Josh Little

Turing’s Law, enacted in 2017, granted a symbolic and long-awaited posthumous pardon to thousands of deceased gay and bisexual men who were convicted or cautioned for certain abolished sex offences in England, Wales and Northern Ireland. However, the legislation does not go far enough to right the wrongs inflicted on thousands of men in the UK throughout the 20th century. In remembering our history this Pride month, we should be making the case for further reform and continuing to push for progress.

In 1979 it is approaching closing time at a pub, known to be popular with gay men, in Earl’s Court, London. As patrons begin to leave, one man speaks to a few acquaintances he has made over the course of the evening and meets eyes with a man standing in a doorway across the road. He strikes up conversation with the man in the doorway and invites him back to his nearby flat where, he says, he has some whisky and they could both spend the night. His would-be suitor reveals he is a plain-clothes police officer and that he is under arrest. The man is later convicted of the offence of importuning, or soliciting men for immoral purposes, under section 32 of the Sexual Offences Act 1957.

These facts are from R v Gray (1982) 74 Cr. App. R. 324. Gray appealed his conviction on the basis that the trial judge had misdirected the jury by directing that the conduct in question was an “immoral purpose”, rather than leaving it for the jury to decide. While the Court of Appeal agreed there had been a mistrial, it declined to set aside the conviction and held that the jury would have inevitably concluded that consensual sex between men was an “immoral purpose”, even if properly directed.

At 2am on London’s Oxford Street one night in June 1984, two heterosexual couples came across two 21-year-old men kissing and cuddling at a bus stop and, in expressing their outrage, attracted the attention of some nearby police officers. The young men were arrested and charged with the offence of “insulting behaviour whereby a breach of the peace might have been occasioned” under the Metropolitan Police Act 1839. The Court of Appeal (in Masterton v Holden [1986] 1 W.L.R. 1017) dismissed Masterton’s appeal against conviction, holding that his behaviour had been “insulting” within the ordinary meaning of the word.

These examples only scratch the surface of the wide range of criminal offences used to persecute gay and bisexual men across the UK until as recently as the 1990s, and the effects are still being felt today.

Efforts to right the wrongs of the past have been made. The Policing and Crime Act 2017 introduced posthumous automatic pardons for men who died before 31 January 2017 who had been convicted of buggery or gross indecency offences in England and Wales and extended the existing statutory disregarding scheme established in 2012 to Northern Ireland. These developments were clearly important and rightly celebrated. However, they do not do much to reform the existing scheme to help men such as Gray or Masterton convicted under currently ineligible offences.

In response to lobbying at the time for the section 32 importuning offence – as well as others – to be included within the scope of the existing disregarding scheme, the 2017 Act included a new power to add other repealed or abolished offences to the list of eligible offences at a later date. However, in more than 3 years, no offences have been added to the schemes in England and Wales or Northern Ireland.

Data published by the Home Office shows that 483 applications in respect of 703 convictions have been made in England and Wales since October 2012 but, of that, only 193 convictions have been successfully disregarded and over 400 were in respect of related, but currently ineligible, offences. Given the Home Office’s estimate that there were 15,000 men living with convictions in 2016, the disregarding scheme doesn’t seem to be achieving what it was set up to do.

Other legislative approaches are possible. Scotland’s disregarding scheme is much wider in scope than its counterparts in the rest of the UK. Any offence that “regulated, or was used in practice to regulate, sexual activity between men” and would not be an offence today (crucially, whether or not the underlying offence has been repealed or abolished) is capable of being disregarded. This is in addition to a list of specific offences identified in the legislation as having been used in Scotland to persecute gay or bisexual men.

This Pride month, while celebrating the progress made, we should reflect on the history of persecution of the LGBTQ+ community and, as lawyers, continue to make the case to close the gap in the disregarding schemes in the rest of the UK. In England and Wales, bringing the section 32 importuning offence within scope would be good place to start but we should be more ambitious and look to follow the approach taken in Scotland, as any prescribed list of eligible offences will inevitably leave an unjust conviction which cannot be disregarded.

Josh Little is an associate at Allen & Overy