INTERNATIONAL TIMES (PROSECUTION) (Hansard, 2 August 1972)

§ Mr. William Hamling (Woolwich, West)

There are two statements from the Attorney-General's office in The Times newspapers of 23rd and 28th June referring to the prosecution of the publishers of International Times and about the rôle of the Law Officers in this. This springs from two articles, again in The Times, by Mr. Bernard Levin, one dated Tuesday, 20th June and headed "Storm under common law umbrella" and the second instalment on Thursday, 22nd June. I thank the Attorney-General for the courtesy of being here at this early, or late, hour to reply to the debate. I assure him that there is no personal reflection on him in my raising these matters. I regard them as matters of public concern, and I know that he does, too.

Mr. Levin raised certain general points in bringing up the whole matter. It is fair to say that he committed one or two errors of fact, which are referred to in the statement from the Attorney-General, but apart from the matters of fact on 921 which he was wrong there are some general matters that are worthy of more attention than they have so far been given. One of these is whether it was right to bring a prosecution against the International Times under the law of conspiracy. The other concerns what assurances had been given on this matter when the Sexual Offences Act was being discussed in this House and the other place.

From a legal point of view, these are difficult matters. I am not a lawyer, and I hope that the House will forgive me if my knowledge of law is not as detailed or fundamental as it should be. The prosecution followed very much the lines of a previous prosecution, in the Ladies Directory case, in which a man called Shaw was prosecuted for publishing a directory which contained the addresses of prostitutes, and in which the prostitutes advertised their services.

In his judgment in the Shaw case, the noble Lord, Lord Simonds, said: In the sphere of criminal law there remains in the Courts of law a residual power to enforce the supreme and fundamental purpose of the law, to conserve not only the safety and order but also the moral welfare of the state, and it is our duty to guard it against attacks which might be all the more insidious because they are novel and unprepared for. He forecast in that judgment a possible case similar to the one relating to the International Times, asking: Would it not be an offence if, even without obscenity, such practices were publicly advocated and encouraged by pamphlet and advertisement. However, the noble Lord, Lord Reid, dissented. He said: There are wide differences of opinion as to how far the law ought to punish immoral acts which are not done in the face of the public. Parliament is the proper, and the only proper, place to settle that. … Where Parliament fears to tread it is not for the Courts to rush in …". I turn now to the Attorney-General's reply to Bernard Levin, dated Friday, 23rd June. I shall not dwell on the obvious matters of fact on which Bernard Levin was wrong. For example, the Attorney-General pointed out that it was not he who brought the prosecution but my right hon. and learned Friend the Member for West Ham, South (Sir Elwyn Jones).

I come to the matters which are of much wider consequence, the question 922 of the assurances given in Parliament when the Sexual Offences Bill was being discussed. The Attorney-General's statement refers to assurances given in 1964, that publishers would not be prevented from pleading the defence of public good when charged with publishing on obscene article. The assurances given did not apply where the essence of the offence was incitement to commit homosexual acts rather than the publication of an obscene article.

The Attorney-General quoted one of his earlier statements, when he was the Solicitor-General in July, 1964, and said: The examples which were given by the learned Law Lords of conspiracies to corrupt public morals were all cases of inciting persons to commit acts of lesbianism or, before 1907, to commit incestuous acts, or inciting persons, if the Wolfenden proposals were enacted into law, to commit homosexual acts."—[OFFICIAL REPORT, 7th July, 1964; Vol. 698, c. 315.] I should like to direct his attention to the debate in another place on 23rd May, 1966, when Baroness Wootton moved a new Clause specifically on this matter of conspiracy.

