Putting right the wrong done to Alan Turing

Why there may be a better alternative to a “statutory pardon” for the Enigma code breaker, who was prosecuted over his homosexuality in 1952.

Many people are familiar with what happened to Alan Turing: the national hero and genius of the first order who was prosecuted in 1952 because of his homosexuality and “chemically castrated” as a sanction of the state. And following this conviction and punishment, he was to apparently kill himself two years later aged only 41. 

The immensity of his intellectual accomplishments and his crucial contribution to the war effort make the prosecution of Turing and its aftermath seem a particular tragedy.  Something very badly went wrong, and that wrong needs to be righted. Indeed, as Jack Goode, a colleague of Turing at Bletchley Park, said:

“It was a good thing the authorities hadn’t known Turing was a homosexual during the war, because if they had, they would have fired him…and we would have lost”.

But how can we right the wrong did to Alan Turing?  One way is to be clear about the actual wrong which was done to him, and the starting point for this would be to look closely at the law he was prosecuted under and the facts of his case.  And by looking at the wrong done to Turing it becomes stark that many others suffered the same wrong and that a pardon just for Turing will not address this.


The law against male homosexual intimacy

The offence for which Turing was prosecuted was under section 11 of the Criminal Law Amendment Act 1885:

"Any male person who, in public or private, commits, or is a party to the commission of, or procures, or attempts to procure the commission by any male person of, any act of gross indecency with an other male person, shall be guilty of a misdemeanour, and being convicted thereof, shall be liable at the discretion of the Court to be imprisoned for any term not exceeding two years, with or without hard labour.”

There are a few points to make about this offence. 

First, you will see the word homosexual is not mentioned, and nor is any synonym.  This is because the law did not prohibit homosexuality per se.  The offence was targeted not at what was thought, but at what was physically done: it was not male homosexuality which was to be punished but its intimate manifestation.  Any man who confessed to homosexual preferences or even to lust for another man would have been (or should have been) safe from arrest or prosecution.  And although there had been an offence of buggery since Tudor times, this 1885 offence would catch a wider range of sexual behaviour.

This distinction between homosexual feelings and actions may seem a subtle or unconvincing one; but in practical legal terms it was a significant matter.  Mere words were not enough for an arrest or prosecution, and neither was simple suspicion.  There had to be concrete evidence of physical intimacy; and if such evidence of intimate acts having taken place was not provided by confession (or by a spy or other witness), it would have to be inferred from other evidence beyond reasonable doubt.  It was because of this evidential requirement many careful and discreet homosexual men were able to avoid arrest and prosecution after 1885 – as long as the police never had compelling evidence of any acts of intimacy with other men, many homosexual men were usually safe from the criminal law.

Second, the intimacy prohibited by the offence had to be acts of “gross indecency”.  This was common law term and so it was not defined in the statute.  The idea was that it was up to the courts (and by extension the arresting officers) to apply that standard on a case by case basis.  To many modern minds, male homosexual acts are neither gross nor indecent (or if they are, it really is no business of anyone else).  But at the time – and until fairly recently – the judges and the police took any act of intimacy between homosexual men to be grossly indecent by definition.

Third, the offence could be committed both in public and in private.  This was a crucial legal point.  The common law offence of gross indecency, which already existed in 1885, needed the prosecution to prove that (a) the grossly indecent act took place in public and (b) it had also been seen by at least one person.  Because of these two evidential requirements there was substantial case law on what constituted a public place and who could constitute a witness.  The new offence got rid of such barriers to prosecution: now when the alleged gross indecency was between two men, it did not matter if it was not in public and was seen by no one.  The fact of physical intimacy was enough to make criminals of them both.

And fourth, it was an offence which applied only to men.  There has long been an urban myth that the reason why gross indecency between women was not also criminalized was because no one wanted to explain to Queen Victoria that such a thing as lesbianism existed. (A variant tale is that the queen refused to accept it existed and so she struck that out of the legislation before signing.)  There is no evidence for such a story.  However, in 1921 the House of Lords did debate extending the offence to female homosexuality but decided against it as a ban may encourage impressionable young women to try it and that it would also assist blackmailers (see the full remarkable debate here).

So section 11 was legislation intended to apply to all acts of sexual intimacy between men wherever they occurred.  But it was not a provision which parliament considered carefully: it was a late night amendment which was accepted on the nod and without any debate as to its merits.  It was on a casual basis that all physical sexual intimacy between men was criminalized for nearly a hundred years. 

In practice, if the police obtained sufficient evidence they would normally prosecute, and the courts would then usually convict.  In all there were an estimated 75,000 convictions under section 11 (and its successor offence in the Sexual Offences Act 1956).  One of these convictions was of Oscar Wilde, who was sentenced in 1895 to two years’ hard labour (the “severest sentence that the law allows” remarked the judge).   But, perhaps counter-intuitively, most of these prosecutions did not happen in the days of Victorian prudery, but in the two to three decades after 1931. 

