Unlock welcomed the news in January that the government’s disregard and pardon scheme for gay and bisexual men convicted under historic, homophobic laws is being expanded. This means that more men will be able to have unjust convictions removed from their record and the process will also become a little less draconian. The changes are arriving as part of the Police, Crime, Sentencing and Courts Bill and so should pass into law in the next month or so.
There are two major amendments being made; one to include military personnel and military offences, and one that subtly changes how decisions will be made. Both are important but in quite different ways.
The first part addresses the fact that military law was not covered at all by the original scheme. Even though gay offences have now all been abolished, the charges were brought under different laws and these offences were simply not included in the original list of eligible convictions for the pardon and disregard scheme. Including them will mean that former servicemen have the same access to the scheme as anyone else which is certainly a positive move.
There are lots of reasons why this change was needed, but most important is that being gay was still an offence in the British military until 2000 and courts martial were still actively prosecuting it in the 80s and 90s. This was an obvious injustice, harming people 40 years after being gay was decriminalised in civilian society.
To make matters worse even once the offences were abolished, the men impacted were still considered to be criminals in civilian life, where their ‘crime’ hadn’t been on the books for decades. Clearly the thousands of men who continue to carry a stigma from their time in the forces need to have their records erased.
However, there are plenty of other good reasons why this change was needed. National service continued up until 1960 so whole generations of young men were obliged to join the forces and potentially face military ‘justice’ for being gay. While civilian law still criminalised being gay at the time, at least the 2012 rules allowed their convictions to be quashed. Military personnel were not given that opportunity which is clearly unfair and doubly so for men who were conscripted and who had no option to avoid military convictions.
These new rules will still allow for posthumous erasure too and this is very significant to many families of deceased servicemen. Being dismissed from the forces, sometimes even recorded as ’dismissed with disgrace’ excludes these men from being memorialised along with their comrades, regardless of their service record. Correcting this record therefore has a great deal of meaning, even for deceased people, and ensures that they will be properly remembered by future generations.
The other part of the amendment is a subtle change in wording for how decisions will be made. The old wording required an active finding that a partner appeared to have been consenting. That will be replaced with a different standard; namely, whether it appears the activity would be criminal today.
This is a small but meaningful change because the existing wording required consent to be addressed positively, in effect asking for proof decades after the fact and relying on records kept by a hostile police force to accurately record it. While clearly consent has to be a concern, in an era where it was both criminal and stigmatised to be a consensual partner, many men lied to police in an attempt to avoid prosecution themselves. We know that many applicants have been put off applying to the scheme because they do not want to face this kind of inquisition, nor to have previous partners contacted to confirm they were consenting.
The new standard applies some common sense and in the first instance asks whether the sexual activity appears to be criminal by today’s standards. If not, no further investigation will need to take place. That should provide some reassurance that the process will be private and that applicants won’t be put on trial again to obtain their disregard or pardon.
These are some real steps forward and will help to remove an unjust stigma that has followed thousands of men around for decades. It is better than the scheme that it replaces and will allow more men to be vindicated.
There are still some problems with the scheme though. The biggest one is that people are still required to apply. This means that applicants first have to know there is a scheme to apply to, and that they are actually eligible. The new scheme has better rules and more men will be eligible, but for the average member of the public it still won’t be obvious. Even beyond this, the need to apply at all is a barrier. Digging up the past is often difficult or even traumatic.
Another major concern is that the disregard scheme only covers offences which have been abolished and does not include trumped up, fabricated or clearly unjust charges. For example, soliciting a prostitute is still a crime today and so is not covered by the disregard scheme. However, the law doesn’t directly require that the person being solicited is actually a prostitute. There are many documented cases where police arrested and prosecuted men simply for chatting up other men by asserting that the partner was a prostitute.
A combination of poor historic record keeping and homophobic police officers means that it is next to impossible to find evidence to overturn these convictions, but they are certainly very unsafe. The law was never used this way against heterosexual men and the ease of fabricating charges made it very easy for police to continue to victimise men even once it was legal to be gay.
Unlock are continuing to fight for fair treatment of gay and bi men, and for all people who have been treated unjustly by the police or the courts. Everyone should be equal under the law, and even when injustices are historic they still need to be addressed and, as much as possible, corrected.
Even calling this process a pardon is a misnomer, because the men covered by the scheme didn’t do anything wrong. A pardon might be better than nothing, but anyone who was given a criminal record simply because they were gay should have it automatically deleted, with an official apology from the government. Correcting the historic record is a big job but it is the state’s responsibility. It’s not good enough for the government to belatedly offer forgiveness to the people they harmed, or to say that injustices should continue because finding all those cases is too expensive or difficult.
The more people who are able to obtain a disregard the better, and of course we welcome the news that thousands more men will have their records deleted, particularly those who were drummed out of military careers decades after decriminalisation. But this just underlines that there is a lot more work to do. Even today, the Home Office is treating pardons as something symbolic and somewhat missing the point that criminal records have real, tangible impacts – and for some people they last for life.
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