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Part 9U.K.Miscellaneous and general

CHAPTER 1U.K.Miscellaneous

Pardons for certain abolished offences etcE+W+N.I.

164Posthumous pardons for convictions etc of certain abolished offences: England and WalesE+W

[F1(A1)Subsection (1) applies in relation to a person—

(a)who was convicted of, or cautioned for, an offence in circumstances where the conduct constituting the offence was sexual activity between persons of the same sex, and

(b)who died before the end of the period of twelve months beginning with—

(i)the day on which section 194 of the Police, Crime, Sentencing and Courts Act 2022 comes into force, or

(ii)if later, the day on which the offence referred to in paragraph (a) became an abolished offence (see subsection (1A)).]

[F2(1)The person is pardoned for the offence if—

(a)any other person involved in the sexual activity was aged 16 or over, and

(b)the offence has become an abolished offence.

(1A)An offence becomes an abolished offence at the point at which conditions A and B are first met.

(1B)Condition A is that the offence has been repealed or, in the case of an offence at common law, abolished by enactment (whether or not it was re-enacted or replaced).

(1C)Condition B is that the sexual activity referred to in subsection (A1)(a) would not, if occurring in the same circumstances, constitute an offence.]

F3(2). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F3(3). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F3(4). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F3(5). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F3(6). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(7)Subject to [F4subsections (8) and (8A)], the following provisions of section 101 of the Protection of Freedoms Act 2012 apply for the purposes of this section and section 167(1) (so far as relating to this section) as they apply for the purposes of Chapter 4 of Part 5 of that Act—

(a)in subsection (1), the definitions of “caution”, “conviction”, and “sentence” (and the related definition of “service disciplinary proceedings”);

(b)subsections (2) and (5) to (7) [F5(but as if the reference in subsections (6A) and (6C) to section 92 were a reference to this section)].

(8)The definition of “service disciplinary proceedings” in section 101(1) of the 2012 Act applies in accordance with subsection (7) with the modification that it also includes any proceedings (whether in England and Wales or elsewhere) under—

(a)13 Chas. 2 c. 9 (1661) (An Act for the regulation and better government of the navy),

(b)22 Geo. 2 c. 33 (1749) (An Act for amending and consolidating the laws relating to the navy), F6...

F7(ba). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(c)the Naval Discipline Act 1860, the Naval Discipline Act 1861 or the Naval Discipline Act 1864 [F8, F9...]

[F10(ca)the Mutiny Act 1878, the Marine Mutiny Act 1878, any Act previously in force corresponding to either of those Acts or any relevant Articles of War, or]

[F11(d)the Army Discipline and Regulation Act 1879.]

[F12(8A)Section 101(6D) of the 2012 Act is to be read, in its application to this section by virtue of subsection (7) of this section, as if the enactments listed in that subsection included—

(a)Article 2 of Section 20 of the Articles of War of 1749 (offences triable by courts martial outside Great Britain),

(b)section 38 of the Naval Discipline Act 1860,

(c)section 38 of the Naval Discipline Act 1861,

(d)section 41 of the Naval Discipline Act 1864,

(e)Article 93 of Section 2 of the Articles of War of 1876 (offences not specified in Marine Mutiny Act or Articles of War),

(f)section 41 of the Army Discipline and Regulation Act 1879, and

(g)any provision corresponding to the provision mentioned in paragraphs (a) or (e), contained in other relevant Articles of War.]

(9)Except in relation to service disciplinary proceedings, this section applies only in relation to persons convicted or cautioned in England and Wales.

[F13(10)In this section—

[F15(11)Subsection (1) does not apply in relation to an offence for which the person has previously been pardoned under this section or section 165.]

Textual Amendments

F6Word in s. 164(8)(b) omitted (15.2.2022) by virtue of Armed Forces Act 2021 (c. 35), ss. 19(3)(a), 24(3)

165Other pardons for convictions etc of certain abolished offences: England and WalesE+W

(1)This section applies to a person who has been convicted of, or cautioned for, an offence [F16in the circumstances] mentioned in section 92(1) of the Protection of Freedoms Act 2012 and who is living at the time this section comes into force.

