Diversion from prosecution: joint review

Direction

35. The Scottish Government's National Strategy for Community Justice sets the national direction for community justice.^[12] The strategy recognises that the effective operation of diversion from prosecution cannot be achieved by any one agency and is dependent on partner agencies working together at a strategic and operational level. A broad range of statutory partners as well as other stakeholders, such as the third sector and communities themselves, play a vital role in the planning and delivery of community justice services, including diversion. The statutory partners for community justice are outlined at Figure 1.^[13]

36. Community justice partners acting together at the local level are referred to as 'community justice partnerships' (CJPs). Their role is set out in the Community Justice (Scotland) Act 2016 (the 2016 Act). CJPs are expected to assess the community justice related needs of people and communities in their local authority area and ensure that appropriate services and interventions are in place. While the key stages of the operational delivery of diversion from prosecution are led by Police Scotland, COPFS and justice social work, community justice partners are collectively responsible for ensuring that effective diversion services are available for those assessed as suitable for diversion.

37. Community Justice Scotland also has a key role to play in the oversight of the diversion from prosecution process as well as a range of other responsibilities across the community justice landscape. Community Justice Scotland is the national leadership body for community justice and has a statutory duty to promote the national strategy. It also has a duty to monitor performance in the provision of community justice and the achievement of nationally determined outcomes. Community Justice Scotland identifies and promotes good practice; provides advice, guidance and assistance to CJPs; and makes national and local improvement recommendations where appropriate.

The vision for diversion from prosecution

38. The Scottish Government has for some time sought to increase the use of early intervention and prevention approaches in order to reduce the likelihood of people being drawn further into the criminal justice system. Its vision is for people to be held to account for their offending, but also to be given the opportunity to tackle the causes of that offending at an early stage through diversion and community-based disposals.

39. In its Programme for Government 2021-22, the Scottish Government outlined plans to invest in a 'substantial expansion of community justice services supporting diversion from prosecution, alternatives to remand and community sentencing, which evidence shows is more effective at reducing reoffending.'^[14]

40. In our review, we have focused on the extent to which the statutory partners, particularly the police, Crown Office and Procurator Fiscal Service (COPFS) and justice social work, share a vision for diversion from prosecution and have collaborated effectively to maximise opportunities for diversion through strategic planning. We have also considered how prepared community justice partners are to meet the expectation of the Scottish Government that the use of diversion from prosecution should be optimised.

National and local leadership

41. The extent to which national and local leadership enables opportunities for effective use of diversion from prosecution is key to achieving successful outcomes. Our review considered how well national strategy, leadership and oversight supports diversion from prosecution and how effectively CJPs are operating to deliver a shared strategy.

42. The current National Strategy for Community Justice provides a clear vision for community justice in Scotland. It sets out the role of community justice partners and details national aims and priority actions intended to drive the community justice agenda. The national strategy highlights the importance of partnership working and the significance of early intervention in order to have the greatest impact. It states:

'Where appropriate and relevant, effectively diverting people away from prosecution – or away from the justice system entirely – can allow individuals to address a range of issues, behaviours or needs which have contributed to their alleged offending at the earliest opportunity. This improves outcomes for both individuals and communities, and can lead to less offending and reoffending and, ultimately, fewer victims and harm to society.'^[15]

43. CJPs have been established in each of the 32 local authorities across Scotland. Three authorities have opted to work in partnership across their areas, meaning 30 CJPs were operating at the time of our review. While CJPs have arrangements in place for the provision of diversion services, there was considerable variation in the level of diversion across areas. Consequently, the extent to which CJPs were meeting the expectations of the national strategy in respect of diversion from prosecution also varied.

44. The national strategy states there should be consistency in the delivery of diversion from prosecution to ensure that individuals have appropriate access to interventions regardless of where they live. However, some of the inconsistent practices we noted risk contributing to inequities in accessing diversion and in diversion outcomes. We also found there to be a lack of shared agreement on intended outcomes of diversion from prosecution and inconsistent gathering and analysis of outcomes across CJPs. This limited the ability of partnerships to use data to inform future planning.

45. To develop effective community justice plans, CJPs should form a comprehensive understanding of the needs of their local population. From our survey of CJPs, we noted that while some have used strategic needs and strengths assessments to effectively inform service planning for diversion, this approach was not universal. While some had assessments covering community justice generally, diversion did not always feature prominently. Some partnerships indicated they were awaiting the development of a new Outcomes, Performance and Improvement Framework before setting their community justice priorities.^[16]

46. We found that while CJPs had planned for and delivered diversion services for children under 18, service planning and the provision of interventions for adults was more limited in many areas.

