BRIEFING PAPER Number 07441, 20 October 2016 The Sexual Offences By Sally Lipscombe
(Pardons Etc.) Bill 2016- 17 [Bill 6 of 2016-17]
Contents: 1. Legislative history 2. The disregard scheme 3. Alan Turing: a posthumous pardon 4. The Government’s position 5. The Bill
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2 The Sexual Offences (Pardons Etc.) Bill 2016-17 [Bill 6 of 2016-17]
Contents
Summary 3 1. Legislative history 4 1.1 Relevant offences 4 1.2 Decriminalisation 4 2. The disregard scheme 5 2.1 The Protection of Freedoms Act 2012 5 2.2 The difference between a disregard and a pardon 6 2.3 Attempts to extend the disregard scheme 7 3. Alan Turing: a posthumous pardon 9 4. The Government’s position 11 5. The Bill 12 5.1 Pardons 12 5.2 Extending the disregard scheme 13 5.3 The Government’s response 13 Posthumous pardons 13 Pardons in other cases 14
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3 Commons Library Briefing, 20 October 2016
Summary
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. 4 The Sexual Offences (Pardons Etc.) Bill 2016-17 [Bill 6 of 2016-17]
1. Legislative history 1.1 Relevant offences Until 1967, consensual sexual activity between adult men over the age of consent was criminal. Such activity could either be prosecuted as buggery or as gross indecency. The relevant legislation in force at the time was the Sexual Offences Act 1956. Section 12 of the 1956 Act made it an offence for one person to commit buggery with another.1 Section 13 of the 1956 Act set out the much wider offence of gross indecency between men, which had first been introduced in the late 1800s.2 Under section 13 it was an offence “for a man to commit an act of gross indecency with another man, whether in public or private”. Section 13 also criminalised anyone who was a party to the commission of an act of gross indecency between men, or who procured the commission of such an act. The gross indecency offence, which had become known as the “blackmailer’s charter” following its original introduction in the 1880s, was used to prosecute a wide range of male homosexual activity. It was most famously used to convict playwright Oscar Wilde and mathematician Alan Turing.
1.2 Decriminalisation In 1967, consensual sexual activity in private between two men over the age of 21 was decriminalised.3 The age of consent was lowered to 18 in 1994 and again to 16 in 2000.4 However, these changes did not have retrospective effect. Any convictions predating the decriminalisation of consensual gay sex and the lowering of the age of consent therefore continue to remain part of an individual’s criminal record.
1 An earlier corresponding offence was set out in section 61 of the Offences Against the Person Act 1861. 2 Section 11 of the Criminal Law Amendment Act 1885 3 Sexual Offences Act 1967, s1 4 Criminal Justice and Public Order Act 1994, s143 and Sexual Offences (Amendment) Act 2000, s1 5 Commons Library Briefing, 20 October 2016
2. The disregard scheme
Following the 2010 general election, the Coalition Government said that it would be legislating for historical convictions for consensual gay sex between men aged 16 or over to be treated as spent, meaning they would no longer show up on criminal records checks.5 The Coalition Government’s Equality Strategy, published in December 2010, set out further details: We will ... change the law so people with historical convictions for consensual gay sex with over 16s can apply for their record to be deleted from the Police National Computer, ensuring it no longer has to be declared and will not show up on criminal record checks.6 The Home Office estimated that there were approximately 50,000 convictions for section 12 or 13 offences recorded on the Police National Computer, of which approximately 16,000 related to conduct that is now legal (i.e. consensual sexual activity between men aged 16 or over).7 Legislation was duly brought forward, and in 2012 the Protection of Freedoms Act 2012 introduced a new “disregard” scheme for men with historic convictions for consensual gay sex.
