Police Scotland policy on recording rape: how did it evolve and where does responsibility lie?

In recent weeks Police Scotland’s policy on recording the identity of those charged with the crime of rape has received considerable media attention.

As revealed in a bluntly worded Freedom of Information (FOI) response we received in April last year, current Police Scotland policy allows for a male accused of rape or attempted rape to self-identify as a woman for recording purposes:

‘If the male who self-identifies as a woman were to attempt to or to penetrate the vagina, anus or mouth of a victim with their penis, Police Scotland would record this as attempted rape or rape and the male who self-identifies as a woman would be expected to be recorded as a female on relevant police systems.’

Police Scotland, 1 April 2021

In response to both media queries and questioning by MSPs, Police Scotland have repeatedly stated that the policy is ‘consistent with the values of the organisation’. In an article in The Times on 17 April 2021, Detective Superintendent Fil Capaldi stated:

‘The sex/gender identification of individuals who come into contact with the police will be based on how they present or how they self-declare, which is consistent with the values of the organisation.’

Detective Superintendent Fil Capaldi, 17 April 2021

In the same article, the Scottish Government declined to comment saying instead that ‘this is a matter for Police Scotland’.

Public petition

In June, we lodged a public petition with the Scottish Parliament’s Citizen Participation and Public Petitions Committee. The petition, which received over 12,000 signatures, calls on the Scottish Parliament to urge the Scottish Government to require Police Scotland, the Crown Office and the Scottish Court Service to accurately record the sex of people charged or convicted of rape or attempted rape.

MSPs discussed the petition at a meeting on 6 October. The Committee agreed to seek further evidence and write to Police Scotland, Crown Office and Procurator Fiscal Service (COPFS), Equality and Human Rights Commission (EHRC), the Lord Advocate and Scottish Courts Tribunal Service (SCTS). Just before Christmas, the Committee uploaded the responses it had received from the Crown Agent (on behalf of the Crown Office), the SCTS and a former police officer, previously seconded to HM Inspectorate of Constabulary (England and Wales) with specific responsibility for rape and serious sexual offences.

Where does responsibility for the policy lie?

A striking aspect of police recording policy in this area is the lack of clarity as to where responsibility lies. The Scottish Government response to our petition stated that it is ‘for Police Scotland to determine how the sex of people charged or convicted of rape or attempted rape is recorded on the CHS’.

The Crown Agent likewise stated that the policy was a matter for Police Scotland:

‘As COPFS use data that is provided by the police it is a matter for Police Scotland to confirm that data about accused people, including their sex, is recorded accurately.’

Crown Agent submission, 4 November 2021

The SCTS similarly stated that the information used in criminal proceedings originated from Police Scotland, although indicated its willingness to improve data accuracy. 

‘In criminal proceedings the SCTS receives information on the sex of an accused from a data file sent electronically by the Crown Office and Procurator Fiscal Service (with information which originates from Police Scotland).

The SCTS is willing to work with justice partners to help improve the accuracy of recorded data. Should IT changes be deemed necessary to facilitate this, we would anticipate there would be associated costs for the SCTS and other justice partners.’

Scottish Courts and Tribunals Service submission, 2 November 2021

However in response to questions from MSPs during an evidence session of the Criminal Justice Committee on 15 December 2021, Deputy Chief Constable Malcolm Graham appeared to defer to the Scottish Government:

“We are also awaiting Scottish Government guidance on that complex issue.”

Deputy Chief Constable Malcolm Graham, 15 December 2021

At the same evidence session, the Cabinet Secretary for Justice Keith Brown MSP deferred back to Police Scotland, whilst noting Scottish Government interest:

“It is important that the police take a human rights approach; that the rights of everybody involved are, as DCC Graham said, observed, respected and upheld; and that the safety of everybody is upheld, too. That is the right approach for the police to take, and I am therefore very supportive of DCC Graham’s comments.”

In many cases, the police will do the data collection on the issue, although…the Government will have an interest in and view on that.”

Cabinet Secretary for Justice Keith Brown MSP, 15 December 2021

On 30 September 2021 we wrote to Scottish Police Authority (SPA) raising concerns in relation to a range of policies based on gender self-identification principles, including police recording. We received a reply from the SPA Chair on 17 December 2021, which stated:

‘The Authority takes the evidence based view that Police Scotland’s current recording practice makes every effort to comply with the law, the guidance from the Chief Statistician for public bodies on the collection of data on sex and gender (September 2021) and the European Code of Practice.’

SPA Chair Martyn Evans, 17 December 2021

[Note: although the Chief Statistician’s guidance advocates the cessation of collecting data on sex in most circumstances, the guidance singles out the ‘investigation of serious sexual offences’ as an example where data on biological sex is required.]

More encouragingly, the Authority stated that:

‘This is an area of significant public interest and Assistant Chief Constable Gary Ritchie has asked Police Scotland’s Data Governance Board to review internal policies and recording procedures’.

SPA Chair Martyn Evans, 17 December 2021

On 30 December 2021 it was reported that former Justice Secretary and Alba MP Kenny MacAskill has written to the Chair of the SPA to ask whether the Board has approved the policy and on what basis, and calling for it to reversed.

[Note: Mr MacAskill served as Cabinet Secretary for Justice from 2007 to 2014. His recent intervention suggests that he was not made aware of change in police recording practices made whilst in post].

How did we get here?

Police Scotland appear unable to explain how or when their recording policy came about. An FOI response from April 2019 states that the policy ‘evolved as best practice’. Police Scotland could not provide any information as to when the policy was introduced, who was consulted, who took the decision, and whether an impact assessment was undertaken.  

