Righting the wrongs of historic discriminatory law
Same-sex sexual activity now lawful to be pardoned.
Men convicted for same-sex sexual activity on the basis of discriminatory criminal laws will receive a full pardon, the Cabinet Secretary for Justice has announced.
Michael Matheson told Parliament that legislation will be brought forward to ensure all those who have convictions will be pardoned, if the convictions relate to same-sex sexual activity that is now lawful.
Separately, Scottish Government officials have been engaging with Police Scotland over the summer to identify the most effective way of ensuring convictions imposed in the past for consensual sex between men no longer appear on a person’s criminal record. The Scottish Government will engage with key organisations on arrangements to enable people to have convictions disregarded from centrally held records.
Mr Matheson said:
“It is sadly the case that Scotland has only relatively recently modernised our criminal laws so that they no longer discriminate against same-sex sexual activity. It is shocking to consider that consensual sex between men was only decriminalised in Scotland in 1980 and the age of consent for same-sex sexual activity was not equalised for sexual activity between men and women until 2001.
“Such laws clearly have no place in a modern and inclusive Scotland. However, there are people with criminal convictions for same-sex sexual activity that is now lawful and we must right this wrong.
“We will introduce an automatic formal pardon for those convicted under these discriminatory laws so they know they are absolved fully. We want to address the injustice that people experienced simply because of their sexual orientation in circumstances that are now legal and this is one way of achieving this.
“Information on these convictions is held on Police Scotland records and we have engaged with Police Scotland to seek views on steps that could be taken to right these historic wrongs.
“I have instructed my officials, working in partnership with Police Scotland, to determine the practical steps required to establish a scheme to allow men convicted for actions that are now legal to seek to have those convictions disregarded. Where an offence is disregarded a person will be treated as not having been convicted of that offence and so it would not appear on, for example, disclosure checks.
“I know Parliament will want to work together to resolve these important issues.”
Mr Matheson confirmed the Scottish Government’s actions and planned work in response to a Topical Question in the Scottish Parliament by Kezia Dugdale MSP.
The granting of a pardon will formally provide that the penalty for being convicted for the offence is lifted. The conviction continues to exist however, including being recorded on central records.
Scotland has a distinct legal system with separate offences operating, and the rules governing how long criminal convictions information is retained by the police are an operational matter for Police Scotland (rather than being set out in statute as is the case in England and Wales).
The Scottish Government have been discussing with Police Scotland since the summer how a ‘disregard’ system could operate in Scotland. The Scottish Government is to engage a wider range of key interests, including equality organisations, the Crown Office and wider legal profession.
Practical implications that need to be considered for the proposed disregard scheme includes how to distinguish in the records between convictions for consensual sexual activity and convictions for rape or sexual assault, as the same offences were sometimes used to prosecute entirely different conduct.
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