Annex 3: Legislation and procedural changes
This annex provides information on legislative changes and procedural changes to crime recording which will have had some effect on the recorded crime time series. It also provides information on future considerations that may have an impact on crime recording.
It should be noted that changes made to the rules governing the coding and counting of crimes and offences within the Scottish Crime Recording Standard (SCRS) must be approved by the Scottish Crime Recording Board (SCRB) (Annex 2 provides background information on the role of the Board).
Changes in 2010-11:
Sexual Offences (Scotland) Act 2009
The implementation of the Sexual Offences (Scotland) Act 2009 on 1 December 2010 resulted in a number of changes to the recording of sexual crimes, including a redistribution of Sexual crimes among the categories and a widened definition of rape. A number of crimes which may have been recorded as Breach of the peace prior to the implementation of the Act would also not have shown up as sexual crimes before December 2010. Comparisons with data prior to 2010-11 for these categories should therefore be treated with caution.
Taking, distribution etc. indecent photos of children
In 2010-11, incidents of Taking, distribution etc. indecent photos of children were transferred from Miscellaneous offences to Sexual crimes and back-revised to 2009-10. Whilst these crimes represent a small proportion of sexual crimes (4% of all Sexual crimes in 2021-22), it has resulted in a small discontinuity in the time series for any analysis that spans 2009-10.
Change in 2016-17:
Abusive Behaviour and Sexual Harm (Scotland) Act 2016
The implementation of the Abusive Behaviour and Sexual Harm (Scotland) Act 2016 on 3 July 2017 resulted in new crimes of Disclosing or threatening to disclose an intimate image being recorded. This has contributed to the increase in Other sexual crimes. Whilst some of these cases may have been recorded as a different crime or offence had they occurred prior to the Act, it is likely the majority of them would not have been classified as a Sexual crime. The enactment of this legislation also extended the criminal law to criminalise certain conduct that previously may not have been illegal. There were 912 crimes of Disclosing or threatening to disclose an intimate image in 2021-22.
Changes in 2017-18:
Communications Act (2003) Sexual
In 2017-18, Communications Act 2003 (Sexual) offences were transferred from Miscellaneous offences group to Sexual crimes group.
This change involved reclassifying some activity from an offence group to a crime group, and so resulted in a small increase in total recorded crime, with 315 recorded in 2021-22. Statistics for 2016-17 were back-revised within the 2017-18 bulletin, to ensure time series continuity was not affected. There will be some discontinuity for earlier years as Communications Act 2003 offences with a sexual element were not separately identifiable within the statistics until 2016-17.
Changes to the recording of handling offensive weapons in 2017-18
Changes in recorded crime from 2017-18 should be treated with some caution due to the addition of newly recorded crimes of handling an offensive weapon. Further information on this procedural change and its impact on the statistics is available in the chapter on Crimes against society. This change will have an impact on the comparability of recorded crime statistics for all years prior to 2017-18. However the impact will be smaller for earlier years (for example comparisons with 2012-13) when set against the long term changes in total crime recorded by the police and other legislative and procedural changes made to the recording of crime during this period.
Classification of Etizolam as a Class C drug
Etizolam has been classified as a Class C drug by the May 2017 amendment to the Misuse of Drugs Act 1971, along with several other designer benzodiazepine drugs.
Changes in 2019-20:
Domestic Abuse (Scotland) Act 2018
The Domestic Abuse (Scotland) Act 2018 came into force on 1 April 2019. The Act created a new offence of abusive behaviour as a course of conduct towards a partner or ex-partner. Prior to the 1April 2019, any criminal act which formed part of a domestic abuse incident (such as a Common assault, Stalking, or Threatening or abusive behaviour) was included within the statistics under the relevant crime or offence. Where there is evidence of a course of conduct, new crime codes of Domestic abuse (Scotland) Act 2018 (against a male or female victim) have been created. In general, existing common law and statutory offences will continue to be recorded where appropriate, in addition to the new crimes. There are some limited exceptions (in particular Threatening and abusive behaviour and Stalking), which should no longer be recorded when occurring as part of a course of conduct for Domestic Abuse, with the crime of Domestic Abuse (Scotland) Act 2018 taking precedence.
