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Knuller v. Director of Public Prosecutions1 : A Comment
Introduction
In Chaplin v. Boys,2 the House of Lords considered a difficult
subject, and left it in a less certain state than before. In Knuller
v. D.P.P.,3 a far less difficult area was tackled. Despite two partial
dissents, and Lord Reid’s fundamental differences from the ma-
jority on some matters, the conclusions seem clear. Yet a flurry
of controversy immediately followed the judgment, and, unless
present tendencies are dramatically reversed, this controversy will
prove more heated and more long-lasting than that occasioned by
the Chaplin decision.
The reason for the controversy is, of course, that the House
of Lords dealt with a question of law and ethics in a manner
different from that prescribed by present intellectual fashion.
Attacks on the landmark case, Shaw v. D.P.P.,4 can now be broad-
ened to include Knuller,5 and one can feel confident that the
opportunity will not be missed by fashion’s adepts. The danger
is that other intellectually rewarding or legally significant aspects
of the judgment will be ignored, and that the “unfashionable” point
of view, prevailing among judges, will not be dealt with fairly by
the writers. I propose to attempt to remedy the situation by de-
fending what I view as the fundamental policy decision taken
by the House, and by exploring, however briefly, two far less topi-
cal but nonetheless interesting issues discussed.
I. The Policy Question
The sophisticated interpretations of the relevant jurisprudence
both in Knuller and in Shaw6 demonstrate that, from a technical
standpoint, it is quite possible to argue both for the existence and
the non-existence of the conspiracy to corrupt public morals and
the conspiracy to outrage public decency at common law. Both
views are tenable. The final decision had to be rendered on policy
1 Knuller (Publishing, Printing and Promotions) Ltd. v. D.P.P., [1972] 2 All
E.R. 898, [1972] 3 W.L.R. 143.
2 [1969] 2 All E.R. 1085.
3 [1972] 2 All E.R. 898, [1972) 3 W.L.R. 143.
4 [1961] 2 All E.R. 446.
5 With reference, in particular, to the charge of conspiracy to outrage public
morals, favoured only by a 3-2 margin.
6 [1961] 2 All E.R. 446.
19731
NOTES
grounds. The existence (or non-existence) of the conspiracies turned
out to be a secondary problem. The main policy question was the
vexed one of law and morals. In criticizing the judgment, The New
Law Journal put its finger on the most important point:
Lawful has only one sense –
call it “the full sense” if you will and we
are, we would suggest, setting ourselves on a very slippery slope if we
allow the essential simplicity of such concepts to be whittled away.7
These are lofty words, indeed! Are they also true?
The trend towards permissiveness in law in the 1960’s and
1970’s has considerably expanded the class of activities which are
no longer criminally punishable, though they are almost certainly
disapproved of both by the public and the legislature. Evidently,
The New Law Journal believes that such activities become “fully”
legal and that the disapproval is quite irrelevant in considering an
individual’s criminal liability. Fortunately, in my opinion, the House
disagreed with this.
Lord Reid said:
… there is a material difference between merely exempting certain conduct
from criminal penalties and making it lawful in the full sense.8
Lord Morris of Borth-y-Gest seemed to concur in this view and
elaborated upon it by presenting further examples.9 The mere re-
moval of criminal penalties does not, in their Lordships’ view,
imply “full” legality.
This can be seen both as a pure policy decision and as a
technical question.
First, the view that there is only one type of lawfulness can
lead us to absurdities. For instance, we would have to convict of
assault a person who used force to stop another from doing “what
he now had a perfect right to do”, namely, committing suicide.
Clearly, this cannot be or, at least, ought not be.
Secondly, decided cases do not favour the proposition that there
exists a clear-cut, legal-illegal dichotomy, and no intermediate stage.
The Canadian law of conspiracy, for example, has now been held
to extend to more than conspiracies to violate a provision in the
Criminal Code or another statute.0 Conspiracy is viewed in a simi-
lar manner in the rest of the English-law world. Even Lord Diplock,
in his dissent, grudgingly allows that certain actions, legal when
7 Editorial, [1972] The New Law Journal 549, at p. 550 (Thursday, June 22,
8 [1972] 2 All E.R. 898, at p. 904; [1972] 3 W.L.R. 143, at p. 149.
9 [1972] 2 All E.R. 898, at p. 907; [1972] 3 W.L.R. 143, at pp. 151-152.
10 Wright v. The Queen, [1964] S.C.R. 192, (1964) 43 D.L.R. (2d) 597, [1964]
1972).
