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Conspiracies Contra Bonos Mores
For there is scarce anything so clearly written, that when the
cause thereof is forgotten, may not be wrested by an ignorant
grammarian, or a cavilling logician, to the injury, oppression
or perhaps destruction of an honest man.1
Introduction
The ancient common law offence of acting in conspiracy with
another in a manner such as to corrupt the morals “of an indi-
vidual and a fortiori 3f the public” 2 was foisted upon the common
law world by the House of Lords in 1961. Observations of their
Lordships at that time to the effect that the new-found crime en-
compasses any conspiracy, “to commit a wrongful act which is
calculated to cause public injury”,3 or which is “prejudicial to the
public welfare”4 have been applied of late to justify convictions
for the offences of conspiracy to outrage public decency r and
conspiracy to effect a public mischief.8
1 Thomas Hobbes, A Dialogue Between a Philosopher and a Student of the
Common Law of England, Ascarelli ed., (Giuffr , Milan: 1960), at p. 120.
2 Shaw v. D.P.P., [1962] A.C. 220, at p. 287, per Lord Tucker.
3 Ibid., at p. 290, per Lord Tucker.
4 Ibid., at p. 268, per Viscount Simonds.
5 Knuller (Publishing, Printing and Promotions) Ltd. v. D.P.P., [1972] 3 W.L.R.
143 (H.L.).
6 The Queen v. Howes, (1971) 2 SA.S.R. 293 (S.C. in banco). Thankfully, the
form of indictment being considered probably cannot be preferred in Canada.
Section 423(2)(a) of the Criminal Code, R.S.C. 1970, c. C-34, reads: “Every
one who conspires with another to effect an unlawful purpose… is guilty
of an indictable offence…”. Unlawful purpose apparently cannot be read too
restrictively, as it has been held by the Supreme Court of Canada to include
the violation of provincial quasi-penal laws: Wright, McDermott and Feeley v.
The Queen, [1964] S.C.R. 192, 43 D.L.R. (2d) 597; see also R. v. Layton, Ex
parte Thodas, [1970] 5 C.C.C. 260 (B.C.C.A.). Nonetheless, some scope must
be afforded the very absolute words of section 8(a) of the Code: “Notwith-
standing anything in this Act or any other Act no person shall be convicted
(a) of an offence at common law…”. In the absence of any reported con-
sideration in the case law of the possible mutual effects of sections 8 and
423, it is submitted that the former, if it is to be given any meaning at all,
must stand to restrict the term unlawful purpose in the latter section, so as
to exclude the catch-all Knuller or Shaw indictment. Note though that the
case law cited above well might find the facts of the Howes case within the
scope of section 423(2)(a), involving as it does the breach of some statutory
injunction.
19731
NOTES
The facts of the Shaw and Knuller cases are fully reviewed in
the note of Mr. Julius Grey7 In brief though, a 1959 Statute pro-
hibited England’s prostitutes from soliciting in the streets. One
Shaw published a booklet containing prostitutes’ names and ad-
dresses; each woman listed had paid Shaw for her advertisement.
A majority in the House of Lords not only found the appellant
guilty of a statutory offence (living on the earnings of prostitu-
tion), but also of the “common law misdemeanour of conspiracy
to corrupt public morals”.
The Queen v. Howes 8 and Knuller (Publishing, Printing and
Promotions) Ltd. v. Director of Public Prosecutions,9 both purport-
ing to follow the Shaw precedent, extended that ground of criminal
liability to new fields of endeavour. In the former case a defendant
was convicted of conspiring (with persons unknown) to gain a non-
pecuniary advantage from a public authority: he had someone else
sit for a matriculation examination in economics using the accused’s
name. The latter case saw the House of Lords affirm the convictions
for conspiracy to corrupt public morals of company directors whose
magazine published advertisements placed by men seeking others
with whom to enjoy homosexual practices. The homosexual practices
in question themselves had ceased to be illegal by virtue of a statute
enacted some five years earlier. The Law Lords –
or at least three-
fifths of this high bench –
further affirmed the existence in the
common law of an offence, “conspiracy to outrage public decency”,
though they allowed the specific appeals before the House in respect
of that count.
