Disregarding the Past: The Problems of Pardoning Homosexual Offences

Ahead of this evening’s IHR Parliaments, Politics and People seminar, the speaker from the previous session in collaboration with the History of Sexuality seminar, Dr Justin Bengry, Director of the Centre for Queer History at Goldsmiths, University of London, summarises the issues raised in his paper about the pardoning of historical homosexual offences.

In June 2015 I was approached by filmmaker Rosemarie Reed who was making a film about the royal pardon of Alan Turing. Why, Reed and many others then asked, was Turing alone worthy of a pardon? I had written previously about the impact of twentieth-century convictions for ‘gross indecency’, the Victorian term that criminalised any male homosexual act short of buggery. Reed asked me to respond to calls then gaining momentum for a blanket pardon of all men convicted for historic homosexual offences that would no longer today be crimes (understood to exclude underage and non-consensual sex offences).

Readily agreeing, I assumed this would be a straightforward matter of historically contextualising how men who had sex with other men in the past were criminalised, and then joining the call for the state to accede to demands for a pardon. I soon determined that the call for a blanket pardon of the living and the dead was deeply problematic. I joined historians Matt Houlbrook and Claire Hayward in voicing concerns about the ‘bad history’ the pardon both relied upon and perpetuated. Worse still, I argued, in an era of austerity that disproportionately and negatively affected some queer people, a pardon could be used strategically to reposition the Conservative government only as a champion of LGBTQ people. While I supported redress for the living, I could not put my voice behind any uncritical call for a pardon which did not take into account the realities of the past and the motivations in the present for such a pardon.

Why I Oppose a General Pardon for Historical Convictions for Homosexual Offences (4/08/2015)

Jump forward about a year to the passage of the so-called ‘gay pardon’. Originally proposed by SNP MP John Nicolson, ‘Turing’s Law’ would have offered a blanket pardon for historic homosexual offences that would no longer be crimes to both the living and the dead. Crucially, this included not just buggery and gross indecency but also importuning and soliciting, offences with lower thresholds for conviction and under which many more men would have been convicted and cautioned. Nicolson’s Private Member’s Bill, however, was killed in Parliament and replaced by the Government’s own proposal. In fact an amendment to a policing and crime bill, Conservatives strategically referred to their pardon also as ‘Turing’s Law’. But the Government’s pardon was only ever symbolic. While it would offer a blanket pardon automatically to the dead, the living were required first to secure a disregard, a provision in the 2012 Protection of Freedoms Act that offered some men convicted of some homosexual offences the opportunity to petition the state to expunge their records. The pardon held absolutely no legal weight of its own.

The state’s own figures showed how few living men would actually be pardoned when it became law in 2016. In 2010, the Home Office estimated that there were records of 50,000 convictions for homosexual offences on the Police National Computer. Of these, some 16,000 men would be eligible to apply for a disregard. Between October 2012 and April 2016, a mere 242 individuals applied for disregards for 317 cases. In that time, only 83 had their convictions and cautions disregarded. This means that as of April 2016, not long before the pardon came into force, only 83 living men would have been eligible. I remained skeptical of the motivations behind the pardon when so few living men could actually enjoy it.

Conservative ‘Gay Pardon’ for the dead is a strategic distraction that harms the living (23/10/2016)

So where are we now? Are the numbers any better today than they were in 2016? According to the Home Office, between October 2012 and March 2019, 649 cases were submitted for disregards from 438 individuals. Of those, 186 cases were disregarded; those men are therefore also automatically pardoned. A further 115 were rejected (92 for cases in public lavatories, 13 for non-consensual sex, and 10 for offences with an underage partner). Two cases were in progress. More tellingly, perhaps, are the 346 cases deemed ineligible even for consideration: there were no records found for 24 cases; 73 were unpardonable (soliciting, indecent exposure, or offences committed in Scotland or Northern Ireland); and 249, a number significantly outnumbering actual disregarded cases, were for completely unrelated offences such as drugs possession or benefits fraud.(Updated figures are regularly posted by the Home Office).

The Home Office’s own figures go a long way toward showing precisely why the system has failed. First, more people are applying for what the Home Office terms ‘out of scope’ or ineligible crimes than those who are submitting cases worthy even of consideration. So, either those who are eligible for disregards (and therefore pardons) are not aware that they can have their record expunged, or they prefer not even to engage with the process. I believe both those possibilities are true. Second, the number of cases for offences that historians know were long used to regulate and punish same-sex desires, but which are explicitly excluded from the disregard system – primarily offences committed in lavatories and soliciting – amount to a number of more than half of actually successful disregards.

North of the border, however, legislation based on John Nicolson’s original ‘Turing Law’ came into effect this month, creating another process of disregards and pardons. It is much more sensitive to how laws against same-sex sex were enforced and misused. It includes not only buggery and gross indecency, as in England, but attempts to procure these, solicitation, and other offences that ‘regulated, or [were] used in practice to regulate, sexual activity between men’. This line is important. It opens up to scrutiny a greater range of statutes used to punish sex between men. Crucially, it also separates pardons from disregards, making them automatic without the need to first secure a disregard.

Legislation in Scotland may yet provide an instructive example for England and Wales. An amendment to the pardon passed at Westminster includes mechanisms for the Secretary of State to add crimes to the list of those the state deems disregardable and therefore pardonable. There is support from some parliamentarians to do just that. It remains to be seen, however, whether revisiting the issue will become a priority for this or future governments. 

J.B.

Justin Bengry is Director of the Centre for Queer History at Goldsmiths, University of London where he convenes the MA Queer History. This blog post is based on his talk at a joint session of the Institute for Historical Research’s Parliaments, Politics and People Seminar and History of Sexuality Seminar on 8 October 2019.

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