(2)If, at the time this section comes into force, the person's conviction or caution has become a disregarded conviction or caution under Chapter 4 of Part 5 of the Protection of Freedoms Act 2012, the person is pardoned for the offence.

(3)If, at any time after this section comes into force, the person's conviction or caution becomes a disregarded conviction or caution under Chapter 4 of Part 5 of the Protection of Freedoms Act 2012, the person is also pardoned for the offence at that time.

(4)Expressions used in this section or section 167(1) (so far as relating to this section) and in Chapter 4 of Part 5 of the Protection of Freedoms Act 2012 have the same meaning in this section or (as the case may be) section 167(1) as in that Chapter (see section 101 of that Act).

Textual Amendments

F17166Power to provide for disregards and pardons for additional abolished offences: England and WalesE+W

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

167Sections 164 to 166: supplementaryE+W

(1)A pardon under section 164 or 165F18... does not—

(a)affect any conviction, caution or sentence, or

(b)give rise to any right, entitlement or liability.

(2)Nothing in this section or in [F19section 164 or 165] F20... affects the prerogative of mercy.

Textual Amendments

168Disregarding certain convictions etc for abolished offences: Northern IrelandE+W+N.I.

(1)After Chapter 4 of Part 5 of the Protection of Freedoms Act 2012 (disregarding certain convictions for buggery etc) insert—

“CHAPTER 5E+W+N.I.Disregarding certain convictions for buggery etc: Northern Ireland
GeneralE+W+N.I.
101APower of Department of Justice to disregard certain convictions or cautions

(1)A person who has in Northern Ireland been convicted of, or cautioned for, an offence under—

(a)Article 19 of the Criminal Justice (Northern Ireland) Order 2003 (S.I. 2003/1247 (N.I. 13)) (buggery),

(b)Article 7 of the Homosexual Offences (Northern Ireland) Order 1982 (S.I. 1982/1536 (N.I. 19)) (procuring others to commit homosexual acts),

(c)section 61 of the Offences against the Person Act 1861 (buggery), or

(d)section 11 of the Criminal Law Amendment Act 1885 (indecent acts between men),

may apply to the Department of Justice in Northern Ireland for the conviction or caution to become a disregarded conviction or caution.

(2)A conviction or caution becomes a disregarded conviction or caution when conditions A and B are met.

(3)In relation to an offence under Article 7 of the Homosexual Offences (Northern Ireland) Order 1982, Condition A is that the Department of Justice in Northern Ireland decides that it appears that—

(a)the conduct procured was conduct involving persons who consented to it and were aged 17 or over (whether or not that conduct occurred), and

(b)the conduct procured would not now be an offence under Article 75 of the Sexual Offences (Northern Ireland) Order 2008 (S.I. 2008/1769 (N.I. 2)) (sexual activity in a public lavatory).

(4)In relation to any other offence mentioned in subsection (1), Condition A is that the Department of Justice in Northern Ireland decides that it appears that—

(a)the other person involved in the conduct constituting the offence consented to it and was aged 17 or over, and

(b)any such conduct now would not be an offence under Article 75 of the Sexual Offences (Northern Ireland) Order 2008 (S.I. 2008/1769 (N.I. 2)).

(5)Condition B is that—

(a)the Department of Justice in Northern Ireland has given notice of the decision to the applicant under section 101C(4)(b), and

(b)the period of 14 days beginning with the day on which the notice was given has ended.

(6)Sections 101D to 101G explain the effect of a conviction or caution becoming a disregarded conviction or caution.

101BApplications to the Department of Justice

(1)An application under section 101A must be in writing.

(2)It must state—

(a)the name, address and date of birth of the applicant,

(b)the name and address of the applicant at the time of the conviction or caution,

(c)so far as known to the applicant, the time when and the place where the conviction was made or the caution given and, for a conviction, the case number, and

(d)such other information as the Department of Justice in Northern Ireland may require.

