Commons Library analysis of the Sexual Offences (Pardons Etc.) Bill 2016-17

The Protection of Freedoms Act 2012 introduced a new “disregard scheme” for men with historic convictions for certain gay sex offences (buggery and gross indecency). Such men can apply to the Home Secretary to have their convictions disregarded. The Home Secretary must be satisfied that the following conditions have been met:

• the other person involved in the conduct constituting the offence consented to it and was aged 16 or over; and
• any such conduct now would not be an offence under section 71 of the Sexual Offences Act 2003 (sexual activity in a public lavatory).

The aim of these two conditions is to ensure that the only convictions disregarded are those for behaviour that is no longer criminal under present day law.

If an application for a disregard is successful, the applicant is treated for all purposes in law as if he had not committed the offence or been convicted for it.

The disregard scheme is currently only available to living applicants. There have been several attempts to change the law to extend the scheme to deceased men (by enabling relatives to apply on their behalf). However, the Government has to date resisted these attempts. It has taken the view that the aim of the disregard scheme is to support living people who are struggling due to their criminal record, not to “set the record straight” by removing unjust convictions.

The disregard system is a different legal process to a pardon. A pardon can be used to recognise that a person was unjustly convicted. Pardons are normally only recommended where there are convincing reasons for believing a person to be both morally and technically innocent.

Following numerous public campaigns, in December 2013 mathematician Alan Turing received a posthumous pardon from the Queen. Turing had been convicted of gross indecency in the 1950s for activity that would have been legal under today’s laws.

The pardon was met with mixed reaction. Some queried whether it represented good legal principle, given that the usual requirements for a pardon (namely moral and technical innocence) had not been met. Others queried why the same action was not being extended to all the other men who had been convicted in similar cases.

The Sexual Offences (Pardons Etc.) Bill 2016-17 was presented to Parliament on 29 June 2016. It is a Private Member’s Bill sponsored by John Nicolson MP. It is due to have its second reading on 21 October 2016. The Bill extends to England and Wales.

The Bill seeks to do two separate things:

• grant pardons to anyone (alive or deceased) convicted or cautioned for certain historic gay sex offences; and
• extend the disregard scheme by enabling relatives of deceased men to apply on their behalf and by adding section 32 of the Sexual Offences Act 1956 (solicitation by men) to the list of offences for which a disregard can be sought.

On 19 October 2016 the Government tabled new clauses to the Policing and Crime Bill 2015-16 to 2016-17. The new clauses make provision for people – deceased and alive – to be pardoned for certain historic gay sex offences. Under the new clauses pardons for living men would not be automatic but would be tied to the disregard process under the 2012 Act.