Conspiracy law, class and society - Part 12
Updated: Jan 10, 2021
One of the first major cases in the recent resurgence of conspiracy was DPP v Shaw, where the publisher of the Ladies Directory – a list of prostitutes – was convicted of conspiracy to corrupt public morals. In the House of Lords it was argued on behalf of Shaw that new offense in relation to public morals could not be created by the courts. Rejecting this argument, Viscount Simmonds delivered his famous judgement that
I entertain no doubt that there remains in the courts a residual power to enforce the supreme and fundamental purpose of the law, to conserve not only the safety and order, but also the moral welfare of the state, and that it is their duty to guard it against attacks which may be the more insidious because they are novel and unprepared for…it matters little what label is given to the offending act…to one of your lordships it may appear an affront to public decency, to another it will seem a corruption of public morals. Yet others may deem it a public mischief. I now assert that there is a residual power, where no statute has yet intervened to supersede the common law, to superintend those offences which are prejudicial to the public welfare.
This statement, which both created a new offence and pointed out the impossibility of classifying it according to existing rules, finally laid to rest the argument that English judges do not make law. It is probably one of the most criticised decisions of recent times: in the Lords itself, the dissenting judgement of Lord Reid shows that the judges were uneasy about their power to extend conspiracy. One example of the academic outrage which followed Shaw is the comment of Fitzgerald that the case ran counter to two cardinal principles of free and democratic government. First, the idea of the rule of law, based on the demand that the citizen should be ruled by laws and not by the whims of men; and second the principle of legality, that only existing breaches of law should be punishable – the citizen should be able to know in advance what conduct is permitted and what is forbidden. Fitzgerald also points out that when Parliament creates a crime, its effect is for the future only; but when the judges make a law, their creation is retrospective not merely to the time of the facts of the case, but forever. The law of conspiracy is riddled with judicial assertions that the function of the courts is to state the law as it always has been, if not as far back as the origin of the universe, then certainly to Angle-Saxon times.
The name of Jeremy Bentham was also invoked by critics of the Shaw decision, who quoted the master of utilitarianism as follows:
It is the judges that make the common law. Do you know how they make it? Just as a man makes laws for his dog. When your dog does anything you want to break him of, you wait until he does it and then beat him. This is the way you make laws for your dog and this is the way the judges make laws for you and me.
The extent of academic and juristic influence upon criminal prosecutors during the last two decades is best illustrated by the fact that the Shaw case led to a spate of more than 30 public morality prosecutions between 1962 and 1972. These ranged from ‘blue film’ cases to the supply of heroin. But the most significant ‘morality’ conspiracy cases were those brought against the expanding underground press of the early 1970s, characterised by Robertson as ‘assuming the proportions of a cultural collision’.
In Knuller the editors of IT newspapers faced conspiracy charges for publishing homosexual adverts. Lord Reid’s judgement shows that he did not regard himself as bound by his statement in Shaw that there was no such offence as conspiracy to corrupt the public morals. In the interests of certainty, Shaw must be upheld and the convictions of the editors affirmed. This was despite the fact that in 1964 Sir Peter Rawlinson, then Solicitor-General in a Conservative government, had assured the House of Commons that conspiracy charges would never again be used to circumvent the provisions of the Obscene Publications Act 1959. In O’Higgins; view, ‘if one inquires why this odd offence of conspiring to corrupt the public morals is used instead of the offence of publishing an obscene magazine, the answer is probably that this is done in order to deprive the accused of the defence to which they would, under the Obscene Publications Act, be entitled’. This defence – that the material was published for the public good – becomes irrelevant when conspiracy charges are brought. The value of the Rawlinson assurance was revealed by the Lords’ statement that it had not been brought to the attention of the judges. It should also be noted that, in 1967, homosexual acts had been partially legalised. Lord Reid dealt with this by pointing out that there was a material difference between exempting conduct from criminal penalties and making it lawful in the full sense: again, conspiracy law was not affected.
Another famous trial involving the alternative press and those who advocated alternative forms of society was that of Anderson and others for conspiring to corrupt the public morals of publishing Oz Schoolkids Issue which allegedly contained obscene articles, cartoons, drawings, and illustrations. Again, conspiracy was used to avoid the complications of obscenity statutes. The verdict of not guilty showed yet again that the only real defence against conspiracy as repression is the common-sense of twelve jurors.
If these prosecutions were designed, as has been suggested, to suppress the emergence during the early 1970s of an alternative society and an alternative morality, their success may be assumed from the fact that the underground press haw now disappeared, but conspiracy to corrupt public morals is still with us. Despite the anguished criticisms voiced by academics, despite years of debate by the Law Commission which resulted in a clear recommendation for abolition, despite the views of members of Commons and Lords that the offence is ‘a blot on our penal system’, it remains available for the use of prosecutors who can prove no other charge.