Letter of the Law
Blind Goddess
By R. A. CLINE
THE Blind Goddess is a moody, unpredictable creature. You can never tell which mood will prevail. There is the stiff-lipped, correct mood in which the court will examine the tables of the law, shrug its judicial shoulders and send the petitioning litigant away with empty hands, saying, 'You arc, it is true, the victim of im- moral behaviour. But Parliament has omitted to help you. We cannot legislate to make good their omissions. We are only a court of law.' And sometimes for good measure there will be added the icy phrase, 'We are not a court of morals.' This is the ours-not-to-reason-why approach :
Parliament is sovereign, the court interprets its commands. If you want to get justice, go along to the lobbies at Westminster and persuade the Government to introduce a measure of legal reform, but don't come to us.
Then, in violent contrast, there are the occa- sions when the judiciary, stirred to moral fervour about something, legislates unashamedly and with an expedition which makes parliamentary pro- cedures seem eternal.
Two cases decided earlier this year provide a fair example of the judiciary declining to do the MPs' work for them. In 1959 Parliament decided to do something about flick knives. It was ob- vious that the first thing to do was to prohibit their sale in shops. And so the Restriction of Offensive Weapons Act was passed, enacting that any person who manufactures, sells or hires or offers for sale or hire or lends or gives to any other person any knife which has a blade which opens automatically by hand pressure applied to a button, spring or other device in or attached to the handle of the knife, sometimes known as a 'flick knife,' shall he guilty. . . . It sounds a pretty comprehensive list at first sight.
But it was not nearly comprehensive enough, and the result was that a Bristol shopkeeper who displayed a flick knife his shop window was acquitted of doing anything wrong under the Act. One of the earliest lessons that every law student learns is that an article displayed in a shop window is not 'offered for sale'; it is merely bait to attract the customer inside, or, in the language of the law, its display is an invitation by the shopkeeper to treat. Accordingly the shop- keeper neither sold nor offered for sale the offend- ing and offensive weapons. The recognised term to describe what he did was 'expose for sale. And as the Act failed to contain any such term, the Divisional Court had to acquit the shop- keeper although he clearly acted contrary to the ill-expressed yet obvious intention of Parliament. So now another Act will have to be passed to stop up the leak.
The Lord Chief Justice declined to perform Parliament's function, that is, he refused to legislate by construing the Act as if the section (there is only one section in the Act) contained the words 'expose for sale.! 'A naked usurpation of the legislative function under the thin disguise
of interpretation . . he quoted. Which is with-
out doubt legally and constitutionally correct.
The same thing happened in the second case. A shopkeeper displaying obscene photographs in his bookshop was acquitted for the very same reasons; for someone forgot to include the words 'expose for sale' in section 2 of the Obscene Pub- lications Act, 1959. If legislative oversights of this calibre go on, we shall soon be feeling even more sympathy for Lord Denning, who frequently makes gallant but much-criticised attempts to save the country money and time by correcting parliamentary howlers from his judicial seat.
But this purist view does not always obtain. Consider the recent case about the Ladies' Directory. Admittedly it was a case about prostitutes, a subject on which the courts are particularly jumpy, almost ambivalent in their attitude. In that case the man who published a guide for those seeking the services of prostitutes was found guilty of a number of offences which included that of conspiring to corrupt the public morals. It was contended that this was a dangerously vague category of criminal conduct; who can say what behaviour might not corrupt public morals? and how are the mores- of our community on any given subject to be ascer- tained with reasonable certainty beforehand? Not unexpectedly, counsel for the accused pointed to the mass of legislation on immoral behaviour and urged the court that it was not a court of morals. Leave that function, he said in effect, to Westminster.
But the House of Lords was in its fervent mood : 'In the sphere of criminal law there re- mains 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 against attacks which might be all the more insidious because novel and unprepared for.' If this dictum is to be applied in its full rigour, then we can now move in and clean up the West End with a vengeance. The Home Secretary's crowded legislative pro- gramme can be considerably eased.
But then this was a case about prostitutes, and the courts are no doubt determined not to en- courage prostitution. Or are they? For the strange thing is that not long ago it was decided that a woman in a Soho 'near-beer' club was guilty of false pretences in persuading an American serviceman to part with his money in the belief that he was going to obtain her im- moral services and then failing to render them. So in this case the view was taken that the woman should go to prison for failing to sleep with her customer. Indeed it would apparently have been a complete defence to the charge if the prostitute had shown that she did sleep with him. And the publisher of the directory went to prison for furthering prostitution. The goddess seems to be not so much blind as squinting.
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