Reconviction Rates in Scotland: 2018-19 Offender Cohort

Annex A: Definitions, counting rules, and pseudo-reconvictions

Background and definitions

A1 Statistics on convictions and reconvictions do not measure offending and reoffending, or recidivism. Not all offences which are committed are reported to the police, while some of those that are reported and recorded do not result in an offender being identified, charged and eventually being tried in court. For cases which are reported to the Procurator Fiscal, it may be decided to take no proceedings, or to employ some alternative to prosecution such as a warning letter or a fiscal fine. In addition, where persons are prosecuted, the proceedings may end up being dropped. This could be for various reasons, such as witnesses failing to turn up. Convictions and reconvictions are therefore a subset of actual offending and reoffending, and reconviction rates are only a proxy measure of reoffending rates.

A2 Generally, only the initial court sentence is included in the statistics on convictions, so that, for example, a person fined is regarded as fined, even if he or she is subsequently given a custodial sentence in default of payment. Similarly, the offenders released from custody who are included in the analysis in this bulletin will only include those directly sentenced to custody, i.e. persons released after imprisonment for fine default are excluded. Also, no account is taken of the outcome of appeals, or of interim decisions such as deferral of sentence.

Table A1 Definitions

The following terminology is applied throughout the bulletin:

Average number of reconvictions per offender – in a cohort, the total number of reconvictions from a court recorded within a specified follow up period from the date of index convictions, divided by the total number of offenders in the cohort with index convictions from a court. Unless otherwise stated, the average number of reconvictions per offender quoted in this bulletin are for a follow-up period of one year. It should be noted that because this measure is an average, there may be variation in the number of reconvictions of offenders within the group the measure is applied to. For example, the group may include some offenders who have no reconvictions and some offenders with multiple reconvictions. This measures the frequency of reconviction in a cohort.

Average number of repeat non-court disposals per individual - the total number of non-court disposals received by a cohort within a year of the index non-court disposal, divided by the total number of individuals in the cohort with an index non court disposal. This measures the frequency of the cohort receiving non-court disposals.

Cohort – all offenders who either received a non-custodial conviction or were released from a custodial sentence in a given financial year, from the 1st April to the 31st March the following year. In the analyses for non-court disposals, a cohort is all the individuals who either received a police or COPFS disposal in a given financial year. In this bulletin, for ease of communication, the cohort may be referred to by year alone, for example 2018-19.

Conviction – a formal declaration by the verdict of a jury or the decision of a judge in a court of law that someone is guilty of a criminal offence.

Crime or Offence – an action that is deemed to be illegal under common or statutory law. Contraventions of the law are divided, for statistical purposes only, into crimes and offences. See Annex D of the Criminal Proceedings Bulletin for further information about what are classified as crimes or offences.

Custodial reconviction – a reconviction which resulted in a custodial sentence being imposed.

Date of the index conviction – the sentence date for non-custodial convictions or the estimated date of discharge from custody for custodial convictions.

Date of the index non-court disposal – the date the non-court disposal was imposed.

Disposal – the sentence given for a court conviction, or the action taken in non-court cases.

Domestic abuse crime or offence – a crime or offence, such as common assault, that was domestically aggravated and marked with a domestic abuse identifier on the CHS by the police or COPFS.

Index conviction – the reference conviction which is determined by either: (a) the estimated release date for a custodial sentence imposed for the conviction, or (b) the sentence date for non-custodial sentences imposed for the conviction. Whichever conviction has the earlier of these dates in a given financial year is the index conviction.

Index crime or offence – the main crime or offence of the index conviction.

Index disposal – the type of sentence imposed for the index conviction.

Index non-court disposal – the reference police or COPFS disposal imposed (e.g. a fine), which is the first non-court disposal given to an individual in a given financial year.

Previous convictions – convictions preceding the index conviction.

Pseudo-reconviction – convictions which occur after the index conviction, but relate to offences committed prior to the index conviction.

Recidivism – repeated reoffending after being convicted.

Reconviction – convictions which occur after the relevant date of the index conviction.