There seems little to be gained from subjecting the reader to
another installment of an irresolvable debate as to whether or not
the courts were “correct” in their application of the black-letter-law
rules of precedent in the process of resurrecting from its just tomb
the role of Her Majesty’s Justices of Queen’s Bench as custodians of
the morals of the realm. This author willingly concedes that, seen
purely in abstracto, the judgment in Shaw’s case was a technically
viable application of the tools of legal interpretation.
It will be contended, however, that the judicial imposition of the
offence of conspiracy contra bonos mores, and its extension to new
fields of activity in the Knuller dicta and in the Howes judgment,
was bad in law –
in the larger sense of the term. Firstly, it repre-
sents an unconstitutional usurpation of a social function long
7 (1973) 19 McGill LJ. 130.
8 (1971) 2 S.A.S.R. 293.
9 [1972] 3 W.L.R. 143.
138
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allocated to a popularly elected legislature. Secondly, the line of
cases demonstrates poor application of the judicial process, in that
precedent was applied either blindly, or with a view towards achiev-
ing social policies totally out of keeping with modern cultural
expectations of justice. Thirdly, the new crime was defined in a
manner irreconcilable with today’s requirements for a meaningful
mental element in penal laws, and strong repugnance against ex post
facto deprivations of liberty.
I. The Judiciary and the Constitution
Purely as a matter of historical fact, it is quite true that the
Court of King’s Bench, perhaps some three centuries ago, did have
full authority to punish whatever acts its judges deemed inimicable
to the political order. The Court of King’s Bench found itself
possessed of this jurisdiction upon the demise of the Court of Star
Chamber. This power of Star Chamber, and the attitude with which
it was exercised, is exemplified by a statement of the Lord Keeper
in 1602, regarding the legal methodology followed by its judges:
“[If] necessary for the public good, a precedent was not necessary
to direct them, but they could make an order according to the
necessity and nature of the thing itself.”’10
The paramountcy of social order and entrenched powers over the
civil liberties of the subjects, at large during this era, also is reflected
in the development of the English law of conspiracy by this Court
of Star Chamber. Given this socio-political context, “It was inevit-
able,” writes Sir William Holdsworth about the Star Chamber,
… that conspiracy should come to be regarded as a form of attempt
to commit a wrong. … it punished all kinds of attempts to commit
wrongful acts, so, a fortiori, it punished all kinds of conspiracies to
commit the many varied offences punishable either by it or by the
common law courts. 1
The open-ended nature of the list of the “many varied offences”
punishable by this Court has already been mentioned.
This intellectual framework for judicial decision making is
totally foreign to today’s legal process. There has come to be woven,
so inextricably into English public law as to make it of constitutional
status, the principles encompassed under the rubric “the rule of
law”, or the Latin maxim “nulla poena sine lege”. Thus there is
agreement among jurisconsults of this century that, as regards the
individual citizen, these most basic notions of justice demand, at
10 Les Rapports del Cases, at p. 144.
31A History of English Law, vol. 5, (1924), at pp. 204-205.
19731
NOTES
the least, that penal laws, strictly construed, are to remain within a
more or less predetermined ambit. No act is to be deemed criminal
which is not clearly so identified before the act. The adjudicative
function is to operate solely within these principles of the rule of
law.12
To the extent that the English constitution is formed of a body
of conventions, tacitly accepted by the governed and all of their
governors alike, the 11ouse of Lords upset this delicate equilibrium
through a technically valid process of applying rules long ago releg-
ated to desuetude. The past century’s developments in the realm of
Parliamentary government notwithstanding, even the criminal bar
of the late eighteenth century would have expressed surprise to find
reasserted the power of judicial legislation of this magnitude. One
publicist of the period, speaking of the power of judges to combat
new challenges to the public morality, put it this way:
Though the existence of this power as inherent in the judges has been
asserted by several high authorities for a great length of time, it is hardly
probable that any attempt to exercise it would be made at the present
day; … That the law in its earlier stages should be developed by judicial
decisions from a few vague generalities was natural and inevitable. … the
courts have done their work; they have developed the law…. parliament
[sic] is regular in its sittings and active in its labours; and if the pro-
tection of society requires the enactment of additional penal laws, parlia-
ment will soon supply them.13
If anything, the past century of representative government has
added all the more weight to Sif James Stephen’s observations.
