advertisements, and Shaw argued that his actions did not constitute a criminal offence.
Shaw v DPP Judgement
The House of Lords, in a decision that has sparked much debate, upheld Shaw’s conviction for conspiracy to corrupt public morals. The reasoning behind the judgement can be summarised as follows:
- Protection of Public Morality: The House of Lords recognised that the state had a duty to protect public morality, and it found that Shaw’s actions—publishing advertisements that directly promoted prostitution—were a serious threat to public morals. The court held that it was necessary to take steps to address new societal problems that were not covered by existing statutes, especially when they posed tangible harm to public morality.
- Common Law’s Evolution: The court concluded that the common law had the power to evolve and adapt to changing societal values. The House of Lords found that the creation of new offences was within the judicial remit, particularly when they addressed pressing concerns that were not covered by existing legislation. This decision marked an important precedent for judicial lawmaking in the face of emerging moral and social issues.
- Specific Threat to Morality: The court emphasised that Shaw’s publications were not merely passive; they were actively promoting and facilitating prostitution for commercial gain. This, the court concluded, was a direct and harmful influence on public morality. Therefore, the creation of an offence like conspiracy to corrupt public morals was justified in this case.
Conclusion
The case of Shaw v DPP [1962] AC 220 remains one of the most controversial and significant decisions in English criminal law. The decision confirmed the common law’s ability to create new offences in response to evolving societal concerns. The court’s reasoning in this case set a precedent for judicial lawmaking, establishing the offence of conspiracy to corrupt public morals.
While the decision was lauded for addressing societal needs, it also raised important questions about the potential for abuse of vague legal principles and the balance between public morality and individual freedoms. This case serves as a reminder of the complex relationship between law, morality, and societal values.
