16 October 2012


It's rather too late to say sorry to Alan Turing - and to people who although loved by friends and family are notable only as victims of institutionalised homophobia in UK law - but a start to reparation has been made through Protection of Freedoms Act 2012, which provides that men with historic convictions for consensual same sex activity will be able to apply for the deletion of those records.

The Guardian indicates that "Until now, people wishing to work in roles that require background checks, including volunteering, have been discouraged for fear of having to disclose offences that were decriminalised in 1967". There would be some men with the requisite age profile.

The Guardian goes on to announce that
The Home Office will work with HM Courts and Tribunals Service and the Association of Chief Police Officers to run the application process. Each case will be considered by caseworkers, with the home secretary making the final decision. Successful applicants will have their records updated so the offence will no longer appear on a criminal records certificate or be referred to in any future court proceedings. 
The specific provisions in the statute, which received Royal Assent on 1 May 2012, are in chapter 4. They include -
Disregarding certain convictions for buggery etc.
s 92 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) section 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 offences), may 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) the 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) the Secretary of State has given notice of the decision to the applicant under section 94(4)(b), and (b)the period of 14 days beginning with the day on which the notice was given has ended.
(5) Sections 95 to 98 explain the effect of a conviction or caution becoming a disregarded conviction or caution.
s 93 Applications to the Secretary of State
(1) An application under section 92 must be in writing.
(2) It must state- (a) the name, address and date of birth of the applicant, (b) the name and address of the applicant at the time of the conviction or caution, (c) so far as known to the applicant, the time when and the place where the conviction was made or the caution given and, for a conviction, the case number, and (d)such other information as the Secretary of State may require.
(3) It may include representations by the applicant or written evidence about the matters mentioned in condition A in section 92.
s 94 Procedure for decisions by the Secretary of State
(1) In considering whether to make a decision of the kind mentioned in condition A in section 92, the Secretary of State must, in particular, consider- (a) any representations or evidence included in the application, and (b)any available record of the investigation of the offence and of any proceedings relating to it that the Secretary of State considers to be relevant.
(2) The Secretary of State may not hold an oral hearing for the purpose of deciding whether to make a decision of the kind mentioned in condition A in section 92.
(3) Subsection (4) applies if the Secretary of State- (a)d ecides that it appears as mentioned in condition A in section 92, or (b) makes a different decision in relation to the matters mentioned in that condition.
(4)The Secretary of State must- (a) record the decision in writing, and (b) give notice of it to the applicant.
Effect of disregard
s 95 Effect of disregard on police and other records
(1) The Secretary of State must by notice direct the relevant data controller to delete details, contained in relevant official records, of a disregarded conviction or caution.
(2) A notice under subsection (1) may be given at any time after condition A in section 92 is met but no deletion may have effect before condition B in that section is met.
(3) Subject to that, the relevant data controller must delete the details as soon as reasonably practicable.
(4) Having done so, the relevant data controller must give notice to the person who has the disregarded conviction or caution that the details of it have been deleted.
(5) In this section- "delete", in relation to such relevant official records as may be prescribed, means record with the details of the conviction or caution concerned- (a) the fact that it is a disregarded conviction or caution, and (b) the effect of it being such a conviction or caution, "the names database" means the names database held by the National Policing Improvement Agency for the use of constables, "official records" means records containing information about persons convicted of, or cautioned for, offences and kept by any court, police force, government department or local or other public authority in England and Wales for the purposes of its functions, "prescribed" means prescribed by order of the Secretary of State, "relevant data controller" means- (a) in relation to the names database, any chief officer of police of a police force in England and Wales who is a data controller in relation to the details concerned, (b) in relation to other relevant official records, such person as may be prescribed, "relevant official records" means- (a) the names database, and (b) such other official records as may be prescribed.
(6) An order under this section- (a) may make different provision for different purposes, (b) is to be made by statutory instrument which is subject to annulment in pursuance of a resolution of either House of Parliament.
s 96 Effect of disregard for disclosure and other purposes
(1) A person who has a disregarded conviction or caution is to be treated for all purposes in law as if the person has not- (a) committed the offence, (b) been charged with, or prosecuted for, the offence, (c) been convicted of the offence, (d) been sentenced for the offence, or (e) been cautioned for the offence.
(2) In particular- (a)no evidence is to be admissible in any proceedings before a judicial authority exercising its jurisdiction or functions in England and Wales to prove that the person has done, or undergone, anything within subsection (1)(a) to (e), and (b) the person is not, in any such proceedings, to be asked (and, if asked, is not to be required to answer) any question relating to the person's past which cannot be answered without acknowledging or referring to the conviction or caution or any circumstances ancillary to it.
(3) Where a question is put to a person, other than in such proceedings, seeking information with respect to the previous convictions, cautions, offences, conduct or circumstances of any person- (a) the question is to be treated as not relating to any disregarded conviction or caution, or any circumstances ancillary to it (and the answer to the question may be framed accordingly), and (b) the person questioned is not to be subjected to any liability or otherwise prejudiced in law by reason of any failure to acknowledge or disclose that conviction or caution or any circumstances ancillary to it in answering the question.
(4) Any obligation imposed on any person by any enactment or rule of law or by the provisions of any agreement or arrangement to disclose any matters to any other person is not to extend to requiring the disclosure of a disregarded conviction or caution or any circumstances ancillary to it.
(5) A disregarded conviction or caution, or any circumstances ancillary to it, is not a proper ground for - (a) dismissing or excluding a person from any office, profession, occupation or employment, or (b) prejudicing the person in any way in any office, profession, occupation or employment.
In Australia of course the state/territory governments have not rushed to apologise and decriminalisation occurred after the UK. Federal law decriminalised homosexual acts between consenting adults in the ACT in 1973. South Australia was the first state to decriminalise consensual activity between men in 1975; Tasmania was the last in 1997.

The belated change down south reflected the Human Rights (Sexual Conduct) Act 1994 (Cth) that prohibed the making of laws that arbitrarily interfere with the sexual conduct of adults in private and the 1997 repeal of Tasmanian Criminal Code provisions after the state government fail to have the application in Croome v Tasmania struck out by the High Court. Section 4 of the 1994 statute referred to "Arbitrary interferences with privacy", specifying that
(1) Sexual conduct involving only consenting adults acting in private is not to be subject, by or under any law of the Commonwealth, a State or a Territory, to any arbitrary interference with privacy within the meaning of Article 17 of the International Covenant on Civil and Political Rights.
As Paula Gerber has pointed out, action by Australian governments to right the historic wrong through an apology and through scope for expungement of records is both necessary and overdue.