Reconviction rate – the percentage of offenders in the cohort with index convictions given by a court who were reconvicted one or more times by a court within a specified follow up period from the relevant date of the index conviction. Unless otherwise stated, the reconviction rates that are quoted in this bulletin are for a follow-up period of one year.

Repeat non-court disposal rate – the percentage of individuals who are given a further non-court disposal within a year of receiving a non-court disposal from the police or COPFS.

Reoffending – the action of committing a further crime or offence after committing a crime or offence.

SOI – The Scottish Offenders Index. This consists of two separate databases. One contains a record of all convictions since 1989 for either a crime in Groups 1-5 or some of the offences in Group 6 in the Scottish Government's classification of crimes. The second database contains a record of all non-court disposals for any crime or offence since 2008.

Counting rules

A3 If more than one set of court proceedings against an offender is disposed of on the same day, then each proceeding will be counted as a separate conviction record in the SOI database.

A4 Where a person is convicted for more than one charge in a single court proceeding, then the main crime/offence which is recorded in the SOI. The main charge is the one receiving the most severe penalty (or disposal) if one or more charges are proved, and is identified using a look-up table which ranks the disposal types in order of importance. For example, custody is ranked higher than a monetary fine, so for a proceeding where there was a mixture of these two types of disposal, the main charge counted for this record would be the charge associated with the custody disposal rather than the charge related to the monetary disposal.

A5 In order to produce meaningful analysis on reconvictions, a decision is made as to which of an individual's convictions in a series is to be taken as a reference point, known as the index conviction. In this bulletin, the rule for choosing the index conviction is:

(a) the first date when an individual was estimated to have been released from prison from a custodial sentence, or

(b) the first occasion in the financial year in question when an individual was given a non-custodial sentence.

Whichever conviction has the earlier of these dates in a given financial year is the index conviction. The crime and sentence linked to this index conviction are referred to throughout this bulletin as the index crime and index disposal, respectively. In the case of the reconviction rate, the analysis then considers the proportion of these individuals who are reconvicted in court within one year (or two years in Table 14) from the date of sentence or the estimated custody release date, i.e. from the relevant date of the index conviction, whereas the average number of reconvictions per offender considers the number of times offenders are reconvicted in the follow-up period from the index conviction.

A6 Convictions for a crime against public justice, such as committing an offence while on bail, are not considered as index convictions. If the first conviction in the year for a particular offender was for such an offence, their next conviction which wasn't a crime against public justice was taken instead. Where an individual had no further convictions in the year for crimes other than crimes against public justice they are not included in the data set.

A7 For the purposes of the analysis in this bulletin, the date of release for offenders given a custodial sentence has been estimated. This is estimated from their sentence date, the length of sentence imposed, assumptions about time spent on remand and release on parole, and information about whether the offender had been granted bail. The release date estimated by this approach will not always tie in with the actual release date because, for example, the offender may be serving other custodial sentences. However, this is not judged to be significant for the purposes of the current analysis. The main exception to this relates to offenders discharged from life sentences or, for some cohorts, very long determinate custodial sentences – see below.

A8 It is not possible to accurately identify the release date for offenders serving life sentences or, in some instances, very lengthy determinate sentences. However, the number of offenders involved is relatively small (41 offenders received a life sentence in 2019-20: see Table 10d in Criminal Proceedings in Scotland) and so will not affect the analysis presented in this bulletin significantly. Separate research evidence (Life Sentence Prisoners in Scotland, Scottish Office, Machin et al, 1999) shows that just over one quarter of the 491 life sentence prisoners released on licence were reconvicted. However, this figure may not be directly comparable with the reconviction rates presented in this bulletin, as the reconvictions for life sentence prisoners may have been for minor offences which are excluded from analysis in this bulletin, or reconvictions may have occurred more than a year after release from custody.