It is suggested that the English courts today might well adopt the
wisdom offered by a bench of the Supreme Court of the United States
which included John Marshall and Joseph Story as regards a pur-
ported jurisdiction of that Court to convict persons for “common
law” federal criminal offences. Although it was the first time the
point had been argued before that Court, its judgment stated con-
clusively that no such jurisdiction existed. The reason for which
that Court so held is equally apt. They said, “we consider it as
having been long settled in public opinion.”‘1
12 Hall, Nulla Poena Sine Lege, (1937) 47 Yale L.J. 165; Jennings, The Law
and the Constitution, 5th ed., (1959), at p. 51; Wade and Phillips, Constitutional
Law, 8th ed., (1970), at pp. 66, 67, 76-77; de Smith, Constitutional and Adminis-
trative Law, (1971), at pp. 39-40.
33 Stephens, A History of the Criminal Law of England, vol. 3, (1882), at
pp. 359-360.
concludes the following:
14 U.S. v. Hudson and Goodwin, 7 Cranch (U.S.) 32, at p. 32. h.LA. Hart
As a result of Shaw’s case, virtually any cooperative conduct is criminal
if a jury consider it ex post facto to have been immoral. Perhaps the
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The policy error in the present line of cases, one so grave as to
be of constitutional dimensions, is apparent when the implications
of Shaw upon the civil liberties of the subject are contrasted with
the general predisposition of the law in penal matters. As regards
statutory offences, now the bulk of English penal law (and the
totality of it in Canada), one always must be found to have violated
some specific statutory injunction.
Acts –
even conspiratorial acts – merely “calculated to defeat,
frustrate or evade the purpose of an Act of Parliament” clearly are
not illegal. The distinction between tax evasion and tax avoidance
is the ready example. “If it were otherwise,” the House of Lords
itself has declared of late with unanimity, “freedom under the law
would be but an empty phrase.”‘r,
While it is recognized that the character of a judicial decision
never can be merely declaratory of preexisting law and, as the
Knuller and Shaw benches both argued, judges must retain a power
to apply recognized general rules even to ingeniously new fact
patterns, it must still be concluded that the judgments in the Shaw
line of cases are unconstitutional, as they are not referable to any
generally recognized rule of universal application which could have
been identified prior to the respective decisions. The approach of
Hans Kelsen might be adopted to develop this point. That is, it could
be said that the general norms which the three benches purported
to apply in the respective cases may be stated as follows:
(1) Shaw’s case:
It is illegal, in concert with another, to
act so as to cornpt the morals of persons who might patronize
prostitutes as a consequence of your actions.
(2) Knuller’s case:
It is illegal, in concert with another, to
act so as to either corrupt the morals of would-be homosexuals,
or outrage heterosexual persons who gain knowledge of your
actions.1
nearest counterpart to this in modern European jurisprudence is the idea
to be found in German statutes of the Nazi period that anything is punish-
able if it is deserving of punishment according ‘to the fundamental con-
ceptions of a penal law and sound popular feeling’. (Law, Liberty, and
Morality, (London, Oxford University Press: 1963), at p. 12; citing the
German “Act of June 28, 1935”).
15 D.P.P. v. Bhagwan, [1972] A.C. 60, at p. 82. The issue of certainty in penal
law will be developed in greater depth in division II, infra.
36 It should be noted that the second norm alleged to exist in the Knuller
case, the “conspiracy to outrage public decency” count of the indictment, was
not actually given effect in the decision. While Lord Morris of Borth-y-Gest,
Lord Simon of Glaisdale, and Lord Kilbrandon found such an offence un-
questionably to be known to the common law ([1972] 3 W.L.R. 143, at pp. 158,
1973]
NOTES
(3) Howes’ case:
It is illegal, in concert with another, to
act so as to gain a non-pecuniary advantage from the state.
