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Who Will Be Pardoned Under The 'Turing Law'?

02/02/2017 13:25
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On 31 January 2017, the UK Parliament passed the Policing and Crime Act 2017 and, in doing so, enacted a range of significant provisions relevant to people previously convicted of or cautioned for certain "homosexual" sexual offences.

The 2017 Act enables those persons, both living and dead, who were convicted of or cautioned for certain repealed offences to be pardoned.

There has been widespread media coverage of, what many people are calling, the "Turing Law". However, much of the coverage suggests that there is confusion about who will receive a pardon, how they will obtain one, and when it will be given.

My aim in this short post is to address these questions by way of providing an overview of the legislation.

What is a "pardon"? What is a "disregard"?

The first thing to note is that there are now two "schemes" in operation which address convictions and cautions relating to certain repealed sexual offences.

First, there is the "disregard scheme", which allows a person convicted of or cautioned for one or more certain offences to apply to have a conviction or caution disregarded. The most significant effect of a successful application is that any details of a conviction or caution are deleted in official records. Furthermore, the person who has had a conviction or caution disregarded is treated for all purposes in law as if they had not committed the offence.

Second, a person who has been convicted of or cautioned for one or more certain offences may be "pardoned". In this context, a pardon does not affect a conviction, caution or sentence. Furthermore, a pardon does not give rise to any right, entitlement or liability. The general effect of a pardon is to remove from the subject of the pardon all the pains, penalties and punishments ensuing from a conviction.

England, Wales and Northern Ireland only

The "schemes" described above do not extend to Scotland. Rather, they relate to convictions or cautions in England and Wales, and Northern Ireland. This does not mean, however, that people living in Scotland cannot benefit, if they were convicted or cautioned in another part of the United Kingdom. But offences originally dealt with under Scottish law are not currently covered and those people will need to wait for the Scottish Parliament to make separate legislative provisions relating to pardons and disregards.

Which offences are covered by the pardon and disregard schemes?

The following offences are covered:

"buggery", which was an offence in England and Wales between 1533 and 2003, and in Northern Ireland between 1634 and 2008;

"gross indecency between men", which was an offence in England, Wales and Northern Ireland between 1885 and 2003;

either of the above two offences dealt with under Service (military) law going back to 1917 in respect of the Royal Air Force, 1881 in respect of the Army, and 1661 in respect of the Royal Navy; and

"procuring others to commit homosexual acts", in respect of Northern Ireland, which was an offence between 1982 and 2003.

An important, but often overlooked, fact is that the offence of "buggery" did not relate only to sexual acts committed between men. The offence also regulated sexual acts between men and women and, as such, those convicted of or cautioned for a "heterosexual" act of buggery may be eligible for a pardon or disregard.

A further important fact is that these offences, for the purposes of pardons and disregards, include an attempt, conspiracy or incitement to commit an offence, and aiding, abetting, counselling or procuring the commission of an offence. Moreover, an attempt to commit an offence includes conduct dealt with under vagrancy legislation.

Who is eligible for a pardon or disregard?

To be eligible for a pardon or a disregard, a person who has been convicted of or cautioned for one of the offences mentioned above (except procuring others to commit homosexual acts) must meet the following conditions:

first, the other person involved in the conduct constituting the offence must have consented to it;

second, the other person involved in the conduct constituting the offence must have been aged 16 or over in respect of an offence in England and Wales, or aged 17 or over in respect of an offence in Northern Ireland; and

third, the conduct constituting the offence, if it took place today, must not constitute the offence of "sexual activity in a public lavatory".

Slightly different conditions apply in respect of the offence of procuring others to commit homosexual acts insofar as the issue of consent is concerned.

Which deceased persons will be pardoned?

Those persons convicted of or cautioned for an offence mentioned above will be pardoned if they have died before the legislation comes into force (see below) and if they meet the conditions mentioned above.

To be pardoned, therefore, no "application" needs to be made on behalf of a deceased person, such as by a relative or friend. Rather, the deceased person is deemed to be pardoned for an offence.

This arrangement may leave relatives or friends of a deceased person who was convicted or cautioned wondering whether the deceased person has been pardoned. The government has not offered any assistance to determine whether, in each case, a person has been pardoned. For example, no list of names of those pardoned will be issued. As matters stand, therefore, each deceased person's case will need to be considered by any interested party - relatives, friends or others - to determine whether a deceased person meets the conditions outlined above and, consequently, is pardoned.

Which living persons will be pardoned?

For a person who is living to be pardoned they must first apply to have a conviction or caution, for one of the offences mentioned above, disregarded.

In England and Wales, the process for making such an application has been in place since 2012. Any person who wishes to apply for a conviction or caution to be disregarded can do so by completing and submitting a form available here. In Northern Ireland, the process will be introduced by the Department of Justice in due course.

For an application to be successful, the person who has been convicted or cautioned must meet the conditions outlined above.

If an application to have a conviction or caution disregarded is successful, the person is also pardoned. A person who has previously made a successful application to have a conviction or caution disregarded in England and Wales, is now pardoned.

Therefore, no person who is living can be pardoned without first successfully applying to have a conviction or caution disregarded.

Are other offences covered by the disregard or pardon schemes?

As explained above, only people convicted of or cautioned for certain repealed offences are eligible to be pardoned or have a conviction or caution disregarded.

However, it is recognized that many men were convicted for other offences, such as "importuning", in respect of same-sex conduct that is now lawful.

Therefore, Parliament has made provisions for further offences to be included in the disregard and pardon schemes in the future, both in England and Wales and in Northern Ireland.

When such provisions are used, an offence can only be added to the disregard and pardon schemes if the offence has been repealed or abolished, and either the offence expressly regulated homosexual activity or was used to target homosexual activity.

When will people be pardoned?

Those people who are deceased, who were convicted of or cautioned for an offence mentioned above in England and Wales and meet the conditions described above, were pardoned on the day that the legislation came into force - that is, at midnight on Tuesday 31 January 2017.

Those people who are deceased, who were convicted of or cautioned for an offence mentioned above in Northern Ireland and meet the conditions described above, will be pardoned on a day, in the future, to be determined by the Department of Justice.

In respect of pardons for persons who are living, to obtain a pardon those persons must first successfully apply, as described above, to have a conviction or caution disregarded. As also explained above, an application can now be made in England and Wales, and in Northern Ireland in the future.

This blog first appeared on Paul's personal blog, and can be read here

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