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Police, Crime, Sentencing and Courts Act 2022

19/05/2022 By ACOMSDave Leave a Comment

police-crime-sentencing-and-courts-act-2022    This article was published in Openly, Reuters:

OPINION: Time to wipe the slate clean: New UK government measures address historical convictions under homophobic laws 

by Paul Johnson, Michael Cashman and Alistair Lexden
Thursday, 28 April 2022 12:30 GMT

The passing of the Police, Crime, Sentencing and Courts Act 2022 means that disregards and pardons are available to any person who was convicted of sexual activity between persons of the same sex, subject to certain conditions

Professor Paul Johnson is Executive Dean of the Faculty of Social Sciences at the University of Leeds; Michael Cashman is a former Labour MEP and currently a Labour peer of the House of Lords; Alistair Lexden is a Conservative peer and a Deputy Speaker of the House of Lords.

Martin Luther King Jr said, “We are not makers of history; we are made by history.”  

Dr King’s words have particular resonance for LGBTQ+ people in the UK who lived through the final years of a very long history of homophobic laws that damaged and, in many cases, destroyed lives.

Although the laws that for centuries prevented gay people living full and happy lives have been progressively repealed, such laws continue to have consequences for some people today.

Among the significant consequences are the official records that endure for those convicted of, or cautioned for, offences involving same-sex sexual conduct that would today be entirely lawful. Such records have continued to harm the lives of people who are still living today and are an insult to the memory of those who have died.

Since 2012, the legislatures of the UK have taken action to address the painful history of the persecution of gay people and have introduced “disregard” and “pardon” schemes.

Although there are some differences in the schemes operating in England and Wales, Scotland, and Northern Ireland their overall effect is to provide a mechanism for those living with a caution or conviction, for same-sex sexual conduct that would today be lawful, to have a caution or conviction disregarded and to be pardoned. In addition, posthumous pardons have been granted to those cautioned or convicted under laws extending back to the 16th century.  

Having a caution or conviction disregarded can be life changing. It means, for example, that a person will be treated for all purposes in law as if that person has not committed the offence. Moreover, the granting of pardons, aside from their legal status, is a strong, symbolic apology to each and every person who has been wronged.

The disregard and pardon schemes are therefore very important. They address individual suffering, and they also send a clear message to people in the UK, and in the wider world, that we have confronted our shameful history and said “never again”. This is particularly important at a time when, around the world, fanatical legislation is being proposed by those who wish to harm LGBTQ+ people.

However, until the passage of the Police, Crime, Sentencing and Courts Act 2022, the disregard and pardon schemes in England and Wales were significantly flawed because they encompassed only a small fraction of the offences that, over the decades and centuries, ruined the lives of gay people. Crucially, the schemes did not include the wide range of service discipline offences that allowed members of the UK armed forces to be convicted for same-sex sexual acts long after such acts became legal for civilians – offences that often ruined the careers and lives of service personnel.

For the past six years, the three of us have worked together, with supportive government ministers – particularly Baroness Goldie and Baroness Williams of Trafford – as well as dedicated civil servants, to address the limitations of the disregard and pardon schemes and bring justice to all those who need and deserve it.

We were responsible, for instance, for ensuring that posthumous pardons for Royal Navy personnel were appropriately provided for in the Policing and Crime Act 2017, and we were responsible for provisions in the Armed Forces Act 2021 that extended posthumous pardons to Army and Royal Marines personnel.

Most recently, we worked with the UK government to include provisions in the 2022 Act that change the disregard and pardon schemes in England and Wales to encompass the wide range of repealed criminal and service discipline offences that once regulated same-sex sexual activity that would be lawful today.

The changes made by the 2022 Act to the schemes in England and Wales mean that disregards and pardons are available to any person who was convicted of, or cautioned for, an offence in circumstances where the conduct constituting the offence was sexual activity between persons of the same sex, subject to certain conditions. The key conditions are that: any other person involved in the sexual activity was aged 16 or over; the offence has been repealed or abolished; and the sexual activity would not, if occurring in the same circumstances now, constitute an offence.

