In light of the recent Graham/Bryson case, this blog updates the position on our petition calling 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.
The Bryson case
The conviction of Adam Graham/Isla Bryson on two charges of rape has thrown the Scottish Prison Service transgender prisoner policy in sharp focus. Published in 2014 the policy states that prisoners should be accommodated on the basis of self-identity, subject to a risk assessment. As a direct consequence, Bryson was initially placed in segregation at Cornton Vale women’s prison. Following a public and political backlash, the Scottish Government subsequently confirmed that he would be removed to a male prison.
Police Scotland recording practice
The Bryson case has also thrown light on Police Scotland recording practices. The BBC initially reported Police Scotland as stating that Bryson’s offences would not be recorded in official crime statistics as committed by a male. Police Scotland then confirmed this had been reported incorrectly and that Bryson’s offences would in fact be recorded as committed by a male, since the charges predated his trans identity. The implication of the clarification is that any offences committed after the declaration of a new identity would be recorded as female.
How Police Scotland the sex of those accused of rape is the subject of the Scottish parliamentary petition we lodged in June 2021.
Our submission to the Committee explained that although the petition concerned the accurate recording of sex in cases of rape and attempted rape, with direct implications for data accuracy, it also raised questions for other agencies, including the courts and the media.
This petition… raises questions of principle, trust in statistics, and trust in public organisations. Accurate data recording matters for research, public policy development, and for public understanding of women’s offending.
The petition also raises questions about how police and court recording practices can affect those who have reported rape or attempted rape. For example, how perpetrators are described to complainants, how complainants are expected to describe perpetrators in police interviews and when giving evidence in court, and how recording may affect media reporting. We believe strongly that those who have experienced rape and attempted rape should be free to describe how they perceive their attacker’s sex in their own preferred language, and to have their attacker described to them in the same way. The Committee could help clarify the situation here.
The petition secured nearly 13,000 signatures. Committee correspondence and updates on the petition can be accessed here and our own commentary and updates are here:
Latest post Background In April 2021 Police Scotland confirmed in a Freedom of Information response that it allows incidents of rape and attempted rape to be recorded based on a person’s self-declared gender identity. The response explained: ‘If the male who self-identifies as a woman were to attempt to or to penetrate the vagina, anus…
Recent responses from Police Scotland, the Scottish Government, the Crown Office and Prosecution Service (COPFS)
In October/November 2022 the committee received new submissions from Police Scotland, the Scottish Government and the Crown Office and Prosecution Service (COPFS).
The COPFS submission defers to other reporting agencies, including Police Scotland. It notes that sex is a protected characteristic under the “Equalities Act” (sic) but offers no comment on its definition.
The sex of an accused person forms part of the personal data that COPFS receives from reporting agencies, including the Police Service of Scotland. This will include those accused persons who have been charged with rape or attempted rape. Sex is a protected characteristic in terms of the Equalities Act 2010.Crown Office and Procurator Fiscal Service 20 October 2022
Similarly, the Scottish Government defer to Police Scotland. The government also confirmed that there are currently no plans to revise the Chief Statistician’s guidance for public authorities on collecting data on sex and gender identity. This advises against collecting data on biological sex except in very limited circumstances. It does however, single out the ‘investigation of serious sexual offences’ (2021: 11) as an example where data on biological sex is required.
As set out in previous correspondence, it is a matter for Police Scotland to determine how the sex of people charged or convicted of rape or attempted rape is recorded within their operational databases. Similarly, the recording practices of the Crown Office and Procurator Fiscal Service and the Scottish Courts and Tribunals Service are operational matters for those bodies.Scottish Government 25 October 2022
The Police Scotland response (3 November 2022) refers back to its previous submission on the petition. It also notes that DNA samples are collected from all those accused of a sexual offence, and that biological sex is recorded on the Scottish DNA database. This is not relevant to the publication of recorded crime statistics.
The previous Police Scotland submission confirmed that that sex and gender are used interchangeably for all offences.
