Diverting young people from prosecution: toolkit

5. Types of diversion for young people who offend

What is the preferred model of diversion?

Waiver or Deferred prosecution - Waiver and Deferred prosecution are the two models of diversion from prosecution that can be applied. Waiver provides that the Procurator Fiscal will 'waive' prosecution in (not proceed with) the case even where an individual does not complete the diversion programme and this is made clear to them from the outset. For deferred prosecution, a report should be provided following completion of diversion, setting out whether the individual engaged with the service and the outcomes of the programme. The Procurator Fiscal still has the option to prosecute as the young person has been advised that any prosecution is being deferred pending the results of that young person's engagement with the diversion programme.

This toolkit recommends the deferred prosecution model as it provides incentives to engage with services, resulting in better outcomes for the young person.

What kinds of diversion programmes are available for young people?

Social Work Diversion - A referral from the Procurator Fiscal to the Local Authority Social Work Department to work with the young person to provide support, advice and opportunities to effect change in relation to problems associated with their behaviour.

Normally, under this programme, the young person will be involved in individual and group work sessions which, depending on the needs of the young person, will cover the following areas: offending behaviour, alcohol education, drug education, sexual health, social skills, employment & training opportunity and problem solving. Other agencies can be included where necessary, for example, the Fire Service. Annex A sets out the Dumfries and Galloway model of youth diversion which uses an educational/awareness based Programme. Annex B provides the modules used in the Aberdeen model of youth diversion.

Diversion providers should work with the Procurator Fiscal in assessing what the young person should be offered through the diversion programme. They will have to consider whether, and if so how, other agencies can provide resources that will contribute to the effectiveness of the diversion programme.

Restorative Justice ( RJ) Programmes - Restorative Justice covers a range of practices aimed at addressing or repairing the harm caused by offending behaviour. Broadly speaking, an RJ process provides support for victims, as well as offering offenders the opportunity to take responsibility for their actions and make amends. The aim is to address behaviour in a way which empowers the people harmed, those responsible, and wider community members to resolve issues in a constructive way. RJ is aimed at those who have offended and participation is entirely voluntary - once embarked upon, either party can withdraw from the process. Annex C sets out the protocol between Crown Office and Procurator Fiscal Service and Sacro.

Motoring Offence Diversion - The programme should make a driver of any age aware of their poor driving behaviour and if possible result in improvements to that behaviour without the need to bring the case to court. These programmes can be provided by private providers or included in social work diversion programmes. Aberdeen has addressed motoring offences using their cognitive modules (Annex B).

Psychiatric Diversion - It is not recommended that separate psychiatric diversion programmes should be established. But clearly some young people who offend may benefit from engagement with psychiatric or psychological services. Annex D suggests ways in which providers of diversion programmes or services can access psychiatric services for young people.

What other measures can be used as an alternative to prosecution?

Flexible Approach to Offending - This approach, which is managed by the police, aims to prevent future offending and antisocial behaviour by children and young people and provide interventions which are timely and proportionate, whilst at the same time alerting other agencies to concerns which exist about a child's or young person's well-being. This approach will include 16 and 17 year olds [link to follow when final paper published].

Direct Measures - The Procurator Fiscal can also use other Direct Measures such as: a warning, paying a fine or the option of paying compensation. Direct measures are generally regarded as lower tariff than diversion to social work or to a restorative justice programme.