To return to Dr King’s wise words, it is the history of generations past that made us want to work to bring about justice for all those mistreated by English law solely because of their sexual orientation. The provisions in the 2022 Act wipe away a terrible stain from our history and, crucially, tender a deep and profound symbolic apology to those who have suffered.

We continue to work towards ensuring that the disregard and pardon schemes in Northern Ireland encompass all the offences that once criminalised same-sex sexual conduct that is lawful today.

Openly is an initiative of the Thomson Reuters Foundation dedicated to impartial coverage of LGBT+ issues from around the world.

 

Links:

 

  • Porn Laws by Tim Clarke

Filed Under: Editor to ACOMSDave Tagged With: Freedom, government, law

The Portsmouth Defence by Jeff Dudgeon

06/09/2021 By ACOMSDave Leave a Comment

Portsmouth DefenceThe Portsmouth Defence – every solicitor and barrister knows the traditional defence to utilize when defending a client accused of murdering a gay man when there is no other legitimate defence available.  Its name indicates that it originated in medieval times in seaports when mariners were caught on rolling/robbing their homosexual clients or victims.

Brief Heroes

It is simply this – the deceased made a pass in the form of a smile, a word or a touch, at my client.  being a man he beat the pervert to death/strangled him/repeatedly stabbed him.  Judges especially, juries less so, are susceptible to this defence.  Sometimes killers have been acquitted, even become brief heroes, as in the George Brinham case in the 1960s when a Labour and Trade Union politician was butchered in London.

Macho Sentiments

Obviously, if females, subjected to unwanted attentions, disembowelled wolf-whistlers, the male population would plummet.  But judges, being men, instantly warm to the macho sentiments aroused at the notion of innocent heterosexual manhood threatened by oily homosexuals.

Fate Worse Than Death

Nowadays, acquittals would be rare, but the continued use of the Portsmouth Defence is designed to get the charge reduced from murder to manslaughter and the sentence reduced accordingly.  this still works even though in every other case a murder rap would hold unless it was self-evident that had the defendant not attacked the victim his own life would have been in jeopardy.  \but, to the conservative judiciary, being touched up or smiled at by a queer is a fate worse than death.  It is plain that in 99% of such cases the gay victim is offering no violence at all, just checking the other guy out or using a little verbal persuasion.

A Local Crop

In the recent Addis (Portadown) and Hagan (\belfast) murder cases the victims made a suggestion through porno pics and divesting himself of his clothes respectively.  \both were brutally done to death.  their killers received light sentences and the Portsmouth Defence was used.  this was in courts in Northern Ireland in the 1980s where the establishment continues to think of gays as less than human and their killers as less than criminals.  A test case will occur soon in a trial relating to a killing in Ballymena where the Portsmouth Defence has already been used in a bail application.

Casual Violence

It is important that the legal establishment is made aware of the new social and legal status that gays now enjoy.  And that we will no longer tolerate such frequent murders.  The Director of Public Prosecutions – who decides what charges to prefer – and whether to accept plea-bargaining to get a lesser charge preferred, has to take account of social change and modern literature*.  If for no other reason than that, anti-gay tugs (and their homosexual counterparts), will continue to use massive violence on gay victims in the sure knowledge that the courts will see their crimes as slight!

 

*Attacks on Gay People by Julian Meldrum (CHE) 1977 – A comprehensive and meticulously researched casebook (Currently out of Print)

 

 

Amazon Product details

  • Publisher ‏ : ‎ Campaign for Homosexual Equality (1 Aug. 1981)
  • Language ‏ : ‎ English
  • Paperback ‏ : ‎ 48 pages
  • ISBN-10 ‏ : ‎ 095044295X
  • ISBN-13 ‏ : ‎ 978-0950442952

Links:

  • Wikipedia – Gay panic defense
  • Gay and Trans Panic Defence Prohibition Act 2018
  • Play aired in 1966 – The Portsmouth Defence
  • Belfast Pride and Economics

 

This article was first printed in Gay Star No 10, a copy of which is held in the archive of the Linenhall Library

 

Filed Under: Anti-Bullying & Homophobia, Campaigns, Community Journalist Tagged With: courts, homophobia, Jeff Dudgeon, law, legal system, Linenhall Library, murder of gay men, Portsmouth Defence

The Law is the Law

07/09/2020 By ACOMSDave Leave a Comment

The law is the law, or is it?   According to our Prime Minister it only applies to him when it serves his needs!

