Men prosecuted for gay sex under ‘discriminatory’ laws in Scotland to be pardoned

Justice Secretary Michael Matheson - Image credit: screenshot from BBC TV

Men convicted for gay sex in Scotland are to receive a full pardon, the Cabinet Secretary for Justice announced today.

Michael Matheson told the Scottish Parliament that legislation will be brought forward to ensure everyone convicted of such offences is pardoned, as long as the conviction relates to same-sex activity that is now lawful.

Scottish Government officials have also been in discussion with Police Scotland about out how to have convictions for consensual gay sex disregarded so they no longer appear on a person’s criminal record.

A pardon alone does not cancel out the conviction from criminal records.

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Matheson confirmed the Scottish Government’s actions and planned work in response to a topical question in the Scottish Parliament by Scottish Labour leader Kezia Dugdale.

He said: “It is sadly the case that Scotland has only relatively recently modernised our criminal laws so that they no longer discriminate against same-sex sexual activity.

“It is shocking to consider that consensual sex between men was only decriminalised in Scotland in 1980 and the age of consent for same-sex sexual activity was not equalised for sexual activity between men and women until 2001.

“Such laws clearly have no place in a modern and inclusive Scotland. However, there are people with criminal convictions for same-sex sexual activity that is now lawful and we must right this wrong.

“We will introduce an automatic formal pardon for those convicted under these discriminatory laws so they know they are absolved fully.

“We want to address the injustice that people experienced simply because of their sexual orientation in circumstances that are now legal and this is one way of achieving this.”

National LGBTI equality charity the Equality Network welcomed the announcement.

Tim Hopkins, Equality Network director, said: “Men in Scotland were arrested, prosecuted and sent to prison for up to a year for no more than consensual private sex with another man.

“The old offences of sodomy and gross indecency were grossly homophobic and destroyed gay and bisexual men’s lives.

“We very much welcome the Scottish Government’s announcement today that all men convicted of these crimes that are no longer crimes today will receive an automatic pardon.

“It is particularly important that the pardon is automatic, so that men do not need to apply for it.”

He also agreed with a call from Patrick Harvie for the Scottish Government to also issue an apology, since, Harvie pointed out, a pardon implies that those convicted did something wrong.

Hopkins added: “We agree with that, and we welcome that Michael Matheson was positive towards the suggestion.”

In addition to the pardon confirmed today, the Scottish Government has been talking to Police Scotland about how to establish a scheme that would allow men with such convictions to have their offences disregarded.

A pardon means any punishment for the offence is cancelled, in effect the person is formally 'forgiven', but the offence still exists on criminal records, whereas a disregard cancels out the record of the crime altogether.

Where an offence is disregarded a person will be treated as not having been convicted of that offence and so it would not appear on, for example, disclosure checks.

Scotland has a separate legal system from England and Wales, with different offences and rules governing how long information on criminal convictions is retained by the police.

In Scotland the retention of criminal records are an operational matter for Police Scotland, rather than being set out in legislation, as is the case in England and Wales.

The Scottish Government intends to consult a range of experts, including equality organisations, the Crown Office and the wider legal profession, on how best to have convictions disregarded from centrally held records.

Practical implications that need to be considered are how to distinguish between convictions for consensual sex from convictions for rape or sexual assault, because both were sometimes prosecuted under the same laws.