Criminal Proceedings in Scotland, 2021-22

Annex D - Definitions, classifications and notation

D.1 The measures available to a court in sentencing a convicted person depend on a number of matters including what Parliament has legislated for in terms of appropriate penalties and the age of the person.

D.2 In some cases, if the court obtains evidence that the accused is suffering from a mental disorder, they can be assessed as unfit for trial, or acquitted because they were not criminally responsible at the time of the offence with a mental health disposal being issued by the court.

Person’s sex

D.3 ‘Sex’ can be considered to refer to whether someone is male or female based on their physiology, with ‘gender’ representing a social construct or sense of self that takes a wider range of forms. Throughout this report we refer to ‘sex’ rather than ‘gender’ because this better reflects recording practices in relation to this information. In reality it is likely that recording includes a mixture of physiological and personal identity.

D.4 Sex in this bulletin is generally based on how a person presents and is recorded when a person’s details are entered into the CHS. It is recorded for operational purposes, such as requirements for searching. A person’s sex may only be changed on the CHS if they produced a Gender Recognition Certificate, or there has been a data entry error. A small number of records are recorded as 'unknown' where for some reason a clear understanding of the sex of the individual is not known.

D.5 During production of this bulletin we query any unusual sex values with Police Scotland, SCTS, and COPFS. Unusual values may be where sex for the same person has been recorded differently against two different proceedings, or where a female has been proceeded against for rape and attempted rape. We fix any values that were erroneous with the correct values. During a review of these figures since the last bulletin was published, an error was found that recorded a female as having been convicted of attempted rape in 2018-19. This was found to be incorrect and has now been corrected in the dataset. A revision of the published bulletin tables where this figure appears will be issued.

D.6 The Scottish Government created a working group on the recording of sex and gender in data to give guidance to public bodies on the collection, disaggregation, and use of data on sex and gender. The group met between 2019 and 2021 and published guidance for public bodies and supporting documentation on 22 September 2021.

Custodial sentences

D.7 In 2019-20 the custodial sentence measures available to courts, that we have statistics for, included the options to:

a. Imprison the convicted person (if aged 21 or over); sentence to a Young Offenders’ Institution (YOI) (if aged 16 to 21 and not a child subject to compulsory supervision).

b. Issue an Order for Lifelong Restriction (OLR). The OLR provides for the lifelong supervision of high-risk violent and sexual offenders and allows for a greater degree of intensive supervision than is the current norm. The OLR is designed to ensure that offenders, after having served an adequate period in prison to meet the requirements of punishment, do not present an unacceptable risk to public safety once they are released into the community. The period spent in the community will be an integral part of the sentence, which lasts for the remaining period of the offender's life.

c. Impose an Extended Sentence. These sentences give additional post-release supervision on licence where it is considered that any existing supervision after the offender’s release from custody would be a risk to the public. Extended sentences are imposed on sex offenders or on violent offenders who receive a custodial sentence of four years or more.

d. Impose a Supervised Release Order. These can be used for people sentenced to less than 4 years in custody for offences other than sexual crimes. They mean that the person is compulsorily supervised by a criminal justice social worker for up to one year following release. These orders should only be imposed where the Court believes it would help prevent serious harm. The offender must comply with the reasonable instructions of the supervising officer.

e. Sentence a person under the age of 18 convicted of murder to be detained without limit of time in such place, and under such conditions, as Scottish Ministers may direct (the effect of this is normally detention in a young offenders institution or secure unit). Where the person is aged 18 or over but under 21 he or she should be detained initially in a young offenders institution.

f. Where a child (as defined in Section 199 of the Children’s Hearings (Scotland) Act 2011) is convicted on indictment and the court is of the view that no other method of dealing with the child is appropriate, the court may sentence the child to be detained for a period specified in the sentence and shall during that period be liable to be detained in such place, and on such conditions, as Scottish Ministers may direct.

Community sentences

D.8 Community sentence is a collective term for the ways that courts can punish someone convicted of committing an offence other than by serving a custodial sentence. The following list includes the community sentence options which can be imposed.

a. Community payback order (CPO). These were introduced by the Criminal Justice and Licensing (Scotland) Act 2010 and can only be imposed in respect of offence(s) committed on or after 1 February 2011. The CPO replaced provisions for community service orders, probation orders, supervised attendance orders, and the community reparation order.

A CPO can consist of one or more of 10 requirements including offender supervision, compensation, unpaid work or other activity, mental health treatment, drug treatment and alcohol treatment, restricted movement requirement. Every order must contain either an unpaid work or other activity requirement, or an offender supervision requirement (or both). If an offender fails to comply with a requirement in the order, the court can impose a number of sanctions, including a restricted movement requirement. The restricted movement requirement at first disposal came into force in May 2022 so after the time period covered by this bulletin. Restricted movement requirement could previously be imposed following breach only.

b. Restriction of liberty order: a community sentence introduced by section 5 of the Crime and Punishment (Scotland) Act 1997 and available to courts nationally from 1 May 2002. This requires a person to remain within a location, usually their home, at times specified by the court. A person's compliance with the order is monitored electronically.

c. Drug treatment and testing order (DTTO): a measure introduced by the Crime and Disorder Act 1998 and rolled out in phases from 1999 onwards. These are designed to reduce or stop offending by addressing problem drug use through the provision or access to a closely monitored treatment programme.

