Criminal proceedings in Scotland: 2020-2021

9. Custodial sentences

(Tables 7a-b, 8a-c, 9, and 10a-d)

Custodial sentences comprise convicted people who are sent to prison or a young offenders’ institution. The number of custodial sentences given is affected by a range of factors, including the number of convictions in any given year and the types of crimes for which people are being convicted.

Courts will consider the full facts and circumstances of a case before deciding an appropriate sentence in a given case. This includes whether or not the offender has been convicted before and whether there are any mitigating circumstances. These statistics do not take into account the factors influencing the sentencing decisions.

The number of custodial sentences, decreased by 35% from 11,122 in 2019-20 to 7,224 in 2020-21. The number of custodial sentences has decreased almost every year since 2011-12 (15,950), with the exception of an increase in 2018-19. Custodial sentences represented 17% of all convictions in 2020-21, higher than the proportion over the past decade, which has ranged between 13% and 16%. This increase may in part be a result of guidance around case prioritisation during the pandemic, which stated that custody cases and those involving vulnerable persons should be prioritised in court.

There has been a decrease in the number of people receiving custodial sentences for all crime types in the past year, reflecting the overall substantial drop in the total number of convictions this year due to reduced court activity during COVID-19 lockdowns, with the exception of coronavirus restriction related offences (included for the first time in this bulletin) and crimes under the Domestic Abuse (Scotland) Act. There has been an 85% increase in the number of people receiving a custodial sentence for a conviction under DASA, from 39 people in 2019-20 to 72 people in 2020-21. This is not a like for like comparison over the year though, as DASA came into effect on 1 April 2019 but due to the time lag in cases reaching court following reporting of the crime the 2019-20 bulletin did not include figures for a full year under the act. The 2020-21 bulletin is the first one to include a full year under the act, noting that the figures will have been impacted by the reduction in court activity due to COVID-19 lockdowns. In 2020-21 five people received custodial sentences for coronavirus restriction related offences.

The percentage of people convicted for non-sexual crimes of violence who received a custodial sentence decreased from 52% to 48% over the past year.

The percentage of people convicted for sexual crimes who received a custodial sentence also decreased from 35% to 30%.

Extended sentences and supervised release orders

Extended sentences and supervised release orders are for offenders who have served time in prison but have an additional post-release supervision period attached to their sentence (see Annex D for more details). There has been a decrease in their use this year (from 471 in 2019-20 to 292 in 2020-21).

Please note these statistics only give the length of the custodial part of the sentence and not the length of the supervision period. We have incomplete information on the length of the supervision period on our dataset, and we are working to understand and improve the quality of the data before we can consider publishing it.

Length of custodial sentences

All 14 people issued life sentences in 2020-21 received these for murder [note 1]. When a court imposes a life sentence, a minimum period in custody, called the “punishment part”, is set by the court before the prisoner can be considered for release on licence by the parole board. “On licence” means that a life prisoner is subject to recall to prison if they breach the terms of their release in their lifetime.

Notes for Length of custodial sentences

Note 1. Murder carries a mandatory life sentence upon conviction. Although an Order for Lifelong Restriction is a sentence that lasts for the rest of a person’s life, it is not treated as a life sentence for the purpose of these statistics.

Average custodial sentence

Note that life sentences and Orders for Lifelong Restriction (OLRs) are not included in calculations for average life sentence as they are of indeterminate length. Although a minimum term in custody is specified, the actual time in custody will depend on decisions by the Parole Board and they may spend longer in custody than the minimum specified. Data on the average length of the punishment part of life sentences and OLRs are published in an experimental statistics paper alongside this bulletin, which can be found under the “supporting documents” menu on the website for this publication.

The average length of custodial sentences for all crimes, in 2020-21 was 329 days), which is 8% shorter than in 2019-20 (356 days). Over the longer term, there has been a general upward trend in average sentence length, and it is now 14% longer than in 2011-12 (289 days).

Some types of crimes and offences saw increases in average sentence length in the last year, whereas others saw decreases. Notable increases between 2019-20 and 2020-21 have been increased lengths of sentences for fraud, (increasing by 62% from 287 days to 464 days); vandalism (increasing by 45% from 174 days to 252 days; crimes under the Domestic Abuse (Scotland) Act (increasing by 21% from 363 days to 438 days); and theft of a motor vehicle (increasing by 20% from 230 days to 275 days.

