Diversion from prosecution: joint review

Context

What is diversion from prosecution?

1. Diversion from prosecution is one of several alternatives to prosecution available to the Crown Office and Procurator Fiscal Service (COPFS) upon receipt from the police of a report of alleged offending. Diversion is the process by which COPFS refers an accused person to local authority justice social work (or a partner agency) for support, treatment or other action as a means of addressing the underlying causes of the alleged offending and preventing further offending. Diversion from prosecution will be considered in any case where the person reported to COPFS has an identifiable need that has contributed to the offending and where it is assessed there is a sufficiency of evidence and that diversion is the most appropriate outcome in the public interest.

Diversion in context

2. Diversion from prosecution is one of a range of community justice interventions available to address the underlying causes of offending and to prevent reoffending. Although prosecution policy is a matter for the Lord Advocate and prosecutorial decisions in individual cases are taken by the procurator fiscal, diversion has Scottish Government support. In 2016, the Scottish Government published its first National Strategy for Community Justice and set out its vision for people to be held to account for their offending, but also to be given the opportunity to tackle the causes of that offending via early intervention, diversion and community-based disposals.^[2] The strategy stated that community justice partners should:

'Maximise opportunities for the use of diversion. This will require a balance of appropriate decision-making by the Procurator Fiscal and provision of suitable services by criminal justice social work and the third sector.'

3. The strategy described the Scottish Government's understanding of the aim of diversion from prosecution as being to prevent individuals entering the wider criminal justice system by addressing the underlying causes of offending, and to help ensure people get access to the drug, alcohol and mental health services they need.

4. In June 2022, the Scottish Government published a revised National Strategy for Community Justice.^[3] The new strategy reiterates the government's commitment to community-based interventions. It sets out four national aims for community justice, one of which is to, 'Optimise the use of diversion and intervention at the earliest opportunity'. One of the strategy's priority actions is to:

'Enhance intervention at the earliest opportunity by ensuring greater consistency, confidence in and awareness of services which support the use of direct measures and diversion from prosecution.'

5. The new strategy highlights the importance of ensuring effective services provided by justice social work and the third sector are in place across Scotland for those who have been diverted from prosecution, and of decision makers having confidence in those services. It also emphasises the need for community justice partners, including the police, COPFS, justice social work and the third sector, to work together to achieve positive outcomes.

National guidelines

6. To support diversion from prosecution, Community Justice Scotland^[4] published national guidelines on diversion in 2020.^[5] Developed in partnership with Police Scotland, COPFS, the Scottish Government and others, the guidelines describe the aims and benefits of diversion, the diversion process and the role played by the police, prosecutors and local authorities.

7. The benefits of diversion are described in the guidelines as:

• providing an opportunity to the accused for support with issues related to their offending
• avoiding unnecessary contact with the criminal justice system
• not receiving a conviction for the alleged offence, which can impact the accused's longer term employment opportunities.

The diversion process

8. The following is a brief overview of the diversion process and the role played by the key agencies involved.

Police

9. When the police detect a crime, they report the accused person to COPFS via a Standard Prosecution Report (SPR). The SPR template features an antecedent section in which the police should record information relating to the accused's mental health, alcohol or drug use, risk, vulnerability, disability, attitude to offending, family dynamics and education or employment status. There is also an opportunity for the police to express a view on the accused's potential suitability for diversion from prosecution, based on their knowledge of the incident and the individual.

Crown Office and Procurator Fiscal Service

10. The information provided by the police in the SPR is used by COPFS to inform prosecutorial decision making. Prosecution decisions are guided by the Prosecution Code as well as case marking instructions. In relation to each case, prosecutors will consider whether there is a sufficiency of evidence and, if there is, what prosecutorial action, if any, is in the public interest. Since 2019, prosecution policy has required that diversion be considered for all individuals reported to COPFS where there is an identifiable need which has contributed to the offending which can best be met through diversion.

11. Where a prosecutor considers that an accused person should be diverted from prosecution, the prosecutor:

• writes to the accused, offering them the opportunity to opt out of diversion (diversion is a voluntary process)
• refers the accused to local authority justice social work for assessment.

Justice social work

12. On receipt of a referral, justice social work assess whether the accused person is suitable for diversion and submit an assessment report to COPFS within 20 working days. If the person is suitable, justice social work design an intervention that will address the underlying causes of their offending. The intervention may be delivered by justice social work, by another statutory service, or by the third sector. At the conclusion of the intervention (which usually lasts three months), justice social work submit a completion report to COPFS.

13. Where the accused person is assessed as unsuitable for diversion or where justice social work consider the person has not successfully completed the diversion, prosecutors reconsider the case and the full range of prosecutorial options will be available to them (for example, to prosecute, to offer another alternative to prosecution or to take no further action).