(3)It may include representations by the applicant or written evidence about the matters mentioned in condition A in section 101A.

101CProcedure for decisions by the Department of Justice

(1)In considering whether to make a decision of the kind mentioned in condition A in section 101A, the Department of Justice in Northern Ireland must, in particular, consider—

(a)any representations or evidence included in the application, and

(b)any available record of the investigation of the offence and of any proceedings relating to it that the Department of Justice in Northern Ireland considers to be relevant.

(2)The Department of Justice in Northern Ireland may not hold an oral hearing for the purpose of deciding whether to make a decision of the kind mentioned in condition A in section 101A.

(3)Subsection (4) applies if the Department of Justice in Northern Ireland—

(a)decides that it appears as mentioned in condition A in section 101A, or

(b)makes a different decision in relation to the matters mentioned in that condition.

(4)The Department of Justice in Northern Ireland must—

(a)record the decision in writing, and

(b)give notice of it to the applicant.

Effect of disregardE+W+N.I.
101DEffect of disregard on police and other records

(1)The Department of Justice in Northern Ireland must by notice direct the relevant data controller to delete details, contained in relevant official records, of a disregarded conviction or caution.

(2)A notice under subsection (1) may be given at any time after condition A in section 101A is met but no deletion may have effect before condition B in that section is met.

(3)Subject to that, the relevant data controller must delete the details as soon as reasonably practicable.

(4)Having done so, the relevant data controller must give notice to the person who has the disregarded conviction or caution that the details of it have been deleted.

(5)In this section—

(6)An order under this section may make different provision for different purposes.

(7)Any power to make an order under this section is exercisable by statutory rule for the purposes of the Statutory Rules (Northern Ireland) Order 1979 (S.I. 1979/1573 (N.I. 12)).

(8)A statutory rule containing an order under this section is subject to negative resolution (within the meaning of section 41(6) of the Interpretation Act (Northern Ireland) 1954 (c. 33 (N.I))).

101EEffect of disregard for disclosure and other purposes

(1)A person who has a disregarded conviction or caution is to be treated for all purposes in law as if the person has not—

(a)committed the offence,

(b)been charged with, or prosecuted for, the offence,

(c)been convicted of the offence,

(d)been sentenced for the offence, or

(e)been cautioned for the offence.

(2)In particular—

(a)no evidence is to be admissible in any proceedings before a judicial authority exercising its jurisdiction or functions in Northern Ireland to prove that the person has done, or undergone, anything within subsection (1)(a) to (e), and

(b)the person is not, in any such proceedings, to be asked (and, if asked, is not to be required to answer) any question relating to the person's past which cannot be answered without acknowledging or referring to the conviction or caution or any circumstances ancillary to it.

(3)Where a question is put to a person, other than in such proceedings, seeking information with respect to the previous convictions, cautions, offences, conduct or circumstances of any person—

(a)the question is to be treated as not relating to any disregarded conviction or caution, or any circumstances ancillary to it (and the answer to the question may be framed accordingly), and

(b)the person questioned is not to be subjected to any liability or otherwise prejudiced in law by reason of any failure to acknowledge or disclose that conviction or caution or any circumstances ancillary to it in answering the question.

(4)Any obligation imposed on any person by any enactment or rule of law or by the provisions of any agreement or arrangement to disclose any matters to any other person is not to extend to requiring the disclosure of a disregarded conviction or caution or any circumstances ancillary to it.

(5)A disregarded conviction or caution, or any circumstances ancillary to it, is not a proper ground for—

(a)dismissing or excluding a person from any office, profession, occupation or employment, or

(b)prejudicing the person in any way in any office, profession, occupation or employment.

(6)This section is subject to section 101F but otherwise applies despite any enactment or rule of law to the contrary.

(7)See also section 101G (meaning of “proceedings before a judicial authority” and “circumstances ancillary to a conviction or caution”).

