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LA205 - Criminal Law and Procedure 1 - Cases

 

[HOUSE OF LORDS]

SHAW
APPELLANT;

AND

DIRECTOR OF PUBLIC PROSECUTIONS
RESPONDENT.

C.C.A.
1960 Dec. 12, 13, 14, 21
Lord Parker C.J. Streatfeild and Ashworth JJ.

H.L.(E.)*
1961 Mar. 13, 14, 15, 16, 20, 21, 22; May 4.
*Present: VISCOUNT SIMONDS, LORD REID, LORD TUCKER LORD MORRIS OF BORTH-Y-GEST and LORD HODSON.

Crime-Obscene libel-Advertisement-Booklet consisting mainly of advertisements by and names and addresses of prostitutes-Advertisements inviting sexual intercourse and in some cases indulgence in sexual perversions-"Tend to deprave and corrupt "-Reliance on publisher's honesty of purpose-Whether new Act bar to prosecution for conspiracy at common law-Obscene Publications Act, 1959 (7 & 8 Eliz. 2, c. 66), ss. 1, 2(4), 4.

Crime -Evidence- Obscenity-Advertisement for prostitutes -Their evidence of meaning of words-Police evidence of their practices-Admissibility.

Vagrancy-Prostitution-Living on the earnings of Publication of booklet containing advertisements by prostitutes-Charge for advertisements-Whether publisher knowingly "living wholly or in part on the earnings of prostitution"-Sexual Offences Act, 1.956 (4 & 5 Eliz. 2, c. 691 a. 30 (1).

Crime-Conspiracy-Contra bonos mores-Public mischief-Nature and ambit of offence--Publication of booklet containing advertisements by prostitutes-Whether statutory bar to bringing proceedings at common law-Obscene Publications Act, 1959 (7 & 8 Eliz. 2, c. 66), s. 2 (4).

The appellant published a booklet, the Ladies' Directory, of some 28 pages, most of which were taken up with the names and addresses of prostitutes; the matter published left no doubt that the advertisers could be got in touch with at the telephone numbers given and were offering their services for sexual intercourse and, in some cases, for the practice of sexual perversions. The appellant's avowed purpose in publication was to assist prostitutes to ply their trade when as a result of the Street Offences Act, 1959, they were no longer able to solicit in the street. The prostitutes paid for the advertisements and the appellant derived a profit from the publication. The appellant pleaded not guilty to an indictment charging him with (1) conspiracy to corrupt public morals in that he conspired with the advertisers and other persons by means of the Ladies' Directory and the advertisements to debauch and corrupt the morals of youth and other subjects of the Queen; (2) living on the earnings of prostitution contrary to section 30 of the Sexual Offences Act, 19561; and (3) publishing an obscene article contrary to section 2 of the Obscene Publications Act, 1959.2

At the trial evidence was given by prostitutes that they had paid for the advertisements out of their earnings, that the advertisements were good at bringing clients in, and as to the ages of the persons resorting to them and the meaning of abbreviations and expressions in the advertisements; they also gave evidence of the practices in which they indulged and there was evidence by the police as to objects found at their addresses. The summing-up gave no direction to the jury as to the relevance of the appellant's honesty of purpose. The jury convicted the appellant. On appeal, on the grounds, inter alia, that there was no such offence at common law as the conspiracy alleged; that the conspiracy charged was barred by section 2 (4) of the Obscene Publications Act, 1959; that the appellant had not received the earnings of the prostitutes as such but merely the profits from the sale of the booklet; that there had been no direction as to his honesty of purpose, and that evidence had been wrongly admitted on the charge under the Act of 1959:-

Held, by the Court of Criminal Appeal, dismissing the appeal on all counts, inter alia, that the test of obscenity in section 1(1) of the Obscene Publications Act, 1959, was whether the effect of the article was such as to tend to deprave and corrupt persons who were likely to read it, so that obscenity depended on the article and not the author, and that, therefore, intention and the appellant's honesty of purpose were irrelevant (post, p. 227).