One of these prosecutions was to be of Turing. 


The case of Alan Turing

Turing was not an especially reckless or indiscreet man.  But one Sunday morning in Wilmslow in February 1952 he made a dreadful mistake.

He had gone to the local police station to report a theft.  But in giving this information, Turing fabricated some details to conceal his homosexual relationship with Arnold Murray, who was an associate of the likely culprit. 

However, the police were not entirely convinced by Turing’s account.  And so they tested him with an old police trick, and Turing – the brilliant code-breaker and mathematician – fell for it.  They waited a couple of days and then simply asked Turing to repeat his story, but he could not remember the lie he had told.  “We have reason to believe your description is false,” one constable then said to Turing, “why are you lying?”

Turing realised he had been exposed in misleading the police, and he admitted not only that he had not told the truth but also that he was having a relationship with Murray.  And he did more than this.   Turing, in five hand-written pages, promptly provided a graphic narrative of his sexual relations with Murray.  The officers were astonished: with such admissions there was little need for them to investigate further - Turing gave them all that they needed for a successful prosecution.  It was, as they were later to say, “a lovely statement”.  Such was the detail that they were able to lay eight separate charges against Turing.  They were also able to arrest Murray, which they did at his workplace (thus losing him his job), and they prosecuted him too.

Turing’s initial response to the charges was to be defiant, and he intended to plead not guilty.  He could not see how there could be anything wrong about his intimacy with Murray.  Accordingly, at the committal hearing later that month, also in Wilmslow, he instructed his barrister to reserve his defence.  He wanted the option to contest the charges at trial.

The problem was that given his own full admissions to the police neither he nor Murray had any realistic defence to the charges.  The statement was enough to convict them both.  If he insisted on a not guilty plea and a trial, then it would be almost inevitable that there would be a guilty verdict.  Moreover Murray, incriminated by Turing’s statement, had decided to plead guilty.  Friends and lawyers pressed Turing to change his plea.  There was a real risk of imprisonment – though the punishment of hard labour which had been imposed on Wilde and thousands of others had fortunately been abolished by the Criminal Justice Act 1948.

And so in a matter-of-fact way Turing decided to change his plea to guilty and he prepared the ground for what this may mean.  He came out to his brother and mother, both of whom had been unaware of his homosexuality.  His academic colleagues made sure his job was safe, whatever the punishment of the court.  Turing now just wanted the trial over and done with, as quickly and quietly as possible, and he hoped to avoid imprisonment and to continue his work.

But here Turing faced a further problem.  There were a couple of features of the case which made a custodial sentence more likely than not.  First, Murray’s barrister would be contending that Turing’s culpability was worse than that of Murray.  Turing was 40, and Murray was 19; he was a senior academic, Murray was a printer who had met Turing in the street; Turing had even paid some money to Murray, though the purpose of the payment was not clear.  Indeed, Murray’s barrister was to tell the court that Murray was led astray by the older man and that had his client not met Turing “he would not have indulged in the practice”.  The second factor against him was the sheer detail of his own volunteered evidence: there was sufficient evidence for the police to press not just one charge but eight.  All this pointed to a prison sentence for Turing.  Murray might get a discharge (which he in fact did), but the same leniency would not be open realistically to Turing.

Everything therefore rested on the mitigation which Turing presented to the court.  Turing’s eminent character witnesses attested the importance of his academic work.  He was, one said, “a national asset”. Another explained to the court that Turing was “one of the most profound and original mathematical minds of his generation”. 

And then Turing’s barrister made the following plea, which was to prove consequential (emphasis added):

“He is entirely absorbed in his work, and it would be a loss if a man of his ability – which is no ordinary ability – were not able to carry on with it.  The public would lose the benefit of the research work he is doing.  There is treatment which could be given him. I ask you to think that the public interest would not be well served if this man is taken away from the very important work he is doing.”

Evidently the judge was impressed.  Turing would not have a sentence of imprisonment.  Instead the judge imposed a probation order (one step up from a discharge) on Turing for the minimum possible period of one year. 

The judge also adopted the suggestion of Turing’s own barrister that the defendant undergo “treatment”.  It was made a condition of the probation order that Turing “submit for treatment by a duly qualified medical practitioner at Manchester Royal Infirmary”.

It appears that the judge was (or thought he was) being as lenient as he could be given that a discharge was not a viable option given the alleged facts of the case before him.  And the proposal of “treatment” appears to have come from Turing’s barrister (presumably on Turing’s instruction).  By proposing the treatment, it would appear that the defence barrister had given the judge a way out of imprisoning a national asset.  