The difficulty lies in that none of the supposed general norms
listed above could have been identified as universal injunctions
prior to the respective decisions. The French translation of Pure
Theory of Law seems to make this point more concisely than does
Kelsen’s English translator:
Le tribunal qui a t appliquer 6. un cas concret les normes g6n~rales en
vigueur d’un ordre juridique doit trancher la question de savoir si la
norme qu’il doit appliquer a 6t6 cr66e de faron constitutionnelle, c’est-h-
dire selon la procddure 1gislative ddfinie par la Constitution, ou par la
voie de la coutume d6l6gu~e par la Constitution.’7
The counter-argument to the Kelsenite attack upon the consti-
tutionality of the present line of cases, an argument which appears
at least to have been adopted by Lord Hodson in Shaw’s case, is
that English constitutional and criminal practice recognizes as a
prime norm the general rule that acts violative of, “the moral judg-
ment of society,… something about which any twelve men or women
drawn at random might after discussion be expected to be unanim-
ous”’18 (at least when the acts are done by two or more people in
combination), are illegal.
This judicial attempt to postulate such an artificial norm must
fail for two reasons. Firstly, as English constitutional practice, and
specifically the principle of the rule of law, will not allow judges
today the unfettered legislative powers of Star Chamber’s day, so
too it cannot allow questions of law to be decided by a jury. While
it well deserves to be a highly contentious issue whether a legally
trained judge or a panel of sincere laymen. should decide ques-
tions of fact, surely the possible abuses of ad hoc decisions as to the
confines of the criminal law are all too easy to imagine. Indeed, even
if the jury system be abolished one must ask how it can be expected
that the legal training of the judiciary equips them to decide –
with the consistency rightly demanded of modern criminal law –
what conduct offends the morality or sense of decency of “the
public” sufficiently to deserve to be punished by the state.
Secondly, as jurisprudential writers have been quick to show,
Lord Devlin’s supposed prime norm of criminal law cannot guide
a court as it is tautologous. It is not functionally descriptive of a
159, 183, and 186-87), the latter two allowed the appeals in respect of the con-
victions on this count for procedural reasons. Lord Reid and Lord Diplock
each denied the existence of the offence.
tr., Pure Theory of Law, (Berkely: 1967), at p. 238.
1′ Eisenmann, tr., Thdorie Pure du Droit, (Paris: 1962), at p. 319; cf. Knight,
18 Devlin, The Enforcement of Morals, (1959), at p. 16, emphasis added.
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[Vol. 19, No. I
determinate class of human conduct so as to state a rule of law
upon which a trier of fact can operate. Dr. John J. Bray, Chief
Justice of South Australia, has stated Lord Devlin’s tautology as
follows:
Q. ‘Why is this conduct criminally punishable?’
A. ‘Because it is condemned by right-minded men.’
Q. ‘Who are right-minded men?’
A. ‘Those who condemn this sort of conduct.”
Even if one accepts Lord Devlin’s test, notwithstanding the
objection of Mr. Justice Bray that it gives us no real test at all, there
remains the serious objection that it forces society to revert to the
acceptance of “the positive morality of a given society” as the rule
governing the legal validity of actions by each citizen.20 It serves to
disentitle the citizen to the status of an independent moral actor in
his society. There appears scant danger of overstatement in stating
the question, Can it be that we live in a legal order which has
discarded the test of liberal Western ethics, founded in reason and
applied with deliberation, for the impulsive gut reactions of which-
ever dozen people happen into the jury room?
II. The Role of Precedent
As was emphasised above, the three benches in the Shaw line of
cases may or may not have followed the most legalistic of paths
through the ancient case law to reach their conclusions; that really
is of little more than passing interest and, perhaps, only in a ped-
antic sort of way. As is clear from the speeches of Lords Reid 2 and
Diplock,22 these cases clearly are of the type in which more than
one decision might be reached by the expert judge, given the facts
and the scant legal precedents directly applicable2 3 A case such as
‘9 Bray, Law, Liberty and Morality, (1971) 45 A.LJ. 452, at pp. 457-458.
20Basil Mitchell, Law, Morality and Religion in a Secular Society, (1967),
at p. 42. See also: R.F.V. Heuston, Morality and the Criminal Law, (1972) 23
N.I. Legal Q. 274, at pp. 281-282.
21 [1962] A.C. 220, at p. 269.
22 [1972] 3 W.L.R. 143, at p. 160. Professor Hart’s criticism of Shaw might
well be repeated of each successive extension:
… the antique cases relied upon as precedents plainly permitted, even
under the rigorous English doctrine of precedent, a decision either way.