101FSaving for Royal pardons etc

Nothing in section 101E affects any right of Her Majesty, by virtue of Her Royal prerogative or otherwise, to grant a free pardon, to quash any conviction or sentence, or to commute any sentence.

101GSection 101E: supplementary

(1)In section 101E, “proceedings before a judicial authority” includes (in addition to proceedings before any of the ordinary courts of law) proceedings before any tribunal, body or person having power—

(a)by virtue of any enactment, law, custom or practice,

(b)under the rules governing any association, institution, profession, occupation or employment, or

(c)under any provision of an agreement providing for arbitration with respect to questions arising under that agreement,

to determine any question affecting the rights, privileges, obligations or liabilities of any person, or to receive evidence affecting the determination of any such question.

(2)For the purposes of section 101E, circumstances ancillary to a conviction are any circumstances of—

(a)the offence which was the subject of the conviction;

(b)the conduct constituting the offence;

(c)any process or proceedings preliminary to the conviction;

(d)any sentence imposed in respect of the conviction;

(e)any proceedings (whether by appeal or otherwise) for reviewing the conviction or any such sentence;

(f)anything done in pursuance of, or undergone in compliance with, any such sentence.

(3)For the purposes of section 101E, circumstances ancillary to a caution are any circumstances of—

(a)the offence which was the subject of the caution;

(b)the conduct constituting the offence;

(c)any process preliminary to the caution (including consideration by any person of how to deal with the offence and the procedure for giving the caution);

(d)any proceedings for the offence which take place before the caution is given;

(e)anything which happens after the caution is given for the purposes of bringing any such proceedings to an end;

(f)any judicial review proceedings relating to the caution.

Appeals and other supplementary provisionE+W+N.I.
101HAppeal against refusal to disregard convictions or caution

(1)The applicant may appeal to the High Court in Northern Ireland if—

(a)the Department of Justice in Northern Ireland makes a decision of the kind mentioned in section 101C (3)(b), and

(b)the High Court gives permission for an appeal against the decision.

(2)On such an appeal, the High Court must make its decision only on the basis of the evidence that was available to the Department of Justice in Northern Ireland.

(3)If the High Court decides that it appears as mentioned in condition A in section 101A, it must make an order to that effect.

(4)Otherwise, it must dismiss the appeal.

(5)A conviction or caution to which an order under subsection (3) relates becomes a disregarded conviction or caution when the period of 14 days beginning with the day on which the order was made has ended.

(6)There is no appeal from a decision of the High Court under this section.

101IAdvisers

(1)The Department of Justice in Northern Ireland may appoint persons to advise whether, in any case referred to them by the Department of Justice in Northern Ireland, the Department of Justice in Northern Ireland should decide as mentioned in condition A in section 101A.

(2)The Department of Justice in Northern Ireland may disclose to a person so appointed such information (including anything within section 101C (1)(a) or (b)) as the Department of Justice considers relevant to the provision of such advice.

(3)The Department of Justice in Northern Ireland may pay expenses and allowances to a person so appointed.

101JInterpretation: Chapter 5

(1)In this Chapter—

(2)Paragraph (a) of the definition of “conviction” applies despite Article 6 of the Criminal Justice (Northern Ireland) Order 1996 (S.I. 1996/3160 (N.I. 24)) (which deems a conviction of a person discharged not to be a conviction).

(3)In this Chapter, a reference to an offence includes—

(a)a reference to an attempt, conspiracy or incitement to commit that offence, and

(b)a reference to aiding, abetting, counselling or procuring the commission of that offence.

(4)In the case of an attempt, conspiracy or incitement, the references in this Chapter to the conduct constituting the offence are references to the conduct to which the attempt, conspiracy or incitement related (whether or not that conduct occurred).

(5)For the purposes of subsections (3) and (4) an attempt to commit an offence includes conduct which—

(a)consisted of frequenting with intent to commit the offence any river, canal, street, highway, place of public resort or other location mentioned in section 4 of the Vagrancy Act 1824 (as it then had effect) in connection with frequenting by suspected persons or reputed thiefs, and

(b)was itself an offence under that section.”