And, for offences committed prior to 1 February 2011:

d. Probation order, of which some had conditions such as unpaid work or alcohol treatment attached.

e. Community service order requiring the offender to undertake unpaid work.

f. Supervised attendance order which the court can impose as an alternative to custody for people who have defaulted on fines imposed for minor criminal offences.

Financial penalties

D.9 The list below includes the financial penalty sentence options that allow the courts to:

a. fine the offender

b. impose a compensation order requiring the offender to compensate the victim for any resulting injury, loss, damage, alarm or distress.

Other sentences

D.10 The list below includes the “other” sentence options that allow the courts to:

a. admonish the offender or make an order to find caution (the overwhelming majority of these are admonishments).

b. order an absolute discharge (with no conviction recorded in summary procedure) or, following a deferral of sentence, make no order.

c. remit a child offender to a children's hearing (if the accused is a child, under 16 years of age or aged 16 or 17 and subject to a supervision requirement).

d. make a guardianship order if the accused is suffering from a mental disorder (with no conviction recorded in summary procedure).

e. make a compulsion order if the accused is suffering from a mental disorder (with a conviction recorded), for a period of six months with regular reviews.

D.11 The range of options available to the police for minor offences (Police non-court disposals) includes:

a. Recorded Police Warnings, which were introduced on 11 January 2016 to deal with low-level offences and replaced Formal Adult Warnings. They can be issued to any person over the age of 16. It is not a finding of guilt but is an alternative to prosecution and can be taken into account within a period of two years should the offender come to the further notice of the police.

b. Anti-social behaviour fixed penalty notices (ASBFPNs) of £50, which can be issued for eleven crime/offence types, including drunken-related behaviours and playing loud music, to people aged 16 or over. Payment of the penalty involves no admission of guilt.

c. Disposals for young people who offend such as Early and Effective Interventions (EEI) and Restorative Justice Warnings.

D.12 When a report is submitted by the police to COPFS, prosecution in court is only one of a range of possible options for dealing with people who have been charged. COPFS can decide to use one of these non-court direct measures (COPFS non-court disposal):

a. Fiscal fines of between £50 to £500 for summary offences during the period covered by this bulletin.

b. Fiscal fixed penalties, generally issued for motor vehicle offences.

c. Fiscal warnings provide a method of dealing with a case without recourse to prosecution – they mean that the person receiving that warning cannot be prosecuted for that offence.

d. Fiscal compensation orders of up to £5,000 payable to the victim for personal injury, loss, damage, alarm or distress.

e. Combined fiscal fine and fiscal compensation order.

f. Fiscal Work Orders (FWOs) were introduced across Scotland in April 2015 and provide COPFS with the option of offering an alleged offender a period of unpaid work of between 10 and 50 hours, as an alternative to prosecution. Successful completion of the order discharges the right to prosecute. Work is ongoing with COPFS and Police Scotland to ensure that these disposals are recorded correctly, and we intend to publish FWO statistics when we are satisfied that they are accurate.

Classification of crimes and offences

D.13 Violations of criminal law are divided, for statistical purposes only, into crimes and offences. There are around 8,300 charge codes, which are the operational codes used within the Criminal Justice System to identify crimes and offences. These charge codes are mapped to around 600 crime codes, which in turn are (as of this 2021-22 publication onwards) grouped into 50 broader categories, and further into eight crime and offence groups. Coronavirus restrictions crimes are recorded under a separate unnumbered group. This classification enables consistent and comparable reporting between criminal justice organisations and is presented in the table below.

New grouping structure for the presentation of crime statistics

The Scottish Government produces a number of statistical products which previously used a seven group structure to present statistics on the justice system in Scotland. For example, in addition to these statistics, this structure was also used in the National Statistics on Recorded Crime in Scotland.

It is within the context of the evolving nature of crime, and the legislation that underpins how it is categorised, that the Scottish Crime Recording Board consulted users on how these statistics are presented. An initial consultation was run between July and November 2019 and a summary of responses was published in June 2021.

Following this initial consultation, the Crime Board considered all responses and requested user views of two options for how these statistics could be presented in a second consultation which ran between October and December 2021. A summary of the responses from this consultation was published in March 2022.

Taking all responses into account, the Crime Board decided that the previous set of crime and offence groups were to be replaced by a new set. These are presented side-by-side in the changes to crime groups section. The biggest change is the transfer of Common assault and Stalking from the Miscellaneous offences group to the Non-sexual crimes of violence group. Overall, the new structure retains a similar number of groups to the previous structure (with some changes in the naming of certain groups) but provides a more detailed breakdown within these groups.

