4. Devlin and the Enforcement of Morality

The Wolfenden Report

In 1954 the Home Secretary of the U.K. responded to prior requests to investigate the law relating to homosexuality (after a number of high profile arrests (including Sir John Gielgud) and sensational trials, and a significant increase in the number of prosecutions for sodomy, indecent assault and gross indecency) by appointing a committee of 14 persons to investigate the law relating to homosexual offences and prostitution. The committee was headed by Sir John Wolfenden, then Vice Chancellor of the University of Reading.

The Report of the Departmental Committee on Homosexual Offences and Prostitution (1957), otherwise known as the Wolfenden Report, recommended that "homosexual behaviour between consenting adults in private should no longer be a criminal offence", and it recommended that prostitution not be made a criminal offence. As it said:

"there must remain a realm of private morality and immorality which is, in brief and crude terms, not the law's business. To say this is not to condone or encourage private immorality."

Note that the Report claims that consensual homosexual activity conducted in private is immoral. Further, the recommended age of consent was 21 years of age (as opposed to the age of 18 for marriage, and 16 for consensual heterosexual activity).

The Report argued that even though homosexual activity is immoral, nevertheless, the function of the criminal law is not to punish immorality, but instead to preserve order and decency:

"the function of the criminal law... is to preserve public order and decency, to protect the citizen from what is offensive or injurious, and to provide sufficient safeguards against exploitation and corruption of others, particularly those who are specially vulnerable because they are young, weak in body or mind, inexperienced, or in a state of special physical, official or economic dependence. It is not, in our view, the function of the law to intervene in the private lives of citizens, or to seek to enforce any particular pattern of behaviour, further than is necessary to carry out the purposes of we have outlined."

One way of understanding this argument, then, is to say that so long as immoral activity does not interfere with public order and decency, so long as immoral activity is not "offensive or injurious", it should be ignored by the law.

The recommendations of the Report were not, in fact, acted upon by the Government. Only years later, in 1967, did the Government pass the Sexual Offences Act, by a very narrow margin, which replaced the 1861 Offences Against the Person Act. Even then the law applied only to England and Wales. That was changed in 1980. The age of consent remained at 21 years until 1994, when it was reduced to 18, and then in 2000 it was reduced to 16 years of age.

It is important to note that this argument is not the argument of On Liberty. Mill does argue that certain sorts of activity, when conducted in public, are such that they are offensive to others, and for that reason may be criminalized:

"Again, there are many acts which, being directly injurious only to the agents themselves, ought not to be legally interdicted, but which, if done publicly, are a violation of good manners and, coming thus within the category of offenses against others, may rightly be prohibited. Of this kind are offences against decency; on which it is unnecessary to dwell, the rather as they are only connected indirectly with our subject, the objection to publicity being equally strong in the case of many actions not in themselves condemnable, nor supposed to be so." (p. 97)

Since this includes, e.g. heterosexual activity between a married couple (which, if conducted in public, would count as an offence "against decency", although of course it is not in itself "condemnable"), he is not interested in these cases.

However, quite unlike the Wolfenden Report, Mill nowhere states that e.g. homosexual activity between consenting adults is immoral. Indeed, quite the opposite; Mill would argue that it is morally permissible. Instead Mill would argue that unless the activity of consenting adults either is conducted in public, and hence offends others, or else is an activity that harms others who have not consented to it, it is not fit for moral condemnation, and a fortiori, cannot be criminalized.

Devlin's Attack

Lord Patrick Devlin, a judge on the Queen's Bench from 1948 to 1960 issued a famous attack on the argument of the Wolfenden Report in 1959, which was published under the title "The Enforcement of Morals". His title was "Morals and the Criminal Law". (All quotations from PL).

One argument that Devlin makes is not at all contrary to Mill. Devlin argues that:

"I do not think that one can talk sensibly of a public and private morality" (p. 79)

This entails that the very notion of "private immorality" is incoherent.

Devlin rejects the position of the Report that:

"In other words, no act of immorality should be made a criminal offence unless it is accompanied by some other feature such as indecency, corruption, or exploitation." (p. 68)

Devlin rejects this. Devlin holds that an act of immorality may be a criminal offence simply because it is immoral.

"There is only one explanation of what has hitherto been accepted as the basis of the criminal law and that is that there are certain standards of behaviour or moral principles which society requires to be observed; and the breach of them is an offence not merely against the person who is injured but against society as a whole." (p. 71)

Devlin does imply here that there is always a person who is "injured" in the case of an act that is a criminal offence, as well as it being the case that the act is "against society". However, he also says that:

"There is disintegration when no common morality is observed and history shows that the loosening of moral bonds is often the first stage of disintegration." (p. 76-7)

The implication here is that an that is "against society" may be criminalized even if it is not the case that someone is injured by this act. Society is held together by moral bonds, and any act of immorality is in principle an act "against society".

What is the standard for an action being "immoral", and hence, "against society", where society is understood as including a set of moral principles?  Devlin does not say that it is simply whatever the majority of society consider to be immoral.

"How are the moral judgments of society to be ascertained? ... It is surely not enough that they should be reached by the opinion of the majority... English law has evolved and regularly uses a standard which does not depend on the counting of heads. It is that of the reasonable man. He is not to be confused with the rational man. He is not expected to reason about anything and his judgment may be largely a matter of feeling. It is the viewpoint of the man in the street... For my purpose I should like to call him the man in the jury box, for the moral judgment of society must be something about which any twelve men or women drawn at random might after discussion be expected to be unanimous." (p. 78)

"Immorality, then... is what every right-minded person is presumed to consider to be immoral." (p. 78)

"There is, for example, a general abhorrence of homosexuality. We should ask ourselves in the first instance whether, looking at it calmly and dispassionately, we regard it as a vice so abominable that its mere presence is an offence. If that is the genuine feeling of the society in which we live, I do not see how society can be denied the right to eradicate it." (p. 80)