The sex/gender identification of individuals who come into contact with the police will be recorded on police systems such as crime management and custody databases on how they present unless an alternative gender is disclosed. This is the case for all offences.Police Scotland 22 November 2021
The previous submission also indicated that Police Scotland believed its current approach to be limited insofar as it did not allow for recording other gender identities.
Police Scotland still uses a number of legacy IT systems and we are therefore limited in our ability to record gender as anything other than the binary option of male or female. We recognise that a person may not feel it appropriate for them to be assigned binary options and the situation will be reviewed as we roll out any new IT platforms.Police Scotland 22 November 2021
A problem of complacency?
In justifying its approach, the Police Scotland submission relied in part on the observation that no biological male charged with rape had self-identified as a woman.
there are no known cases where a biological male has been charged with the physical crime of rape and has self-identified as a women.Police Scotland 22 November 2021
A similar argument in support of this view was made in an academic paper published in October 2022. This stated:
‘Given that there were 2343 recorded rape/attempted rape offences in Scotland in 2019–20 (the second highest number since records began in 1974), and since trans women have been able to secure a GRC without surgery since the GRA in 2004, 17 years ago, and not one trans woman has been a suspect in a rape/attempted rape in Scotland, it might be tempting to think of MBM’s petition as a solution in search of a problem’Collier and Cowan 2022: 261
As noted above, the Police Scotland statement remains technically correct since Bryson declared a trans identity after being charged. Nonetheless, the case reveals the inherent instability in police recording practices and statistical outputs; had Bryson claimed a trans identity ahead of being charged his offences, or committed any further offences after changing identity, these would have been recorded as committed by a women. It is, or should be, obvious that this is a misguided approach to data collection.
As we have argued previously it appears that no public authority is prepared to take responsibility for Police Scotland’s approach to recording crime. Indeed until recently Police Scotland itself appeared unable to explain how its policy developed: an opaquely worded FOI response from April 2019 stated that the policy had no effective start date and had ‘evolved as best practice’.
In January 2022 however, Police Scotland confirmed to the Scottish Parliament that it had developed its policy ‘to prepare for the Gender Recognition Reform Act reform’. In this way, Police Scotland followed the same path as the Scottish Prison Service, introducing self-identification ahead of the law:
In 2019, to prepare for the Gender Recognition Act reform which was taking place at the time, Safer Communities E&D team considered a draft Police Scotland policy on Gender Identification and assessed that a Police Scotland position statement was required.
A position statement (below) was developed by Police Scotland. This was approved by the Senior Leadership Board in November 2019 for use in response to enquiries while Police Scotland awaited direction and guidance from Scottish Government on the identification and recording of sex and/or gender, which would emerge from a review by the Scottish Government’s Chief Statistician.
Gender self-declaration position statement:
“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.
Police Scotland requires no evidence or certification as proof of biological sex or gender identity other than a person’s self-declaration, unless it is pertinent to any investigation with which they are linked as a victim, witness or accused and it is evidentially critical that we legally require this proof, or there is reason for further enquiry based on risk. We would look for the most sensitive way to acquire this information.”Letter from Police Scotland to the Convener, Criminal Justice Committee 28 January 2022, emphasis added.
Conclusion: an opportunity for MSPs to restore public trust
Putting aside the risks for data accuracy and the inherent instability in Police Scotland’s approach to crime recording, as demonstrated by the Bryson case, a policy that prioritises the perspectives of those charged with rape or attempted rape delivers an exceptionally bleak message about Police Scotland ‘values’, not least when it comes to the predominantly female victims of sexual offences.
In light of the Bryson case, we think that Police Scotland needs to reassess its values. We also hope that the Scottish Parliament’s Citizen Participation and Public Petitions Committee will now review our petition as a matter of urgency. Doing so is one way for MSPs to show that they take seriously the level public concern that the Bryson case has generated about what it means to replace sex with gender identity within the criminal justice system.