The new Clause read: Conspiracy It shall not be an offence to conspire or attempt to commit a homosexual act which by virtue of this Act is not itself an offence. The noble Lady went on specifically to refer to the Ladies' Directory case and said: We are still a little disturbed by the possible consequences of the Ladies' Directory case, and the words used in that case"— and she then quoted the words of the noble and learned Viscount, Lord Simonds: Let it be supposed that at some future … date homosexual practices between adult consenting males are no longer a crime. Would it not be an offence if, even without obscenity, such practices were publicly advocated and encouraged by pamphlet or advertisement? The noble Lady went on to say: The noble and learned Viscount is there referring to conspiracy in a rather wider sense than my Amendment, which refers only to the conspiracy to perform the act as distinct from advertising or flaunting it. But I am also disturbed at some observations made by the noble and learned Lord, Lord Devlin, in his recent book on The Enforcement of Morals where he said: ' … If homosexuality were to cease to be per se criminal and two men were to be similarly charged with flaunting their relationship in public, a jury today might be expected … to convict.' 923 The noble Lord, Lord Stonham replied to the debate and made statements which Baroness Wootton regarded as an: … unqualified assurance that we are not likely to be in trouble on the narrower issue raised in my Amendment. It seems that the substance of this debate is a matter of misunderstanding or disagreement as to what assurances were given. I must say, reading what my noble friend, Lord Stonham said, there does seem to be no doubt, in my mind at least, as to the nature of this assurance. He said: My noble Friend's Amendment deals with two unconnected matters; first, conspiring to commit a homosexual act which is not an offence; and second, attempting to commit a homosexual act, which is not an offence. In both cases my noble Friend wishes to secure that the activity is not an offence. He goes on to say that the cases: make it clear that there must always be a public element in the conspiracy for it to be a crime. Thus, Lord Alvestone, giving judgment in a case about conspiracy, distinguished between 'acts which are merely improper or immoral and those which tend to produce a public mischief.'"—[OFFICIAL REPORT, House of Lords, 23rd May, 1966; Vol. 274, c. 1199–1203.] There is some doubt as to how much assurance was given. Nevertheless, many people who supported the Bill when it was debated in another place and in this House thought that some assurances had been given.

This prosecution and this whole question of what assurances were given raise some very great difficulties about an Act which permits things to take place which some people may consider to be immoral or offensive in the deepest sense, and yet the law says that these acts are legal and are permitted. The question arises as to how far reference to these acts may be regarded as a public affront. There are grave difficulties about this—about homosexuals meeting, about arrangements that homosexuals may make in order to meet, particularly bearing in mind other sexual acts between heterosexuals which may follow meetings which can be advertised and which nobody seems to worry much about. There seems to me a difference in fact between the two cases.

It might help if we had some clarification from the Attorney-General. Some alteration of the law may be required, but 924 I understand that I should be out of order in advocating any such change in an Adjournment debate. I always like to stick to the rules, but there is no doubt in my mind that such a change would be a good thing. I think particularly of social workers operating in this field who as a result of this judgment and the interpretation of the law given by the Law Lords find themselves in practical difficulties.

§ The Attorney-General (Sir Peter Rawlinson)

I thank the hon. Member for Woolwich, West (Mr. Hamling) for his courteous acknowledgment of my replying to this debate. I agree with him that these are matters of public concern and that they call for proper discussions. The subject matter of the debate is the statements issued, and to which he has made reference.

The statements were issued, first, to correct errors of fact, to one of which the hon. Gentleman referred, which was the foundation of a considerable personal attack by the author of the original article for which subsequently I received an apology, although none from the editor. Secondly, it was to correct a misunderstanding of law, but, above all, to correct a distortion in the idea of the role of the prosecuting authorities. It is important that there should be fairness and that there should be seen to be fairness in prosecuting. Therefore, this is a matter of public policy and public concern.

The object of the statements was to attempt to clarify the position of the Director of Public Prosecutions and the former Attorney-General, both of whom acted with complete propriety.

The International Times case illustrates that, unless the utmost care is taken and all the formalities are completed. dangers exist when counsel submits and a court accepts quotations from the official record; because it seems from the speeches that the House of Lords did not have its attention sufficiently drawn to all the debates in the House of Commons and especially to column 315 of 7th July, 1964, to which the hon. Gentleman referred and in which I, when Solicitor-General, gave an explanation of the law.