I have just read ‘The Secret Barrister’s’ article “Justice League” which was published The Guardian’s Review Magazine pages 6-9 Saturday 22 August 2020.

Law - it needs to be balanced
The Law – it needs to be balanced

This is a large mouthful to say, and even to write, but it is necessary to refer to this article and draw your attention to it, as for many of us the law and parliament are inseparable!  However, they are not; according to the Judges and Parliament, …The ultimate decision remains with Parliament and not the judiciary. Ultimately, the judiciary does no more, or less, under the 1998 Act than carry out its constitutional function of interpreting and applying the law enacted by Parliament. They only have such power as Parliament gave them in the Human Rights Act 1998.

The Attorney General is the link in the chain who provides guidance to parliament and the judiciary – however, a former Attorney General, Lord Mayhew of Twysden, said:

…the Attorney General has a duty to ensure that the Queen’s ministers who act in her name, or purport to act in her name, do act lawfully because it is his duty to help to secure the rule of law, the principal requirement of which is that the government itself acts lawfully.”

In his article, the Secret Barrister refers to how part of the government and also the new media seems to think that the judiciary has attempted to interfere with parliamentary actions and decision.  This is a complete fallacy, for parliament to work successfully, in order to maintain parliamentary sovereignty, be some legal limit… and that is what the judiciary provide.  Judicial review is not, as politicians would have the public believe, a tool by which judges overrule a political decision that they disagree with.  The questions that the courts decide are those of lawfulness, applying common law principles developed over centuries.

The Secret Barrister sums up by saying …if we lose judicial independence, we lose the rule of law.  The day a judge makes a binding decision affecting the rights and liberties of one of us, not on the legal and factual merits, but with a nervous glance to the press and public galleries, or with a  beady eye on political favour or punishment, is the day that the decay in our democracy turns terminal….

The day that this happens is the day that the government becomes omnipotent and Big Brother becomes the order of the day.

The government must remain accountable, and the judiciary must remain independent from government.

Filed Under: Community Journalist Tagged With: government, judiciary, law, news media, newspapers, The State

The Collini Case – Book Review

11/06/2019 By ACOMSDave Leave a Comment

Title The Collini Case
Place West Germany
Publication date 4th July 2013
Pages PB 208
Price PB £7.18
Author Ferdinand von Sabruch
Publisher Penquin
Edition  
Special features (maps, etc.)  
ISBN  978-0718159207

Firstly I must note my self-interest in legal stories, and ‘The Collini Case’ delivers for me in every way. whether it be in book form, TV, radio or movie. 

I remember watching Perry Mason, The Defenders, and lately (ITV Series taken from USA).  But also The Client by ….. Grisham which I read as a book and then watched as a movie and TV series.

I am also an ardent fan of police/detective procedural, having read the Moonstone when I was 8 years old, all of Sherlock Holmes, and most of John Buchan’s books; never mind the various police TV series over the years.

Yes I love the law, but I am not a lawyer/solicitor/or policeman!

So when I picked up this book, ‘The Collini Case’ second hand in a charity shop for £0.50, it was firstly because it was about the law, more specifically the law in Germany; and that it was about the second World War, the Nazi and economic regime over that period, and the fall out after the war, and it was about people.

The people are easily defined:

  • the lawyer
  • the murderer
  • the murdered person
  • the love interest
  • The mentor (?)

The law in this case is that of the law in Germany following reunification of West and East Germany.  The German legal system is that of civil law which is founded on the principles laid out by the ‘Basic Law for the Federal Map of Germany, … but many of the most important laws were developed prior to the 1949 constitution.  It is comprised of ‘public law’ which regulates the relationship between a citizen/person and the state…  This area of law has also been subject to a wide array of influence from Roman Law to Napoleonic law.

