Part 9Miscellaneous and general

CHAPTER 1Miscellaneous

Pardons for certain abolished offences etc

164Posthumous pardons for convictions etc of certain abolished offences: England and Wales

1

A person who has been convicted of, or cautioned for, an offence specified in subsection (3) and who has died before this section comes into force is pardoned for the offence if two conditions are met.

2

Those conditions are that—

a

the other person involved in the conduct constituting the offence consented to it and was aged 16 or over, and

b

any such conduct at the time this section comes into force would not be an offence under section 71 of the Sexual Offences Act 2003 (sexual activity in a public lavatory).

3

The offences to which subsection (1) applies are—

a

an offence under section 12 of the Sexual Offences Act 1956 (buggery) or under section 13 of that Act (gross indecency between men);

b

an offence under any of the following provisions (which made provision similar to section 12 of the Sexual Offences Act 1956)—

i

25 Hen. 8 c. 6 (1533) (an Act for the punishment of the vice of buggery);

ii

2 & 3 Edw. 6 c. 29 (1548) (an Act against sodomy);

iii

5 Eliz. 1 c. 17 (1562) (an Act for the punishment of the vice of buggery);

iv

section 15 of 9 Geo. 4 c. 31 (1828) (an Act for consolidating and amending the law relating to offences against the person);

v

section 61 of the Offences against the Person Act 1861;

c

an offence under section 11 of the Criminal Law Amendment Act 1885 (which made provision similar to section 13 of the Sexual Offences Act 1956).

4

The list of offences in subsection (3) is to be read as if it also included the corresponding service offences and, for that purpose, the corresponding service offences are—

a

an offence under an enactment set out in subsection (5) which is such an offence by virtue of any of the enactments mentioned in subsection (3);

b

an offence under section 32 of 13 Chas. 2 c. 9 (1661) (An Act for the regulation and better government of the navy);

c

an offence under section 29 of 22 Geo. 2 c. 33 (1749) (An Act for amending and consolidating the laws relating to the navy);

d

an offence of sodomy mentioned in, and punishable under, section 38 of the Naval Discipline Act 1860, section 38 of the Naval Discipline Act 1861, section 41 of the Naval Discipline Act 1864 or section 45 of the Naval Discipline Act 1866.

5

The enactments referred to in subsection (4)(a) are—

a

section 45 of the Naval Discipline Act 1866;

F1aa

section 41 of the Army Discipline and Regulation Act 1879;

b

section 41 of the Army Act 1881;

c

section 41 of the Air Force Act 1917;

d

section 70 of the Army Act 1955;

e

section 70 of the Air Force Act 1955;

f

section 42 of the Naval Discipline Act 1957.

F2g

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

h

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

i

any provision corresponding to the provision mentioned in paragraph (g) or (h), contained in other relevant Articles of War.

6

The reference in subsection (2)(b) to an offence under section 71 of the Sexual Offences Act 2003 is to be read as including a reference to an offence under section 42 of the Armed Forces Act 2006 which is such an offence by virtue of section 71 of that Act of 2003.

7

Subject to subsection (8), 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).

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), F3...

F4ba

any enactment mentioned in subsection (5)(g) to (i);

c

the Naval Discipline Act 1860, the Naval Discipline Act 1861 or the Naval Discipline Act 1864 F5, or

F6d

the Army Discipline and Regulation Act 1879.

9

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

F710

In this section—

  • “the Articles of War of 1749” means the Rules and Articles for the better government of His Majesty’s horse and foot guards (etc.), made under 23 Geo. 2 c. 4 (1749) (an Act for punishing mutiny and desertion; and for the better payment of the army and their quarters);

  • “the Articles of War of 1876” means the Rules and Articles (etc.) for the better government of Her Majesty’s royal marine forces, made under the Marine Mutiny Act 1876;

  • “enactment” includes an enactment contained in subordinate legislation (within the meaning of the Interpretation Act 1978);

  • “relevant Articles of War” means Articles of War made under—

    1. a

      the Mutiny Act 1878,

    2. b

      the Marine Mutiny Act 1878, or

    3. c

      any Act previously in force corresponding to either of those Acts.