There are countless instances of LGBT+ individuals being stigmatised and discriminated against throughout history, including in criminal law. In particular, a number of sexual acts between men have historically been criminalised. This homophobic legislation was compounded by an insidious approach to investigations, which targeted men who were believed to be gay, leading to a large number of men being criminalised, with all of the consequences that a conviction brings, for behaviour that should never have been illegal in the first place.
See our blog, '50 years on from the Sexual Offences Act 1967', for a more detailed historical overview.
In 2017, the “Turing law” (or its formal title: the Policing and Crime Act 2017) was passed to introduce a statutory pardon for men convicted historically because of their sexuality. This law followed the 2013 royal pardoning of World War Two code-breaker Alan Turing for gross indecency. The change ensures deceased individuals are automatically posthumously pardoned in cases involving now-abolished sexual offences. For individuals who are still alive they will automatically be pardoned if and when they apply for their conviction to be “disregarded” (a process introduced in 2012).
The charity Stonewall has long campaigned for reform in this area and highlights the fact that these unfair former offences remain on the criminal records of thousands of people stigmatised by them, and put many off volunteering or applying for jobs that required a criminal record check. Many others have understandably said that they do not want a pardon (which has connotations of forgiveness for wrongdoing) but an apology.
If you received a conviction for a sexual offence which has since been decriminalised (most likely under the Sexual Offences Act 1967) you will need to apply to have it “disregarded”. If you do not, the details of the offence may still appear on a formal criminal record check. This system is not automatic and individuals will have to proactively apply to have an offence disregarded.
Whilst this is problematic and deeply unsatisfactory for a number of reasons, a practical and significant problem is that employers do not always understand the context of criminal records information and so even if your record shows an offence which is no longer illegal, you may find yourself being refused a job or interview because an offence of a sexual nature is on your record.
Many people have argued that the system should be automatic and all offences eligible to be disregarded should be done automatically without putting people through further anguish by requiring them to go through an administrative burden in relation to something that they should never have had to deal with in the first place. The criminal records charity UNLOCK has called it a “clear barrier to justice”.
Chris Bryant MP speaking at the Second Reading of Sexual Offences (Pardons) Bill in October 2016:
There is a real problem about trying to force people to go through another process. For someone now in their 70s or 80s, the conviction might have been like a brand on them for their entire life. It might have caused terrible problems in their family life. It might have meant that they were never able to do the job that they wanted to do, such as a teacher not being able to go back to teaching. Friends and relatives might have shunned them. It might have made them feel terribly ashamed. Why on earth would they want to write to the Home Secretary, asking, “Please may I be pardoned?” Why on earth would they want to go through that process all over again? Why on earth would they want someone to analyse whether they were guilty of something way back when?"
Unless and until the process is made automatic there are a number of steps for individuals to follow in order to ensure such convictions are “disregarded”.
- Identify if your offence is eligible to be disregarded. Only cautions or convictions under the following provisions may be eligible:
- Sexual Offences Act 1956
- Section 12 of the Sexual Offences Act 1956
- Section 13 of the Sexual Offences Act 1956
- Section 61 of the Offences against the Person Act 1861
- Section 11 of the Criminal Law Amendment Act 1885
- Other relevant offence in respect of acts contrary to the provisions above (see list at page 2 of the Home Office guidance)
- If eligible, determine whether the facts of your offence will qualify to be disregarded:
- The other person(s) involved in the offence were 16 or over at the time of the offence; and
- The offence does not involve sexual activity in a public lavatory (which is still illegal)
- If you are unsure whether you were cautioned or convicted for a relevant offence you can make a subject access request from the police force that interviewed you/where you were charged and apply for a police certificate.
- Home Office guidance including an application to have your offence disregarded is available online: here
- Once you have received notice that your conviction has been disregarded and a period of 14 days thereafter has elapsed, you should be treated in all circumstances as though the offence had never occurred and need not disclose it for any purpose. Official records relating to the conviction will be deleted or, where appropriate, annotated to this effect as soon as possible thereafter.
What if my application is refused?
If you are unhappy with the decision and have further evidence to provide or believe that there was a mistake on your application form, you can contact the Home Office for your application to be reviewed. If you are unhappy with the final decision following review, you can seek leave to appeal the decision to the High Court, under the Protection of Freedoms Act 2012.
Ineligibility and on-going discrimination
Some offences which the Government has acknowledged were used in a discriminatory way to target gay and bisexual men (such as ‘importuning’ under section 32 Sexual Offences Act 1956, later repealed by the Sexual Offences Act 2003) cannot be disregarded because they are not included within the scope of the scheme. In a Consultation paper published in July 2000, titled ‘Setting the Boundaries: Reforming the law on sex offences’, the Home Office set out the reasons for its recommendation that section 32 should be repealed including that it had primarily been used to regulate same sex behaviour in public.
As a sexual offence, this type of offence will still fall to be disclosed indefinitely on a criminal records check with all the stigmatising and harmful consequences that flow from that. Unlock and Stonewall have long argued that further offences such as section 32 should be incorporated into the disregarding process to allow men targeted in a homophobic and discriminatory way in the past to benefit from the disregarding process. There has also been no legislative provision to disregard offences which effectively criminalised sexual acts between women. For now, the system remains inadequate to deal with the reality of the problems that have gone before and the day to day impact that this has on real people.
If you require advice in relation to any matter raised in this blog, criminal records or any criminal offences please contact a member of the criminal team.