Diversion from prosecution: joint review

Key findings

Direction

There is strong support for diversion from prosecution among those agencies involved in the diversion process. The use of diversion has risen in recent years and the diversion partner agencies are keen to extend its use further, in line with the government's national strategy for community justice.

The publication of national guidelines on diversion has been a significant milestone. The guidelines are valued by those who are aware of them. However, awareness of the guidelines is not yet widespread, resulting in variable practice across Scotland. The ongoing review of the guidelines offers an opportunity to address our recommendations and to promote greater standardisation in approaches to diversion.

Awareness of the national guidelines and of diversion from prosecution more generally could be improved by better training across the diversion partner agencies. In particular, the greater use of multi-agency training would help partner agencies gain a better understanding of each other's roles and responsibilities and facilitate communication between agencies.

There was strong and effective multi-agency collaboration at a strategic level to plan and deliver diversion services in some areas, supported by national strategy and guidance. However, other areas placed less emphasis on diversion service planning.

There is scope to increase the use of diversion from prosecution further by addressing key attrition points in the diversion process.

While some community justice partnerships expressed readiness to respond to an anticipated increase in diversion referrals, others were less confident about their capacity to manage an increase in referrals against a backdrop of already stretched resources.

Improved consultation with victims, communities and those with lived and living experience of diversion has the potential to enhance service planning and delivery.

Confidence in and awareness of diversion from prosecution for child accused were high, but there is scope to develop this further in respect of diversion for adults.

Execution

When completed with relevant information, Standard Prosecution Reports submitted by the police allowed prosecutors to take informed decisions to divert accused persons from prosecution. Reports containing relevant information tended to relate to child accused.

In 26% of the cases we reviewed, information held by the police that could support a prosecutorial decision to divert was not included in the report. In only 10% of cases did the reporting officer give a view on the accused person's potential suitability for diversion.

There was limited awareness among reporting officers of diversion from prosecution and how information about the accused person's circumstances might support a decision to divert.

The creation of a national case marking unit within COPFS has promoted consistency in prosecutorial decision making across Scotland. However, consistency could be improved even further as some cases continue to be marked by other units whose staff sometimes have a lower level of awareness and understanding of diversion.

There is scope to support greater awareness of current diversion practice among all COPFS staff involved in marking and managing diversion cases by providing updated, comprehensive guidance and through training.

COPFS rarely notified justice social work of the reasons a person was being referred for an assessment of their suitability for diversion. However, new referral processes are being developed which should address this issue.

There were significant delays in processing some of the diversion cases we reviewed. The recent creation of a dedicated diversion administrative team should help avoid such delays recurring. Generally, more could be done to improve the efficient management of cases across COPFS and justice social work.

Suitability assessments were undertaken by a mix of social work and paraprofessional justice staff. Where the alleged offending was of a more serious nature, assessments were undertaken by qualified social workers and there was more likely to be early and effective communication between justice social work and COPFS.

79% of people assessed as unsuitable for diversion had not engaged in the assessment process. Assessments did not always indicate the extent of the efforts made by justice social work to engage the accused person before they were assessed as unsuitable.

The people we spoke to who were currently on, or had recently completed diversion were overwhelmingly positive about their experience. Many felt they had been given a 'second chance' to access support and to gain or maintain employment.

A range of interventions for people diverted from prosecution were available in every community justice partnership area. Diversion interventions were largely bespoke, person-centred and tailored to the needs and circumstances of the person.

The profile of people being referred for diversion is changing. This relates to the complexity of their needs and/or the seriousness or frequency of their offending. Some areas found this challenging, but others were responding by using appropriately trained staff, investing in further training or implementing appropriate protocols, all of which had resource implications.

There was effective multi-agency collaboration in delivering diversion interventions between justice social work and other services, including third sector organisations, youth justice, mental health, health, employment and housing.

Just over half of completion reports were rated as good or better, with the majority describing how the diversion intervention had addressed the issues identified at referral or during the suitability assessment.

Most suitability assessments and completion reports were submitted by justice social work to COPFS within the target timescale.

There was no nationally agreed template for suitability assessments, completion reports or diversion plans. This led to inconsistencies in the information provided to COPFS, as well as variation in how progress, outcomes and feedback from people on diversion was captured.

A more robust approach to the diversion process involving greater oversight by prosecutors is needed in respect of some cases, such as those involving more serious offending.

Justice social work staff are keen to learn the final outcome in cases where the accused person has received a diversion intervention, but they are rarely informed of this by COPFS.

There is a need for COPFS to improve its communication with accused persons who are diverted from prosecution. Template letters are generally not fit for purpose and are rarely tailored to individual needs.

COPFS should also improve its communication with complainers in cases where the accused person has been diverted from prosecution. Complainers were usually referred to the Victim Information and Advice service where they met specified criteria, but the referrals were rarely acted upon.

Results

In the cases we reviewed, 90% of people who commenced diversion completed it successfully.

At a more strategic level, community justice partnerships were not always able to demonstrate either the impact of diversion or that intended outcomes had been achieved.

Across agencies and local areas, diversion outcomes were defined, gathered, recorded, communicated and used in varying ways, contributing to missed opportunities to benchmark performance in support of improvement in service design and delivery.

There are significant variations between local authorities in, for example, the rates at which diversion referrals are converted to cases commenced and at which cases commenced are successfully completed. These variations do not appear to be fully understood by partner agencies.

Some of the inconsistent diversion practices we found may contribute to inequity in diversion outcomes.