2 C.C.C. 201.
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committed by individuals, are illegal when the work of groups. 1
It seems logical to say that the type of conduct which is punished
only as conspiracy falls in the “in-between” area, that The New
Law Journal claims cannot exist.
In R. v. Sandbach,12 the issue arose whether, in order to impose
sureties to be of good behaviour on someone, the court had to
apprehend an actual breach of the peace. Humphreys, J., quoted
Blackstone as follows:
… the justices are empowered by the statute 34 Edw. III, c. 1, to bind over
to the good behaviour towards the king and his people, all them that be
not of good fame, wherever they be found. … Under the general words
of this expression that be not of good fame, it is holden that a man may
be bound to his good behaviour for causes of scandal contra bonos mores,
as well as contra pacem.13
This is another example of recognition of the area existing between
full legality and crime.
The civil law offers an excellent analogy: the non-enforcement
of immoral contracts. Once more, there is not a perfectly deline-
ated frontier between legality and illegality, but rather a border
zone, with graduated effects.
We can safely declare that the intermediate area exists. The
House of Lords did this. The question of policy remained. Ought
the type of behaviour under consideration qualify? Once more,
the House, I submit, gave the desirable answer.
In an epoch when more and more “morals” offences are being
abolished, it is necessary for society to retain certain weapons for
dealing with intolerable and immoral conduct. Lord Simon was
correct in stating:
… it does not appear that Parliament was even neutral in its attitude
towards such conduct.14
The accused were trying to profit from the weaknesses of others.
They were apparently indifferent both to the potential corrupting
influence of their product and to the outrage they could cause. A
jury convicted them. If the “permissive view” is:
1) that we must make certain practices legal because they cannot be
policed and, in any case, are purely private in nature,
and
2)
are legal,
that we can thenceforth exercise no control at all, because the acts
then I suggest that this is a straightjacket, which we must avoid.
11 [1972] 2 All E.R. 898, at p. 921; [1972] 3 W.L.R. 143, at pp. 167-168.
12 R. v. Sandbach, Ex parte Williams, [1935] 2 K.B. 192.
13 Ibid., at p. 197.
14 [1972] 2 All E.R. 898, at p. 927; [1972] 3 W.L.R. 143, at p. 174.
1973]
NOTES
as I think it should be –
The reforms which did away with the most unreasonable ves-
tiges of Victorianism were welcomed by many for reasons which
fell far short of total permissiveness. If the present state of affairs
is to be vindicated –
then strict limits
must be placed on the new laws. I believe that both the British
and the Canadian Parliaments enacted badly needed reforms with-
out adopting a dogmatically non-interventionist ideology. Certainly,
Lord Simon’s catalogue of rules still limiting homosexuality was
impressive evidence that the British House had no such ideology.15
Parliament is free, of course, to fully legalize conduct hitherto
illegal. However, this must be made clear from the whole of its
legislation.
It is worth noting that the judges rejected the old bogey of
uncertainty as a ground for impeaching offences of a moral nature.
Lord Simon pointed out the inevitability of some uncertainty in
law.’6 Even better is Lord Morris’ statement:
Those who skate on thin ice can hardly expect to find a sign which will
denote the precise spot they fall in.’7
To allay fears that could arise, one should at once point out
that the case is not authority for the right of courts to convict
for mere “immorality”. It was agreed that courts had no power
to create new crimes. Indeed, this was why one had to show the
existence of certain common law offences in order to secure con-
viction. Courts could not begin to punish adultery on “moral”
grounds, for instance. But that should not prevent punishment for
transgressions of what the court considers established rules.’8
It seems, then, that both technically and in terms of policy, the
House of Lords was on solid ground. To decide otherwise would
be to force cautious reforms into unreconstructed Victorianism,
and to leave no option between prudishness and licence.
II. Legal History
There will be less emotion concerning the debate of the Lords
about legal history and the direction of English law than con-
cerning their policy decisions. Views on history cannot be over-
15 Ibid.
16 [1972] 2 All E.R. 898, at pp. 929-930; [1972] 3 W.L.R. 143, at pp. 176-178.
17 [1972] 2 All E.R. 898, at p. 910; [1972] 3 W.L.R. 143, at p. 155.
18 One should remember here that the discretion the courts exercise, in
deciding what offences are established, is based on the same policy considera-
tions as that exercised in deciding whether legalizing certain private conduct
amounts to eliminating the “intermediate” ground between legality and illeg-
ality. Therefore, the two should not be separated too rigidly.
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ruled; they do not become law. Yet they are often of great signi-
ficance, 9 as this case illustrates.
