‘Disregard’ for convictions of sex between men to include arrests and charges, report says

A new plan to discard convictions for consensual sex between men will also see all arrests, charges and prosecutions that did not lead to convictions also disregarded.

Minister for Justice Helen McEntee has published a report by a working group set up to examine the issue, after the Government announced its intention to proceed with the disregard scheme on Tuesday.

The lengthy report has also said that where someone makes an application to have their conviction disregarded, and there are no records held by the State, the applicant will have to make a formal statement.

It has also recommended an independent body as the first point of contact for those applying, once the relevant legislation has passed through the Oireachtas.

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The working group decided that all relevant records – including those relating to arrests, charges and prosecutions that did not lead to a conviction – should also be included in a disregard scheme.

These records would be annotated to clearly state that the arrest, charge, prosecution or convictions had been disregarded and related to activities that were no longer classified as an offence.

[ Historic convictions for sex between men to be disregarded and conversion therapy banned under proposed laws ]

The working group also highlighted in detail issues around access to records. Because of the historical nature of the issue and records concerned, the State may not hold the records needed to support an application for a disregard.

“The availability of adequate records has been an issue in other jurisdictions. As of November 2022 in England and Wales, 33 applications have been deemed ineligible as there were no police or court records found to disregard,” the report authors found.

A question on whether formal statements should be sought where there isn’t any documentation or records available in respect of convictions was included in a public consultation.

“There was a clear division in responses to this question in the public consultation with 51 per cent of respondents in favour of accepting sworn statements while 47 per cent were not in favour.”

A primary concern was that such a process would be “unnecessarily re-traumatising and onerous” and that there may be a cost associated with the process.

“However, in the absence of such a provision allowing formal statements to be sought, it may not be possible to provide for a disregard when records are absent,” the report says. Therefore, the group has proposed formal statements could be used as a safeguarding measure.

“The provision of formal statements such as affidavits, sworn/affirmed statements, statutory declarations which serve as statements of fact may be accepted as evidence.”

It has also been recommended that a letter of apology should be issued to successful applicants. The letter of apology would reiterate the content of the 2018 State apology in an individualised manner.

“This letter should be issued to all successful applicants including those who were arrested, charged and prosecuted but which did not lead to conviction.

“Additionally, a formal certificate/declaration document confirming the granting of a disregard and its effect may also be of benefit.”