The defendants were charged after pasting up in telephone booths advertisements for homosexual services. They published a magazine with similar advertisements. The House was asked to confirm the existence of an offence of outraging public decency.
Held: There now exists no power in the courts to create new criminal offences. A new criminal offence could only be created by Act of Parliament. The House considered its ability to depart from its own previous decisions.
Lord Simon of Glaisdale set out the matters which should be included in the directions to the jury where a defendant faced charges of outraging public decency: ‘It should be emphasised that ‘outrage’, like ‘corrupt,’ is a very strong word. ‘Outraging public decency’ goes considerably beyond offending the susceptibilities of, or even shocking, reasonable people. Moreover the offence is, in my view, concerned with recognised minimum standards of decency, which are likely to vary from time to time.’ It is sufficient for liability that, on an objective assessment, the conduct complained of should cause public offence. Aa jury should be directed that, ‘outraging public decency goes considerably beyond offending the susceptibilities of or even shocking reasonable people.’
Lord Reid said: ‘It was decided by this House in Shaw v Director of Public Prosecutions [1962] AC 220 that conspiracy to corrupt public morals is a crime known to the law of England. So if the appellants are to succeed on this count, either this House must reverse that decision or there must be sufficient grounds for distinguishing this case. The appellants’ main argument is that we should reconsider that decision; alternatively they submit that it can and should be distinguished.
I dissented in Shaw’s case. On reconsideration I still think that the decision was wrong and I see no reason to alter anything which I said in my speech. But it does not follow that I should now support a motion to reconsider the decision. I have said more than once in recent cases that our change of practice in no longer regarding previous decisions of this House as absolutely binding does not mean that whenever we think that a previous decision was wrong we should reverse it. In the general interest of certainty in the law we must be sure that there is some very good reason before we so act . . . I think that however wrong or anomalous the decision may be it must stand and apply to cases reasonably analogous unless or until it is altered by Parliament.’ and ‘if the appellants are to succeed on this count, either this House must reverse that decision or there must be sufficient grounds for distinguishing this case. The appellants’ main argument is that we should reconsider that decision; alternatively they submit that it can and should be distinguished. I dissented in Shaw’s case. On reconsideration I still think that the decision was wrong and I see no reason to alter anything which I said in my speech. But it does not follow that I should now support a motion to reconsider the decision. I have said more than once in recent cases that our change of practice in no longer regarding previous decisions of this House as absolutely binding does not mean that whenever we think that a previous decision was wrong we should reverse it. In the general interest of certainty in the law we must be sure that there is some very good reason before we so act . . I think that however wrong or anomalous the decision may be it must stand and apply to cases reasonably analogous unless or until it is altered by Parliament.’ and
‘there is a material difference between merely exempting certain conduct from criminal penalties and making it lawful in the full sense.’
Judges:
Lord Reid, Lord Simon of Glaisdale
Citations:
[1973] AC 435, [1972] 2 All ER 898, 56 Cr App R 633
Jurisdiction:
England and Wales
Citing:
Re-Considered – Shaw v Director of Public Prosecutions HL 4-May-1961
Offence of Conspiracy to corrupt public morals
The defendant appealed against his convictions for conspiracy to corrupt public morals, and for living from the earnings of prostitution. He said that first was not an offence known to common law. After it became unlawful for a prostitute to ply her . .
Cited – Practice Statement (Judicial Precedent) HL 1966
The House gave guidance how it would treat an invitation to depart from a previous decision of the House. Such a course was possible, but the direction was not an ‘open sesame’ for a differently constituted committee to prefer their views to those . .
Cited by:
Cited – Rees v Darlington Memorial Hospital NHS Trust HL 16-Oct-2003
The claimant was disabled, and sought sterilisation because she feared the additional difficulties she would face as a mother. The sterilisation failed. She sought damages.
Held: The House having considered the issue in MacFarlane only . .
Cited – Regina v Ching Choi CACD 7-May-1999
The defendant appealed his six convictions for outraging public decency. He had used a video camera and mirrors to record images of women using the toilet in a chinese supermarket. . .
Cited – Regina v Curran CACD 29-Oct-1998
The defendant sought leave to appeal his convictions for outraging public decency. He had been seen having sex on the bonnet of a car in a car park at Heathrow.
Held: the acts complained of could found a conviction for outraging public . .
Cited – Regina v Jones (Margaret), Regina v Milling and others HL 29-Mar-2006
Domestic Offence requires Domestic Defence
Each defendant sought to raise by way of defence of their otherwise criminal actions, the fact that they were attempting to prevent the commission by the government of the crime of waging an aggressive war in Iraq, and that their acts were . .
Cited – Regina v Secretary of State for Foreign Affairs ex Parte the World Development Movement Ltd Admn 10-Nov-1994
The Movement sought to challenge decisions of the Secretary of state to give economic aid to the Pergau Dam, saying that it was not required ‘for the purpose of promoting the development’ of Malaysia. It was said to be uneconomic and damaging. It . .
Cited – Green, Regina (on the Application of) v The City of Westminster Magistrates’ Court, Thoday, Thompson Admn 5-Dec-2007
The claimant appealed from the refusal by the magistrate to issue summonses for the prosecution for blashemous libel of the Director General of the BBC and the producers of a show entitled ‘Jerry Springer – The Opera.’
Held: The gist of the . .
Cited – Doherty and others v Birmingham City Council HL 30-Jul-2008
The House was asked ‘whether a local authority can obtain a summary order for possession against an occupier of a site which it owns and has been used for many years as a gipsy and travellers’ caravan site. His licence to occupy the site has come to . .
Cited – Director of Public Prosecution v Withers HL 20-Nov-1974
The House was asked to consider whether there existed the crime of a conspiracy to commit a public mischief.
Held: There was no such crime, since it was so undefined as to be unfair to any defendant. Although at common law no clear distinction . .
Cited – The Director of Public Prosecutions v SK Admn 10-Feb-2016
The prosecutor appealed against dismissal of a charge of conspiracy to pervert the course of justice. The defendant had completed somebody else’s community service sentence. The prosecutor said that such an act did affect something ‘in the course of . .
Cited – Al Rabbat v Westminster Magistrates’ Court Admn 31-Jul-2017
The claimant appealed against refusal of an application for judicial review in turn of a refusal to allow private prosecutions of Tony Blair, Jack Straw and Lord Goldsmith in respect of their involvement in the war in Iraq, and the alleged crime of . .
Cited – Regina v Kansal (2) HL 29-Nov-2001
The prosecutor had lead and relied at trial on evidence obtained by compulsory questioning under the 1986 Act.
Held: In doing so the prosecutor was acting to give effect to section 433.
The decision in Lambert to disallow retrospective . .
Lists of cited by and citing cases may be incomplete.
Crime, Constitutional
Updated: 19 May 2022; Ref: scu.186954