Protection of Freedoms Bill

Memorandum submitted by a member of the public (PF 47)

Protection of Freedoms Bill , Section 8 .

In order to protect personal privacy, this submission has been made anonymously but identifying details have been submitted to the scrutiny Department. The comments relate to section 8, Protection of Freedoms Bill, criteria for eligibility to consider disregard of a conviction for Gross Indecency.

BACKGROUND

In 1977, I pleaded guilty to a charge of Gross Indecency brought by a homophobic police officer in Mill Hill who boasted the record for such convictions in his area. Standing on milk crates by a small fanlight window, he waited until two men had entered the facility and then shouted "Right, that’s it...Gross Indecency!" and ran round to the entrance to arrest myself and another man. There had been no sexual contact whatever, I had walked into the lavatory to use it when this happened and the shock had momentarily paralysed me.

During the arrest process, the officer explained that we should not worry, it happened all the time, local people living nearby had complained and it would just be a small fine. He explained that it would be a very short appearance in Court if we pleaded guilty and the benefit to that was it would not be reported in our local papers, he was sure as he had much experience in this area. The other man was paranoid his wife would find out and even though we did nothing sexual, he would be in an embarrassing situation and said he would pay my fine if I agreed to plead guilty. The fine payment was not an issue but I was also concerned that any suspicion should fall on me as I held a prominent position in the local Church and in 1977, homosexuality was not acceptable behaviour.

It is fair to say that the officer frightened both of us into pleading guilty and we paid £100 fine each. The report together with our names and addresses appeared in both our local papers the following week. My wife and I visited our local MP at the time to see if there was any advice she could give us. Harriett Harman told us she had heard of lots of similar situations with the police but nothing could be done. Since then, until now, I have never been able to do or say anything about my plight. Innocence or guilt is irrelevant as a guilty plea leads to a conviction which is a matter of public record. This Bill is the first time I have ever been able to take any action whatever to try to right a very unfair and discriminatory ‘wrong’. Thank you.

THE EFFECTS OF A CRIMINAL RECORD.

Because of the requirement in the Bill to ‘qualify’ for a conviction to be disregarded, I appear not to be eligible for consideration even though I have had to live 34 years suffering the effects of a sexual conviction, the second and by far most punitive punishment after the fine. I have never reoffended, I am not ‘gay’, I told my wife immediately but the proliferation of CRB checks has meant my voluntary life has now ended. Like many, I dare not apply in case a CRB check is required. Other effects include:

a) I was forced to leave the Princes Trust as a mentor after 20 years service as CRB checks were brought in.

b) I had to leave my post as chair of Governors of a local Primary School as it was threatened Governors were to be CRB checked. I quashed an attempt by my colleagues to nominate me for an MBE for services to education after 25 years governor service to the school as I do not know if a criminal can receive an honour.

c) I am unable to work with my wife at our local hospital where she does voluntary work.

d) I was told by the Diocese of St Albans that unless I sign a document promising not to molest children or vulnerable adults, I would be ex communicated. I must now allow an annual application for a CRB check.

e) I dare not apply for any voluntary post, I saw one this week as a charity driver for fear of a CRB check being requested at which point, I would be forced to withdraw the application.

f) I have never been able to bring myself to tell my children what happened to me.

THE ELIMINATING CRITERIA.

There are two criteria listed in the Bill for consideration of an individual’s submission to disregard a conviction for Gross Indecency, the second of which is:

"Any such conduct now would not be an offence under section 71 of the Sexual Offences Act, 2003 (sexual activity in a public lavatory)"

I suggest the criteria is unfair and excludes at least half the people eligible prejudicing the aims and objectives of section 8 for men convicted of an offence which no longer exists. The reasons for this are as follows:

1 The rules of arrest have changed dramatically since 1977. In my case, it is likely I would never have gone to Court let alone been prosecuted if the same circumstances of the incident took place today. Today, anyone arrested is entitled to legal representation before and during questioning. Legal advice was not offered to me and I did not think, I was in shock. Today, a solicitor would have explained the true motives of the officer and advised me that I was the victim of police entrapment. There was no entrapment in 1977, police could do as they wished. The protecting rights a person has when arrested today are vastly different yet, the present Bill still excludes me as the incident took place in a public lavatory.

I believe this is against the principle the Bill seeks to change, the right to freedom and suggest that large numbers of people could unfairly fall into this excluded category. If there are safeguards now that were not in place then, surely that begs the question of a conviction being ‘safe’ in 2003 and ‘unsafe’ in 1977 despite it being committed in a lavatory. There is no doubt that everyone convicted of an offense in a lavatory before these arrest rules were established is unfairly excluded from disregard as this clause stands as they were not advised of their rights or offered legal advice.

