Hearings in Scottish courts - ethnicity of individuals: analysis

1 Background and key points

This occasional paper presents new experimental analysis based on the Scottish Courts and Tribunals Service's (SCTS) management information, on the ethnicity of individuals who were proceeded against and sentenced from April 2016 to February 2023. SCTS receives and holds information on the ethnicity of an accused individual based on data provided by the Crown Office and Procurator Fiscal Service (COPFS), with information originating from Police Scotland. This analysis, a first of its kind in Scotland, explores how individuals move through the criminal justice system and compares the journeys of people from different ethnic groups.

The ethnicity categories used in this analysis are based on those in the 2011 Scottish Census [1], with the African group and Caribbean and Black group combined into one (these two groups are not distinguishable from the SCTS data). The White group is split into White Scottish/White Other British and White Minority Ethnic, as these groups are sufficiently large for analysis (White Scottish is combined with White Other British as these groups are not distinguishable from the SCTS data, and the White Minority Ethnic subgroups are combined into one as they are not individually sufficiently large on their own). In the 2011 Scottish Census, the vast majority of people, 91.8%, identified as 'White: Scottish' or 'White: Other British'. 4.2% identified as belonging to a White minority ethnic group, such as Polish, Irish, Gypsy/Traveller or 'White: Other'. 4% of the population identified as, Asian, African, Caribbean or Black, Mixed, or Other ethnic group. The term 'minority ethnic' is used in this paper to refer to people identifying as any ethnic group other than White Scottish/White Other British.

Findings from this analysis identify, for different ethnic groups, if the number of people with court appearances are in proportion to the composition of the general population in Scotland, and if disposal outcomes are in proportion to court appearances. The analysis compares prosecutions, convictions, sentence outcomes and sentence lengths by ethnic groupings. Data from the 2011 census is applied in comparisons as new figures from Scotland's 2022 Census were not yet available at the time of publication. More recent population estimates indicate that Scotland's population is more diverse now than it was in 2011^[1], therefore a degree of caution is required when comparing the paper's findings to the 2011 Scottish Census.

The experimental analysis shows that:

• People in ethnic minority groups are overrepresented in the courts system, when compared to the general population in 2011.
• People in the White Minority Ethnic group have a higher conviction rate than White Scottish/White Other British individuals, while all other ethnic minority groups have a lower conviction rate than White Scottish/White Other British individuals.
• The likelihood of imprisonment is higher for the White Scottish/White Other British ethnic group than all other ethnic minority groups.
• Ethnic minority individuals sentenced to prison receive, on average, longer sentences than White Scottish/White Other British individuals sentenced to prison. Some of this difference is explained by differences in crime type, as more severe crimes tend to receive longer sentences.
• Including all convictions, White Scottish/White Other British individuals were, on average, sentenced to prison for longer than individuals of all other ethnic groups. This is due to the higher likelihood of imprisonment for the White Scottish/White Other British ethnic group.

It should be noted that differences between ethnic groups give an indication of whether there are variations between the justice system journeys of individuals from different groups, rather than a precise estimate of how big the differences are.

Besides an individual's ethnic group, this initial analysis does not control for other key individual characteristics, including sex, age, socio-economic background, geographical location of individuals, offence type or offender history, that may also be a source of variance in journeys or outcomes. Therefore, it is not possible to estimate what proportion of the differences found are directly attributable to ethnicity. Moreover, whilst the differences reported may suggest areas which merit further investigation, they should not on their own be taken as evidence of the existence of bias within the justice system.

Overall, the analysis indicates that there are differences between ethnic groups in terms of appearances and outcomes in court hearings. However, caution should be taken when interpreting the results as there are a range of possible explanations for differences, and further analysis is required to determine all contributing factors of difference and their relative importance.

1.1 Data sources and limitations

This is the first publication using SCTS's management information to analyse prosecutions, convictions, sentence outcomes and sentence length by ethnic groupings.