(2)In Article 2 of the Rehabilitation of Offenders (Northern Ireland) Order 1978 (S.I. 1978/1908 (N.I. 27) (interpretation), after paragraph (3) insert—

“(3A)This Order does not apply to any disregarded conviction or caution within the meaning of Chapter 5 of Part 5 of the Protection of Freedoms Act 2012.

(3B)Accordingly, references in this Order to a conviction or caution do not include references to any such disregarded conviction or caution.”

(3)In the heading of Chapter 4 of Part 5 of the Protection of Freedoms Act 2012, at the end insert “ : England and Wales ”.

(4)In section 92 of that Act, after subsection (5) insert—

“(6)Except in relation to service disciplinary proceedings, this section applies only in relation to persons convicted or cautioned in England and Wales.”

Commencement Information

I1S. 168 in force for specified purposes at Royal Assent, see s. 183

I2S. 168 in force at 28.6.2018 by S.R. 2018/128, art. 2(a)

169Posthumous pardons for convictions etc of certain abolished offences: Northern IrelandN.I.

(1)A person who has in Northern Ireland been convicted of, or cautioned for, an offence specified in subsection (2) and who has died before this section comes into force is pardoned for the offence if the conditions that apply under this section in relation to the offence are met.

(2)The offences to which subsection (1) applies are—

(a)an offence under Article 19 of the Criminal Justice (Northern Ireland) Order 2003 (S.I. 2003/1247 (N.I. 13)) (buggery);

(b)an offence under Article 7 of the Homosexual Offences (Northern Ireland) Order 1982 (S.I. 1982/1536 (N.I. 19)) (procuring others to commit homosexual acts);

(c)an offence under any of the following earlier provisions—

(i)10 Chas. 1 sess. 2 c. 20 (1634) (an Act for the punishment of the vice of buggery);

(ii)section 18 of 10 Geo. 4 c. 34 (1829) (an Act for consolidating and amending the statutes in Ireland relating to offences against the person) (buggery);

(iii)section 61 of the Offences against the Person Act 1861 (buggery);

(iv)section 11 of the Criminal Law Amendment Act 1885 (gross indecency between men).

(3)In relation to an offence under Article 7 of the Homosexual Offences (Northern Ireland) Order 1982, the conditions that apply are that—

(a)the conduct procured was conduct involving persons who consented to it and were aged 17 or over (whether or not that conduct occurred), and

(b)the conduct procured would not now be an offence under Article 75 of the Sexual Offences (Northern Ireland) Order 2008 (S.I. 2008/1769 (N.I. 2)) (sexual activity in a public lavatory).

(4)In relation to any other offence mentioned in subsection (2), the conditions that apply are that—

(a)the other person involved in the conduct constituting the offence consented to it and was aged 17 or over, and

(b)any such conduct at the time this section comes into force would not be an offence under Article 75 of the Sexual Offences (Northern Ireland) Order 2008 (S.I. 2008/1769 (N.I. 2)) (sexual activity in a public lavatory).

(5)The following provisions of section 101J of the Protection of Freedoms Act 2012 apply for the purposes of this section and section 172(1) (so far as relating to this section) as they apply for the purposes of Chapter 5 of Part 5 of that Act—

(a)in subsection (1), the definitions of “caution” and “conviction”;

(b)subsections (2) to (5).

Commencement Information

I3S. 169 in force for specified purposes at Royal Assent, see s. 183

I4S. 169 in force at 28.6.2018 by S.R. 2018/128, art. 2(b)

170Other pardons for convictions etc of certain abolished offences: Northern IrelandN.I.

(1)This section applies to a person who has in Northern Ireland been convicted of, or cautioned for, an offence mentioned in section 101A(1) of the Protection of Freedoms Act 2012 and who is living at the time this section comes into force.

