Disregards and pardons: Removing historical convictions and cautions for consensual gay sex from criminal records

Aim of this page

In January 2017, the Justice Secretary announced that thousands of gay and bisexual men convicted of sexual offences which have now been decriminalised would be posthumously pardoned. This builds on an earlier scheme that was introduced in 2012 to ‘disregard’ decriminalised sexual offences.

This page provides further information about the disregard process, which is the process that individuals have to go through.

Why is this important?

Years ago, many people were convicted of offences which are no longer illegal today. Things changed after the 1967 decriminalisation act. However, if you were convicted of a sexual offence which has now been decriminalised, details of it may still appear on a formal criminal record check unless you have applied to have it disregarded.

Unfortunately, you have to proactively apply for a disregard – it doesn’t happen automatically. Many people won’t realise they have a historic offence on their record until it’s disclosed on a DBS check – at which point often the damage is done.

Many employers have little understanding of legal definitions, and so you may find yourself being refused an interview or job on the basis of having a conviction for an offence that is no longer illegal.

Introduction

The coalition government made a commitment in 2010 to change the law so that historical convictions for consensual gay sex with over 16s would not show up on criminal records checks.

The Protection of Freedoms Act 2012 enabled this to happen. Under the provisions of Chapter 4 of Part 5 of the Act (s.92-101), the Home Secretary may ‘disregard’ certain convictions (which includes cautions, warnings and reprimands) for decriminalised consensual sex offences. The provisions came into force on the 1st October 2012.

Under the disregard provisions, individuals can apply to the Home Secretary for a formal disregard of their convictions. If the Home Secretary considers that a disregard is appropriate, those convictions disregarded will be deleted or annotated and will no longer be disclosed, including in certificates issued by the Disclosure and Barring Service.

Eligibility

The offences that criminalised consensual sex between men over the age of consent were mainly sections 12 (buggery) and 13 (gross indecency) of the Sexual Offences Act (SOA) 1956.

The following offences are covered by the process:

• Section 12 or 13 of the Sexual Offences Act 1956
• Section 4 of the Vagrancy Act 1824
• Section 61 of the Offences against the Person Act 1861
• Section 11 of the Criminal Law Amendment Act 1885
• 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
• Section 42 of the Naval Discipline Act 1957

People charged under these laws will only be able to have them disregarded if two key conditions are satisfied:

1. The activity must have been consensual – All parties involved in the conduct constituting the offence consented to it and were aged 16 or over at the time of the offence
2. It must not be an offence today – The scheme does not include sexual activity in a public lavatory (which is still illegal)

How to apply

The application form and guidance notes for applicants are available to download from GOV.UK.

The process is free of charge.

What happens next?

If your application is not eligible to be disregarded you will receive a letter to that effect. In all other cases you will receive an acknowledgement that your application has been received and is being processed.

The Home Office will then contact all relevant data controllers and request them to review their records and provide copies of any relevant documents to the Home Secretary to enable a decision to be made.

Once the Home Secretary has made a decision, you will be informed of the outcome. If your application is successful, the Home Secretary will write to the relevant data controllers and require them to delete or annotate their records accordingly.

What is the effect of the disregard?

Once the Home Secretary has given notice that a conviction has been disregarded and a period of 14 days thereafter has elapsed, a successful applicant will be treated in all circumstances as though the offence had never occurred and need not be disclosed for any purpose. It means, in effect, that it’s deleted.

Those successful in the disregard process are then also pardoned by the government.

What if you disagree with the Home Secretary’s decision?

If you disagree with the decision made by the Home Secretary and either have further evidence to submit or consider that an error was made on your initial application form, you should contact the Home Office so that your application can be reviewed. If you consider that the final decision reached in relation to your application is wrong, you have the right under the provisions of the Protection of Freedoms Act 2012 to seek leave to appeal the decision to the High Court.

How many people have had their offences disregarded?

Latest figures from the Home Office show that between 1st October 2012 and 13th October 2017, the number of cases dealt with was 516. This is broken down as follows:

In scope applications

Out of scope applications

Discuss this with others

Read and share your experience on our online forum.

Key sections include:

• Posthumous pardons for 50,000 gay and bisexual men

Useful links

Below you will find links to useful websites relating to this page. More specific details (including addresses and telephone numbers) of some of the organisations listed below can be found here.

• Home Office – The Home Office is the government department responsible for the disregard process.  You can contact them by emailing chapter4applications@homeoffice.gsi.gov.uk or writing to Chapter 4 Applications, Safeguarding Directorate, 5th Floor, Fry Building, 2 Marsham Street, London, SW1P 4DF.
• Ministry of Justice – A government body who have responsibility for the Rehabilitation of Offenders Act.
• Stonewall – A lesbian, gay and bisexual charity who have produced a fantastic guide about who’s eligible and how to apply. This is available to download alongside the information on their website.
• Galop –  An LGBT charity, have also produced a really useful guide in partnership with Bindmans Solicitors. This is available to download from their website.

More information

1. To discuss this issue with others – Read and share your experiences on our online forum
2. Policy and campaign work – Find out more about our policy and campaign work on disregarding of records and pardoning
3. Questions – If you have any questions about this, you can contact our helpline.

Get involved

Help us to add value to this information. You can:

1. Comment on this page (below)
2. Send your feedback directly to us
3. Discuss your views and experiences with others on our online forum
4. Share your personal story by contributing to our online magazine, theRecord.