… the judges seemed willing to pay a high price in terms of the sacrifice
of other values for the establishment – or reestablishment – of the Courts
as custos morum. (Law, Liberty, and Morality, (London, Oxford University
Press: 1963), at pp. 11-12).
2 3 Julius Stone, Legal Systems and Lawyers’ Reasonings, (1964), at p. 293.
19731
NOTES
these, dealing with what Rupert Cross terms, “the penumbra” of
legal rules2 4 is not solved by simple deductive reasoning: the process
in reality is the farthest thing from syllogistic. While the judge may
cloak his reasoning in such a form, “[n]ot only is the syllogism cons-
tructed after the facts have been found, but it is also constructed
after any legal problems concerning the scope of the rule have been
solved.”25
The House of Lords traditionally has tended to be, and still is,
a judicially conservative, “strict-constructionist” court. That is well
and good. Indeed, it may well be that that remains the proper role
of the Law Lords in today’s constitutional setting. Yet they can-
not do their job in a social vacuum or, worse still, anachronously.
The application of law by a responsible organ cannot be a task
remote from the ongoing expectations of Western society. One
commentator has described the function this way:
It involves, first of all, an analysis and appreciation of the different
factors in the living situation, to which the law is to be applied, and
secondly, a comprehensive perception of the relative importance and
subordination of the different possible legal principles. The former in-
volves a definite attitude to ethical and social problems based on some
(conscious or unconscious) philosophy of life, and the latter on a definite
philosophy of the particular legal system, its functions and limitations2 6
With all due respect to the majority in Shaw, and to the majority
in Knuller and the full court in Howes, the latter two cases having
expanded the ambit of the Shaw rule, scarce attention was evidenced
either to the intensity of the competing arguments presented, from
the perspective of modern Western liberal thought, or to the social
values collected under the rubric “rule of law” which existed just
beneath the surface of each case.
In conceptualizing the competing values at play in both resurrec-
ting the questionable role of custodian of national morals in the
Shaw case and in expanding the scope of the rule, the respective
courts might have considered –
openly or covertly, as meets the
individual judges’ notions of judicial propriety and fastidiousness –
the following principle of common justice: “No one shall be held
guilty of any penal offence on account of any act or omission which
did not constitute a penal offence at the time it was committed.1127
24 Rupert Cross, Precedent in English Law, 2nd ed., (1968), at p. 178.
25 Ibid. See also: Oliver Wendell Holmes, Law in Science and Science in Law,
(1899) 12 Harv. L. Rev. 458, at pp. 460-461.
26 Morris R. Cohen, The Process of Judicial Legislation, (1914) 48 Am. L. Rev.
2T European Convention on Human Rights, art. 7, 213 U.N.T.S. 221, I. No.
161, at p. 189.
2889 (Rome: 1950).
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Applying the process discussed, a perfectly proper judgment in
each of these three cases might have read as follows:
It is too late now to assume jurisdiction over a new class of cases, under
the idea of their being contra bonos mores. We must consider the practice
of the English courts, from which we derive the principle as having settled
in the course of many centuries the true limits and proper subjects of
this principle. If we are to disregard these landmarks, and take up any
case which may arise under this principle, as res integra, then might
it be extended to cases which no one has yet thought of as penal. A case
of slander may display as much baseness and malignity of purpose, as
much falsehood in its perpetration, … as this case of seduction. And yet
none would think of prosecuting it criminally.28
III. A Crime Unlike All Other Crmaes
Two arguments are advanced under the present title. Firstly, the
type of conspiracy described (one cannot say defined) by the Shaw
line of cases is such that each “offence” may well require a court
to declare an act illegal after the fact, as no one could have predicted
its illegality. Secondly, and in consequence of this, the so-called
common law crime –
unlike every other non-statutory offence in
English law –
excludes the requirement that an offender have a
criminal mental attitude of any realistic description.
