The right to protection from retroactive criminal law

Shaw v. Director of Public Prosecutions

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In 1961, the House of Lords handed down a decision which caused great consternation amongst lawyers and commentators: Shaw v. Director of Public Prosecutions.22 Shaw had published a booklet called the Ladies' Directory, which advertised the names and addresses of prostitutes. The booklet:

... 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.23
Shaw was successfully prosecuted under a number of provisions of the Sexual Offences Act 1956 and the Obscene Publications Act 1959. He was also convicted on a charge of "conspiracy to corrupt public morals" on the basis that, when he published the booklet, Shaw was conspiring with the prostitutes "... to debauch and corrupt the morals of youth and other subjects of the Queen".24

Shaw complained to the House of Lords, inter alia, that the crime of conspiracy to corrupt public morals was hitherto unknown or innominate. All five law lords upheld the conviction. Only Lord Reid maintained that the crime with which Shaw was charged was an existing common law misdemeanour. The other four law lords went further. They held that courts have a residual power to superintend offences which are prejudicial to the public welfare. The majority built their argument upon the notion, put forward by Lord Mansfield almost two hundred years earlier, that the courts are "guardians of public morals" and that they ought to restrain and punish "... whatever is contra bonos mores et decorum".25

Commentators were quick to criticise this decision, seeing that it had serious consequences:

A principle of considerable importance but disquieting possibilities was established by the House of Lords in Shaw v. Director of Public Prosecutions ... It is difficult not to regard the decision ... as a serious blow to the principle nullum crimen sine lege, "one of the oldest and most enduring of all the ideas of Western civilisation" ... Without it we should have what Donnedieu de Vabres calls a "justice de circonstance, d'occasion, abandonnée à l'influence des passions individuelles".26

In the earlier case of R. v. Manley,27 Manley made false allegations of robbery to the police. Before the Court of Criminal Appeal she was found guilty of "unlawfully effecting a public mischief". This decision was widely attacked as being an example of ex post facto punishment, as no such crime existed before R. v. Manley. Courts had avoided following that case until Shaw v. DPP provided an implied affirmation (and, in the judgment of Viscount Simonds, an express affirmation) of the decision.

Both Manley and Shaw were found guilty of having committed crimes that were not recognised as such when they committed the acts in question. These two cases have been much criticised, yet they remain as examples of how the principle of non-retroactivity has not been universally applied in British courts. In the words of Stone:

The vigour of [the] juristic and professional controversy [after Shaw's case and Manley's case] is a salutary reminder that ex post facto punishment is still a problem even in the legal order which was the progenitor of "the rule of law".28

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Last modified:  31 August 1989