It is important to note that these changes represent a purely statistical exercise and have no bearing on the severity of the sentence an individual receives as a result of a court proceeding.

The statistics presented in this publication use the new structure for the first time and it is intended that the National Statistics on Criminal Proceedings in Scotland will continue to use the new groups shown in the tables below for the foreseeable future.

Crimes

Group 1 – Non-sexual crimes of violence

Murder and culpable homicide

• Murder
• Culpable homicide
• Corporate homicide

Causing death by driving dangerously

• Causing death by dangerous driving
• Death by careless driving when under influence drink or drug
• Causing death by careless driving
• Illegal driver involved in fatal accident

Serious assault and attempted murder

• Attempted murder
• Serious assault

An assault is classified as serious if the victim sustained an injury resulting in detention in hospital as an in-patient or any of the following injuries whether or not he/she was detained in hospital: fractures, internal injuries, severe concussion, lacerations requiring sutures which may lead to impairment or disfigurement or any other injury which may lead to impairment or disfigurement.

Common assault

• Common assault
• Common assault of an emergency worker
• Common assault of a retail worker

Robbery

• Robbery and assault with intent to rob

Domestic Abuse (Scotland) Act 2018

Crimes of domestic abuse under the Domestic Abuse (Scotland) Act 2018, which covers a course of conduct.

Other non-sexual violence

• Threats and extortion
• Cruel and unnatural treatment of children or adults
• Abortion
• Concealment of pregnancy
• Possession of a firearm with intent to endanger life, commit crime etc.
• Abduction
• Ill-treatment and neglect of patients and vulnerable adults
• Drugging (assault)
• Offence of stalking

Group 2 – Sexual crimes

Rape and attempted rape

• Rape
• Attempted rape

Sexual assault

• Sexual assault (13-15 year old or adult 16+)
• Sexually coercion (13-15 year old or adult 16+)
• Sexual assault of young child (under 13 years)
• Lewd and libidinous practices

Causing to view sexual activity or images

• Public indecency
• Sexual exposure

Communicating indecently

• Communicating indecently

Threatening to or disclosing intimate images

• Threatening to disclose an intimate image
• Disclosure of an intimate image

Indecent photos of children

• Taking, distribution, possession etc. of indecent photos of children

Crimes associated with prostitution

• Crimes relating to prostitution
• Soliciting services of person engaged in prostitution
• Brothel keeping
• Immoral traffic
• Procuration

Other sexual crimes

• Incest
• Voyeurism
• Administering a substance for sexual purposes

Group 3 – Crimes of dishonesty

Housebreaking

• Theft by housebreaking domestic property (dwelling and non-dwelling)
• Theft by housebreaking other property
• Housebreaking with intent to steal domestic property (dwelling and non-dwelling)
• Housebreaking with intent to steal other property
• Attempted housebreaking with intent to enter and steal domestic property (dwelling and non-dwelling)
• Attempted housebreaking with intent to enter and steal other property

Theft by opening lockfast places

• Theft by opening lockfast places (OLP) (excluding motor vehicle)
• OLP (excluding motor vehicle) with intent to steal
• Attempted OLP excluding motor vehcile with intent to steal

Theft from a motor vehicle

• Theft by OLP from a motor vehicle
• OLP with intent to steal from a motor vehicle
• Attempted OLP with intent to steal from a motor vehicle

Theft of a motor vehicle

• Theft of a motor vehicle and contents
• Attempted theft of a motor vehicle

Shoplifting

• Shoplifting

Other theft

• Theft of pedal cycles
• Theft from a motor vehicle not elsewhere classified

Fraud

• Common law fraud
• Statutory fraud
• Forgery and uttering (excluding currency crimes)

Other dishonesty

• Forgery (other)
• Reset
• Embezzlement
• Corruption

Group 4 – Damage and reckless behaviour

Fire-raising

• Fire-raising
• Muirburn

Vandalism

• Malicious mischief
• Vandalism

Reckless conduct

• Culpable and reckless conduct (not with firearms)
• Reckless conduct with firearms

Group 5 – Crimes against society

Crimes against public justice

• Perjury
• Resisting arrest
• Bail offences (other than absconding or re-offending)
• Wasting police time

Weapons possession

• Possession of an offensive weapon (including used in other criminal activity)
• Restriction of offensive weapons
• Having in a public place an article with a blade or point (including used in other criminal activity)
• Having in prison an article with a blade or point (including used in other criminal activity)
• Possession of an offensive weapon (not blade or point) in a prison (including used in other criminal activity)

Drugs - Supply

• Illegal importation of drugs
• Production, manufacture or cultivation of drugs
• Supply, possession with intent to supply etc. of drugs
• Related money laundering offences
• Bringing drugs into prison

Drugs - Possession

• Possession of drugs

Other crimes against society

• Offences Relating to Serious Organised Crime
• Treason
• Conspiracy
• Explosives offences
• Wrecking, piracy and hijacking
• Crimes against public order