Monday, 15 February 2010

The Legal Shadow of Buggery

Thanks to Tony for prodding me into blogging this story (it's always nice to know someone is actually reading the blog). Although I re-tweeted the story earlier, I've not had chance to blog it until now.

Despite the legislative and jurisprudential developments of the last twenty years, the power of lawmakers from times gone by continues to be felt. A story in in the Guardian, and subsequently picked up by the Pink Paper, reminds us about the lasting legacy of law.

John Crawford, now a seventy year old man living in London was charged in 1959 with the offence of buggery (under the Sexual Offences Act 1956) - one year prior to the publication of the Wolfenden Report and ten years before 'homosexuality' would be legalised for consenting men, aged 21 or over.

When Crawford applied to be a prison volunteer eight years ago he had to undergo a Criminal Records Check. These CRB checks have become routine for so many jobs today but in Jack Crawford's case it threw up the charge from when he was just 19 and charged with buggery. Crawford describes getting the results and what happened next:

'"I saw John Crawford. 1959. Charged on two counts of buggery," he said. "Since then, I've analysed my life and found out the amount of my jobs that I've lost because I've got a criminal record." Now a volunteer who feeds patients at hospitals, Crawford is currently looking for work, and is compelled to disclose his conviction each time he gives his time to charity.

Under the current rules, he could be prosecuted if he fails to mention his buggery conviction under the Sexual Offences Act 1956. "What I want to do is apply for voluntary work and, when it comes to the box on the application form that says 'do you have a criminal record', I want to be able to say no," he said.'

Then it gets a little more complicated, as the Guardian piece goes on to explain: 'Hampshire police agreed to treat Crawford as an "exceptional" case and delete his record from the PNC last month, after being threatened with judicial review by Crawford's lawyer, Anna Mazzola of Hickman and Rose. Despite the deletion, however, Crawford is still compelled to disclose the conviction if he wishes to work with vulnerable people.

"According to the current state of the law, it is irrelevant that the conviction was for an offence which has since been decriminalised on the basis that it was discriminatory," Mazzola said.'

The next phase is described as: 'Yesterday, Crawford's lawyers informed the justice secretary, Jack Straw, that unless the rules are changed they will initiate judicial review proceedings at the high court to challenge Rehabilitation of Offenders Exceptions Order 1975, which compels those working with vulnerable people to disclose their conviction history, even if the record is spent or deleted. They argue the existing system "criminalises" Crawford's sexuality and "condones" his original conviction.'

So on the one hand we have an interesting legal dilemma worthy of extensive discussion in an academic workshop. Yet, we also have a powerful reminder that law is more than something limited to dusty books or academic discussion. It can have a profound and lasting impact on peoples lives long after the politicians and policy makers have moved on. I would think a regulatory change is possible, maybe likely but not without difficulties. If one were to amend the regulations so as to allow people convicted of a repealed offence to work with vulnerable people, what about those people for whom a specific offence has been repealed but a new differently termed offence has been put in its place that you would have thought someone might now fall under? Similarly, what about those offences that might cast some cloud over an individuals 'moral character' and thus still be of relevancy in dealing with society's most 'vulnerable'? I'm not persuaded by these issues, but I'm sure that they and/or others like them will be thrown up by Government lawyers.

Vulnerable groups have this extra protection because of their very name and so what might seem straight forward is likely to be anything but. Nonetheless, I would have thought it not beyond the wit of law-makers to overcome these difficulties.

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