PLANS TO DISREGARD convictions relating to consensual sex between men which occurred before the offences of buggery and gross indecency were decriminalised in 1993 have raised “a range of complex issues”, a new report has revealed.
A progress report by a working group established by the Minister for Justice Helen McEntee in March 2021 to develop a scheme to disregard such convictions has admitted it has proven difficult to estimate how many people might be eligible to have their past offences disregarded.
It pointed out that the Garda PULSE system holds no details of any relevant convictions as it only came into operation five years after the decriminalisation of the offences in 1993.
The group also acknowledged that older “legacy records” held by gardaí were unlikely to contain sufficient detail to determine if a conviction was liable for the proposed scheme.
It revealed that there are also over one million paper records about convictions held by the Garda National Vetting Bureau in Thurles, Co Tipperary.
However, Garda said many investigation files relating to such incidents may no longer exist as they could have been lost or disposed of during the intervening years.
“As a result of these findings, An Garda Síochána cannot provide an advance guarantee that it will be possible to locate specific historic convictions”, the group said.
It noted a confidential email system established by An Garda Síochána for individuals to seek the expungement of their conviction did not receive a single response.
The progress report said the working group had to consider if and how it might be possible to grant a disregard in the absence of State records of the conviction or a lack of sufficient detail in any existing records.
However, it said there was an onus on the State to maintain, preserve and produce records.
The group also stressed that an application to have a conviction disregarded should not be refused on the grounds that records were unavailable.
The group has recommended that a legal historian should be appointed to investigate public records to ascertain what documentation may be available to support an application.
It is still under consideration whether an affidavit or sworn statement would suffice to have a conviction disregarded.
The group said it would consider a recommendation that the Minister for Justice should issue a letter of apology to affected individuals “as a means of further acknowledging the harm and impact of such criminalising laws.”
The group has recommended that an application to disregard a conviction can be made on behalf of any relevant individual who has died during the intervening period as well as anyone who moved abroad and who are no longer resident in Ireland.
To be considered eligible to have a conviction disregarded, the group has proposed that the act must have been consensual, did not involve a minor and that no person engaged in the activity was in a position of authority over the other party.
The group said laws repealed by the Criminal Law (Sexual Offences) Act 1993 which included buggery are now considered to have been “particularly discriminatory, contrary to human dignity and an infringement of the right to privacy and self-autonomy.”
It acknowledged that such laws had caused multiple harms to men who engaged in consensual same-sex activities as well as their families and friends.
The group noted that the criminalisation of same-sex sexual activity between men in Ireland had impacted on the availability, accessibility and uptake of information, testing and treatment services for HIV prevention.
It has also recommended that the wording of the original intention to “expunge” such convictions should be changed in favour of to “disregard” them as it claimed entirely removing or destroying records of unjust offences would not be appropriate and would do away with evidence of injustice and frustrate the work of researchers and historians in the future.
Plans to expunge the criminal records of individuals who had been convicted of such offences were first announced on the 25th anniversary of the decriminalisation of the offences where the acts involved would now be lawful.
The working group, which includes representatives of the LGBTI community, is expected to submit a final report about a proposed scheme to McEntee by the end of September.
McEntee said a public consultation about the scheme would be launched shortly to allow people to have input based on their own experiences.
“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,” the Minister remarked.
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