I have already mentioned the main characters in general terms, the story is relatively simple; ‘a man walks into a hotel and kills another man.  The murderer is a well-respected Mercedes-Benz worker, Fabrizio Collini – a man of unblemished record, and with no apparent reason for committing the murder. He doesn’t run away but refuses to defend himself to the police.  His lawyer, assigned by the court, gets nowhere with him, and even though he is almost concerned with ‘just’ doing his job, he follows his legal nose, discovers his client’s past and therefore his reason for the murder and then he has to put together a mechanism for the prosecution to introduce the evidence so that he has the right of rebuttal.

Apart from the initial murder, there is no further ‘American’ style action.  It is a story about thinking, about research and also about the good, old-fashioned dogged investigation.

The sting in the tale is the impact that this story had on the German legal system and the German government after its publication.  The outcry over ‘war criminals’ escaping justice led to the German government reviewing its legal system.

Links:

  1. Amazon: The Collini Case
  2. Cineuropa trailer:

Filed Under: Reviews Tagged With: book review, Collini Case, Germany, law, Lawyer, legal whodunit, murder, Nazi, police, whodunnit

Retrospective Justice

04/07/2017 By ACOMSDave Leave a Comment

When I read this article, and also subsequent articles from other journalists, I was of a mind that it is what government does – changes the goal posts to suit it needs – in this case retrospective justice.  However, during my research, I was taken to the following publication ‘The legislative sovereignty of the Westminster Parliament‘ and the following quote

Each Parliament is absolutely sovereign in its own time and may legislate as it wishes on any topic and for any place

also

Parliament has the power to legislate retrospectively as well as prospectively. This means that Parliament can render illegal and impose penalties on actions which were perfectly lawful when they were committed. Also, actions which were unlawful at the time of commission, may be rendered lawful or not subject to any legal sanction or proceedings.

So the end result would seem to be, that governments are unique, and resolve their issues in their own way, without necessarily having to conform to what previous governments have said.  However, legislation is still legislation, and it would seem to me that for an integral part of a published Act of Parliament to be changed, then it must be debated in the House and agreed by both Houses. The Northern Ireland (Miscellaneous Provisions) Act 2014 set the relevant date as being 1 January 2014, not 2017; so we must only assume from this change that ‘someone’ has something to hide.

Image result for scales of justice UK

Skating on thin ice – Retrospective Justice

So an end to donation secrecy in Northern Ireland. It’s been long awaited, but today James Brokenshire made good his party’s promise in their Northern Irish manifesto… From Hansar…

Source: End of donor secrecy (flick of a legislative wand and NI ‘dark money’ is a thing of the past)…

Filed Under: Editor to ACOMSDave, Government & Politics Tagged With: government, justice, law, retrospective

Dictatorship 1, Democracy Nil – The People Loose

31/01/2017 By ACOMSDave Leave a Comment

 

Democracy

Democracy needs to be nurtured and looked after, if not then it gets strangled and we end of with a barren land. (David McFarlane)

Law, as it had been known, was no longer decisive in legal proceedings. Judges, now more than ever, were working toward the Fuehrer. Judicial independence, once the ideal of the German state, nearly vanished….Jim Snowden (https://jimsnowden.com/2013/11/06/the-nazi-judiciary/)

“Power tends to corrupt, and absolute power corrupts absolutely. Great men are almost always bad men.”..John Emerich Edward Dalberg Acton, first Baron Acton (1834–1902)

The problem with being an ‘outsider’ to another countries politics, is just that, you are an outsider.  I don’t profess to understand American politics, but I do reserve the right to comment on what I perceive to be a fundamental change to society and the impact that it is having on others.  When Hitler came to power, even though he had been well treated by the German Judiciary, he set out to control the courts and to remove fundamental rights.  He succeeded, and to those who suffered because of this came the ‘Holocaust’ and the ‘Death Camps’.  The United Nations states ‘The Rule of Law and Democracy Section stands as OHCHR focal point for democracy activities.’ The rule of law is the legal principle that law should govern a nation, as opposed to being governed by arbitrary decisions of individual government officials.  The decision by President Trump goes in the face of all legal precedents except when you look at dictatorships such as Nazi Germany etc.  Indeed it bares direct comparison with Hitler,

I expect the German legal profession to understand that the nation is not here for them, but that they are here for the nation*, and that from now on, I shall intervene in these cases and remove from office those judges who evidently do not understand the demand of the hour. (Trials of War Criminals before the Nuremberg Military Tribunals, vol III, the Justice Case,Washington, 1951 Page 51″)

President Trump - Democracy?Most of the world did not stand up to Hitler and his political aspirations, and the world ended up in a world war.  In all conscience I cannot stand by and say nothing,  President Trump is going down a very dangerous road, and the problem is that he is taking people who didn’t vote for him with him!