2.1 The Protection of Freedoms Act 2012 Under the disregard scheme, men with convictions or cautions under sections 12 or 13 of the 1956 Act, and the corresponding earlier offences under the Offences Against the Person Act 1861 and the Criminal Law Amendment Act 1885, can apply to the Home Secretary to have their convictions or cautions “disregarded”. The Home Secretary must be satisfied that the following conditions have been met before disregarding a conviction or caution: • 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. As set out in the Explanatory Notes, some of the conduct covered by sections 12 and 13 is still criminal today, and so should not be capable of being disregarded: As well as consensual gay sex with a person over the age of consent, the offence in section 12 of the 1956 Act also encompasses non-consensual buggery, bestiality and under-age
5 Cabinet Office, The Coalition: our programme for government, May 2010, p24 6 HM Government, The Equality Strategy – Building a Fairer Britain, December 2010, p21 7 Home Office, Equality Impact Assessment - Removal of decriminalised offences for consensual gay sex from the Police National Computer, 21 December 2010, p2 6 The Sexual Offences (Pardons Etc.) Bill 2016-17 [Bill 6 of 2016-17]
buggery, and the section 13 offence also includes gross indecency with somebody under the age of consent, all of which remains criminal behaviour today.8 Applications must be in writing and include details of the conviction or caution, and may also include representations by the applicant or written evidence about the two conditions referred to above.9 In coming to a decision as to whether to disregard a conviction or caution, the Home Secretary must consider any representations or evidence included in the application, together with any available record of the investigation of the offence and any relevant proceedings relating to it. If an application is successful, the applicant is treated for all purposes in law as if he had not committed the offence, or been charged with, prosecuted for, convicted of, sentenced for or cautioned for it. This means that details of disregarded cautions and convictions cannot be used in judicial proceedings. In addition, questions about previous convictions put to a person in any other context (for example by a prospective employer) are treated as not relating to any disregarded conviction or caution. In response to a PQ, the Government indicated that between October 2012 and April 2016 a total of 242 individuals had made disregard applications in respect of 317 cases (some individuals applied in respect of more than one case). Of these 317 cases, 83 had been accepted for a disregard, 233 rejected, and one was still pending resolution.10
2.2 The difference between a disregard and a pardon The disregard system introduced by the 2012 Act is a different legal process to a pardon. As mentioned above, the aim of a disregard is to treat the individual concerned for all purposes in law as if he had not committed the offence or been convicted for it. In the words of the then Justice Minister Lord Faulks: The objective of the Protection of Freedoms Act, in disregarding certain offences, is that they should no longer affect a person’s life or career. The intention is to support living people who are disadvantaged when they apply for work, rather than to set the record straight.11 A pardon, by contrast, is used to recognise that a person was unjustly convicted. Pardons are issued by the Queen (on the recommendation of the Justice Secretary) under the royal prerogative of mercy. In practice the Justice Secretary will usually recommend a pardon only where there are convincing reasons for believing a person to be both morally and technically innocent: general doubts about someone’s guilt
8 Protection of Freedoms Act 2012: Explanatory Notes, paragraph 363 9 See Gov.UK, Disregarding convictions for decriminalised sexual offences [accessed 19 October 2016] for the application form and guidance notes 10 PQ HL7758 [on Protection of Freedoms Act 2012], 27 April 2016 11 HL Deb 21 July 2014 c1007 7 Commons Library Briefing, 20 October 2016
may not be sufficient. A pardon removes the “pains, penalties and punishments” which are consequent upon a person’s conviction. It does not, however, remove the conviction itself. A pardon is not, therefore, equivalent to an acquittal; only the courts have the power to quash convictions altogether.12 The 2012 Act specifically preserves the existing power of the Queen, under the Royal prerogative, to issue a free pardon, quash a conviction or sentence, or commute a sentence. These actions are therefore still available in respect of disregarded convictions or cautions.
2.3 Attempts to extend the disregard scheme The disregard scheme is only available to living applicants, as applications must be made by individuals in their own right. Third parties cannot make applications on behalf of deceased men who would have been eligible for a disregard were they still alive. Lord Sharkey has made two unsuccessful attempts to extend the disregard scheme to deceased men. A third attempt is currently in progress. The first attempt was by way of an amendment tabled during the passage of the Bill that became the Legal Aid, Sentencing and Punishment of Offenders Act 2012. The amendment would have relatives of otherwise eligible deceased persons to apply on their behalf for a disregard.13 Speaking to the amendment, Lord Sharkey said: We believe that this very simple extension is fair and right in principle. It would provide some comfort and closure for the families, relatives, friends and loved ones of those who have been convicted but are not able to apply for a disregard for themselves. We believe that all those convicted under these repealed and cruel laws should have an equal opportunity for rehabilitation. The amendment would go a small way towards making amends to the many thousands of men who were cruelly and unjustly persecuted simply for being gay.14 The Government resisted the amendment, which was later withdrawn. The then Justice spokeswoman Baroness Northover said: …the objective [of the disregard scheme] is not to rewrite history. The provision in the Protection of Freedoms Bill does not state that the person was wrongfully convicted, nor does it pardon them. It is just that they can now be treated for all purposes in law as someone who was not convicted of those offences. The position in relation to those who have been convicted of this type of offence and have since died is different. I understand the strength of feeling about such convictions, and the cruelty of the laws under which they were imposed, and I know that this is particularly true in relation to the conviction of Dr Alan Turing.