2 The Police received guidelines after 2003 suggesting that they should ‘turn a blind eye’ to homosexual acts in lavatories. (Daily Mail: Friday, October 17th, 2008, Page 36 – see addendum). The reasons are listed as the offence "impact can be extreme and include humiliation, breakdown of relationships and the ‘outing’ of men living in an opposite sex relationship (heterosexual) and being perceived as ‘gay’". Many of the people who ‘cottage’ do so because they are married, they need this personal form of expression and do not know where else to go.

Addendum

Daily Mail: Friday, October 17th, 2008, Page 36 reports on the document "Policing public sex environments" by Michael Cunningham, Deputy Chief Constable of Lancashire.

"Police chiefs are being urged to turn a blind eye to some of the more extreme forms of public indecency. Guidelines circulated to senior officers encourage them to ignore ‘dogging’ and ‘cottaging’ offenses unless enough members of the public complain. The draft rules issued by the Association of Chief Police Officers say prosecutions should only be considered as a last resort for fear of having an ‘extreme impact on offenders lives."

3 It is suggested that although the act in a lavatory is still an offence, way back in 1977 when I pleaded guilty, I would not have had any idea of what Laws might prevail in 2003. Thus I would not be able to know that what I was doing would be an offence at a later date. I therefore suggest that some of the 16,000 people it is said who qualify for convictions for Gross Indecency in a public lavatory could choose to go to the High Court to appeal this clause as they could not be aware of what Laws might or might not be made in the future. There may even be case Law covering an offence committed before a Law was made. Is it truly just then not to include these people in the pardon process? Surely, it is fairer to say for anyone who has held a conviction in a public lavatory for more than 20 years should be eligible for pardon if they have not reoffended. They will have suffered enough.

4 The act of homosexuality between consenting adults over 18 was illegal and now is not except in a public lavatory. In 1977, I was arrested for the act. Today, I would be arrested for where it took place so things are not the same now. In 1977, it was not illegal to commit an act of Gross Indecency in a lavatory, it was illegal to commit an act of gross indecency, period. This lends support to the contention that the Protection of Freedoms Act, Clause 8 in 2011 is seeking to put right an injustice, the act, not where it was committed.

5 It is right to give failing applicants the opportunity to appeal the Home Secretary’s decision but few people would be able to afford the excruciating cost this would entail. This makes it a laudable provision but not one that would be likely to be taken up especially by someone like me, a 67 year old pensioner, despite still working part time and there is no way I would apply for legal aid to argue such a case, that would be too public and too expensive for the Government to fund as there are said to be 16,000 people eligible. Right of appeal effectively is not open to me. Perhaps a specially constituted panel where one can appear for oneself in private such as in the County Court would be a cheaper option for the Government and for poorer individuals? In such an environment, a petitioner would be allowed to plead their case.

ALTERNATIVES

If those drafting this Bill truly feel it reasonable to marginalise people who have been punished for 34 years in my case just because of where the act took place, then they will not accept this submission. It would be sad to exclude so many people but instead, an equal opportunity could be given to those people who do not qualify by making them subject to the Rehabilitation of Offenders Act which presently does not extend to sexual offences. The important thing is there should be no reoffending within the Law as it stands today.

The act is no longer illegal between consenting adults, only where it might take place. People who offended as long ago as my conviction was registered, and have not reoffended again, should be allowed the opportunity to be free again without the restraints a criminal conviction and CRB checks imposed. In effect, they are not now criminals, just misguided as to where to be. Rehabilitation could be built into the Freedoms Bill at this stage and would not fundamentally undermine Section 8, indeed, it would be strengthened in that the whole of the 32,000 people many of whom suffered like me before the days when a Police Officer was required to allow you legal discussion before charging you.

CONCLUSION

With the rules and rights of an arrest having changed so dramatically, the requirement of legal representation before charge and new laws such as entrapment now in force, surely it is logical that these will cancel out the need for retaining the lavatory criteria.

To be fair to all the people who could be helped by this measure, a way needs to be found to consider the case of someone who offended in a public lavatory before 2003, for that to be disregarded as opposed to ignored as the Act in it’s present form does now. They have also suffered the injustice and humiliation of a criminal conviction for a crime that no longer exists, it is not fair they should be marginalised and denied unrestricted contribution to the community in the present day just because of where the offense took place, they were not to know, the world is a different place.

This is what I believe the authors of this section of the Bill intended, not the exclusion of half those eligible. I would consider it a miracle if this happened for me, to be able to enjoy the rest of my life properly, free, without the daily fear of exposure that follows me around everywhere I go.

PLEASE NOTE

Anyone accused or convicted of a sexual offense even a minor one such as Gross Indecency whether they are innocent or not will not be able to be public regarding their situation if they are not of an open, homosexual persuasion as even today, the stigma is still recriminatory not accepted. This means they are restricted in what they can openly do for friends and family reasons. This submission could only be made anonymously and this fact means that some people will not feel able to make submissions to the Bill and ultimately, the Home Secretary. There needs to be a secure channel for people to apply and this fact taken into account at all stages.

April 2011