Criminal proceedings in Scotland: 2020-2021

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 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.

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 20201 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 ten 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 5,300 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 400 crime codes, which in turn are grouped into 35 broader categories, and further into 7 crime and offence groups. This classification enables consistent and comparable reporting between criminal justice organisations and is presented in the table below.

Crimes

Group 1: Non-sexual crimes of violence (Also referred to as Crimes of violence)

Homicide etc.

Includes:

• Murder
• Culpable homicide
  • Culpable homicide (common law)
  • Causing death by dangerous driving
  • Causing death by careless driving while under the influence of drink or drugs
  • Causing death by careless driving
  • Illegal driver involved in fatal accident
  • Corporate homicide

Attempted murder and serious assault

Includes:

• 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.

Robbery

Includes:

• Robbery and assault with intent to rob

Domestic Abuse (Scotland) Act

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

Other

Includes:

• 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

Group 2: Sexual crimes

Rape and attempted rape

Includes:

• Rape
• Attempted rape

Sexual assault

Includes:

• Contact sexual assault (13-15 year old or adult 16+)
• Sexually coercive conduct (13-15 year old or adult 16+)
• Sexual crimes against children under 13 years
• Lewd and libidinous practices

Crimes associated with prostitution

Includes:

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

Other

Includes:

• Other sexually coercive conduct
• Other sexual crimes involving 13-15 year old children
• Indecent image offences i.e. “Taking, distribution, possession etc. of indecent photos of children”
• Incest
• Unnatural crimes
• Public indecency
• Sexual exposure
• Other sexual crimes

Group 3: Crimes of dishonesty (Also referred to as Dishonesty)

Housebreaking

Includes:

• 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 a lockfast place (OLP)

Includes:

• 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 by OLP

Includes:

• 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 motor vehicle

Includes :

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

Shoplifting

Includes :

• Shoplifting

Other theft

Includes :

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

Fraud

Includes:

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

Other crimes of dishonesty

Includes:

• Forgery (other)
• Reset
• Embezzlement
• Corruption

Group 4: Fire-raising, vandalism etc.

Fire-raising

Includes:

• Fire-raising
• Muirburn

Vandalism, etc.

Includes:

• Malicious mischief
• Vandalism
• Culpable and reckless conduct (not with firearms)
• Reckless conduct with firearms

Group 5: Other crimes

Crimes against public justice

Includes:

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

Handling offensive weapons

Includes:

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

Drugs

Includes:

• Importation of drugs
• Production, manufacture or cultivation of drugs
• Possession and supply of controlled drugs
• Related money laundering offences
• Bringing drugs into prison

Other

Includes:

• Treason
• Conspiracy
• Explosives offences
• Wrecking, piracy and hijacking
• Crimes against public order

Coronavirus restrictions

Coronavirus restrictions

Includes:

• Coronavirus restrictions

Offences

Group 6: Miscellaneous offences

Common assault

Includes:

• Common assault
• Common assault on an emergency worker

Breach of the peace etc.

Includes:

• Breach of the peace
• Threatening or abusive behaviour
• Offence of stalking
• Offensive behaviour at football
• Threatening communications (Offensive Behaviour at Football and Threatening Communications Act 2012)

Drunkenness and other disorderly conduct

Includes:

• Drunk and disorderly
• Drunk and incapable
• Drunk in charge of a child
• Drunk and attempting to enter licensed premises
• Drunk or drinking in unlicensed premises
• Disorderly on licensed premises
• Drunk and attempting to enter a sports ground
• Refusing to quit licensed premises
• Consumption of alcohol in designated places, byelaws prohibited

Urinating etc.

Includes:

• Urinating /defecating

Other

Includes:

• Racially aggravated harassment
• Racially aggravated conduct
• False/Hoax calls
• Offences involving children
• Offences involving animals/plants
• Offences against local legislation
• Offences against liquor licensing laws
• Labour laws
• Naval military and air force laws
• Offences against environmental legislation
• Consumer protection acts

Group 7: Motor vehicle offences

Dangerous and careless driving

Includes:

• Dangerous driving offences
• Driving carelessly

Driving under the influence

Includes:

• Driving or in charge of motor vehicle while unfit through drink or drugs
• Blood alcohol content above limit
• Failing to provide breath, blood or urine specimens

Speeding

Includes:

• Speeding in restricted areas
• Other speeding offences

Unlawful use of motor vehicle

Includes:

• Driving whilst disqualified
• Driving without a licence
• Offences relating to driving without insurance
• Vehicle excise license offences