It may be that that is what misled Mr. Levin. One consequence, for instance.

925 was in the speech of Lord Diplock when he said that no steps had been taken to draw the assurance to the attention of the police authorities. In that very case there had been, and indeed there are records of, consultations with the Attorney-General of the day and the office of the Director of Public Prosecutions—it was a Director's prosecution—before that IT prosecution was launched.

As I shall show, what happened in Parliament in 1964 was that the law was explained to Parliament. I gave then a warning categorically that conspiracies to incite the commission of immoral acts would fall within the category of case which be prosecuted under the Shaw case doctrine.

No court should look at the OFFICIAL REPORT unless those formalities have been completed and it ensures that the whole of what was said at each stage of the parliamentary process is looked at if the court is to include in its judgment any comment on what was said or what was not said in Parliament.

The facts were that in 1960, as the hon. Gentleman has pointed out—the hon. Gentleman says that he is no lawyer, but in opening this short debate he set out the position clearly—there was the Shaw case—the "Ladies' Directory" case—which was a case of females advertising their services. There was a conviction and Lord Simonds's speech has been quoted by the hon. Gentleman.

Following that, on 20th June, 1960, the Attorney-General of the day, now Lord Dilhorne, in answer to a parliamentary Question, said that the Director would not bring prosecutions for conspiracy to corrupt public morals in such a way as to circumvent the provisions of Section 4 of the Obscene Publications Act, 1959.

Section 4 of that Act provides a defence where publication could be justified as being for the public good on the ground that it is in the interests of science, literature, art or learning, or of other objects of general concern. It was three years later in 1964, after Sir Reginald Manningham-Buller, as he then was, the then Attorney-General, had answered that Question, that I said in Parliament that the law concerning conspiracies to corrupt public morals would include inciting persons to commit homo- 926 sexual acts if the Wolfenden proposals became law. I distinguished between an incitement and a mere agreement.

In 1966 there was the debate on the Sexual Offences Bill, of which I was one of the supporters and sponsors when in opposition and which was introduced by the hon. Member for Pontypool (Mr. Abse). In the debate on the Bill in the other place, which the hon. Gentleman quoted, the Under-Secretary of State for the Home Department, Lord Stonham, in answer to Baroness Wootton's Amendment, clearly referred to the Shaw case and said this: … at the other end of the scale, a conspiracy on the lines of that prosecuted in … Shaw v. The Director of Public Prosecutions—the 'Ladies' Directory' case—was based on the actual publication of a directory of prostitutes, and therefore it became, as it were, a public offence. Somewhere in between there is obviously a dividing line, and this, of course, would have to be decided by the courts in individual cases. Broadly speaking, we think that an agreement to promote homosexual acts would not amount to an offence of conspiracy unless there was some public affront involved. If the arrangement were such as to create a public scandal or a public outrage then this would amount to an offence of conspiracy, but not otherwise. As I have said, the standard definition of the crime of conspiracy is that it is committed when two or more persons agree to pursue an unlawful purpose or a lawful purpose by unlawful means. An agreement to do acts which, though not breaches of law, are outrageously immoral or extremely injurious to the public may constitute an agreement to pursue an unlawful purpose, but in none of the cases decided by the courts has purely private behaviour been held to constitute an unlawful purpose. In the 'Ladies' Directory ' case itself, the judgments of the Law Lords showed that though they were prepared to use the offence of conspiracy to safeguard morality, they were thinking in terms of public and not private morality, and therefore of immoral acts likely to reach and affect the public at large. The actual act on which the conspiracy charge in that case was based was, of course, the publication of a directory of prostitutes."—[OFFICIAL REPORT, House of Lords, 23rd May, 1966; Vol. 274, c. 1204–5.] The Joint Under-Secretary of State was pointing to an agreement privately to commit an immoral act and distinguishing that from the case in which there was some public act, such as the publication of a directory of prostitutes.

