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(1B)Condition A is that the offence has been repealed or, in the case of an offence at common law, abolished by enactment (whether or not it was re-enacted or replaced).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

  • “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.]

  • [F14“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.]

[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)