12 The use of the royal prerogative of mercy to pardon wrongfully convicted people is extremely rare these days, as most such cases are now dealt with by the Criminal Cases Review Commission instead. The Commission is an independent body set up to investigate suspected miscarriages of justice. It refers relevant convictions back to the Court of Appeal, which has the power to quash the conviction. 13 HL Deb 20 March 2012 c874 14 HL Deb 20 March 2012 c875 8 The Sexual Offences (Pardons Etc.) Bill 2016-17 [Bill 6 of 2016-17]
(…) That said, I do not believe that the provisions for disregarding convictions, which are concerned with the practical consequences of conviction, are an appropriate means of putting right the wrongs done to people who are no longer alive to suffer those consequences.15 A rerun of this debate took place in 2014, when Lord Sharkey moved a similar amendment during the passage of the Bill that became the Criminal Justice and Courts Act 2015. The Government again resisted the amendment, which was again later withdrawn. The then Justice Minister Lord Faulks repeated the Government’s position that the disregard scheme was intended to support living people rather than to “set the record straight”. He also said that the Government was concerned that the amendment would introduce a “disproportionate burden” on public resources, particularly within the Home Office and the police. He considered that identifying appropriate records involving deceased men would “a lengthy, expensive and uncertain task”, and that the limited public resources available should instead be directed at living people who were continuing to have difficulties due to their convictions.16 Lord Sharkey’s third attempt to extend the scheme is currently in progress. He has tabled an amendment to the Policing and Crime Bill 2015-16 to 2016-17, which is currently in Committee in the Lords. The amendment has not yet been debated. The amendment again seeks to extend the disregard scheme to deceased persons. It also provides that the Secretary of State may only make a disregard decision if the available records of the investigation of the offence, and any proceedings related to it, provide the Secretary of State with sufficient information to make such a decision.17
15 HL Deb 20 March 2012 c876 16 HL Deb 21 July 2014 c1007 17 Policing and Crime Bill: Marshalled List of Amendments to be moved in Committee of the Whole House, 12 September 2016, Amendment 229 9 Commons Library Briefing, 20 October 2016
3. Alan Turing: a posthumous pardon
In 2009, a public petition was launched calling for mathematician and World War II codebreaker Alan Turing to be granted a posthumous pardon in respect of his conviction for gross indecency.18 The petition received over 30,000 signatures. The then Prime Minister Gordon Brown responded by apologising for what had happened to Mr Turing and acknowledging that “Alan and the many thousands of other gay men who were convicted, as he was convicted, under homophobic laws, were treated terribly”.19 However, no pardon was granted. A further public petition was launched in 2011, which again called on the Government to pardon Alan Turing.20 However, the Coalition Government initially declined to do so. Speaking in a Westminster Hall debate in June 2012, the then Justice Minister Crispin Blunt said: It is the long-standing policy not to exercise the royal prerogative of mercy where a person was correctly convicted under the laws that existed at the time. The applicant must be technically and morally innocent, (…). A pardon under the royal prerogative of mercy would not actually affect Alan Turing’s conviction; only a court can quash a conviction and, in that sense, clear someone’s name. Much as we now feel it outrageous that Alan Turing’s behaviour was treated as a criminal offence, he was guilty of the contemporary offence. To grant him a pardon under the royal prerogative would change the basis on which such pardons are normally given. If Alan Turing were pardoned, there would be tens of thousands of other people in respect of whom demands for like treatment could be made. Those persons could include about 16,000 living individuals with convictions for homosexuality, and many times that number of deceased victims. The living can benefit from the Home Office’s recent disregard provisions, but both they and the families of those who are deceased, or others on their behalf, could seek a pardon, too.21 However, in July 2013 the Government signalled a change of position. Lord Sharkey had introduced a Private Member’s Bill in the Lords that would have granted Alan Turing a statutory pardon for his convictions for gross indecency.22 The Bill received an unopposed Second Reading, with Lord Ahmad of Wimbledon indicating that the Government would not block the Bill as it was “right that Parliament should be free to