Vehicle defect offences

Includes:

• Offences relating to faulty lights on vehicles
• Other vehicle defects relating to tyres, brakes etc.
• Weight contraventions for goods vehicles

Seat belt offences

Includes:

• Drivers and passengers failing to wear seatbelts
• Failure to restrain children in appropriate seatbelts

Mobile phone offences

Includes:

• Driving whilst using a mobile phone

Other motor vehicle offences

Includes:

• Accident offences including failing to stop/provide details
• Parking offences
• Motor Vehicle Records of Work (eg Tachograph) Offences

New grouping structure for the presentation of crime statistics

The Scottish Government produces a number of statistical products which use a seven group structure, as presented in table above, to present statistics on the justice system in Scotland. For example, in addition to these statistics, this structure is 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 Official 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 current set of crime and offence groups (left side of table below) will be replaced by the set presented in the tale below (right hand side). The biggest change in 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 current 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 has no bearing on the severity of the sentence an individual may receive as a result of any proceeding in court.

While the statistics presented in this publication use the current structure it is intended that the next edition of the National Statistics on Criminal Proceedings in Scotland for the 2021-22 financial year will use the new groups shown in the table below.

Current crime groups

Non-sexual crimes of violence

• Homicide etc. (incl. causing death by driving)
• Attempted murder and serious assault
• Robbery
• Domestic Abuse (Scotland) Act 2018
• Other violence

New crime groups

Non-sexual crimes of violence

• Murder and culpable homicide
• Death by dangerous driving
• Serious assault and attempted murder
• Common assault
• Robbery
• Domestic Abuse (Scotland) Act 2018
• Other non-sexual violence

Current crime groups

Sexual crimes

• Rape and attempted rape
• Sexual assault
• Crimes associated with prostitution
• Other sexual crimes

New crime groups

Sexual crimes

• Rape and attempted rape
• Sexual assault
• Causing to view sexual activity or images
• Communicating indecently
• Threatening to or disclosing intimate images
• Indecent photos of children
• Crimes associated with prostitution
• Other sexual crimes

Current crime groups

Crimes of dishonesty

• Housebreaking
• Theft by opening a lockfast place (OLP)
• Theft from a motor vehicle by OLP
• Theft of a motor vehicle
• Shoplifting
• Other theft
• Fraud
• Other dishonesty

New crime groups

Crimes of dishonesty

• Housebreaking
• Theft by opening a lockfast place (OLP)
• Theft from a motor vehicle by OLP
• Theft of a motor vehicle
• Shoplifting
• Other theft
• Fraud
• Other dishonesty

Current crime groups

Fire-raising, vandalism etc.

• Fire-raising
• Vandalism etc.

New crime groups

Damage and reckless behaviour

• Vandalism
• Reckless conduct
• Fire-raising

Current crime groups

Other crimes

• Crimes against public justice
• Handling offensive weapons
• Drugs
• Other

New crime groups

Crimes against society

• Crimes against public justice
• Handling offensive weapons [note 1]
• Drugs – Supply
• Drugs – Possession
• Other crimes against society

Current crime groups

• Coronavirus restrictions

New crime groups

• Coronavirus restrictions

Current offence groups

Miscellaneous offences

• Common assault
• Breach of the peace etc.
• Drunkenness and other disorderly conduct
• Urinating etc.
• Other

New offence groups

Antisocial offences

• Threatening and abusive behaviour
• Racially aggravated conduct
• Drunkenness and other disorderly conduct
• Urinating etc.

Miscellaneous offences

• Community and public order offences
• Environmental offences
• Licensing offences
• Wildlife offences
• Other miscellaneous offences

Current offence groups

Motor vehicle offences

• Dangerous and careless driving
• Driving under the influence
• Speeding
• Unlawful use of a motor vehicle
• Vehicle defect offences
• Seat belt offences
• Mobile phone offences
• Other

New offence groups

Road traffic offences

• Dangerous and careless driving
• Driving under the influence
• Speeding
• Unlawful use of a motor vehicle
• Vehicle defect offences
• Seat belt offences
• Mobile phone offences
• Other road traffic offences

Notes for new grouping structure

Note 1. In the National Statistics on Recorded Crime in Scotland, the category of Handling Offensive Weapons is further split into two further categories: ‘Used in other criminal activity’ and a ‘Not used in other criminal activity’. Due to the nature of the data used to produce these statistics, this breakdown is not possible and therefore future editions will include only total figures for this group.