Further, that the evidence of the prostitutes in so far as it was directed to the special. meaning of abbreviations and phrases used in the advertisements was admissible on the charge under the Obscene Publications Act, 1959, and that the rest of their evidence and that of the police was not, but that the whole of that evidence was admissible on the conspiracy charge and, since there was no substantial miscarriage of justice, the conviction under the Act of 1959 should not be set aside on that ground (post, pp. 227, 228).

Dictum of Cockburn C.J. in Reg. v. Hicklin (1868) L.R. 3 Q.B. 360, 370 applied.

On appeal to the House of Lords on counts 1 and 2:-

Held, by the House of Lords, (1) that for the purposes of section 30 (1) of the Sexual Offences Act, 1956, a person might fairly be said to be living in whole or in part on the earnings of prostitution if he was paid by prostitutes for goods or services supplied by him to them for the purpose of their prostitution which he would not supply but for the fact that they were prostitutes (post, p 264). That, accordingly, the appellant, who as part of his business accepted advertisements for reward from prostitutes of their readiness to prostitute themselves, knowingly lived in part on the earnings of prostitution within the meaning of the section.

Reg. v. Thomas [1957] 1 W.L.R. 747; [1957] 2 All E.R. 181; 41 Cr.App.R. 117 and Reg. v. Silver [1956] 1 W.L.R. 281; [1956] 1 All E.R. 716; 40 Cr.App.R. 32 considered.

Calvert v. Mayes [1954] 1 Q.B. 342; [1954] 2 W.L.R. 18; [1954] 1 All E.R. 41, D.C. approved.

Per Lord Reid. The words "living on" in section 30 of the Sexual Offences Act, 1930, connote living parasitically.

(2) (Lord Reid dissenting) that a conspiracy to corrupt public morals was a common law misdemeanour and that there was evidence fit to be left to the jury on which the appellant could be found guilty of this offence. That it was irrelevant to this charge that section 2 (4) of the Obscene Publications Act, 1959, might bar proceedings against the appellant if no conspiracy was alleged, for the conspiracy alleged did not "consist of the publication" of the booklet, but of an agreement to corrupt public morals by means of the booklet, which might never be published (post, pp. 266, 268, 290, 291, 292).

Rex v. Delaval, (1763) 3 Burr. 1434; Reg. v. Mears and Chalk (1851) 2 Den. 79; Reg. v. Howell, (1864) 4 F. & F. 160 and Reg. v. Berg, Britt, Carré and Lummies (1927) 20 Cr.App.R. 38, C.C.A. approved and applied.

Per curiam. (Lord Reid dissenting) that there was in the courts as custodes morum of the people a residual power, where no statute had yet intervened to supersede the common law, to superintend those offences which were prejudicial to the public welfare (post, p. 268).

Observations of Lord Mansfield in Rex v. Delaval (1763) 3 Burr. 1434, 1438, 1439 approved.

Decision of the Court of Criminal Appeal, sub nom. Reg. v. Shaw, post, p. 226; [1961] 1 All E.R. 330 affirmed.

APPEAL from the Court of Criminal Appeal (Lord Parker C.J., Streatfeild and Ashworth JJ).

The appellant, Frederick Charles Shaw, pleaded not guilty at the Central Criminal Court, before Judge Maxwell Turner and a jury, on an indictment containing the following three counts:

"(1) Conspiracy to corrupt public morals. Particulars of Offence. . . . conspired with certain persons who inserted advertisements in issues of a magazine entitled 'Ladies' Directory' numbered 7, 7 revised, 8, 9, 10 and a supplement thereto, and with certain other persons whose names are unknown, by means of the said magazine and the said advertisements to induce readers thereof to resort to the said advertisers for the purposes of fornication and of taking part in or witnessing other disgusting and immoral acts and exhibitions, with intent thereby to debauch and corrupt the morals as well of youth as of divers other liege subjects of Our Lady The Queen and to raise and create in their minds inordinate and lustful desires"; (2) living on the earnings of prostitution, contrary to section 30 of the Sexual Offences Act, 1956; and (3) publishing an obscene article, the Ladies' Directory, contrary to section 2 of the Obscene Publications Act, 1959.