18 Number10.gov.uk website, E-Petitions: Alan Turing [archived site accessed 19 October 2016] 19 “Gordon Brown: I'm proud to say sorry to a real war hero”, Daily Telegraph, 10 September 2009 20 UK Government and Parliament Petitions website, Grant a pardon to Alan Turing (23526) [accessed 19 October 2016] 21 HC Deb 27 June 2012 cc126-7WH 22 The Alan Turing (Statutory Pardon) Bill [HL] 2012-13 10 The Sexual Offences (Pardons Etc.) Bill 2016-17 [Bill 6 of 2016-17]
respond to this Bill in whatever way its conscience dictates and in whatever way it so wills”.23 The Bill was ultimately overtaken by Government action and did not proceed beyond the Lords. In December 2013 Alan Turing received a posthumous pardon from the Queen following a request from then then Justice Secretary Chris Grayling. The Government acknowledged the unique circumstances of issuing a pardon in this case: The Justice Secretary has the power to ask the Queen to grant a pardon under the Royal Prerogative of Mercy, for civilians convicted in England and Wales. A pardon is only normally granted when the person is innocent of the offence and where a request has been made by someone with a vested interest such as a family member. Uniquely on this occasion a pardon has been issued without either requirement being met, reflecting the exceptional nature of Alan Turing’s achievements.24 The pardon was met with mixed reaction. Some queried whether it represented good legal principle, given that the usual requirements for a pardon 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.25 A petition was subsequently launched on the Change.org website calling for a pardon for “all of the estimated 49,000 men who, like Alan Turing, were convicted of consenting same-sex relations under the British "gross indecency" law”.26 The petition attracted over 600,000 signatures and relatives of Turing subsequently delivered the petition in person to 10 Downing Street.27
23 HL Deb 19 July 2013 c1023 24 Ministry of Justice press release, Royal pardon for WW2 code-breaker Dr Alan Turing, 24 December 2013 25 See, for example, “Enigma codebreaker Alan Turing receives royal pardon”, Guardian, 24 December 2013 26 Change.org website, Pardon all of the estimated 49,000 men who, like Alan Turing, were convicted of consenting same-sex relations under the British "gross indecency" law (only repealed in 2003), and also all the other men convicted under other UK anti-gay laws [accessed 19 October 2016] 27 “Alan Turing's family take pardons for 49,000 gay men petition to Downing Street”, Independent, 22 February 2015 11 Commons Library Briefing, 20 October 2016
4. The Government’s position
The Conservative Party Manifesto 2015 included the following commitment: We will build on the posthumous pardon of Enigma codebreaker Alan Turing, who committed suicide following his conviction for gross indecency, with a broader measure to lift the blight of outdated convictions of this nature. Thousands of British men still suffer from similar historic charges, even though they would be completely innocent of any crime today. Many others are dead and cannot correct this injustice themselves through the legal process we have introduced while in government. So we will introduce a new law that will pardon those people, and right these wrongs.28 Shortly after the election Lord Sharkey asked the Government how it intended to proceed. In response, the then Justice Minister Lord Faulks said: The Government was elected with a manifesto commitment to introduce a new law to pardon those who suffered from convictions similar to Alan Turing’s, and who cannot correct the injustice themselves through the “disregard” process. Details of the policy have not yet been formulated and Ministers will be discussing their plans and making announcements in due course. There is a clear difference between a pardon and a disregard. A pardon is legally neutral in effect and does not affect any conviction, caution or sentence, though it may remove the “pains and penalties” which resulted from these. The effect of a disregard is that all successful applicants will be treated “for all purposes in law” as though the conviction had never occurred and need not disclose it for any purpose. Official records relating to the conviction held by prescribed organisations will be deleted or, where appropriate, annotated to this effect as soon as possible after the grant of a disregard.29 In September 2016 the press reported that the new Prime Minister Theresa May was “committed” to legislating to pardon thousands of gay men with similar convictions to Turing, and that the Ministry of Justice was looking for “the right legislative vehicle to push this through”.30 On 19 October 2016 the Government (together with Liberal Democrat peer Lord Sharkey) 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. See section 5.3 of this Briefing Paper for full details.
