A SCHEME SHOULD be put in place to consider applications from gay and bisexual men who were charged with sexual offences under historic anti-LGBT legislation for their convictions to be disregarded, an expert group recommends.

A working group is examining how Ireland can go about disregarding convictions made against gay and bisexual men under legislation that was later repealed in the 1990s.

A progress report published by the Department of Justice this afternoon details the group’s advice to set up a disregard scheme that would consider individual cases. 

Between 1940 and 1978, an average of 13 men were jailed every year in Ireland for relevant offences. In the decade between 1962 and 1972 alone, there were 455 convictions, according to research by Professor Diarmaid Ferriter.

The legislation predated the Irish State, having been brought in by the UK’s House of Commons in the 1800s, but was defended by Irish governments for most of the 20th century.

Now, a scheme should be established that would allow living individuals, or someone acting on behalf of a deceased person, to apply for their conviction to be disregarded, the group recommends.

The group is also considering whether a letter of apology from the minister for justice should be sent alongside successful applications or if an official pardon could be granted.

The working group is comprised of three members of the LGBT+ community with expertise in the area and representatives from the Department of Justice, An Garda Síochána, the Irish Human Rights and Equality Commission (IHREC) and the Office of the Attorney General.  

It arose from a bill that received cross-party support in 2016 calling for the State to issue an apology and for affected people to be exonerated. 

The Department of Justice told The Journal in January that a progress report was due to be submitted by the working group to the minister that month. 

In a statement today, Minister for Justice Helen McEntee said that the “Victorian-era laws” caused “immeasurable harm to generations of gay and bisexual men, criminalising and stigmatizing them simply because of their sexual orientation”.

“I am very conscious that nearly 30 years later, the damage that was caused by these laws continues to impact negatively on too many people’s lives,” McEntee said.

While this harm can never be fully undone, I am strongly committed to bringing to Government and publishing a scheme to disregard convictions for qualifying offences prior to decriminalisation in 1993.

“I would encourage all those with an interest in this subject to read the progress report and to engage in the public consultation, which will launch in the coming weeks.”

The working group is due to submit a final report in late summer or early autumn.

In the interim, it is further examining key issues regarding the identification of records; what happens to records if a conviction is disregarded; eligibility criteria; and offences to be included in the scheme.

The group’s report outlines that gardaí advised that it may not be possible to locate records of specific historic convictions, especially if they are only held on paper.

However, the report noted that the onus to preserve and produce records lies with the State and that an application should not be refused only because records are unavailable.

The group is considering “if and how it may be possible to grant a disregard in the absence of State records of the conviction, or a lack of sufficient detail in the records available”.

The criteria for a conviction to be eligible for disregard should include:

• That the act was consensual
• That the act did not involve a person under the current relevant age of consent
• That no person engaged in the activity was in a position of authority over another person engaged in the activity.

The report says it is “acknowledged that many of those convicted of qualifying offences may have traumatic and difficult associations with An Garda Síochána and, through association, the Department of Justice”.

“A key issue being considered by the working group is which body would be the most appropriate first point of contact for an individual seeking to avail of the disregard procedure or whether there should be an independent body operating under the auspices of the Department of Justice.”

Additionally, the working group has considered what additional actions could be taken to recognise the harm caused by the historical criminalisation of consensual sexual activity between men.

The report details that England, Wales and Scotland have provided in legislation for pardons for persons convicted of certain offences, but those pardons do not affect the convictions themselves and are largely symbolic.

“The particular nature of the power of pardon in Irish law means that it would not be constitutionally permissible for the legislature to pardon people by way of the passing of legislation,” the report says.

“The power of pardon is provided for under Article 13 of the Constitution and is reserved to the President who may only act on the advice of the Government in this context.

“If a pardon was to be provided to affected persons, this would likely have to be done on an individual basis for anyone who obtains a disregard. This would be a new departure in the use of the pardon power.

“The working group is considering whether an individual letter of apology from the Minister for Justice in similar terms to the public apology might be a suitable alternative.”