Deletion of historical gay convictions
The Continuing fight for gay equality - Historic convictions for consensual acts to be deleted.
Sexual relations between men have been the focus of much scrutiny, debate and legal intervention for centuries. Society has previously sought to discourage gay relations through criminal law using the threat of arrest, imprisonment or worse.
Although the law was used to prosecute male homosexuals, over the past century, gay & bisexual men have challenged their social marginalisation and exclusion and in recent times we have we seen an increasing trend towards gay equality through the development of social attitudes, politics and legislative change.
The Wolfenden Report was published in 1957 and was the outcome of a committee set up to investigate both homosexuality and prostitution in the 1950s. The committee recommended that private homosexual acts between consenting adults should no longer be a criminal offence. The recommendations did not bring legislative change for many years and saw gay political organisations campaign tirelessly for the enactment of the Wolfenden recommendations into law.
The law was repealed in part by Sexual Offences Act 1967 whereby consensual sex in private between two men over the age of 21 was decriminalised. In 1994, the age of consent was lowered to the age of 18 years. In 2000, the age of consent was lowered again to 16 years. Such convictions, however, continued to be recorded in police records, principally on the Police National Computer, and would appear on a standard or enhanced criminal records disclosure issued by the Criminal Records Bureau.
With obvious flaws inherent in the law and discriminatory against homosexual men, the Coalition Government made a commitment to change the law. The Protection of Freedom Act was given Royal Assent on 1 May 2012 and came into force on the 1st October 2012. It establishes powers to meet that commitment which means that certain convictions under the 1956 Sexual Offences Act will be erased from police and other official records by application from those who have been affected by committing a former criminal offence.
What does that mean for you?
From 1st October, anyone who meets certain conditions laid down in the Protection of Freedom Act will be entitled to apply to the Home Office for a formal disregard of those convictions, cautions, warnings or reprimands for consensual gay sex with someone over the age of 16.
Anyone affected will need to make an application. A team of caseworkers will consider each individual case and make a recommendation to the Home Secretary who will ultimately make the final decision. It must appear to the Home Secretary that (a) all parties involved in the conduct constituting the offence consented to it and were aged 16 or over at the time the offence was committed, and (b) any such conduct now would not be an offence under section 71 of the Sexual Offences Act 2003
Convictions under the following provisions may be eligible to be disregarded:
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
In addition, convictions under the following provisions (in respect of acts contrary to the provisions listed above) may also be eligible to be disregarded:
Section 4 of the Vagrancy Act 1824
Section 45 of the Naval Discipline Act 1866
Section 41 of the Army Act 1881
Section 41 of the Air Force Act 1917
Section 70 of the Army Act 1955
Section 70 of the Air Force Act 1955
If that application is successful, records will be updated so that the offence will no longer appear on criminal record checks and nor will it have to be voluntarily disclosed.
The effect being that once the Home Secretary has given notice that the conviction has been disregarded and a period of 14 days have elapsed, a successful application will be treated as though they had never had a conviction. It will give individuals the right to legally say that they do not have a criminal record, providing that was their only recorded offence.
Removing such offences from the records will mean many gay & bisexual men will be able to apply for jobs and volunteer for positions they may once have not been able to apply for in the past, such as with children and the public sector.
To apply for convictions to be removed visit the Home Office website here.
The LGF encourages anyone who may be affected to have the conviction removed. We can offer both practical and emotional support and advice on this issue. You can:
Call our helpline on 0845 3 30 30 30 or email email@example.com.
Attend one of our legal surgeries which take place every 2nd and 4th Tuesday of the month at The Lesbian & Gay Foundation, 5 Richmond Street, Manchester, M1 3HF.
You can also pop-in 10am – 8pm Monday – Sunday.
Written by Geraldine O' Reilly, Solicitor, O' Neill Patient Solicitors LLP.