A9 The crimes and offences crimes counted as domestic abuse index convictions or reconvictions, are crimes and offences marked with a statutory domestic abuse aggravation, or a non-statutory domestic abuse identifier on the CHS. For example, a common assault offence committed against a partner could be marked with the statutory aggravation and a domestic abuse identifier in addition. The statutory domestic abuse aggravation was created by the Abusive Behaviour and Sexual Harm (Scotland) Act 2016 and came into effect on the 24th April 2017 for crimes that took place on or after this date. The statutory domestic abuse aggravation is libelled on individual charges and, if proven in court, will be taken into account during sentencing. They are marked with a non-statutory domestic abuse identifier for operational purposes but does not require proof in court and is not taken into account during sentencing. The statutory aggravation is always applied in conjunction with the identifier, but sometimes the identifier is applied in the absence of the statutory aggravation.

A10 The counting rules for non-court disposals are similar to those for analysing court reconvictions. The first police or COPFS disposal in the financial year in question is counted as the index non-court disposal. Further non-court disposals from either the police or COPFS within one year of the index non-court disposal are counted, regardless whether the index non-court disposal was issued by the police or COPFS. The measure does not include activity for those who were then convicted in court within a year.

Data definitions

Sex and gender

A11 '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.

A12 Sex in this bulletin is generally identified by a police officer based on how a person presents and recorded when a person's details are entered into the CHS. In most cases this is based on the physiology of a person rather than self-identified gender. It is recorded for operational purposes, such as requirements for searching. A person's sex may only be changed on the CHS if person has 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.

A13 The conviction data that feeds into this publication is published first in the Criminal Proceedings Bulletin. During production of the Criminal Proceedings 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 cases such as where a female has been proceeded against for rape or attempted rape. We fix any values that were erroneous with the correct values.

A14 The Scottish Government has 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. Draft guidance has been published to collect feedback from users.

Age

A15 The age of each person relates to their age at the time that sentence was passed. This also applies to offenders discharged from a custodial sentence, i.e. their age at the date of sentence is taken rather than at the estimated release date.

Geographic data

A16 The areas that courts serve do not exactly match administrative areas for local authorities. For example, Edinburgh Sheriff Court serves the local authority areas of the City of Edinburgh, Midlothian, and East Lothian. As a result, in Table 12, Chart 10 and Chart 11 in this bulletin, local authorities are based on approximate areas. Some local authorities are grouped together so that there are 24 grouped local authorities presented, rather than all 32 being displayed separately. See the footnote of Table 12 for details of the approximations for each administrative area. Convictions in the High Court are also presented separately. Note that offenders may be tried in a court that covers a different local authority to where they live if they commit a crime in a different area. Table 13, shows reconviction rates by the local authority of offenders' residence, which is compiled by using the first half of an offender's postcode to assign them to a local authority. Table 13 is labelled as Experimental Statistics: Data being developed and not National Statistics, as the data quality for this new analysis does not yet meet the standards for National Statistics. Therefore, we recommend that the figures based on court area are still used as the definitive local authority reconviction rates.

Crime groupings

A17 Tables A2 and A3 detail how crimes and offences, and sentence type have been grouped in this bulletin.

Table A2 Crime Groupings for Convictions and Reconvictions

Crime category: Violent crime

Murder, culpable homicide, attempted murder, serious assault, Domestic Abuse (Scotland) Act, robbery, common assault, , death involving a motor vehicle, other violence.

Crime category: Sexual crime

Sexual crime includes sexual assault and other sexual crimes.

• Sexual assault includes: rape; attempted rape; contact sexual assault (13-15 yr. old or adult 16+); sexually coercive conduct (13-15 yr. old or adult 16+); sexual offences against children under 13 years; and lewd and libidinous practices.
• Other sexual crimes includes: other sexually coercive conduct; other sexual offences involving 13-15 year old children; taking, distribution, possession etc. of indecent photos of children; incest; unnatural crimes; public indecency; sexual exposure; and other sexual offences.

These are the notifiable crimes for an offender who has been placed on the sex offenders register. The definitions are aligned with the Criminal Proceedings in Scotland publication. Sexual crime excludes offences associated with prostitution.

Crime category: Prostitution

Procuration (excluding homosexual acts); brothel keeping; immoral traffic; offences related to prostitution; procuration of homosexual acts; procuration of sexual services from children under 18; and soliciting services of a person engaged in prostitution.

