Criminal Justice and Courts Bill

Lord Sharkey Excerpts

Monday 20th October 2014 Lords Chamber

Moved by

[Lord Sharkey]

99: After Clause 28, insert the following new Clause—
“Disregarding certain convictions for buggery etc: making an application on behalf of another person
(1) In section 92 of the Protection of Freedoms Act 2012 (power of Secretary of State to disregard convictions or cautions), after subsection (1) insert—
“(1A) A person may make an application under subsection (1) on behalf of another person if that other person is deceased and if the following conditions are satisfied—
(a) the applicant can show direct descent from the deceased person or from the parents of the deceased person;(b) the applicant can provide proof of the death of the person for whom the application is being made; and(c) the conviction for which the application is made is recorded in Police Central Records or the applicant can supply documentary evidence to satisfy the Secretary of State that the offence for which the deceased person was convicted or cautioned was not non-consensual, did not involve persons under the then age of consent and did not take place in a public lavatory or other proscribed public place and was not otherwise a criminal offence.”(2) In section 93 of that Act (applications to the Secretary of State)—
(a) in subsection (2)(a), at the end insert “or if applying on behalf of a deceased person, the name and dates of birth and death of that person”;(b) in subsection (2)(b), at the end insert “or if applying on behalf of a deceased person, the name and address of that person at the time of the conviction or caution”.”

[Lord Sharkey (LD)]

My Lords, in 2012 we passed the Protection of Freedoms Act, which allowed all those men convicted under the Labouchere amendment of 1865 and similar homophobic laws to apply to have their convictions disregarded. Some 75,000 men were convicted under these Acts; 16,000 of them are still alive and may apply to have their convictions disregarded—around 200 already have done so. However, 59,000 similarly convicted men are now dead, and the Protection of Freedoms Act makes no provision for them.

At every opportunity since the passing of this Act, I have tried to do something about this—quite often at 10 pm at night. I have tried to amend the Act so that the applications for disregard can be lodged for those now dead as well as for those still living. This seems to me a matter of elementary justice, fairness and equal treatment, and a matter of granting comfort to the families and friends of those convicted but now dead. It is a matter of providing public recognition of a wrong done. It would bring an appropriate closure to a long-running injustice against homosexual men.

In Committee on the Bill, I tried again to do this, to bring about equality of treatment for the victims of our past homophobic laws for the living and for the dead. Once again, the Government felt unable to agree and put forward two arguments. The first was that the intention of the disregard for the living was essentially practical. It was to enable convicted individuals to get on with their lives without the stigma of the disregarded offence. Since the last convictions were more than 40 years ago, this will have had a welcome, but very limited, effect. In any event, this is surely only a part of the purpose of the disregard. It overlooks the comfort provided to families, friends and lovers and it overlooks the public recognition of the wrongs done to those men.

The Government’s second argument seemed to have more force. They were concerned that extending the disregard would place a disproportionate burden on public resources. For example, they were concerned about the cost and time involved in finding records that predated the establishment of the National Policing Improvement Agency’s central database. However, in rejecting my amendment, the Minister agreed to facilitate meetings with the Home Office and the Ministry of Justice to discuss the matter. I was very grateful that these meetings took place last Tuesday and Thursday, during which it became clear that the Home Office officials’ concerns about disproportionate time and costs in extending the disregards had three basic components. The first was the danger of being overwhelmed by bulk applications. The second was the sheer difficulty in finding older records; it was pointed out to me that there was no central database for very old records, some of which may be held in local police stations or may not exist. Even if they did exist and were found, they might not contain sufficient information to qualify a person for a disregard. The third problem was the danger of spoof applications—in other words, applications lodged on behalf of an allegedly deceased person while that person was still alive. It was extremely helpful to have these concerns explained, for which I owe a debt to the Minister and to his officials.

This explanation of the likely difficulties has enabled me to revise my Committee amendment considerably. The amendment now before your Lordships addresses each of the Home Office’s concerns. The first part of the amendment addresses the concern about bulk applications by restricting the class of people who may apply on behalf of a deceased person to the direct descendants of that person or to their parents.

--- Later in debate ---

[Lord Faulks]

My Lords, I thank the noble Lord, Lord Sharkey, for his continued concern and interest in this matter, and for his elegant and accurate summary of the progress of the amendment and the resultant meetings that took place with me, my noble friend Lord Bates and Home Office officials. I hope that the noble Lord is reassured that the Government now recognise his concerns, which have been eloquently supported this evening by my noble friend Lord Lexden, as they were in Committee.

The Protection of Freedoms Act reflected the Government’s determination that people’s lives should not be unfairly blighted by historical convictions for consensual gay sex with people over 16. However, where someone has died, these provisions would not have the same effect. The Government accept that, as well as removing obstacles for the living to find work, there is a recognition that a disregard puts right a historic wrong, and that this would apply to the deceased as well as the living.

Following the helpful discussions the noble Lord, Lord Sharkey, had with me, my noble friend Lord Bates and Home Office officials, the Government are willing to explore ways of achieving disregards for the deceased, over a longer timescale. What I mean by “over a longer timescale” is not while this Bill is going through its process and not by Third Reading, as I understand my noble friend was indicating. He may ask why not. We have made some progress, but officials would want to carry out a full and proper assessment. Some issues that require attention include a precise definition of who could apply on behalf of the deceased. We have made progress in that. There is an assumption that the amount of applications will be manageable, but we want to carry out more work to obtain greater confidence on this, as each application does place a significant burden of work on the police in tracing local records. On documentary evidence, the effect of a disregard is not clear, as there are no police records to delete, and we would not want to destroy historic records from the National Archives.

These points were touched on in our meetings, but officials are most anxious that all those matters should be completely resolved before proceeding to legislate rather than to impose too heavy a burden, when we ask them to focus on so many other issues. We want to ensure that the decision to disregard maintains the current exacting standard to ensure that only the deserving are granted a disregard. Of course, there are very deserving cases.

While I cannot accept this amendment and I am not committing to introduce such a change in this Bill, the Home Office repeats its commitment to consider this matter and would be happy to include the noble Lord, Lord Sharkey, in any further discussions. He has done the House a great service by bringing this to our attention but I hope the assurances that I have given will allow him to withdraw his amendment.

[Lord Sharkey]

I thank the Minister for his reply and am grateful for the progress that we have been able to make in advancing the case for the posthumous disregard. I would have been even more grateful had he been able to say that the matter could be dealt with at Third Reading, but I understand that it is important to do this in a timely and proper manner.

I would like to know, however, what timescale is envisaged. We know what we are trying to check; we know what assessments we have to make. I wonder whether the Minister can give me some sense of how long it might take and perhaps some reassurance that, when it comes to discussions about the scope of Home Office Bills, there will be some liberality in the interpretation of “scope” to enable an amendment, if we get to that point, to be brought forward in a forthcoming Home Office Bill.

Having said all that, I repeat that I am grateful for the help given by the Ministry of Justice and the Home Office. I hope that we can make fairly rapid progress from hereon. I beg leave to withdraw the amendment.

Amendment 99 withdrawn.