Lord Diplock, the “liberal” dissenter, believes that the types of
conspiracy are now firmly frozen in English law. He sees the law
in general as tending to solidify, until, ultimately, judges lose their
freedom and only Parliament can change it. In English criminal
law, this “crystallization” has been complete since the middle of
the 19th century. Judges cannot
… reassert a power to strain the line of justice beyond the ordinary length
and worked measure to take exquisite avengement upon those whose
conduct you regard as particularly reprehensible.20
All the Lords accepted the fact that the principal organ for
changing the law was Parliament. But Lord Simon cautioned:
What the courts can and should do (as was truly laid down in Shaw’s
case) is to recognize the applicability of established offences to new
circumstances to which they are relevant.2 1
There is, perhaps, no more than a difference of emphasis here, but
the implications are immense.
No one can doubt that the law became clearer and more estab-
lished, as more decisions were handed down. However, Lord Diplock
shows us an inexorable trend to “crystallization”, practically to
codification. If we accept his view of history, then the common
law is not different in principle from continental law, but is merely
at a more immature stage. Lord Simon, on the other hand, leaves
judges with at least a little of the traditional freedom that they
have had under the common law.
The history of English Law in our times shows that Lord
Simon’s formulation is to be preferred. While most reforms do
originate in Parliament, how could such developments as “pro-
missory estoppel” be explained without a reasonably independent
law-creating role for the judge? Now that the Shaw – case has
been reaffirmed, there is little room for dispute. Lord Diplock’s
view that further judicial reform of law is unhistorical is inter-
esting – but, ultimately, wrong.
III. Interpretation of Parliament’s Will
There have been frequent arguments as to the means of ascer-
taining Parliament’s intention. Should statutes be read literally,
19 [19723 2 All E.R. 898, at p. 918; [1972] 3 W.L.R. 143, at pp. 164-165.
20 [1972] 2 All E.R. 898, at p. 919; [1972] 3 W.L.R. 143, at p. 165.
21 [1972] 2 All E.R. 898, at p. 932; [1972] 3 W.L.R. 143, at p. 180.
22 [1961] 2 All E.R. 446. It is suggested this demonstrates that criminal law
is not intrinsically different in this respect.
19731
NOTES
or may one look to outside sources to find out what was meant?
Knuller is very strong authority for a broad and all-encompassing
reading. For example, Parliament’s acceptance or rejection of
Shaw’s case2 can be gleaned from Hansard (per Lord Reid), 4
the Theatres Act (per Lords Morris and Kilbrandon), 25 and the
fact that Parliament did not avail itself of opportunities to repeal
it (per Lord Simon).2 6 The judges disagreed on these. Perhaps
nothing firm can be concluded from this aspect of their judgments.
The generally inclusive rather than narrowly exclusive intention,
however, was clear, and should be noted as a laudable example
for the determination of future cases.
Conclusion
As has been pointed out, Knuller did not establish the right
of courts to exercise general moral supervision. It may be that
in the future we shall find such supervision necessary. For the
time being, a number of the Lords specifically repudiated it0 7 No
new offences can be created on moral grounds.
However, the Lords affirmed their right to continue supervision
in those areas where it has become an accepted legal fact. Clear
parliamentary language is needed to affect this. The permitting
of a private act is not necessarily licence for advertising or con-
spiracy.
In addition, the House insisted that judges have and should
role in law-making in
albeit circumscribed –
have a creative –
the common law.
For both these views, the House deserves our praise.
Julius H. Grey *
2 [1961] 2 All E.R. 446.
24 [1972] 2 All E.R. 898, at pp. 903-904; [1972] 3 W.L.R. 143, at pp. 147-148.
25 [1972] 2 All E.R. 898, at pp. 910, 937; [1972] 3 W.L.R. 143, at pp. 155, 185-
186.
26 [1972] 2 All E.R. 898, at p. 931; [1972] 3 W.L.R. 143, at pp. 178-179.
2 7Lord Kilbrandon: [1972] 2 All E.R. 898, at p. 937; [1972] 3 W.L.R. 143, at
pp. 185-186. Lord Simon: [1972] 2 All E.R. 898, at p. 932; [1972] 3 W.L.R. 143,
at p. 180. For a similar view in Canada, see: Frey v. Fedoruk, [1950] S.C.R.
517.
See also Lord Diplock’s judgment in D.P.P. v. Bhagwan, [1972] A.C. 60,
at pp. 80-81, where it appears that new offences cannot be created even where
“the object which Parliament hoped to achieve by the Act may thereby be
thwarted”.
* BA. (McGill), B.C.L. (McGill), member of the Board of Editors, Volume
17, McGill Law Journal.