Diversion – an example

Joe is 28 years old. He has previous convictions for shoplifting.

Late one night he was seen by neighbours walking in the middle of the road, kicking car tyres, swearing and continually shouting threats of violence. Alarmed by his behaviour, they phoned the police. When the police arrived, Joe acted erratically and appeared delusional and paranoid. He was arrested for a contravention of section 38(1) of the Criminal Justice and Licencing (Scotland) Act 2010 (threatening behaviour).

The police submitted an SPR to COPFS and included information about Joe's excessive drinking and their view that he might also have mental health issues. The prosecutor marking the case noted these identifiable needs and referred Joe to justice social work for an assessment of his suitability for diversion from prosecution. Joe agreed to take part in diversion and he was assessed as suitable, with an appropriate plan being devised for the diversion intervention.

Joe engaged with the diversion process which involved:

• offence-focused work, which explored and addressed his offending behaviour
• engagement with an alcohol counselling service
• a referral to counselling via his GP in relation to his mental health.

After three months, Joe's diversion worker submitted a completion report to COPFS saying that Joe had successfully completed his diversion. As a result of Joe addressing his alcohol issues and his mental health stabilising, he was able to return to his previous employment as a painter and decorator. The offence-focused work undertaken by Joe helped him recognise the alarm he had caused to his neighbours and he had plans to make amends. After reviewing the completion report, COPFS took no further action against Joe. Following completion of diversion, Joe continued to engage with support services.

Data on diversion

14. The Scottish Government publishes annual data on diversion from prosecution in its Justice Social Work Statistics series.^[6] The data is extracted from justice social work management information systems. Chart 1 shows the extent of diversion since 2016, including the number of cases referred by COPFS to justice social work, and the number of assessments carried out by justice social work regarding an individual's suitability for diversion, as well as the number of diversion cases commenced and successfully completed.

15. Chart 1 shows that the number of referrals fluctuated over this five-year period, dropping from 3,476 in 2016-17 to 2,662 the following year before rising steadily to 3,886 in 2020-21. A similar pattern can be seen for cases commenced and cases successfully completed.

16. The Scottish Government also publishes data on the age, gender, employment status and ethnicity of the accused person in the diversion cases that were commenced. This data shows that, for example:

• The majority of diversion cases commenced involve males. In 2020-21, 67% of cases involved males and 33% involved females. This gap has widened in recent years – in 2016-17, 58% of cases involved males and 42% involved females.
• Those aged under 18 made up 26% of diversion cases commenced in 2020-21, up from 21% in 2016-17 (though down from 33% in 2019-20).
• Those aged under 21 have consistently made up the largest proportion of diversion cases commenced (40% of cases in 2020-21). Those aged over 40 are consistently the second largest proportion (27% of cases in 2020-21).

17. As well as national data, the Scottish Government publishes data at local authority level. This data shows that there are significant variations in diversion across Scotland. While nationally there were 5.8 diversion cases commenced for every 10,000 in the population in 2020-21, this ranged from 12.1 to 1.5 cases commenced.

18. Across Scotland, the rate of cases commenced per 10,000 population rose by 11% between 2016 and 2021. Four local authorities more than doubled their rate of cases commenced during this period while 11 local authorities saw their rates fall. In one authority, the rate of diversion cases commenced dropped by 66% over the five-year period.

19. Using the Scottish Government's data, we made approximations of the conversion rate from referrals to cases commenced between 2016 and 2021.^[7] This showed wide variation between local authorities. While 61% of referrals go on to diversion across Scotland, six local authorities appeared to have conversion rates of 80% or higher, while six local authorities had conversion rates of below 50%.

20. Similarly, we made approximations of the success rate of cases commenced between 2016 and 2021.^[8] Again, this showed significant variation between local authorities. While 77% of cases commenced were successfully completed across Scotland, in 11 local authorities the success rate was more than 90% while in three local authorities it was less than 60%.

21. COPFS also holds data on diversion from prosecution although this is not published. This data includes the type of charges faced by those who receive a first substantive marking of diversion.^[9] Over the period from 2016-17 to the first half of 2021-22, there were 14,486 cases in which an accused was marked for diversion based on a single charge.^[10] The five most common types of charge account for more than 80% of all single charge cases where the accused person was marked for diversion. The five most common charges were:

• offences relating to drugs (25%)
• breach of the peace etc (23%)
• common assault (19%)
• shoplifting (8%)
• dangerous and careless driving (7%).

22. Accused persons can be diverted in respect of serious offences, such as sexual crime, although this tends to be rare. In such cases, the accused person tends to be under the age of 18. Over the period from 2016-17 to the first half of 2021-22, only 1% of single charge cases initially marked for diversion involved a sexual offence.