MBM statement on recording in the Scottish Criminal Justice System

Recorded crime statistics allows stakeholders, policy-makers and researchers to analyse and monitor offending trends, develop our understanding of offending behaviours, and to target resources and services.

To ensure these statistics are valid, reliable and consistent, the data criteria of what is being measured needs to be clearly defined. However, for the purposes of collecting data on a person’s sex, this is no longer the case. Within the criminal justice system, as well as other policy fields, some agencies have replaced data based on sex, with data based on gender identity or self-declared sex.

Police Scotland state that it records incidents based on self-declared identity, unless evidentially relevant to the crime (COPFS guidance gives an example of where a complainer subsequently learns of the biological sex of a transgender person they have had sexual contact with and alleges that had they been aware of this they would not have consented). The Cabinet Secretary for Justice has also confirmed that the Scottish Courts and Tribunal Service record by ‘self-declared gender’, rather than biological or legal sex.

We do not know why or when criminal justice agencies introduced recording based on self-declared sex only, or if any due diligence was carried out in relation to the impact on data quality. Police Scotland policy ‘evolved as best practice’ and was not subject to an impact assessment.

Recording based on gender identity alone is likely to have significant implications for the accuracy and reliability of criminal justice statistics, given the differences in offending patterns by sex. The inclusion of a very small number of biological males who identify as female could easily skew female sexual offending statistics, or any other category for which the prevalence of female offending is particularly low.

Criminal Proceedings in Scotland data show that only 3 females were convicted of sexual assault in 2017/18, compared to 299 males, while 82 females were convicted of attempted murder and serious assault, compared to 1,086 males. Yet whether these data accurately reflect the sex of the convicted person is no longer clear. Nor is it possible to determine whether any variation in female offending over time is due to the inclusion of self-identification cases in some years, but not in others. Data that conflates sex and gender identity is also not consistent with the legal definition of sex in the Equality Act 2010, which is biological.

The unregulated introduction of gender self-identification principles in the criminal justice system, without proper democratic debate or scrutiny, means that it is no longer clear what is being measured in criminal justice statistics.

There is no robust argument to support the assumption that reliable data on sex, whether legal or biological, is no longer needed. We are also concerned by media reporting on offending behaviours that have a clear sex-based pattern in the population. Males are disproportionately responsible for violent and sexual crime, and being able to name the issue of male violence is vital, both at an individual and a societal level.

In terms of next steps, we recommend that public authorities collect data on sex and gender identity separately. The more data we gather on both characteristics, the better placed we are to understand how these operate both separately and together. We also believe that the Scottish Government should establish an Independent Advisory Group to review how all public authorities and agencies record sex and/or self-declared gender identity. This needs to look at current practices, establish how we got here, and set out where we are going, with clear data recording criteria and principles.