Donald Trump has fired acting Attorney General Sally Yates after she ordered Justice Department lawyers to stop defending the president’s controversial immigration orders.

Source: Donald Trump sacks US attorney general Sally Yates for defiance over immigration ban – live

Further Reading:

  • Holocaust Encyclopedia
  • Why Adolf Hitler spared the Judges – Judicial Opposition against the Nazi State

 

Filed Under: Community Journalist Tagged With: democracy, Hitler, law, Nazi, President Trump

365 Without 377 – Movie Review

31/12/2016 By ACOMSDave Leave a Comment

365 without 377Name of movie: 365 Without 377
Date: 2011
Length (hrs): 53 mins
Film genre: Documentary
Characters: Beena, Pallav and Abhenna.
Director: Adele Tulli, who graduated in South Asian Studies and has worked on several activist projects in India and Europe
Setting: India
 
Plot information: A documentary following the decriminalizing of Section 377 of the Indian Penal Code which criminalized any sexual acts between consenting adults of the same sex.
When does the movie take place? July 2009
What happens in the movie? Imposed under the British colonial rule in 1860, Section 377 of the Indian Penal Code criminalize any sexual acts between consenting adults of the same sex, stigmatizing them as ‘against the order of nature’. On 2ND July 2009 the Delhi High Court passed a landmark judgement scrapping this clause, thus fulfilling the most basic demand of the Indian LGBTQ community, which had been fighting this law for the past 10 years. Three characters, Beena, Pallav and Abheena travel through the city of Bombay heading to the celebrations for the first anniversary of the historic verdict. ‘365 without 377’ is the story of their journey towards freedom. (IMDB)

What makes the movie interesting? The chance to see a different culture handling a British imposed culture, and how they developed as people and overcame the challenges of being ‘gay’ in India, where even though the law as been annulled by the Delhi High Court, for many they still believe it will take much more than this to change the mindset of the Indian community as a whole
What is the best part? The best parts for me was looking at the three main characters lives, and how just like ourselves they are ordinary, but have developed as people and are willing to stand up for their beliefs and rights.
How do you feel when the movie ended? Neither sad or happy, but I did feel that I wanted to learn more, and hope that another documentary will do a follow-up say in 5 years time.
Who will like this move? People with an interest in LGBT activism, people with an interest in humanity, people who like India
On a scale of 1 (don’t like) – 5 (like), how do you rate this movie? For me definitely a 4

Filed Under: Movie Reviews Tagged With: British imperialism, culture, India, law, LGBT

The Law is Equal for All

30/10/2016 By ACOMSDave Leave a Comment

Law equality and the Gay Cake Case

Missing a slice of cake


This article is a concise and accurate report on the law surrounding the case known as the ‘Gay Cake’ case.  It wasn’t prosecutorial zeal which led to the court case, it was a company which failed understand the basic tenets of law and in particular contract law.
The court case was not brought by Gareth Lee, all he wanted was a cake, the case was taken up by the Equality Commission as it believed that the baker had broken the law. Subsequently, this has been proved correct by the original judgement and the Appeal Court.
No one is above the law, if we are to be a fair and equitable society we must ‘ALL’ comply with and live by the law.  If we don’t like a law, then we have legal remedies, and in the final resort, we can challenge the government.
 