The Ladies' Directory was a booklet of some 28 pages, most of which were taken up with the names and addresses of women who were prostitutes, together with a number of photographs of nude female figures, and the matter published left no doubt that the advertisers could be got in touch with at the telephone numbers given and were offering their services for sexual intercourse and, in some cases, for the practice of sexual perversions.

The appellant did not give evidence, but he had admitted publication and his avowed object in publishing was to assist prostitutes to ply their trade when, as a result of the Street Offences Act, 1959, they were no longer able to solicit in the streets. There was evidence that on October 22, 1959, prior to publication, he had taken advice as to whether publication would be legal, and had shown a police officer at Scotland Yard the first issue of the booklet and asked him if it would be all right to publish; apparently he had arranged that the Director of Public Prosecutions should see a copy. There was also evidence that he had assured the owner of a kiosk, whom he had asked to sell the booklet, that it would not he published unless it was legal. When later he was asked by a police officer if he was the Shaw who had published the Ladies' Directory he said: "Yes," and "I publish this and distribute it for 5s. each to help the prostitutes who advertise in it," but would not state how much he charged for advertisements, saying that he ran it as a business and that his solicitor thought it was all right. There was evidence that advertisers paid 25 guineas for the front cover, 15 guineas for the back cover, and side, 10 guineas for a full-page advertisement, 8 guineas for a half-page photograph, and 2 guineas for a small printed advertisement; the amount paid by prostitutes advertising in issue No. 9 was calculated to be £250 19s., but there was no evidence as to how much of that was profit. The appellant charged 2s. 6d. to sellers for the booklet and it was sold to the public for 5s. Evidence was given by five prostitutes that they had paid for the advertisements out of their earnings as prostitutes, that the advertisements were good at bringing clients in and as to the ages of the persons resorting to them; they also gave evidence as to the meaning of certain abbreviations and about the sexual perversions referred to in their advertisements, and there as police evidence as to the objects found at their addresses.

After the close of the evidence for the prosecution, counsel for the appellant submitted that the conspiracy alleged in count 1 disclosed no offence, and that, in the case of count 2, the evidence the prosecution had disclosed no offence.

Judge Maxwell Turner ruled that a conspiracy to debauch and corrupt public morals was a common law misdemeanour and was indictable at common law and that the particulars of the offences set out in count 1 were particulars of such a conspiracy, if the Jury found the- facts alleged to be true. On the second count he ruled that there was evidence for the jury to consider.

No evidence was called for the defence.

In summing up the judge did not direct the jury as to the relevance of the appellant's honesty of purpose. In the course his direction to the jury, after reading section 1 of the Obscene Publications Act, 1959, he said: "The test, therefore, that you have got to apply is laid down by the Act of Parliament-is the effect of this publication, taken as a whole, such as to tend to deprave and corrupt persons who are likely to read it. . . . If the effect of this document is thought by you to encourage or induce readers of it to resort to prostitutes for fornication and/or for the other deviations we have heard about, and if that is a thing which corrupts or depraves such people, and if you think that, they are then acting in a depraved and corrupt way, then in my view the effect of this article would he to tend to corrupt and deprave and it would be obscene within the definition of the Act. Whether to induce or encourage a person likely to read this article to resort to prostitutes for this purpose does, in fact, tend to corrupt and deprave, is, of course, a matter for you, in the light of my previous observations to you on the subject."

The jury convicted the appellant on all three counts and he was sentenced to nine months' imprisonment.

