Criminal Proceedings in Scotland, 2021-22 – Updated

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, increased by 13% from 7,239 in 2020-21 to 8,169 in 2021-22. The number of custodial sentences has decreased almost every year since 2012-13 (14,788). Custodial sentences represented 14% of all convictions in 2021-22 (17% in 2020-21), a return to the proportion seen pre-pandemic, which ranged between 13% and 16%.

With the exception of Damage and reckless behaviour and Coronavirus restrictions, the number of people receiving a custodial sentence increased for every crime group in 2021-22. There was a decrease in the percentage of people receiving a custodial sentence for a conviction under the Domestic Abuse (Scotland) Act, from 19% in 2020-21 to 16% in 2021-22. The 2020-21 bulletin was the first to include a full year under the act, although those figures were impacted by the reduction in court activity due to COVID-19 lockdowns.

The percentage of people convicted for Non-sexual crimes of violence who received a custodial sentence decreased from 27% in 2020-21 to 23% in 2021-22.

The percentage of people convicted for Sexual crimes who received a custodial sentence increased from 30% in 2020-21 to 35% in 2021-22.

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 was an increase in their use from 295 in 2020-21 to 403 in 2021-22.

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

As a matter of law, a person convicted of Murder must receive a life sentence. A life sentence is also available for certain other offences at the discretion of the court. All 32 people issued life sentences in 2021-22 received these for Murder [see note 1 which confirms Orders for Lifelong Restriction are not included in this data]. 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 sentence length as they are of indeterminate duration. 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 by the court. This reflects the expected operation of life sentences. 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 2021-22, excluding where a life sentence or OLR was imposed, was 376 days, which was 14% longer than in 2020-21 (329 days). Over the longer term, there has been a general upward trend in average sentence length, with the 2021-22 average 32% longer than in 2012-13 (284 days).

Changes in average sentence length varied across crime or offence type between 2020-21 and 2021-22, with some showing increases and other decreases.

The average sentence length for Rape and attempted rape increased by 137 days (up 6%) from 2,435 days in 2020-21 to 2,572 days in 2021-22. Other notable increases in average sentence length between 2020-21 and 2021-22 were for Drugs possession (up 40% from 84 days to 118 days), Sexual assault (up 38% from 754 days to 1,039 days) and Theft of a motor vehicle (up 19% from 275 days to 328 days).

Notable decreases in average sentence length between 2020-21 and 2021-22 were for Theft by opening lockfast places (down 21% from 206 days to 162 days), Other non-sexual violence (down 17% from 606 days to 505 days) and Reckless conduct (down 16% from 372 days to 311 days).

Categories of custodial sentence length

Relevant provisions in the Criminal Justice and Licensing (Scotland) Act 2010 were commenced in February 2011 to introduce a presumption against short sentences (PASS) (three 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 three 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 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 8 illustrates patterns of custodial sentence length by specific categories. In 2012-13, the most common lengths were “up to three months” (4,338 people), which made up 29% of custodial sentences and “over three months to six months” (5,471 people, 37% of custodial sentences). Over the 10-year period, levels of sentences of “up to three months” have decreased by six percentage points, following the introduction of the presumption against short sentences of under three months in 2011, and in 2021-22 made up 23% of custodial sentences. The proportion of “over three months to six months” custodial sentences has dropped from 37% in 2012-13 to 31% in 2021-22.

Sentences of one year or less made up 73% of all custodial sentence lengths in 2021-22. This is 10 percentage points lower than it was in 2012-13, when they represented 83% of all custodial sentences. The biggest change 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 one year.

Figures for 2021-22 show that the numbers in each custodial sentence length category increased, reflecting the overall rise in the total number of custodial sentences issued after reduced court activity in 2020-21 due to the COVID-19 lockdowns.

• The number of custodial sentence of “up to three months” increased by 8% from 1,751 in 2020-21 to 1,895 in 2021-22.
• Custodial sentences of “over three months to six months” increased by 7% from 2,360 in 2020-21 to 2,520 in 2021-22.
• Custodial sentences of “over six months to one year” increased by 16% from 1,338 in 2020-21 to 1,551 in 2021-22.
• Custodial sentences “over one year to two years” increased by 17% from 1,133 in 2020-21 to 1,330 in 2021-22.
• Custodial sentences of “two years to under four years” increased by 14% from 381 in 2020-21 to 435 in 2021-22.
• Custodial sentences “four years and over” increased by 68% from 241 in 2020-21 to 405 in 2021-22.