How institutional inertia allowed rapists to self-declare as women

Earlier this week, Chief Constable Jo Farrell announced a major policy change in Police Scotland recording policy. Confirming that sex would be recorded wherever pertinent, Farrell distanced the single service from policies based on self-declared gender, developed under the force’s previous leadership. In a further welcome development, at a later Scottish Police Authority Board meeting the chief constable committed to reviewing its suite of policies based on self-identification principles. 

Concerns about Police Scotland’s recording policies date back to 2019. In response to a parliamentary question from Joan McAlpine MSP, then justice secretary Humza Yousaf told the Scottish Parliament that Police Scotland “record incidents according to a person’s self-identified gender”. McAlpine responded, “I think that many people will be shocked”. Later that year, senior police managers approved an effusive position statement that declared its recording policy was “consistent with values of the organisation”, a line that would come to haunt the single service.  

More recently, in response to a request for information from Holyrood’s Citizens Participation and Public Petitions Committee, in the specific context of recording rape, Police Scotland went further still, proclaiming that its policy promoted “a strong sense of belonging”. Sparking public outrage, a slew of critical headlines, and a visceral response in the Scottish Parliament, the fallout saw the service urgently trying to distance itself from its past position.   

That it has taken so long for Police Scotland to ditch a statistically flawed and obviously offensive policy reflects badly on the ability of the single service to think from first principles.

Looking back, it also suggests an eagerness among Police Scotland’s senior managers to align with government policies. That its key lines surfaced at a point at which the government was vigorously pursing gender recognition is not coincidental. As then Deputy Chief Constable Malcolm Graham (now chief executive at the Scottish Courts and Tribunals Service), told the Parliament in 2022, Police Scotland purposefully developed its position statement in anticipation of reform of the law on gender recognition.

The same principles can be seen in a long-standing custody policy (now under review) that required female officers to search trans-identified male suspects. It is also embedded in a 2019 staff policy that provides access to nominally single-sex facilities based on self-declared gender identity, inclusive of cross-dressers.

The accountability gap

The  U-turn on recording has thrown the accountability gap in Scottish policing into sharp relief. When questioned in the Scottish Parliament, First Minister John Swinney stated that it was an operational matter for Police Scotland.

At the same time, Police Scotland has repeatedly said it is looking to government for guidance. In recent correspondence with the Criminal Justice Committee, Deputy Chief Constable Alan Speirs cited an “absence of direction”. Earlier this year the Office for Statistics Regulation reminded Scotland’s chief statistician, “you have the authority to publish definitions and to advise on when they should be used”. The Scottish Crime Recording Board, which oversees crime recording standards, has advised that it has no locus.

The Parliament’s Citizen Participation and Public Petitions Committee has had a petition specifically on Police Scotland’s recording policy before it for over three years. We understand that the petition received one of the largest numbers of signatures of any petition put before the parliament. Even so, the committee never felt able either to call the police service to appear before it for questioning, or to refer the petition to another committee. Its reticence, particularly under a Conservative convener and without a government majority, is hard to understand.

Where was the Scottish Police Authority?

The most striking absence here is the Scottish Police Authority (SPA). Under the Police and Fire Reform (Scotland) Act 2012, oversight and scrutiny of the single service relies on the SPA undertaking its role fully independent of Police Scotland and government. To do so it needs to think independently, provide robust challenge, and ask difficult questions, without fear or favour.

For the most part it has remained publicly silent on policies whose underlying principles have seen damaging and high-profile controversies play out in other parts of the criminal justice system. These include the placement of double-rapist Isla Bryson/Adam Graham in a woman’s prison, and placement of male-registered sex offender Katie Dowlatowski in a women’s hostel. Fife Council stated “this was done in line with national policy and through the Multi-Agency Public Protection Arrangement (MAPPA) with police, NHS Fife and the Scottish Prison Service”.

In September 2021 we wrote to the Chair raising concerns about several Police Scotland policies based on gender self-identification principles, including incident recording. Appearing to rely uncritically on assurances from the single service, the Chair told us that the recording policy made “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”.

Just four months later Police Scotland told the Scottish Parliament that the chief statistician’s guidance did not, in fact, provide answers to its recording challenges. It fell to legal academics to later point out that the policy contradicted international human rights requirements and to challenge Police Scotland’s inaccurate assertion that its policy was required by law.

In respect of Police Scotland custody policy, the Chair stated that the SPA was not aware of any concerns raised by detainees or staff. Nor was it aware of any concerns about staff policies that disregarded single-sex protections. This entirely misses the point, which is that these policies provide for these possibilities, foregoing basic safeguarding principles.  

It is only within the last fortnight that the SPA has begun to publicly engage with Police Scotland’s recording policy. Even then, the Chair has characterised its role as seeking assurance from the chief constable, rather than one of assessing the substantive issues around the law, statistics, and ethics, for itself. 

Institutional inertia

With Police Scotland’s attitude towards women an issue of serious long-standing concern, the SPA ought to have been alert and active, long before now. The drawn-out reputational damage being done to Police Scotland should also have prompted the SPA to engage much earlier. Instead, its conduct here might be described as institutional inertia. Seemingly oblivious to this, at the recent board meeting the Chair grumbled that it was not for other organisations “to sit on the sidelines on this complex matter”.

This inertia is not limited to the SPA. That a policy which provided for rapists to self-declare as women also went unchallenged by government and a Scottish Parliament committee is remarkable.