The average sentence length for rape and attempted rape decreased by 10 days (down 0.4%) from 2,445 days in 2019-20 to 2,435 days in 2020-21, which is the lowest since 2014-15. Notable decreases in average sentence length include homicide (down 16% from 2,297 days to 1,923 days), sexual assault (down 25% from 1,008 days to 761 days); housebreaking (down 15% from 458 days to 388 days); theft from a motor vehicle (down 22% from 224 days to 174 days), and ‘other crime’ (down 71% from 1,574 days to 458 days). The drop in average sentence length for ‘other crime’ follows an unusual high in 2019-20, the figure for 2020-21 is similar to average length in previous years.

Categories of custodial sentence length

The Criminal Justice and Licensing (Scotland) Act 2010 commenced in February 2011 and introduced a presumption against short sentences (PASS) (3 months or less).

In June 2019, the extension of the presumption to 12 months or less was approved by the Scottish Parliament in the Presumption Against Short Periods of Imprisonment (Scotland) Order 2019. This presumption stated that a court must not pass a sentence of imprisonment for a term of 3 months or less unless it considers that no other method of dealing with the person is appropriate. The extended presumption came into force on 4^th July 2019 in relation to offences committed on that date and after. However, the policy was introduced part way through the financial year, and it took time for the first eligible offences to go to court, so the data included in the 2019-20 bulletin did not fully cover the extension. It was anticipated that some conclusions of the effects of this policy would be seen in the 2020-21 bulletin, however the impact of COVID-19 makes it difficult to separate the effects of the pandemic from the effects of the extended presumption against short custodial sentences. The Extended Presumption Against Short Sentences – Monitoring Information Official Statistics provided data on sentencing to monitor the progress of the extension policy which followed a bulletin covering the period 1 July 2019 to 31 December 2019.

Although initial effects of this policy may be seen to some extent in these statistics in the 2019-20 financial year, and the specific monitoring bulletins, subsequent versions of this bulletin will be able to come to more definitive conclusions. The Extended Presumption Against Short Sentences – Monitoring Information Official Statistics also provide data on sentencing to monitor the progress of the extension policy.

Chart 9 illustrates patterns of custodial sentence length by specific categories. In 2011-12, the most common lengths were “up to 3 months” (4,529 people), which made up 28% of custodial sentences and “over 3 months to 6 months” (6,153 people, 39% of custodial sentences). Over the ten-year period, levels of sentences of “up to 3 months” have decreased, following the introduction of the presumption against short sentences of under 3 months in 2011, and in 2020-21 made up 24% of custodial sentences. The proportion of “over 3 months to 6 months” custodial sentences has dropped from 39% in 2011-12 to 33% in 2020-21. However, the proportion in 2011-12 was a high in the ten year period perhaps as a result of up tariffing of sentences in response to the presumption against shorter sentences of 3 months or less starting in 2011.

Sentences of 1 year or less made up 75% of all custodial sentence lengths in 2020-21. This is seven percentage points lower than it was ten years ago in 2011-12, when they represented 82% of all custodial sentences. The biggest decrease in the percentage was between 2018-19 and 2019-20, with a four percentage point reduction, which may be associated with the extension of the presumption to one year. Note that this decrease was mostly due to decreases in the number of shorter sentences, particularly under three months, rather than an increase in sentences over 1 year.

Figures for 2020-21 show that the numbers in each custodial sentence length category decreased, reflecting the overall substantial drop in the total number of custodial sentences issued due to reduced court activity in the year 2020-21 as a result of COVID-19 lockdowns.

• The number of custodial sentence of “up to 3 months” decreased by 32% in the past year, from 2,554 in 2019-20 to 1,745 in 2020-21.
• Custodial sentences of “over 3 months to 6 months” decreased by 37% in the past year, from 3,714 to 2,355.
• There were 1,338 sentences of “over 6 months to 1 year” in 2020-21 which was a 35% decrease from 2,071 the previous year.
• The number of custodial sentences “over 1 year to 2 years” has decreased by 29% over the past year from 1,603 to 1,132.
• The number of custodial sentences of “2 years to under 4 years” has decreased by 40% from 628 in 2019-20 to 378 in 2020-21.
• “4 years and over” has decreased by 50% over the past year from 486 to 241.