Part 9Miscellaneous and general
CHAPTER 1Miscellaneous
Pardons for certain abolished offences etc
164Posthumous pardons for convictions etc of certain abolished offences: England and Wales
F5A1
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)).
F61
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Condition A is that the offence has been repealed or, in the case of an offence at common law, abolished by enactment (whether or not it was re-enacted or replaced).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.
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7
Subject to F9subsections (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) F14(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), F1...
F11ba
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c
F10ca
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
F3d
the Army Discipline and Regulation Act 1879.
F78A
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
9
Except in relation to service disciplinary proceedings, this section applies only in relation to persons convicted or cautioned in England and Wales.
F410
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—
- a
the Mutiny Act 1878,
- b
the Marine Mutiny Act 1878, or
- c
any Act previously in force corresponding to either of those Acts.
- a
F13“sexual activity” includes—
- a
any physical or affectionate activity which is of a type characteristic of people involved in an intimate personal relationship, and
- b
conduct intended to lead to sexual activity.
- a
F811
Subsection (1) does not apply in relation to an offence for which the person has previously been pardoned under this section or section 165.