The paper relies upon two data sources, which have been linked:

i. a courts hearings experimental dataset which covers the period from April 2016 to February 2023, and

ii. a courts disposals experimental dataset which covers the period from April 2017 to February 2023.

Both datasets were initially designed as standalone datasets by justice analysts from the Scottish Government working with the Scottish Courts and Tribunals Service (SCTS). The hearings dataset contains information on each individual hearing that takes place in a Scottish court, while the disposals dataset contains information on each individual sentence imposed for a charge on which an individual was found guilty.

The datasets were not designed to be linked. The resulting analysis from these experimental datasets, especially section 3.2 arising from linkage, must therefore be treated with caution at this stage. It is intended that regular reviews will be undertaken to improve the design and linkage capability of these datasets. Therefore, this analysis will be refreshed if significant changes are made to the datasets.

As noted above, this paper is based on initial experimental analysis, which is yet to be fully developed. Through the analysis some inconsistencies between the two datasets used were noted e.g. some cases appear as completed in the hearings dataset with a conviction, but do not appear in the disposals dataset, which will be investigated further. Also, the estimate of the ethnicity breakdown of the general population depends on the last published census data (from 2011), which is now over ten years old. More recent population estimates from the 2019 Scottish Surveys Core Questions (SSCQ) [1] dataset, indicate that Scotland's population is getting more diverse than it was in 2011. This preliminary analysis will be updated when the 2022 Census data becomes available. Due to these issues the interpretation and use of the results needs to be done with caution.

The comparisons between ethnic groups give an indication of whether there are differences between the justice system journeys of individuals from different groups, rather than a precise estimate of how big the differences are. No causative links can be drawn from these summary statistics. Controls have not been applied for any characteristics besides ethnic group (such as sex, age, average income, geography, offence mix or offender history), so it is not possible to estimate what proportion of differences found are directly attributable to ethnicity. Whilst the differences reported may suggest areas which merit further investigation, additional work controlling for more variables would be required to help determine what the sources of these differences might be.

It should also be noted that in addition to not taking into consideration the set of unique circumstances faced by individuals in the justice system or their individual experiences, similarly, differences within ethnic groupings are not accounted for. Notwithstanding this, it is acknowledged that ethnic groups are not homogeneous and that there will be a range of experiences within groups as well as between groups.

1.2 Background information on criminal cases

To provide context for the results in this publication we provide a brief introduction to the justice process (for more information refer to legislation on criminal procedure in Scotland). Figure 1 shows the criminal justice system in Scotland, from reporting of an incident to sentencing if found guilty (or making a guilty plea) in criminal courts. An individual's journey through the system commences when they are accused of a crime, moving through several stages eventually leading to a criminal case being called in court in some cases.

Not all reports of crime proceed to court; some conclude at the police stage without being transferred to the COPFS, while some are not cleared up. Also, for some cases that are reported to COPFS, a decision may be taken not to prosecute in criminal courts. If cases are prosecuted in court, this will be either a summary prosecution (starting with a new case calling in the Sheriff or Justice of the Peace court) or a solemn prosecution, which begins with a new "Solemn Petition" case calling in the sheriff court. Solemn prosecutions are for more serious criminal charges and would involve a jury if heard at trial.

If prosecuted, the accused will receive a citation stating the charge and when to appear

In court, depending on the court type, a Judge, Sheriff, Justice of the Peace or a jury will consider all the evidence and reach a verdict. There are three possible verdicts: "guilty", "not proven", and "not guilty". Both "not proven" and "not guilty" mean that the accused is acquitted of the charge [2].

If the person is found guilty, they are sentenced, with possible sentences including prison, mandatory work in the community, a fine, or another type of disposal (e.g. DVLA penalty). In the case of a prison sentence, the length of the custodial sentence is determined by the judge, considering whether or not the offender has prior conviction history, and whether there are any mitigating circumstances [2].

The data used in this publication include the number of people from different ethnic groups who appear in court, are convicted in court, receive each sentence type and the length of sentences where applicable. It therefore reflects decisions made before and throughout an individual's court journey.