A commentary and resource on Law and Sexuality by Professor Chris Ashford and guests
Rumours that the Home Office has been sipping at the Kool-Aid are unsubstantiated, but their defence isn’t helped by the latest developments in the Government’s plans for ‘deleting’ historic gay convictions. This was a pledge contained in the Coalition Agreement but contrary to the belief that there was a promise to ‘delete’ offences, there was not. The pledge (at page 24) stated that ‘we will change the law so that historical convictions for consensual gay sex with over-16s will be treated as spent and will not show up on criminal records checks.’
So, the proposed legalisation to do that in the Protection of Freedoms Bill should not come as a huge surprise as that is what it does. The only trouble is, the interpretation of the government promise was wider than the pledge, with many believing (and media reports uncorrected) that these historic offences would be ‘deleted’ although when you trawl the origins of this pledge, no such promise was actually made. Nonetheless, there is now an opportunity to go further and improve the bill before Parliament. Clause 82 of the Bill states:
82 Power of Secretary of State to disregard convictions or cautions
(1) A person who has been convicted of, or cautioned for, an offence under—
(a) 5section 12 of the Sexual Offences Act 1956 (buggery),
(b) section 13 of that Act (gross indecency between men), or
(c) section 61 of the Offences against the Person Act 1861 or section 11 of
the Criminal Law Amendment Act 1885 (corresponding earlier
10may apply to the Secretary of State for the conviction or caution to become a
disregarded conviction or caution.
(2) A conviction or caution becomes a disregarded conviction or caution when
conditions A and B are met.
(3) Condition A is that the Secretary of State decides that it appears that—
(a) 15the other person involved in the conduct constituting the offence
consented to it and was aged 16 or over, and
(b) any such conduct now would not be an offence under section 71 of the
Sexual Offences Act 2003 (sexual activity in a public lavatory).
(4) Condition B is that—
(a) 20the Secretary of State has given notice of the decision to the applicant
under section 84(4)(b), and
(b) the period of 14 days beginning with the day on which the notice was
given has ended.
(5) Sections 85 to 88 explain the effect of a conviction or caution becoming a
25disregarded conviction or caution.
The Real Fun
Clause 83 makes it clear that an application must be made to the Home Office for this process to kick in (I’d like it to have been done automatically, without submission but I accept that might not have been practical). It is Clause 85(5) where the fun really begins and which has caused Peter Tatchell and Jane Fae, among others, to criticise the legislation. 85(5) states:
“delete”, in relation to such relevant official records as may be prescribed,
means record with the details of the conviction or caution concerned—
the fact that it is a disregarded conviction or caution, and
the effect of it being such a conviction or caution,
Yep, ‘delete’ has been defined in the Bill to mean something other than what most people would understand the word ‘delete’ to mean. Don’t you just love law? Jane Fae blasted in Pink News that “Only in the language of civil servants and bureaucrats does this mean ‘deletion’.
“In practice, conviction details will remain on police databases, for police officers to review and, as a landmark court case ruled last year, open for use when considering a suspect’s status where they deem such use to be justified.”
Peter Tatchell added “A person’s conviction will still remain in their criminal record. This is not a satisfactory solution at all.”
It’s not satisfactory. There may be administrative reasons (or others) as to why ‘deletion’ in a more generally understood sense can not take place. If this is so, the Home Office needs to make a much better effort to explain the rationale. Alternatively, and I would suggest preferably, the Home Office should listen to the concern of activists and academics and change the Bill.