Of course, a choice between imprisonment (and the attendant disruption to his life and work) and treatment was not a real choice for Turing.  Imprisonment destroyed lives, then as now.  But Turing understood that the treatment would only have a temporary effect.  As he wrote to a friend:

“[…] I am both bound over for a year and obliged to take this organo-therapy for the same period.  It is supposed to reduce sexual urge whilst it goes on, but one is supposed to return to normal when it is over. I hope they’re right. […]”

The treatment consisted initially of hormone tablets and then later a hormone implant in his thigh (which Turing secretly extracted).  The intention was to supress Turing’s libido.  Though such medication is now rightly seen as a monstrous sanction of the court, it raised no concern or controversy at the time.  Indeed, there was an apparent scientific consensus as to its efficacy.  As Turing’s biographer Andrew Hodge points out, this was a period where many well-meaning people saw chemicals as solutions to the problems of social control.

Turing died two years after the trial, and one year after the end of his probation and his hormone treatment.  The cause of death was cyanide poisoning and the coroner recorded a verdict of suicide.  But as there was no suicide note, and as there is another plausible explanation for the cyanide poisoning, the actual cause of death is not clear.  There is no direct evidence that the death was connected to either the trial or the treatment.  And as the Samaritans rightly point out, one should never look for just one cause of someone taking their own life.

But in a way it does not matter if Turing’s death was connected to the prosecution or the treatment.  What happened to him was vile on its own terms.  And he was not alone: there were an estimated 75,000 convictions for this supposed crime.  Many lives were devastated.  Men were routinely sentenced to hard labour of up to two years before 1948, and to terms of imprisonment after hard labour was abolished.  And all because of an act they had done in private with a consenting male partner which the police somehow came to know about. 

Turing’s case was an outrage, and so were the thousands of others.


What a pardon for Alan Turing means, and an alternative

Today the wrong done to Alan Turing rankles.  What we now know about his war work and his influence on modern computing makes the prosecution and treatment a national scandal and an international disgrace.

Less clear is what can be done about it.  There has already been an apology by the then Prime Minister Gordon Brown.  The government has ruled out a royal pardon, as Turing was convicted under the law as it was.  The current proposal for a “statutory pardon” is in part an attempt to do something – anything - which further corrects the wrong.

But what is a pardon?  And is it the right thing to do in this case?

Pardons are curious things from a legal perspective.  They are intended to aid the living rather than the dead.  This is because a pardon does not usually affect the validity of a conviction (the conviction will still stand) but it will alleviate its practical consequences: a defendant is normally relieved of any punishment. 

In recent years, however, there has been a move to posthumous pardons.  Derek Bentley received a royal pardon in 1993, some forty years after he was hanged for a murder he did not commit (but the murder conviction was not quashed).  And in 2006, the 306 men who were executed for desertion and similar offence in world war one were granted what was called a statutory pardon; but again, the pardon only went to their punishments.  Those soldiers who had convicted of exactly the same offences but received lesser sentences had no pardon.

The problem with posthumous pardons is that they are practically - and legally - meaningless.  It is a gesture.  Indeed, the statutory pardon for the 306 soldiers expressly stated that the pardon did not affect either the conviction or even the validity of the sentence given.  The argument was that it was wrong to impugn the official decisions which led to the executions.  All that the Ministry of Defence did was, as an administrative act, to put a copy of the pardon on each executed soldier’s file.

The proposed statutory pardon for Alan Turing is modelled on the statutory pardon for the executed deserters.  The pardon does not affect either the conviction or the sentence.

(From a pedantic point of view, the  probation order imposed on Turing was not a "sentence” under section 3 of the Criminal Justice Act 1948 but an alternative to a sentence.  Also under section 12 of the 1948 Act, a conviction such as Turing's which resulted in a probation order was to be legally disregarded.  Therefore Turing’s conviction has already been disregarded as a matter of law.  So not only is there no defendant alive to take the benefit of the pardon, there is in Turing’s case arguably no conviction or sentence even capable technically of being the subject of a pardon.)

The promoters of the statutory pardon know that a statutory pardon is a gesture.  The argument is that some gestures are important even if they are practically and legally meaningless; a Bill passed by both Houses of Parliament would be a fine act of atonement. 

But there is a perhaps better and more rational solution.

A recent statute - the Protection of Freedoms Act 2012 - provides a scheme where those who had been convicted of the section 11 offence (and similar offences) can apply for their entire criminal records to be removed if the facts of the case would no longer count as a crime.  It would be as if the offence had not been committed at all.  These are not pardons – they go much further: the 2012 scheme removes the taint of criminality altogether, and with no fussing about not affecting the conviction or the sentence.