In other policy areas similar changes have taken place as a result of lobbying, often without a clear audit trail or wider consultation with other affected groups, and it may well be that the same dynamics are at play here.

Groups campaigning for transgender rights have successfully lobbied public bodies to cease collecting data on sex, in favour of data on self-declared gender identity in health, higher education, for employment law purposes, and in the UK censuses. In 2020 an Office for National Statistics (ONS) senior official admitted that guidance for the sex question in the 2011 census in England and Wales, which advised respondents that they could answer based on their self-declared gender identity, was introduced ‘at the request of the LGBT community’. Correspondence released under FOI also appears to show a close relationship between ONS and Stonewall.

In Scotland, the push to cease collecting data on sex in favour of data on gender identity has come primarily from the Equality Network (EN), and its transgender rights lobbying arm, the Scottish Trans Alliance (STA).

[Note: EN is almost entirely funded by the Scottish Government, while the STA is wholly funded by the Scottish Government. Correspondence accessed by FOI also appears to show a close relationship between the Equality Network (EN) and the National Records of Scotland, which oversees Scotland’s census.]

During the passage of the Census (Amendment) (Scotland) Act 2019, the EN/STA campaigned for the collection of data on self-declared gender identity in place of sex, at times deploying extraordinary rhetoric in support of its aims. An online petition launched by the EN in 2019 described those arguing for data collection in the census to based on legal sex as ‘very loud anti-trans lobbyists’, and asserted that their intention was to ‘roll back over 30 years of trans people’s rights to privacy and dignity’. In supplementary written evidence on the Census Bill the STA stated:

‘we feel that any attempt to insist on trans people recording their sex as something other than their lived sex would represent a serious regression in the Scottish Government’s approach to trans people’s rights. It would indicate that the Government considered biological sex characteristics at birth/legal sex as more “accurate” information about a trans person than lived sex.’

Scottish Trans Alliance, 17 December 2019

Further written evidence from the Scottish Trans Alliance stated that a sex question based on self-identification was ‘essential to trans people’s ability to “live in dignity and worth” as established in Goodwin and I v. UK’, and described data collection based on biological sex as a breach of privacy under the European Convention on Human Rights Article 8 – a view that has since been challenged in a formal legal opinion. The EHRC have also since confirmed that it is legitimate and lawful to ask questions on sex registered at birth ‘provided that the questions are proportionate and appropriate to the particular purpose for which the data are being collected, and do not discriminate against or breach the human rights of respondents’. In relation to data reliability, the STA stated that a ‘small fraction of a percent uncertainty in statistical sex data (which can be substantially resolved by also asking a voluntary trans status question) is not a major inconvenience for society’ – a view that independent academic experts have consistently challenged.

In relation to police recording practices, the Scottish Parliament’s Citizen Participation and Public Petitions Committee does not appear to have received a submission from the EN/STA. The absence of any input on this issue stands in contrast to their level of engagement with the CTEEA committee on the Census Bill.

Why does it matter?

Given that the vast majority of sexual offences are committed by males (and the vast majority of victims are females), only a small number of misclassified cases have the potential to skew the data.

The risks to data reliability are not hypothetical, a line often deployed by defenders of this policy. In a submission to our petition, quantitative social scientist Professor Alice Sullivan noted that 436 individuals accused of rape between 2012 and 2018 in England and Wales were recorded as women.

Establishing what criminal justice data on sexual offending actually represents relies on case-by-case interrogation of records. The CPS confirmed with Professor Sullivan that it was unable to confirm the sex of the 436 individuals, because this would entail manually examining every case file. Such an exercise was undertaken by Police Scotland earlier this year, in response to a FOI request, although this was only made possible by Police Scotland choosing to waive the £600 FOI limit, due to ‘public interest’ and examining restricted records.

In 2020 we queried a case published in 2018/19 Criminal Proceedings in Scotland, which appeared to show a female convicted of rape or attempted rape. In response, a Scottish Government official stated: ‘I’ve investigated your query, and it appears that this case may be misclassified. I’ve found nothing in the media that would fit the bill for a female being convicted of rape during 2018-19’ (email correspondence, 25 June 2020). At the time of writing the case remains uncorrected.

It should be clear to all bodies involved in the production and oversight of criminal justice statistics that reliance on ad hoc data interrogation of unpublished records or scanning media report is not a robust or sustainable approach to data collection.

Where next?

We hope that the Citizen Participation and Public Petitions Committee may be able to shed more light on how the present situation came to pass. Given the lack of clear lines of accountability or an audit trail on previous decision-making, we hope that the Committee will agree that it should now fall to the Scottish Government to require Police Scotland to record sex accurately. Indeed, it is not clear why the Scottish Government should not give that lead to Police Scotland now.

Crime recording practices in Scotland are overseen by the Scottish Crime Recording Board whose role it is to ‘support the production of accurate and objective statistics on crime in Scotland’. The Board is chaired by the Scottish Government and may be the most suitable vehicle to implement the necessary changes.  

Recording sex accurately in these cases matters for data accuracy and trust in official statistics, public policy, media reporting, research, and for trust in public bodies. There is also a strong moral imperative to record sex accurately. Criminal Justice statistics paint an aggregate picture but are comprised of individual incidents that reflect people’s lives and experiences. A policy that prioritises the perspectives of those charged with rape or attempted rape in data collection delivers a stark message about Police Scotland ‘values’ in this area, not least when it comes to the predominantly female victims of sexual offences.