(2)If, at any time after this section comes into force, the person's conviction or caution becomes a disregarded conviction or caution under Chapter 5 of Part 5 of the Protection of Freedoms Act 2012, the person is also pardoned for the offence at that time.

(3)Expressions used in this section or section 172(1) (so far as relating to this section) and in Chapter 5 of Part 5 of the Protection of Freedoms Act 2012 have the same meaning in this section or (as the case may be) section 172(1) as in that Chapter (see section 101J of that Act).

Commencement Information

I5S. 170 in force for specified purposes at Royal Assent, see s. 183

I6S. 170 in force at 28.6.2018 by S.R. 2018/128, art. 2(c)

171Power to provide for disregards and pardons for additional abolished offences: Northern IrelandN.I.

(1)The Department of Justice in Northern Ireland may by regulations amend section 101A of the Protection of Freedoms Act 2012 (power of Department of Justice to disregard convictions or cautions) so as to add further offences to the list of offences specified in subsection (1) of that section.

(2)An offence may be added to that list only if—

(a)it was an offence under the law of Northern Ireland (or, in the case of an offence that applied before Northern Ireland became a separate legal jurisdiction, an offence under the law of Ireland),

(b)it has been repealed or, in the case of an offence at common law, abolished, and

(c)either—

(i)the offence expressly regulated homosexual activity, or

(ii)although the offence did not expressly regulate homosexual activity, it appears to the Department of Justice that those responsible for investigating occurrences of the offence targeted occurrences involving, or connected with, homosexual activity.

(3)Regulations under subsection (1) adding an offence may also amend section 101A so as to provide that, in relation to the offence, condition A is that it appears to the Department of Justice that matters specified in the amendment apply (in substitution for the matters specified in subsection (4)(a) and (b) of that section).

(4)Regulations under subsection (1) may make consequential amendments of Chapter 5 of Part 5 of the 2012 Act.

(5)Regulations under subsection (1) adding an offence must also provide for any person who has been convicted of, or cautioned for, the offence to be pardoned where—

(a)the person has died before the regulations come into force or the person dies during the period of 6 months beginning with the day on which they come into force, and

(b)the conditions specified in the regulations are met.

(6)Those conditions must correspond to the matters that are specified in condition A in section 101A of the 2012 Act as it applies in relation to the offence (that is, the matters which must appear to the Department of Justice to apply in order for condition A to be met).

(7)Subsection (5)(a) does not apply in relation to a person who dies during the period of 6 months if, before the person's death, the person's conviction of, or caution for, the offence becomes a disregarded conviction or caution under Chapter 5 of Part 5 of the 2012 Act (and, accordingly, the person is pardoned for the offence before death under section 170(2) of this Act).

(8)The regulations must make provision which has a comparable effect in relation to the pardons provided for by the regulations and the offences to which those pardons relate as section 169(5) of this Act has in relation to the pardons provided for by section 169(1) to (4) and the offences to which they relate.

(9)The power to make regulations under subsection (1) is exercisable by statutory rule for the purposes of the Statutory Rules (Northern Ireland) Order 1979 (S.I. 1979/1573) (N.I. 12)).

(10)Regulations under this section may not be made unless a draft of the regulations has been laid before, and approved by a resolution of, the Northern Ireland Assembly.

(11)In this section, “caution”, “conviction”, “disregarded caution” and “disregarded conviction” have the same meaning as in Chapter 5 of Part 5 of the 2012 Act (see section 101J of that Act).

Commencement Information

I7S. 171 in force for specified purposes at Royal Assent, see s. 183

172Sections 169 to 171: supplementaryN.I.

(1)A pardon under section 169 or 170, or under regulations under section 171, does not—

(a)affect any conviction, caution or sentence, or

(b)give rise to any right, entitlement or liability.

(2)Nothing in this section or in sections 169 to 171 or regulations under section 171 affects the prerogative of mercy.

Commencement Information

I8S. 172 in force for specified purposes at Royal Assent, see s. 183

I9S. 172 in force at 28.6.2018 by S.R. 2018/128, art. 2(d)