Pardons and posterity

Auden astutely commented that

History to the defeated, May say Alas but cannot help nor pardon

On reading the news that Alan Turing has at last been posthumously pardoned - effective today - for gross indecency (Section 11 of the Criminal Law Amendment Act 1885) I endorse Andrew Hodges' comment that

Turing suffered appalling treatment 60 years ago and there has been a very well intended and deeply felt campaign to remedy it in some way. Unfortunately, I cannot feel that such a 'pardon' embodies any good legal principle. If anything, it suggests that a sufficiently valuable individual should be above the law which applies to everyone else.

It's far more important that in the 30 years since I brought the story to public attention, LGBT rights movements have succeeded with a complete change in the law – for all. So, for me, this symbolic action adds nothing.

Section 11 of the 1885 Act provided that

Any male person who, in public or private, commits, or is a party to the commission of, or procures or attempts to procure the commission by any male person of, any act of gross indecency with another male person, shall be guilty of a misdemeanor, and being convicted thereof shall be liable at the discretion of the court to be imprisoned for any term not exceeding two years, with or without hard labour.

Gross indecency was not statutorily defined. The section was applicable irrespective of the ages of the male persons and irrespective of whether the act was committed in public or private, with or without consent.

The section was replaced by section 13 of the Sexual Offences Act 1956, which referred to

an offence for a man to commit an act of gross indecency with another man, whether in public or private, or to be a party to the commission by a man of an act of gross indecency with another man, or to procure the commission by a man of an act of gross indecency with another man.

The offences under s 11/13 were formally abolished altogether by the Sexual Offences Act 2003, with the Sexual Offences Act 1967 having decriminalised homosexual behaviour in private between men over 21.

The British Government has not apologised to or pardoned consenting adults who are still alive and were prosecuted under s 11/13, albeit under the Protection of Freedoms Act 2012 people convicted under ss 12 (buggery) and 13 (gross indecency) of the Sexual Offences Act 1956, s 61 of the Offences against the Person Act 1861 and s 11 of the Criminal Law Amendment Act 1885 can apply to the Home Office to have those convictions formally disregarded. That Act was noted here.

Turing, being dead, couldn't avail himself of that option and neither could other people - such as the late playwright and provocateur Oscar Wilde - who are deceased.  If we're engaging in selective pardons for celebrities we might move on to Mr Wilde … and there are a substantial number of non-celebrities (duly convicted under the law of their time for consensual same sex activity, witchcraft, heresy and so forth) who lack advocates.

The Turing pardon, by royal prerogative, removes from the subject of the pardon, "all pains, penalties and punishments whatsoever that from the same conviction may ensue, but not to eliminate the conviction itself". Turing thus remains convicted under the law that was in effect in 1952 but - nearly 60 years after absconding from the Darwin Hotel - is no longer contained by lawful "pains, penalties and punishments" associated with the conviction.

There's been no concerted move to pardon Australian men who were fined, imprisoned and stigmatised for consensual same-sex activity under the local counterparts of the UK statute.