LAST UPDATE | 6 Jan 2022
A WORKING GROUP tasked with examining how the Irish State could exonerate gay men charged with convictions under laws that have since been repealed is due to submit a progress report to the Government later this month.
The group’s final report is due to be published in Q3 of this year, possibly paving the way for the exoneration process to begin before the end of 2022, The Journal has confirmed.
Hundreds of gay men were charged in the 20th century under legislation that no longer exists. Homosexuality was decriminalised in Ireland on 24 June 1993.
Convictions for consensual sexual acts were rare in the years leading up to decriminalisation but were common up to and throughout the 1970s.
Research carried out by Professor Diarmaid Ferriter found that between 1940 and 1978 an average of 13 men a year were jailed for homosexual offences. Between 1962 and 1972, there were 455 convictions.
There have been renewed calls for such convictions to be quashed after the British Home Office announced that a pardons scheme in the UK will be extended to cover all gay sex convictions imposed under laws that have since been repealed.
Announcing the plans on Tuesday, British Home Secretary Priti Patel said the move was aimed at “righting the wrongs of the past”.
A spokesperson for the Department of Justice said that since its establishment, the working group “has considered a range of complex issues relating to the development of any scheme to disregard the criminal convictions of men convicted for consensual same-sex sexual acts prior to decriminalisation in 1993″.
They confirmed that a progress report summarising the key issues and the next steps is due to be submitted by the group to Justice Minister Helen McEntee later this month, prior to the group’s final report later this year.
A Bill to exonerate gay and bisexual people convicted of crimes received cross-party support when presented to the Oireachtas by Labour Senator Ged Nash in 2016.
There were two strands to that proposal – the first involved a State apology, something that happened in June 2018 on the 25th anniversary of decriminalisation.
The second strand, called for the people in question to be exonerated. This resulted in the establishment of a working group consisting of representatives from the Department of Justice, An Garda Síochána, the Irish Human Rights and Equality Commission (IHREC), the Office of the Attorney General and three individuals from the LGBTI+ community with expertise in this area.
Speaking to The Journal, Nash, who is now a TD, welcomed the fact the working group is due to submit a progress report in the coming weeks and its final report later this year.
Nash said the process of exonerating people who were convicted of offences that are no longer on the statute books is “obviously a more complicated process” than the apology, as significant as that was. However, he said the State must move forward on the issue.
“It is absolutely intrinsic in terms of a proper reckoning with the past. I hope the working group designs an appropriate system that we could put in place for a series of exonerations for men who were convicted of a broad range of offences that have since been abolished.”
Welcome news from the UK.
— Ged Nash TD (@geraldnash) January 4, 2022
The second element of the process @labour started (first part was the 2018 State apology) is the question of disregards for/expungement of historical convictions & the issue of exonerations.
Progress must be made in 2022 on such a scheme. @labourlgbt https://t.co/EImqeNzksY
Nash said the Irish State inherited “draconian laws” from Britain which were used to prosecute gay men in particular.
Several pieces of legislation were repealed in 1993 – from as far back as 1842 and 1887, with the main legislation dating from 1861 and 1885. That legislation was brought through the House of Commons rather than the Oireachtas, but Irish governments defended it for most of the 20th century.
Nash said it is important to use the term exonerate, rather than pardon, in this context.
When we talk about pardons, we then suggest that what men were engaged in was wrong, but that was not the case. The laws of the time viewed consensual sexual activities between same-sex partners as wrong. I don’t believe that ever should have been the case.
“Ireland has to recognise that and that’s why we refer to this process of exoneration and disregard of criminal convictions, rather than referring to them as pardons which suggests that the activity was wrong.”
Nash is hopeful that, if the working group’s final report is published as planned later this year, the exoneration process could be implemented before the end of 2022.
‘Lives were ruined’
Adam Long, board director of the National LGBT Federation (NXF), echoed these sentiments, saying that exonerating people of such convictions would send an important message.
“These laws ruined lives, absolutely ruined lives. The bare minimum at this stage that the State could do would be to try and undo some of that wrong by removing the convictions.”
Long told The Journal that while it’s welcome the working group is due to send a progress report this month, the process should be prioritised and now “drawn out”.
He said Ireland should learn from Northern Ireland and not make the process of exoneration “too onerous” on individuals. Only a very small number of men have appealed for pardons in Northern Ireland since the option was opened to them in recent years, and a number have had their applications turned down.
The process should not be made too onerous, and we don’t want to re-traumatise people either, we should make it easy for them. If a person has a conviction for an activity that would not be illegal today, then it should be completely and utterly removed from their record.
Long said developments in the UK this week are “very welcome” and he hopes Ireland follows suit.
There is clearly momentum around this issue, and that’s important because grave, grave injustices were carried out. It’s also fairly recent, we’re not talking hundreds of years ago, homosexuality was only decriminalised here in 1993.
Long said the apology by the Justice Minister Charlie Flanagan to gay people in 2018 was had “huge symbolic value” but now the Government must move to fully exonerate those affected.
He said people who were convicted under since-repealed laws did nothing wrong and should not have to acknowledge they have criminal convictions in circumstances such as when applying for a job or voluntary role.
“The logical follow-on from the State apology would be exoneration. Let’s call it what it was: State-sanctioned homophobia. Nobody, literally nobody, in this day and age should have such homophobic convictions on their records today.”
UK plans
Announcing plans in the UK this week, Patel said more people would have convictions for same-sex sexual activity wiped from their records, as she sought to expand the Government’s Disregards and Pardons scheme from a narrow set of laws.
Currently, just nine former offences are included on a specified list which the Home Office said “largely focused on the repealed offences of buggery and gross indecency between men”.
If someone had been convicted of a crime under these now scrapped laws, they can apply to have it disregarded – wiped from their criminal record and not be required to be disclosed.
But an amendment to the Police, Crime, Sentencing and Courts Bill will broaden the criteria to include any repealed or abolished civilian or military offence that was imposed on someone purely for, or due to, consensual same-sex sexual activity.
All those whose cautions and convictions are disregarded under the scheme will also receive an automatic pardon, and anyone who has died before the changes came into place – or up to 12 months afterwards – will be posthumously pardoned.
Patel said: “It is only right that where offences have been abolished, convictions for consensual activity between same-sex partners should be disregarded too.
“I hope that expanding the pardons and disregards scheme will go some way to righting the wrongs of the past and to reassuring members of the LGBT community that Britain is one of the safest places in the world to call home.”
She thanked peers Michael Cashman, a member of the House of Lords and former MEP, and others for their long-running campaign calling for exoneration.
In a statement to the PA news agency Cashman; Alistair Cooke, also a member of the House of Lords; and Professor Paul Johnson welcomed the news.
“For five years, the three of us have been working together on behalf of gay people in the armed forces and in civilian life, who suffered grave injustice because of cruel laws which discriminated against them in the past.
“Now that Parliament has repealed those laws, it has a duty to wipe away the terrible stains which they placed, quite wrongly, on the reputations of countless gay people over the centuries.
“The existing legal arrangements to do this are too narrowly drawn. Many gay people who were the victims of past injustice are excluded from them. This is particularly true of individuals in our armed forces, brave people whose careers serving our country were suddenly destroyed.
The men said they are “delighted” their long campaign “will at last bring many gay people, both living and deceased, the restitution they deserve”.
The Home Office said conditions would still need to be met in order for a disregard and pardon to be granted, including that anyone else involved must have been aged 16 or over and the sexual activity must not constitute an offence today.
Similar exonerations have occurred in Germany, Canada and parts of Australia.
Contains reporting from PA
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