Less prosecutorial zeal may be the easiest way to address such issues
Source: The great Belfast bake-off: Asher’s ‘gay cake’ decision

Filed Under: Anti-Bullying & Homophobia Tagged With: Ashers, cake, contract law, equality, law, marriage

Park service releases LGBT history study

25/10/2016 By ACOMSDave Leave a Comment

LGBT History

History to everyone is important, but for those who have not been able to have their full identity because of family or societal pressures, or laws which punished their very existence, history can become a poison chalice.  It is extremely comforting to know, that one country, which even though it still has its share of bigots and organisations which seek to continue this persecution, is moving forward and recognising the LGBT community and taking note of its history –  in this case it is the National Park Service of America.LGBT History

Positively, I have just heard that the Scottish Government is seeking to pardon all those LGBT people who have a criminal record due to draconian laws which punished you for being gay!

Unfortunately, due to government filibustering, England and Wales will have to wait for some time for Westminster to bring forward a possible legal instrument for doing the same job.

And for Northern Ireland, the political posturing of both the main parties, means that it is highly unlikely that any law will see the statue books within the next 5 years.

The laws were unjust within the UK, and because of them so much of our history has been lost, as people rightly seeked to protect themselves and their families; I hope that sometime soon we can stat to put together our own history and to have it incorporated into the mainstream history – it is jsut as valid, and when you consider people like Alan Turing and how he and others in other professions helped to win our freedoms, then we must strive to get equal.

 

Breaking news & opinion from the B.A.R.

Source: The Bay Area Reporter Online | Park service releases LGBT history study

Filed Under: History Tagged With: hidden, history, law, LGBT

Human Rights – The Legal Act in the UK

28/09/2016 By ACOMSDave Leave a Comment

Human Rights ActI asked a friend who is retired with a wide set of experiences in dealing with Human Rights, to give me his impression on the removal of the Human Rights Act from the UK, and what impact it would have.
He believes that repealing this Act which brings into domestic law the European Convention on Human Rights, will be a difficult job for the UK Government. Attempts here (N Ireland) to have a Bill of Rights expanding on those rights conferred by HRA are doomed in the short to medium term, despite the Good Friday obligations. He is part of the Human Rights Consortium and during the past 10 years or more since he started to attend, virtually no progress has been made.
He believes that Brexit will further complicate matters as various parts of these islands work out relationships between each other and the EU.
On the Consortium, they have encountered a lack of interest in the Bill of Rights, with the UK Government, the Irish Government and the NI Executive playing each other off. The DUP, mean as usual, don’t really have much of an idea about the value of rights, unless they are to their narrow benefit. It’s rather depressing!
He feels that one possibility is that Scotland, opposed to repeal or amendment of the HRA, might have its own Bill of Rights. It has vehemently opposed the “regressive” proposals for a British Bill of Rights.
On a case by case basis, any repeal of the HRA will be aired by the UK courts, ending up in the Supreme Court. The courts will not want to have to do what is essentially the work of Parliament. That relationship between Parliament, Government and Judiciary can be fractious at times, particularly here (N Ireland) where issues such as sexual orientation and abortion grab the attention of a very religious and conservative Attorney General.
hr-actN Ireland is still awaiting the reserved judgements in the two marriage cases and the Ashers appeal. And it looks like the current Attorney General in N Ireland is being very wide in his interpretation of his role, and there have been requests that he stand down or stop pursuing his own agenda which seems to definitely have a very select bias from my own and others  observations.
As with all these things we will have to wait and see how things develop, but of one thing I am certain the removal of the current Human Rights Act will not be to our benefit, and I honestly believe that LGBT rights and other diversity groups will suffer if it is taken away.
Links to further reading

  • https://www.liberty-human-rights.org.uk/human-rights/what-are-human-rights/human-rights-act/human-rights-act-mythbuster
  • http://www.independent.co.uk/news/uk/politics/scrapping-the-human-rights-act-will-help-protect-human-rights-attorney-general-says-a6894966.html
  • https://www.theguardian.com/commentisfree/2016/may/18/conservatives-human-rights-act
  • https://www.theguardian.com/world/2016/jan/25/northern-ireland-attorney-general-appeal-ruling-abortion-ban
  • http://www.belfasttelegraph.co.uk/news/northern-ireland/northern-ireland-attorney-general-to-be-involved-in-landmark-brexit-challenge-35070968.html
  • http://www.humanistni.org/dynamic_news.php?id=174

Filed Under: Anti-Bullying & Homophobia, Campaigns, History Tagged With: European, government, Human Rights, law

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