But the 2012 scheme is only for those still alive.  However, there is no good reason why it cannot be applied retrospectively.  It would have the merit of consistency.  And if the concern is that some convicted under section 11 (for example those being grossly indecent in a public place) would be wrongly exonerated, then perhaps a similar requirement for an application could be put in place.

Turing’s conviction was just one of about 75,000 under a vindictive law.  But here is no logical reason why his should be regarded as a unique case.  The actual wrong done to Turing was also one done to many thousands of men, and so any righting of that wrong must apply to those men too.

If Alan Turing is to be pardoned then so should all men convicted under section 11 if the facts of their cases would not be a crime today.  But a better posthumous gesture would be to simply extend the 2012 scheme to all those who are now dead.  Removing the criminal records completely of all those prosecuted who would not be prosecuted today on the same facts would be a better legislative gesture than a single statutory pardon, if there is to be a legislative gesture at all.


David Allen Green is legal correspondent of the New Statesman. 

The above post is indebted to the excellent Alan Turing: the Enigma by Andrew Hodges, from which most of the historic details of Turing’s prosecution were culled.  The statistics of convictions are from Lord Sharkey's recent speech to the House of Lords.

Alan Turing's statue. Flickr/ell-r-brown, licensed under Creative Commons

David Allen Green is legal correspondent of the New Statesman and author of the Jack of Kent blog.

His legal journalism has included popularising the Simon Singh libel case and discrediting the Julian Assange myths about his extradition case.  His uncovering of the Nightjack email hack by the Times was described as "masterly analysis" by Lord Justice Leveson.

David is also a solicitor and was successful in the "Twitterjoketrial" appeal at the High Court.

(Nothing on this blog constitutes legal advice.)

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Marcus Hutchins: What we know so far about the arrest of the hero hacker

The 23-year old who stopped the WannaCry malware which attacked the NHS has been arrested in the US. 

In May, Marcus Hutchins - who goes by the online name Malware Tech - became a national hero after "accidentally" discovering a way to stop the WannaCry virus that had paralysed parts of the NHS.

Now, the 23-year-old darling of cyber security is facing charges of cyber crime following a bizarre turn of events that have left many baffled. So what do we know about his indictment?


Hutchins, from Ilfracombe in Devon, was reportedly arrested by the FBI in Las Vegas on Wednesday before travelling back from cyber security conferences Black Hat and Def Con.

He is now due to appear in court in Las Vegas later today after being accused of involvement with a piece of malware used to access people's bank accounts.

"Marcus Hutchins... a citizen and resident of the United Kingdom, was arrested in the United States on 2 August, 2017, in Las Vegas, Nevada, after a grand jury in the Eastern District of Wisconsin returned a six-count indictment against Hutchins for his role in creating and distributing the Kronos banking Trojan," said the US Department of Justice.

"The charges against Hutchins, and for which he was arrested, relate to alleged conduct that occurred between in or around July 2014 and July 2015."

His court appearance comes after he was arraigned in Las Vegas yesterday. He made no statement beyond a series of one-word answers to basic questions from the judge, the Guardian reports. A public defender said Hutchins had no criminal history and had previously cooperated with federal authorities. 

The malware

Kronos, a so-called Trojan, is a kind of malware that disguises itself as legitimate software while harvesting unsuspecting victims' online banking login details and other financial data.

It emerged in July 2014 on a Russian underground forum, where it was advertised for $7,000 (£5,330), a relatively high figure at the time, according to the BBC.

Shortly after it made the news, a video demonstrating the malware was posted to YouTube allegedly by Hutchins' co-defendant, who has not been named. Hutchins later tweeted: "Anyone got a kronos sample."

His mum, Janet Hutchins, told the Press Association it is "hugely unlikely" he was involved because he spent "enormous amounts of time" fighting attacks.


Meanwhile Ryan Kalember, a security researcher from Proofpoint, told the Guardian that the actions of researchers investigating malware may sometimes look criminal.

“This could very easily be the FBI mistaking legitimate research activity with being in control of Kronos infrastructure," said Kalember. "Lots of researchers like to log in to crimeware tools and interfaces and play around.”

The indictment alleges that Hutchins created and sold Kronos on internet forums including the AlphaBay dark web market, which was shut down last month.

"Sometimes you have to at least pretend to be selling something interesting to get people to trust you,” added Kalember. “It’s not an uncommon thing for researchers to do and I don’t know if the FBI could tell the difference.”

It's a sentiment echoed by US cyber-attorney Tor Ekeland, who told Radio 4's Today Programme: "I can think of a number of examples of legitimate software that would potentially be a felony under this theory of prosecution."

Hutchins could face 40 years in jail if found guilty, Ekelend said, but he added that no victims had been named.

This article also appears on NS Tech, a new division of the New Statesman focusing on the intersection of technology and politics.

Oscar Williams is editor of the NewStatesman's sister site NSTech.