Crime category: Dishonesty

Housebreaking, theft by opening lockfast places, theft of motor vehicle, other theft, fraud, other crimes of dishonesty and social security offences.

Crime category: Criminal damage

Fire-raising, vandalism.

Crime category: Drug offences

Illegal importation, supply or possession of drugs, other drug offences.

Crime category: Breach of the peace

Breach of the peace, racially aggravated harassment, racially aggravated conduct, threatening or abusive behaviour, offence of stalking, offensive behaviour at football, and threatening communications (under the Offensive Behaviour at Football and Threatening Communication Scotland Act 2012).

Crime category: Other crimes and offences

Crimes against public justice, (breach of sexual offender order and breach of sexual harm order are included in crimes against public justice), handling offensive weapons (in possession of an offensive weapon; having in a public place an article with a blade or point, and restriction of weapons), miscellaneous firearm offences, other crimes and offences (not elsewhere specified).

Crime category: Serious violent crime

As per violent crime, but including only those convictions which took place in the high court or a sheriff solemn court.

Crime category: Serious crime

All convictions which took place in the high court or in a sheriff solemn court, and any other convictions for serious assault, robbery, possession of a firearm with intent to endanger life etc., abduction, attempted rape and indecent assault.

Table A3 Sentence groupings

Sentence category: Custody

Custodial sentence to prison, young offender's institution, or child detention, orders for lifelong restriction. Life and indeterminate sentences are excluded. Also includes Supervised Release Orders and Extended Sentences in Table 10a and Table 20.

Sentence category: ES

Extended Sentence

Sentence category: SRO

Supervised Release Order

Sentence category: CPO

Community Payback Order^[5]

Sentence category: Legacy community order

Probation Order (with or without CSO or RLO), or Community Service Order

Sentence category: DTTO

Drug Treatment and Testing Order

Sentence category: RLO

Restriction of Liberty Order

Sentence category: Monetary

Fine, compensation order

Sentence category: Other

Supervised Attendance Orders, caution, absolute discharge, remit to children's hearing, admonishment, hospital order, guardianship order, finding of insanity, hospital order & restricted order, supervision and treatment order and disposals not elsewhere specified.

Sentence category: Police disposals

Anti-Social Behaviour Fixed Penalty Notices (ASBFPNs), Formal Adult Warnings, Restorative Justice Warnings, Early and Effective Interventions (EEIs), and Recorded Police Warnings.

Sentence category: Crown Office and Procurator Fiscal Service disposals

Fiscal Fines, Fiscal Compensation Orders, Fiscal Fixed Penalties, Fiscal Combined Fines with Compensation, and Pre-Scottish Justice Reform Fiscal Fixed Penalties.

The effect of pseudo-reconvictions

A18 Pseudo-reconvictions are convictions which occur after the index conviction, but relate to offences committed prior to the index conviction. They can arise in cases where there are several sets of proceedings simultaneously in train against an individual for offences committed on a range of dates.

A19 Pseudo-reconvictions could potentially have the following effects:

• In theory, they may exaggerate the rate of "real" reconvictions to some extent.
• They will complicate comparisons between reconviction rates for different types of disposal as they tend to be less common for offenders who are discharged from a long custodial sentence compared to those given non-custodial sentences.
• They will tend to be more significant when considering reconviction rates for groups of offenders with a relatively high frequency of offending, such as younger offenders, or those engaged in acquisitive crime.

Excluding pseudo-reconvictions will not necessarily result in an improved estimate of the reconviction rate, unless one also addresses the issue of offences committed during the follow-up period, but which have a conviction date outside of this period and are therefore currently excluded from the calculation. Excluding both cases is likely to result in a downward bias of the estimate. One year and two year reconviction rates and average number of reconvictions per offender without pseudo-reconvictions were shown in previous publications for the purposes of illustration. The figures up to the latest cohort can be found in the additional datasets which accompany this publication which are found on the webpage of this publication under the supporting files menu.