Coronavirus restrictions legislation
The enactment of legislation such as the Coronavirus Act 2020 and Health Protection (Coronavirus) (Restrictions) (Scotland) Regulations 2020 (implemented on 25 March and 27 March 2020 respectively) led to new and additional crimes being recorded within these statistics. For example, where someone, who had left the place they were living during lockdown, did not have a reasonable excuse for this when asked by a police officer, and failed to comply with police advice or instruction to return there. Further legislation in respect of local travel restrictions came in to force on 2 November 2020. All legal covid restrictions were removed in April 2022.
Change in 2020-21:
Recording of international crime
A procedural change was made from 1 April 2020 to how crimes which could involve a victim and a perpetrator in different physical locations (e.g. cyber-crimes) are recorded. Prior to the 1 April 2020, these statistics excluded any crime with a victim in Scotland and a perpetrator who was confirmed by the police to be outside the UK when the crime took place. Following a recommendation by HMICS to review recording practice in this area, the SCRB approved a change so that from the 1 April 2020 these crimes are now included in the statistics. It should be noted that those cases with only a suspicion or insufficient evidence to confirm that the perpetrator was outside the UK were always included.
This change led to the recording of additional crimes for those types of crime which could be committed using digital technologies.
Changes in 2021-22:
Breach of adult at risk banning order
From 1 April 2021, Adult Protection Act Offences (39/019) will no longer be counted as crimes. The reason for this is that the charge does not relate to a criminal offence and was created to allow the circumstances to be reported to the Procurator Fiscal. Having reviewed the earlier data recorded under this code, it was decided not to back date this change within the statistics, as the numbers are negligible in the context of the Crimes against society group.
Protection of Workers Act
The Protection of Workers (Retail and Age-restricted Goods and Services) (Scotland) Act 2021 came into effect from 24 August 2021. The Act makes it an offence for a person to assault, threaten or abuse another person who is a retail worker and who is engaged, at the time of the offence, in retail work. Committing this offence while a retail worker is enforcing a statutory age restriction also constitutes an aggravation.
Changes in 2022-23:
Proceeds of Crime
As of 1 April 2022, crimes previously recorded as Other criminal conduct, money laundering related offences and Drugs, money laundering related offences will now be recorded as Proceeds of Crime. The Scottish Crime Recording Board reviewed the use of these three crime codes and agreed that they should be merged as they all largely relate to the same piece of legislation (Proceeds of Crime Act 2002).
Offensive Weapons Act 2019
On 28th June 2022, Section 6 of the Offensive Weapons Act was implemented. This included the introduction of an offence of having a corrosive substance in a public place.
Sections 44 annd 46 of the legislation came into effect on 27 March 2023, meaning the possession of certain offensive weapons is now illegal in both a public and private. This includes Section 46 prohibiting the possession of listed offensive weapons in private places and Section 44 prohibiting the possession of certain dangerous knives in private places.
Fireworks and Pyrotechnic Articles (Scotland) Act 2022
As of 10 October 2022, Section 21 and Section 44 of the Fireworks and Pyrotechnic Articles (Scotland) Act 2022 came into effect. Section 21 makes it an offence to knowingly buy or attempt to buy a firework or pyrotechnic article for a person under the age of 18, or give or otherwise make available a firework or other pyrotechnic article to a person under the age of 18. Section 44 makes it possible for an offence to be aggravated by the use of a firework or pyrotechnic article if the victim (or intended victim) of the offence is an emergency worker.
Following the 2019 consultation and 2021 consultation, the Scottish Crime Recording Board has agreed that common assault should be split into with and without injury and that new crime codes will also be introduced to help identify police officer/staff victims of all types of assault. To ensure that the new information on common assault is recorded consistently and to prevent duplication of work, the Scottish Crime Recording Board also agreed that implementation of this change will wait until Police Scotland's new crime management system has been rolled out to all divisions.
Fireworks and Pyrotechnic Articles (Scotland) Act 2022
It is anticipated that Section 35 (Prohibition of pyrotechnic articles in public places) and Section 36 (Prohibition of pyrotechnic articles at designated venues or events) will go live later in 2023/24.
Domestic Abuse (Protection) (Scotland) Act 2021
New offences for breaches of Domestic Abuse Protection Notices and Domestic Abuse Protection Orders have still to come into force under Domestic Abuse (Protection) (Scotland) Act 2021.
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