Conspiracy to Corrupt Public Morals.
As mentioned in the 'Answer to Jan' post below, the word 'moral' and the concept of 'morality' is often used in public debate without proper consideration to its meaning.
Revising for my Criminal Law exam I've come over across another quite serious example of this. In the criminal case of Shaw v. DPP [1962] AC 220, the House of Lords upheld Shaw's conviction of the previously unknown crime of 'Conspiracy to Corrupt Public Morals'. Shaw had published a prostitute guidebook.
Later in Knuller v DPP [1973] AC 435, the House of Lord upheld another such conviction against a publisher of magazine which included advertisements soliciting homosexual acts. Their argument was that such advertisement were 'destructive to the very fabric of society.'
I am not convinced that the Law Lords knew they were talking about. Prostitution and Homosexuality may brake down society, I don't know, but is such behaviour immoral? It can only be described as immoral if there is a clearly defined set of maxims that everyone subscribes to and to which everyone must adhere.
These judgments are, in my opinion, very dangerous. Not just because they were effectively retrospective, but because they were based on a subjective and undefined standard for behaviour.
posted by Torsten Pedersen @ Wednesday, May 17, 2006
5 comments
5 Comments:
I agree with you that this is a problem of definition (or lack thereof). How can you be judged if your offense is not clearly and unambiguously stated?
But I also find the British system strange. Does this mean that the House of Lords has judiciary power? That doesn't really adhere to the principle of seperation, does it? Even worse, aren't many of the Lords seats still heredetary?
Yes, the British Constitution is strange and in my opinion in need of reform, some of which is under way.
Although the Separation of Powers is an important doctrine of UK public law, there is actually no formal separation. There are only two powers: The Crown and Parliament. The judiciary is actually part of The Crown, although the courts do recognise Parliament as supreme.
It is only the Appellant Committee of the House of Lords that functions as the final appeal court. This means that only the Law Lords (Appointed Judges) sit when the House of Lords functions as a court. These Law Lords are, however, members of Parliament and do vote on legislation.
The Supreme Court Act, which passed in 2005, will create a Supreme Court that will take over the House of Lords judicial power as final appeal court. The reason the act hasn't been implemented yet is because they need to build a Supreme Court building first. They expect the building to be ready in 2008!
I can't agree more!
Laws should be clearly defined, or else they create even more opportunities for violations of civil liberties. There are enough possibilities for that written (or lack thereof) into the laws already. (e.g. curfews, ASBOs and Internments.)
Also in a post-christian society nobody should be expected to know, let alone live by, the morality codec of christianity nor judaism. I, as a christian, denifitly don't share the morality behind banning homosexual lifestyle (nor advertising it). So how should a pagan believer be able to know the subtleties of a christian moral codec.
conspiricy to corrupt public morals is a common law offence that has exsisted in english law since 1774 when lord mansfield proclaimed that the court was custodes morum and had every right to "restrain and punish" any activity it deemed contra bonos mores est decorum. it is and always has been a recognised offence and to suggest that shaw was a retroactive judgement is simply inncorrect. true the offence was rare and was considered by many to not exsist but ignorance to the facts and history does not make it so.
Thank you 'anonymous' for your comment.
That it was not retroactive, and that Lord Mansfield's proposition of the courts as 'guardians of morals' had established the offence in Common Law, was the opinion of the Law Lords in Shaw.
However, the notion that the courts can punish, as a crime, anything they consider to be contrary to public mores, is for many, myself included, the very essence of retroactive law and contrary to the principle of "nullum crimen sine lege."
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