In 1969, the then Attorney-General had to consider advertisements by males, the kind of advertisement that contained wording such as "Dolly Boy Seeks Sugar 927 Daddy" and so on. The then Attorney-General was aware of what had been said in 1964 in the House of Commons by me as Solicitor-General. He had discussions with the Director of Public Prosecutions and a prosecution was launched because it was held, and the courts affirmed, that publication of these male advertisements was on all fours with the Shaw case, which involved advertisements for female prostitutes. I, as the then Solicitor-General, had explained to Parliament that under the true interpretation of the law, as explained by the Lords in the Shaw case, such incitement would be a conspiracy to corrupt public morals. Lord Stonham in the House of Lords in 1966 had given a similar indication.

In those circumstances the then Attorney-General, having considered those facts, came to the conclusion that this was a proper case under the criminal law, as explained in the Shaw case, to launch that prosecution. It is the prosecution's duty to enforce the law. He launched that prosecution, the jury convicted, the Court of Appeal dismissed the appeal and the House of Lords upheld the conviction by four to one. There was in that case exactly what existed in the Shaw case, a public affront, namely the publication of advertisements by the persons seeking particular sexual services—in the Shaw case involving women and in the International Times case involving men.

On the subject of such prosecutions in conspiracy cases of this kind, there have been 41 prosecutions for conspiracy to corrupt public morals since 1961, there have been 33 cases of conviction in respect of 133 persons, and the last of such cases was the IT case which was launched in 1969. Of these 32 successful prosecutions, excluding the Shaw case, two only referred to magazines. One was a magazine called the Black Panther and Pleasure Primer, to which the publishers pleaded guilty. The second was the International Times case to which we have been referring. Two were prosecutions for inducing persons to pose for indecent photographs or films and 28 related to films. As I said in a Written Answer in reply to a Question by my hon. Friend the Member for Hendon, North (Mr. Gorst) on 26th June, 1972, 928 none of these successful prosecutions was launched since I became Attorney-General. But the Shaw case has now been confirmed in law by the House of Lords in their Lordships' speeches in the Knuller or International Times case. That sets out what the present criminal law is.

Prosecutors must carry out their duty. It is their duty to enforce the law. Prosecutors do not make the law. Very many people are very alive to any failure by the prosecution to enforce the law.

For example, the House may recollect that the Commissioner of the Metropolitan Police was taken to court by a former Member of the House over a failure to enforce the gaming laws.

But accordingly, if people produce advertisements by males or by females advertising their wares, calling for partners, reciting the terms upon which they will associate, describing their particular tastes or giving ways of communicating one with another, these at present are offences against the criminal law. Juries have convicted people of such incitements, and judges have upheld their convictions. Therefore, unless and until Parliament changes the law, it will remain the duty of prosecutors—who may not pick and choose which law to apply—to enforce the present law.

In the case in question, this was done in 1969, when the previous Attorney-General launched this prosecution. The Law Officers' Department's statements were issued in June of this year in reply to articles which had been published. Those statements were issued in an attempt to correct the misunderstandings and inaccuracies which had been set out concerning the prosecuting authority.

I want to say in conclusion what I said in commencement, namely, that these are matters of public concern and it is right that Parliament should take the opportunity of examining them, because it is right that Parliament, if it so chooses, should change the law if and when it so wishes. As the hon. Gentleman said, under the rules of order we are not permitted in a debate such as this to make proposals for a change of the law.

I repeat, finally, that this being the law, it is the duty of the Director of Public Prosecutions, the police authorities and the Attorney-General of the day to enforce the law as it is interpreted by 929 the judges. It is their duty to see that that is done, and they must not be dissuaded from that because it may be the opinion of certain persons that the law ought to be changed. It is for Parliament to change the law. It is for the 930 prosecuting authorities to enforce the law.