A. Ex post facto law
The general opposition of Western thought to ex post facto rule
creation is typified by Thomas Hobbes’ statement, “Harm inflicted
for a fact done before there was a law that forbade it, is not punish-
ment but an act of hostility: for before the law, there is no trans-
gression of the law .” 29
For various reasons, courts have long resolved any doubt in
interpreting those crimes described in penal statutes in favour of
the person who would be liable to the penalty 0 Rationale relating
to the basic conceptions of justice in this legal system have been
mentioned in prior contexts. Justice Felix Frankfurter felt this
attitude of legal disdain for loosely constructed law, laws not sus-
ceptible of any but the most vague of common interpretations, to be
justified on yet another ground. In a context not too dissimilar from
the present one,81 he expressed the view that laws neither “…
778-779 (Va. CA., 1827), Dade, J., per curiam.
28Anderson v. Commonwealth, 5 Randolph 627; 16 Am. Dec. 776, at pp.
29Leviathan, Molesworth ed., (1839), chapter 28, at p. 300.
,33oLondon and Country Commercial Property Investments, Ltd. v. Attorney-
General, [1953] 1 W.L.R. 312, at p. 319, per Upjohn, J. See also: Jenkinson v.
Thomas, (1792) 4 T.R. 665, at p. 666; 100 E.R. 1233, at p. 1234.
-31 Frankfurter, J. was then dealing with cinema censorship laws.
19731
NOTES
responsive to the common understanding of men [nor] susceptible
of explicit definition… lead to timidity and inertia and thereby
discourage the boldness of expression indispensable for a progressive
society.”3′ 2 Though Frankfurter, I. was speaking of expression through
words, his statement is equally applicable to all other forms of
expression.
It might be argued that most cases reaching the higher courts
represent situations in which one or another of the litigants was
unable to know his actual legal position before the specific judgment
was rendered. Yet, as Lon L. Fuller points out,33 this analogy to civil
suits is really false. The decision of the courts on an obscure point
in the law of contract may create at the time of judgment a debt then
exigible for conduct known to have taken place in the past, yet the
court’s judgment is still prospective: it is in the grammatical form,
You shall pay damages for your civil wrong.
The private law of civil obligations is dissimilar from the public
criminal law. The law of crimes does not see a fine or imprisonment
as a permissible alternative, legitimately open, as of right, to all who
prefer it rather than obedience to nominate penal injunctions; rather,
it is termed punishment and is meant to deter one from proscribed
actions. There is no counterpart in this realm of the public law to
the maxim that a contract does not oblige one to its execution, but
only obligates each co-contractant to fulfill the contract or to pay an
appropriate quantum of damages.
If it thus be accepted that rules of the criminal law always should
remain within the ability of mortal man to discover, and in view
of the fact that even had Mr. Shaw’s solicitor sought out the leading
silk in the land, before the first edition of the Ladies’ Directory went
to press, he could not have been given any inkling as to the illegality
of the act of publication at common law, it is difficult by all but the
most contorted of reasoning to deem his conviction anything but
the enactment of penal rules ex post facto.
Trends in the present era all have been to require publicity for
all non-parliamentary acts of rule creation; the very process of
their enactment itself serves to publicize statutes.34 The logical cul-
32 Kingsley International Pictures Corp. v. Regents of the University of the
State of New York, (1958) 360 U.S. 684, at p. 695.
33 Fuller, The Morality of Law, rev. ed., (New Haven: 1969), at pp. 58-60.
34 Johnson v. Sargant & Sons, [1918] 1 K.B. 101. See also: J. Noel Lyon,
Constitutional Validity of Sections 3 and 4 of the Public Order Regulations,
1970, (1972) 18 McGill L.
136; R. v. Ross, (1944) 84 C.C.C. 107 (B.C. Co. Ct.);
1962 Ford Thunderbird Serial #ZY87Z155562 v. Division of Narcotic Control,
State of Illinois, 198 N.E. 2d 155, at pp. 158-59 (IUI. CA., 1964).
McGILL LAW JOURNAL
[Vol. 19, No. I
ruination of this process should be the discouragement of judges
from the arbitrary expansion of common law doctrines of penal res-
ponsibility. Judges today might well be advised to heed John Austin’s
“Third Tenable Objection to Judiciary Laws”, and restrict expansions
of common law offences to those cases where “…
the parties can
infer, by probable argumentation, the decision which the tribunals
will come to”. As Austin says:
In every such case the law is strictly ex post facto, and the parties cannot
therefore obey the law, but they nevertheless have an inkling of the rule
by which their case will probably be decided.8 5
B. Mens Rea
Concisely stated by Lord Devlin, the idea of mens rea unites two
requisites for criminal liability: there must be “an intent to do an
act … [and] knowledge of the circumstances that make that act a
criminal offence.”3 6 As regards common law offences there is no
sound authority for finding criminal liability in the absence of
mens rea3 7
The case law has proceeded to hold that knowledge of circums-
tances making an act criminal is rebutted by a mistake of fact, but
not by a mistake of law.