28 Conservative Party Manifesto 2015, p46 29 Written question HL1037 on Homosexuality: Convictions, 15 July 2015 30 “Theresa May committed to introducing ‘Alan Turing law’ and pardon gay men convicted of ‘gross indecency’”, Independent, 21 September 2016 12 The Sexual Offences (Pardons Etc.) Bill 2016-17 [Bill 6 of 2016-17]
5. The Bill
The Sexual Offences (Pardons Etc.) Bill 2016-17 was presented to Parliament on 29 June 2016.31 Explanatory Notes are also available. It is a Private Member’s Bill sponsored by John Nicolson MP.32 It is due to have its second reading on 21 October 2016. The Bill extends to England and Wales and would come into force on the day it is passed. The Bill seeks to do two separate things: • grant pardons to men 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 offences under section 32 of the Sexual Offences Act 1956 (solicitation by men) to the list of offences for which a disregard can be sought. Clause 1 of the Bill makes clear that its provisions would not apply to convictions or cautions for conduct or behaviour that is still unlawful on the date on which the Bill receives Royal Assent. The Explanatory Notes give the example of past sexual activity involving a person under the current age of consent (16).33
5.1 Pardons Clause 2 of the Bill would grant a pardon to “any person” convicted or cautioned for a “relevant offence”. “Any person” is not defined any further, so would presumably cover both living and deceased men with relevant convictions or cautions. “Relevant offence” is defined as an offence under: • section 12 of the Sexual Offences Act 1956 (buggery); • section 13 of the 1956 Act (gross indecency between men); • section 32 of the 1956 Act (solicitation by men); or • section 61 of the Offences against the Person Act 1861 or section 11 of the Criminal Law Amendment Act 1885 (corresponding earlier offences). The offence must also fulfil the following conditions: • the other person involved in the conduct constituting the offence must have consented to it and been aged 16 or over; and • any such conduct would not be an offence under section 71 of the Sexual Offences Act 2003 (sexual activity in a public lavatory); and • any such conduct would not be an offence on the date the Bill comes into force.
31 HC Deb 29 June 2016 c340 32 Mr Nicolson was drawn first in the Private Members' Bill ballot: Session 2016-17 33 Explanatory Notes to the Sexual Offences (Pardons Etc.) Bill 2016-17, paragraph 7 13 Commons Library Briefing, 20 October 2016
The Secretary of State would be able to add to or otherwise amend this list of conditions by regulation. Clause 4 provides that such regulations would be subject to the affirmative procedure. A pardon under clause 2 would not affect any conviction or sentence, give rise to any right, entitlement or liability, or affect the prerogative of mercy. The Explanatory Notes indicate that the reference to a pardon not affecting any conviction or sentence is to ensure that “any individual seeking to benefit from the practical, as opposed to the symbolic, benefits of the pardon must apply for a disregard under the Protections of Freedom Act 2012”.34 A pardon under clause 2 would also not affect, replace or reduce the right of any person to apply to the Secretary of State for a disregard under the Protection of Freedoms Act 2012 in respect of a conviction or caution for a relevant offence.
5.2 Extending the disregard scheme Clause 3 of the Bill would amend the Protection of Freedoms Act 2012 to extend the disregard scheme in two ways. First, section 92 of the 2012 Act would be amended to add section 32 of the Sexual Offences Act 1956 (solicitation by men) to the list of relevant offences for which a disregard could be sought. Secondly, section 92 would also be amended to cover deceased persons who would have been eligible to apply for a disregard had they still been alive. Any relative of such a person would be able to make an application for a disregard on his behalf. Section 94 of the 2012 Act would be amended to provide that for applications made on behalf of a deceased person, a conviction or caution could only be disregarded if the available records of the investigation of the offence, and any proceedings related to it, provide the Secretary of State with sufficient information to make such a decision. Representations or written evidence supplied by the applicant will not be sufficient on their own.