The appellant appealed against his conviction on all three counts to the Court of Criminal Appeal. On count 1 it was contended, in effect, that there was no such offence at common law as a conspiracy to corrupt; public morals unless the acts alleged were offences against the criminal law or amounted to a civil wrong and that, as the acts alleged in the indictment were not in either of those classes, the conspiracy alleged disclosed no offence; further, that, since the proceedings were based on an obscene publication, they were barred by section 2(4) of the Obscene Publications Act, 1959. On the second count it was contended that the judge had misdirected the jury in that he had failed to point out the distinction between services supplied to a prostitute for reward and the mere receipt of the earnings of a prostitute, and that the appellant had not received the earnings of prostitutes, but profits from the sale of the booklet. On the third count it was contended that there was misdirection in that the judge had failed to direct the jury as to the relevance of the appellant's honesty of intention; that the true test under the Act of 1959 was the effect of the article on the mind of the person reading it, and that the evidence of the prostitutes and the police officers as to the results of the advertisement, the ages of the persons resorting to the prostitutes and the practices they indulged in was inadmissible. On all counts the appellant stated as a ground of appeal that the publication was in the public interest. The appellant also appealed against his sentence.

W. R. Rees Davies for the appellant.
J. H. Buzzard and M. D. L. Worsley for the Crown.

The following cases, in addition to those referred to in the judgment, were cited in argument:

Calvert v. Mayes3; Rex v. Hill4; Rex v. Manley5; Reg. v. Newland6; Rex v. Higgins7; Rex v. Bassey8; Reg. v. Hudson9; Rex v. Taylor10; Rex v. Grey (Lord)11; Reg. v. Green12; Quinn v. Leathem13; Crofter Hand Woven Harris Tweed Co. Ltd. v. Veitch14; Rex v. Lynn.15

Cur. adv. vult.

..........................................................

 

Appeal dismissed.

Solicitors: Gerald Black & Co.; Director of Public Prosecutions.

ENDNOTES:

1 Sexual Offences Act, 1956, s. 30 (l): "It is an offence for a man knowingly to live wholly or in part on the earnings of prostitution."

2. Obscene Publications Act, 1959, s. 1: "(1) For the purposes of this Act an article shall be deemed to be obscene if its effect . . . is, if taken an a whole, such as to tend to deprave and corrupt persons who are likely, having regard to all relevant circumstances, to read, see or hear the matter contained or the embodied in it."

S. 2: "(1) . . . any person who, whether for gain or not, publishes an obscene article shall be liable . . . (b) on conviction on indictment to a fine or to imprisonment for a term not exceeding three years or both. ". . . (4) A person publishing an article shall not be proceeded against for an offence at common law consisting of the publication of any matter contained or embodied in the article where it is of the essence of the offence that the matter is obscene."

S. 4: "(1) A person shall not be convicted of an offence against section 2 of this Act . . . if it is proved that publication of the article in question is justified as being for the public good an the ground that it is in the interests of science, literature, art or learning, or of other objects of general concern."

3 [1954] 1 Q.B. 342; [1954] 2 W.L.R. 18; [1954] 1 All E.R. 41, D.C.

4 [1914] 2 K.B. 386; 10 Cr.App.R. 56, C.C.A.

5 [1933] 1 K.B. 529; 24 Cr.App.R. 25, C.C.A.

6 [1954] 1 Q.B. 158; [1953] 3 W.L.R. 826; [1953] 2 All E.R. 1067; 37 Cr.App.R. 154, C.C.A.

7 (801) 2 East 5.

8 (1931) 47 T.L.R. 222; 22 Cr.App.R. 160, C.C.A.

9 [1956] 2 Q.B. 252; [1956] 2 W.L.R. 914; [1956] 1 All E.R. 814; 40 Cr.App.R. 55. C.C.A.

10 (1675) Ventr. 293.

11 (1682) 9 State Tr. 127.

12 (1862) 3 F. & F. 274.

13 [1901] A.C. 495; 17 T.L.R. 749, H.L.

14 [1942] A.C. 435; 58 T.L.R. 125;. [1942] 1 All E.R. 142, H.L.

15 (1788) 2 Durn. & E. 733.

 

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