An error of fact takes place, either when some fact which really exists
is unknown, or some fact which is supposed to exist does not. On the
other hand, when a person is truly acquainted with the existence or non-
existence of the facts, but is ignorant of the legal consequences, he is
under an error of law. s
The highest courts of common law have held as well that “… a
mistake as to the existence of a compound event consisting of law and
fact” is a mistake of fact, negativing the existence of mens rea.3a
Examining the supposed mens rea of Mr. Shaw, Knuller Ltd. and
its three directors, and Mr. Howes on the eve of their respective
“crimes”, what mens rea can be found? Perhaps one is bound to
admit that each knew of the circumstances which, after the fact
only, were held to make their respective acts criminal. So much has
3 5 Austin, Lectures on Jurisprudence, 5th ed., (1885), at pp. 651-652.
36 Devlin, Statutory Offences, (1958) 4 J. Soc. Pub. Teachers of L. 213.
3 7 R. v. St. Margarets Trust Ltd., [1958] 1 W.L.R. 522, at pp. 525-527 (C.C.A.,
Lord Goddard, CJ., and Donovan and Havers, JJ.), and authorities cited
therein.
8 White Bros. v. Treasurer-General, (1883) 2 S.C. 322, at p. 349 (South
Africa, De Villiers, CJ.). See also: Glanville Williams, Criminal Law: The
General Part, 2nd ed., (1961), at pp. 287 et seq.
3
39 Thomas v. The King, (1937) 59 C.L.R. 279, at p. 306, per Dixon, J. Note
as well the cases cited in n. 40, infra, at p. 147.
19731
NOTES
to be admitted. Still, it is submitted that this alone cannot be what
the law is to require to establish guilt. While the literature detailing
the theoretical bases of the mens rea notion is scant –
perhaps
because of the unsatisfactory ambiguities surrounding the doctrine
it will be a matter of general agreement that the doctrine exists
–
because of an accepted need for a “mental element” to be displayed
in the more serious criminal offences.
If the present argument, as to the absence of a “mental element”
from the three supposed cases of criminality cannot be expressed in
terms of a claim that the respective courts ignored the doctrine of
mens rea as it now stands, then surely these present cases, seen
in the light of the bigamy judgments,40 suggest most strongly the
need to reexamine and to rationalize the common law rules through
statutory codification and amendment. Should not the accus-
eds’ minds at the operative moments be deemed to have been
operating under an error as to a sine qua non of legality of at least
the magnitude of that present in the bigamy cases?
somehow –
If the latter cases are to be admitted –
into the
class “mistake of fact” so as to keep the law from departing totally
the bounds of logic and common sense, surely the court which has
but just ended the absurdities of a legalistic non est factum rule 41
should be expected to recognize the absence of mens rea –
of sub-
jective, mental guilt –
in the present instance.
Conclusion
Though the examination of this line of cases proceeded under
three headings, the conclusion of each was the same. The very norm
postulated in these decisions, that all conspiracies contra bonos
mores are today crimes at common law, as well as the jurisprudential
processes by which the two panels of the House of Lords and a Com-
monwealth appellate court devised and extended this offence, is
simply heterodox within the context of the society served by these
courts.
J. David Fine *
40Ibid.; Long v. State, 65 A. 2d 489, at p. 498 (Del. S.C., .1949); R. v. Gould,
[1968) 2 Q.B. 65, at p. 75 (C.A., Diplock, LJ., per curiam). Long and Gould
are on all fours with the earlier Thomas case, supra, n. 39, at p. 146.
41 Gallie v. Lee, [1971] A.C. 1004.
* Third year Law Student, of the Senior Board of Editors of Volume 19 of
the McGill Law Journal.
The author acknowledges with appreciation the critical review by Philip
W. Slayton, Assistant Professor of Law at McGill University, of the initial
manuscript from which this text evolved.
