Part 12: Disregards and pardons for certain historical offences
Section 194: Disregards and Pardons
- Section 194 amended sections 92 to 101 of the Protection of Freedoms Act 2012 ("the 2012 Act") to extend the scope of the disregard schemes.
- Subsection (3) amends section 92(1) of the 2012 Act to clarify that the Scheme applies only to sexual activity between individuals of the same sex.
- Subsection (4)(a) specifies that any other party to the sexual activity must have been aged 16 years or over.
- Subsection (4)(b) brings into the scope of the Scheme any offences that have been repealed in statute or abolished by enactment in common law.
- As set out at subsection (4)(b), a conviction or caution is not eligible for a disregard where the activity would amount to an offence at the time the decision is made on the application, or where any other party to the same-sex sexual activity was not aged 16 years or over.
- Subsection (5) sets out the definition of ‘sexual activity’. This new definition is broader than that covered by the specified offences in the current Scheme and is intended to reflect the broader range of behaviour covered by the extended scope of the Scheme. Subsection (5) makes clear that the Scheme now covers conduct intended to lead to sexual activity as well as sexual activity itself.
- Subsections (6) to (9) make amendments to the decision-making and appeal processes to apply them to the expanded Scheme.
- Subsection (10) updates the definitions in section 101 of the 2012 Act to reflect the expanded Scheme, including definitions relating to service offences, and subsection (11) makes clear that the new provisions do not affect disregards which have been granted prior to the new provisions coming into force.
Section 195: Pardons for certain convictions or cautions
- Subsection (3) inserts new section 164(A1) of the 2017 Act which extends the provisions for posthumous pardons to align with the extension of the disregard Scheme’s scope. This provides posthumous pardons for those individuals who die prior to the commencement of the extended Scheme or within the twelve months after the commencement. Where an offence is repealed or abolished after the commencement of the extended Scheme, provision is made for those who have died prior to, or within twelve months after, the date of repeal or abolishment, if they fulfil the criteria for a disregard.
- Subsection (4) sets out the conditions which must be met for a person to be pardoned.
- Subsections (7) to (9) make provision to ensure that the extended Scheme encompasses all historical service offences.
- Subsection (10) inserts section 164(11) to ensure that persons who have already received a pardon under section 164 or 165 cannot receive another pardon for the same offence.
- Subsection (11) ensures that the provisions for automatic pardons to reflect the extension of the Scheme.
- Subsection (12) repeals the power in section 166 of the 2017 Act for the Secretary of State to add further offences to the list of eligible offences within the scope of the original Scheme. This power is no longer necessary because there is no longer a list of eligible offences; rather, all repealed and abolished offences now fall within scope of the Scheme.
