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Pardons and Disregards for “homosexual offences”

A new law has pardoned everyone who was convicted in Scotland for sexual offences between men that are no longer crimes. The new law has also set up an application process for something called a ‘disregard’. The purpose of the disregard is to remove all references to a pardoned conviction from records like court and police records, so that as far as the law is concerned, the conviction disappears. This page explains how the new law works, including who has been pardoned, and how to apply for a disregard.

The Pardon

On October 15th 2019, all convictions in Scotland for historical discriminatory sexual offences between men, that are no longer crimes, were pardoned. The pardon is contained in a law called the Historical Sexual Offences (Pardons and Disregards) (Scotland) Act 2018.

The pardon applies to any conviction for a “sexual offence” between men, if what happened is no longer a crime today. That includes offences involving men showing affection (such as kissing in public), and also offences relating to seeking a sexual partner, for example chatting up another man (“importuning”). It does not matter which law the person was convicted under. That might be gross indecency, sodomy, shameless indecency, or importuning, for example, or it might be that a more general law such as breach of the peace was used to prosecute, or a local byelaw. 

The pardon applies from 15th October 2019 to all convictions for these discriminatory sexual offences that are not crimes today, whether or not the person convicted is still living.

The pardon does not apply to things that are still crimes today. Examples of things that are crimes now include sexual activity without the other person’s consent, or with a child under 16 (including someone aged 16 or 17 if the person convicted was in a position of authority or trust in relation to them), or attempts to do those things, or having sex in a place where it might cause alarm or upset to members of the public.

The pardon applies specifically to offences between men, because those were targeted by special laws (sodomy, gross indecency, and related crimes like importuning), which were enforced. Although women in relationships with other women also faced huge discrimination and disadvantage over the same period, their relationships were not targeted in the same way by the criminal law.

The pardon applies not just to convictions in court in Scotland; it also applies to “alternatives to prosecution”. This is where the person was not prosecuted in court, but instead was given a formal warning by the police or procurator fiscal, or accepted paying a “fiscal fine”, or accepted any other requirement set by the procurator fiscal as an alternative to being prosecuted in court. It also applies where a young person was not prosecuted, but was referred to a children’s hearing for having committed an offence covered by the pardon.

What does the pardon mean?

The Historical Sexual Offences (Pardons and Disregards) (Scotland) Act says that the purpose of the pardon is “to acknowledge the wrongfulness and discriminatory effect of past convictions for certain historical sexual offences“. When the new law was introduced in the Scottish Parliament, the First Minister, Nicola Sturgeon, said:

“For people who were convicted of same-sex sexual activity that is now legal, the wrong has been committed by the state, not by the individuals – the wrong has been done to them. Those individuals therefore deserve an unqualified apology, as well as a pardon.”

“Therefore, today, as First Minister, I categorically, unequivocally and whole-heartedly apologise for those laws and for the hurt and the harm that they have caused to so many people.”

The pardon is symbolic. It says that the person convicted did no wrong, and it was the law, the prosecution and the conviction that were wrong and discriminatory. The pardon applies automatically to anyone who was convicted in Scotland of one of these offences. The pardoned offences were offences between men, but the pardon applies to anyone convicted, regardless of their lived sex now.

We estimate that the pardon will apply to thousands of people who were convicted over centuries of discriminatory law. We reckon there are hundreds of people living today with one of these convictions. The pardon applies to all of them.

The Disregard

The pardon does not in itself change the records held by the police and courts, to remove the conviction. That is because it’s not possible for the police, procurator fiscal service, and courts to identify all these convictions – the records aren’t well enough organised for that to be possible.

The law therefore provides something called a ‘disregard’. The disregard is how someone gets their conviction removed from records, so that, as far as the law is concerned, it disappears.

If you were convicted (or were given an alternative to prosecution as described above) for an offence that you think is covered by the pardon, you can apply for a disregard. The Scottish Government provide information on how to apply. Applications are free.

The application form is here. You can fill it in using Word and submit it by email, or print it (or you can ask the government for a paper copy), and submit it by post. The form asks for your current name and address and contact details. It does not matter if your name has changed since the conviction. You fill in, as far as you know them, the details of your conviction. That can include what happened, when it happened, your name and address at the time of the conviction, and any details you still have of the police force or station, the court, the law you were prosecuted under, and the sentence. You can also provide other information if you wish, that might help identify what happened, for example if you still have any related documents, or are still in touch with anyone who witnessed what happened.

Don’t worry if you don’t have some of the details that the application form asks for. You can still apply with any information you do have. It is a good idea to supply as much information as you have or remember. Any information you provide is kept strictly confidential.

You also need to provide photocopies of two documents that prove your current identity, such as your passport, driving licence, a utility bill etc. At least one must show your date of birth. This is to prevent people fraudulently enquiring about other people’s conviction records.

Someone else can help you make the application, but you will need to sign it (unless the person has power of attorney to represent you, in which case they can make and sign the application on your behalf).

Once you submit the application, you will get an acknowledgement, and the the police, procurator fiscal, and court records will be searched for any records of your conviction. Your conviction will be checked to see if it is covered by the pardon and disregard. We don’t know at the time of writing how long that check is likely to take. If your conviction was for sexual or affectionate activity between men, or for seeking such activity, and it would not be a crime today, then it is covered. If so, you will be informed that the disregard applies to your conviction, and 14 days later the disregard will come into effect. The records of your conviction will be removed. As far as the law is concerned, the conviction disappears.

Once the disregard has taken effect, the law says that you are to be treated for all purposes as not having committed the offence, not having been charged or prosecuted, and not having been convicted or sentenced. That means that no-one can ever require you to disclose what happened.

If you are told that the disregard does not apply to your conviction, there is an email and postal address given in the guidance that you can contact to ask for a review of the decision. At that time, you can supply any further information that you think will help. If, after the review, you are still not given the disregard, you may be able to appeal to the sheriff court, and legal aid is available for this.

Support available

As the application form says, the wrongful and discriminatory conviction may have had long lasting negative effects on your life, and on your mental and emotional well-being. There is confidential emotional support available from the LGBT Helpline Scotland, on 0300 123 2523 (open Tuesdays and Wednesdays noon to 9pm), or you can email the helpline at helpline@lgbthealth.org.uk

If you require information about whether your conviction is likely to be covered by the pardon, the Equality Network may be able to help – you can email us at en@equality-network.org

Letters of comfort

Disregards are only available to people who are still living. This is in part because criminal records are usually deleted after a person dies. However, family members or the partner of a person who has died, and who had a conviction covered by the pardon, can apply for a “letter of comfort”. The letter of comfort provides personalised recognition that your loved one should never have been convicted of the offence. Details of how to apply for the letter of comfort are included on this page.

Convictions  under military law in Scotland, and convictions in other parts of the UK

Convictions in Scotland under military law, and convictions in any other part of the UK, are not covered by the Scottish pardon and disregard system. Instead they are covered by arrangements made by the UK Government, which are described here , or by the Northern Ireland Government, described here.

Unfortunately, these arrangements cover a narrower range of offences than the Scottish system does. Also, the pardon for the rest of the UK does not apply automatically to people who are still living – it only applies after the person has made a successful disregard application.