Diversion from prosecution: joint review

Introduction

The aim of this review was to assess the operation and impact of diversion from prosecution in Scotland. We sought to provide an overview of diversion practice from a policing, prosecution and justice social work perspective, highlight what is working well and explore any barriers to the more effective use of diversion.

The review was carried out by HM Inspectorate of Constabulary in Scotland, HM Inspectorate of Prosecution in Scotland, the Care Inspectorate and HM Inspectorate of Prisons for Scotland. Given that effective partnership working is essential to the delivery of diversion, we considered that a similarly collaborative approach was required for its scrutiny.

The number of diversion from prosecution cases commenced rose by 12% between 2019-20 and 2020-21, the highest level in the last seven years. This rise is likely linked to changes in prosecution policy in 2019. Prosecution policy now states that diversion should be considered for all people where there is an identifiable need that has contributed to their offending and which can best be met through diversion. For children under the age of 18 in particular, there is a presumption that an alternative to prosecution will be in the public interest. More broadly, there has been a shift in public policy in recent years, with a greater focus on community justice and early intervention to address the underlying causes of offending.

We welcome this shift in focus as well as plans to optimise the use of diversion even further. Many accused persons require support for mental health, substance use or other issues and diversion from prosecution offers an opportunity for that support to be provided swiftly. Early intervention can help address the underlying causes of offending, avoid the person being drawn further into the criminal justice system and reduce or prevent further offending, to the benefit of the person, victims and communities. We therefore welcome the efforts made by a range of agencies involved in diversion at a national and local level to encourage greater use of diversion, to work in partnership and to deliver effective interventions.

During our review, we interviewed people who had been diverted from prosecution. They were overwhelmingly positive about their experience and welcomed the support they had received, saying it had helped them make meaningful changes in their lifestyle and behaviour.

In the past, people were often referred to diversion 'schemes' that provided support for a particular issue. Diversion practice has moved on, with people now receiving bespoke, person-centred interventions that are tailored to their needs. In the vast majority of cases, prosecutors can make a referral to justice social work without having to first check the availability of a service This is a positive development and promotes equal access to diversion.

We consider that diversion is working well and is developing in a positive direction. The publication in 2020 of national guidelines on diversion has been a significant milestone, and we welcome ongoing work to revise them and hope that they will be re-launched to achieve widespread awareness and understanding of current policy and practice. We have also, however, found scope for improvement in how diversion from prosecution operates and we have made 34 recommendations. These recommendations are intended to support the diversion partner agencies to continue to plan and deliver diversion services more effectively, to manage diversion efficiently across agencies, and to maximise diversion while maintaining confidence in its use as an appropriate response to offending behaviour.

Scotland's National Strategy for Community Justice includes an aim to optimise the use of diversion and intervention at the earliest opportunity. Our findings show that there are several ways in which diversion could be increased, including by:

• improving the quality of information submitted by the police to COPFS to assist appropriate decision making by prosecutors
• further increasing consistency in case marking by COPFS
• ensuring the processes for managing diversion across agencies are as effective and efficient as possible
• increasing the take-up of diversion by accused persons. While diversion is voluntary, more could be done to tackle the high level of non-engagement in the diversion assessment process.

There also needs to be a recalibration of the processes for managing diversion from prosecution to account for cases in which the accused person is diverted in relation to more serious offending.^[1] While diversion may only be used infrequently in such cases, there is nonetheless a need to strengthen the processes for managing them and to ensure they are robustly monitored.

There is a need to raise awareness of diversion as an appropriate response to offending by adults. Among professionals, confidence in the use of diversion for children is high and diversion is well-established as a positive and effective approach. More could be done to promote a similar level of confidence in the use of diversion for adults. The Children and Young People's Centre for Justice hosts a national forum for diversion practitioners and stakeholders working with children. We found that those who attended the forum typically have a better strategic and operational awareness of diversion, and we consider there to be merit in establishing a similar forum for those working with adults diverted from prosecution.

By its very nature, diversion from prosecution is focused on the needs and circumstances of the accused person and on providing them with support to address the underlying causes of their behaviour. While the impact of the offence on the complainer is taken into account by the prosecutor when they decide whether to offer diversion from prosecution, there should be a greater focus on the needs of complainers when diversion proceeds. In particular, there is a need to improve communication with complainers where the accused person in their case has been diverted.

In our recommendations, references to the 'diversion partner agencies' should be taken to include Police Scotland, COPFS, local authority justice social work services and Community Justice Scotland.

We would like to thank all those organisations and individuals who participated in our review and who shared their views and experiences with us. Their input has helped shape our findings and recommendations.

Laura Paton - HM Chief Inspector of Prosecution

Jackie Irvine - Chief Executive, Care Inspectorate

Craig Naylor - HM Chief Inspector of Constabulary

Wendy Sinclair-Gieben - HM Chief Inspector of Prisons