Expansion of the disregards and pardons scheme for historic same-sex sexual activity convictions

In a long-overdue announcement by the Home Office, women who were in the past unjustly convicted of same-sex consensual sexual activity will be able to apply for their convictions to be disregarded or pardoned for the first time. This is a significant step forward for queer rights in the UK.
 

Until now, the scheme that applied to the disregarding and pardoning of certain offences applied only applied to men. On 13 June 2023, the scheme was expanded to allow anyone convicted or cautioned under now-abolished laws related to homosexuality the opportunity to apply for the conviction to be disregarded and thereby deleted from their record (or, in the case of deceased persons, such convictions can be made subject to a posthumous pardon). The scheme also applies to veterans convicted under service law.

The Home Office has hailed the changes as a major advancement in rectifying historic injustices and has published new guidance on how the scheme will operate.

The scheme is, however, not without criticism.

Section 92 of the Protection of Freedoms Act 2012

The power to disregard convictions or cautions for certain offences that criminalised homosexual acts between consenting adults was first introduced by section 92 of the Protection of Freedoms Act 2012. It allows the Secretary of State upon application by a person convicted or cautioned of certain listed offences to declare that those convictions or cautions were now “disregarded”. The primary effect of a conviction being disregarded is that it must be deleted from police records. The main limitation to the scheme was that it applied only to convictions for three offences – “buggery”, “gross indecency between men” and “sodomy” – which are all offences that could only be committed between men.

Section 164 of the Policing and Crime Act 2017 – “Turing’s Law”

Further statutory provisions to remedy historic wrongs linked to the criminalisation of consensual homosexual activity were introduced via the Policing and Crime Act 2017, also known as “Turing’s Law” after the renowned mathematician and World War II code-breaker, Alan Turing. Turing’s Law provided for the posthumous pardoning of certain offences related to consensual homosexual activity, but was again limited to offences that could only have been committed by men. (Read our colleague Áine Kervick’s in-depth exploration of this law here.)

Sections 194 and 195 The Crime, Sentencing & Courts Act 2022

Although Turing’s Law was welcomed, the relatively restricted nature of the power to disregard and pardon offences has been criticised by queer and women’s rights groups.

The government has now expanded the Disregards and Pardons Scheme via the Police, Crime, Sentencing and Courts Act 2022. As a result of this legislation, women can now apply to have convictions for consensual homosexual activity disregarded and pardoned because the scheme now applies to all convictions for offences committed in circumstances where the conduct constituting the offence was sexual activity between persons of the same sex. The scheme is therefore no longer restricted to specific offences that criminalised sexual activity between men.

The reforms also encompass a broader range of service offences, enabling more veterans who were prosecuted for their sexuality under service law to benefit from the scheme.

Service offences that now fall within the scheme's scope include those repealed by the Armed Forces Act 2006, such as section 64 (scandalous conduct) and section 66 (disgraceful conduct) of the Air Force and Army Acts 1955, as well as corresponding sections 36 and 27 of the Naval Discipline Act 1957.

Under the revised scheme, those who were unjustly criminalised will receive a pardon, and their convictions will be deleted from official records. They will no longer be obliged to disclose these convictions during court proceedings or job applications.

A disregard will be granted if certain conditions are met, including that any other party involved was aged 16 or over and the sexual activity does not constitute an offence today.

Limitations of the scheme

The revised scheme will probably only be of limited benefit to women because sexual acts between women were never explicitly criminalised in the same way as they were between men. It is a requirement of the scheme that the offence to be disregarded and pardoned has to have been repealed or abolished, and the vast majority of laws that criminalised homosexual activity that have been repealed or abolished applied only to men. The scheme does not address the fact that, in the era of criminalised homosexuality, prosecution authorities targeted same-sex activity by creatively interpreting non-sexual offences. Acts such as minor public displays of affection or attempts to marry were treated as crimes such as perjury, breach of the peace, or public order offences. As these offences still exist or have similar counterparts, individuals convicted under them are not eligible for pardons, even though the behaviour that was prosecuted and criminalised amounted to no more than the legitimate physical expression of their sexuality.

The revised scheme does represent an improvement in the legal landscape and a step in the right direction, but it unfortunately falls short of comprehensively tackling these historic injustices.

Further Information

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 litigation team.

About the Authors

Edward Jones has practised exclusively in the field of criminal law for over 15 years and brings a wealth of knowledge and experience to his role. His expertise includes advising on the means by which the police can collect and retain an individual’s personal data and the means by which an individual can apply to have that personal data deleted from police systems. He is also an expert in dealing with issues arising from the disclosure of personal data on Disclosure & Barring Service (DBS) certificates and applying for individuals to be removed from the DBS Barred Lists.

Úna Campbell is a legal apprentice in the Criminal Litigation team at Kingsley Napley. Úna was the inaugural winner of The Legal Apprentice in 2019, a competition run by Kingsley Napley in association with The Times in which 902 teams from 308 schools and colleges across the UK competed against each other through a series of heats testing pupils’ drafting, negotiation and interpersonal skills.