5.3 The Government’s response On 19 October 2016, the Government and Liberal Democrat peer Lord Sharkey tabled new clauses on pardons to the Policing and Crime Bill 2015-16 to 2016-17, which is currently in Committee in the Lords.35 Posthumous pardons The first new clause relates to posthumous pardons. It would pardon anyone who has been convicted of, or cautioned for, a specified offence and who has died before the clause comes into force, provided that the following two conditions are met:
34 Explanatory Notes to the Sexual Offences (Pardons Etc.) Bill 2016-17, paragraph 9 35 For the full text of the proposed new clauses, please see Policing and Crime Bill HL Bill 55—I(i) 56/2 Amendments to be Moved in Committee of the Whole House [Supplementary to the Marshalled List], 19 October 2016. 14 The Sexual Offences (Pardons Etc.) Bill 2016-17 [Bill 6 of 2016-17]
• the other person involved in the conduct constituting the offence consented to it and was aged 16 or over; and • any such conduct at the time this section comes into force would not be an offence under section 71 of the Sexual Offences Act 2003 (sexual activity in a public lavatory). The list of specified offences is as follows: • an offence under section 12 of the Sexual Offences Act 1956 (buggery) or under section 13 of that Act (gross indecency between men); • offences under a number of historic statutes (dating from between 1533 and 1861) that made similar provision to the section 12 buggery offence; and • offences under section 11 of the Criminal Law Amendment Act 1885, which made similar provision to the section 13 gross indecency offence. Equivalent offences committed by members of the armed forces and dealt with by way of service disciplinary proceedings are also covered. Pardons in other cases The second new clause relates to pardons for men who are still living. It would pardon anyone who has been convicted of, or cautioned for, an offence listed in section 92(1) of the Protection of Freedoms Act 2012 and who is living at the time the clause comes into force.36 Pardons for living men will not, however, be automatic. They will instead be tied to the disregard process set out in the 2012 Act: • Anyone whose conviction or caution has already become disregarded under the 2012 Act at the time the clause comes into force will be pardoned for that offence. • Anyone whose conviction or caution becomes disregarded under the 2012 Act after the clause comes into force will be pardoned for that offence at the time the disregard takes effect. So living men will not receive a pardon under the new clause unless they have also successfully applied to have their conviction or caution disregarded under the 2012 Act. Justice Minister Sam Gymiah indicated that the Government did not support the approach in Mr Nicolson’s Bill: The Government said it will not support a separate Private Member's Bill on the subject, which is set to be debated on Friday and proposes a blanket pardon for the living without the need to go through the disregard process. Mr Gyimah said: "A blanket pardon, without the detailed investigations carried out by the Home Office under the disregard process, could see people guilty of an offence which is still a crime today claiming to be pardoned.
36 The offences listed under section 92(1) are sections 12 and 13 of the Sexual Offences Act 1956 (buggery and gross indecency) and their precursor offences under section 61 of the Offences against the Person Act 1861 or section 11 of the Criminal Law Amendment Act 1885 15 Commons Library Briefing, 20 October 2016
"This would cause an extraordinary and unnecessary amount of distress to victims and for this reason the Government cannot support the Private Member's Bill. Our way forward will be both faster and fairer.”37 Lord Sharkey welcomed the Government’s move: Commenting on the news that the Government will support the Liberal Democrat amendment, the author of the amendment, Lord Sharkey said: “This is a momentous day for thousands of families up and down the UK who have been campaigning on this issue for decades. I am very grateful for the Government’s support and the support of many of my colleagues in Parliament. “It is a wonderful thing that we have been able to build on the pardon granted to Alan Turing during Coalition by extending it to the thousands of men convicted of sexual offences that existed before homosexuality was decriminalised in 1967 and which would not be crimes today.”38 A spokesman for Stonewall, which campaigns for the equality of lesbian, gay, bisexual and trans people, said that the charity welcomed the Government’s announcement but would continue to support the alternative approach in Mr Nicolson’s Bill. He also commented that the Bill “’explicitly’ excluded pardoning anyone convicted of offences that would still be illegal today, including non-consensual sex and sex with someone under 16”.39
37 “'Alan Turing law' brings posthumous pardons for thousands of convicted gay men”, Telegraph, 20 October 2016 38 “UK Government announces Turing’s Law to pardon historic gay sex offences”, Pink News, 20 October 2016 39 “Gay men convicted of now-abolished sex offences to be pardoned”, BBC News, 20 October 2016
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