47. Measuring the impact of diversion was considered to be a challenge across CJPs. There was a lack of shared vision and agreement as to the intended outcomes of diversion, varying between addressing needs and/or risks, reducing reoffending, and facilitating the person's engagement with non-justice services.

48. In terms of governance arrangements, CJPs were not the sole vehicle for direction-setting or strategic planning for diversion from prosecution. Others involved included community planning partnerships and public protection committees which existed prior to the establishment of CJPs, and through which partnership working was already established.

49. Some areas informed us that they have used Covid-19 funding provided by the Scottish Government to invest in developing diversion services. In some instances, this included the recruitment of dedicated staff for the coordination of local diversion arrangements.

Partnership working

50. Community justice partnership (CJP) meetings were the main mechanism by which statutory partners and key stakeholders planned the delivery of local community justice services. While we found evidence of effective multi-agency collaboration at a strategic level to plan and deliver diversion services in some areas, others placed less emphasis on diversion service planning. Some of the survey responses we received were focused on operational issues with limited reference to collaborative working at a strategic level.

51. Strategic partnership working was highlighted as a strength in approximately one third of the CJP survey responses. These CJPs described strong governance arrangements and multi-partner forums to plan for diversion services. Our interviews with statutory partners in the areas we visited affirmed that strong, collaborative working relationships, combined with a shared vision for community justice, were the basis for effective governance.

52. We found that most statutory partners and the third sector contributed to CJPs through regular involvement and representation at an appropriate level but there was a lack of consistent representation from COPFS across the majority of areas. CJPs acknowledged that this would be resource intensive and challenging for COPFS as a national organisation much of whose work is organised by function rather than geography. Moreover, while COPFS has a role in respect of diversion, the work of CJPs is much broader, covering all aspects of community justice including those whose relevance to COPFS is limited. However, the potential benefit and value of having increased involvement from COPFS in the strategic planning process was highlighted by most CJPs.

53. Interviews in the areas we visited highlighted that the degree of communication between COPFS and other partners varied locally and there were sometimes limited opportunities for dialogue. However, at a more strategic level, Criminal Justice Board meetings take place for each of the six sheriffdoms. These offer a potentially useful mechanism for the various partners to share and receive feedback on diversion as well as other matters. COPFS has begun to make arrangements for staff from its national marking team to provide a standard input for these meetings. While welcome, this may not sufficiently meet the needs of local authority-based CJPs – for example, more than one local authority area straddles two sheriffdoms.

54. Some CJPs had introduced arrangements intended to improve communication and collaboration between partners. In one area, partners from Police Scotland, COPFS and justice social work have developed information sharing and collaboration protocols with a view to improving the quality of information contained within SPRs. A pilot has been introduced to examine the impact of this collaboration which, while at an early stage of development, has shown improvement in the quality of information relevant to diversion within SPRs.

55. We found evidence of effective collaboration with alcohol and drug partnerships and mental health services in some CJPs and also saw that some had combined resources to jointly fund posts and projects for diversion.

National guidelines

56. While some senior leaders across the diversion agencies were aware of the national guidelines on diversion published in 2020, others were not. Most noted that this was an unfortunate consequence of the timing of the publication, at the very early stage of the pandemic when the focus of most operational staff was on implementing contingency plans and engaging in the emergency response. While some efforts had been made to disseminate the guidelines, awareness of them and their impact had been low.

57. At the time of our review in 2022, awareness of the guidelines remained limited. Little reference was made to the guidelines in our interviews with frontline justice social work and COPFS staff. Interviews with frontline police officers (predominantly response officers) in the areas we visited highlighted that there was no awareness of the national guidelines. Such low awareness inevitably impacted the extent to which the processes and protocols outlined in the guidelines were implemented.

58. Where staff were familiar with the guidelines, they were viewed as sufficiently flexible and reflective of the person-centred principles of providing a diversion intervention. These staff stated that the processes outlined within the guidelines were useful in supporting effective discussions between partners on how diversion cases should be managed. We heard of positive examples of COPFS and justice social work staff using the guidelines to highlight to partners the approaches to be taken in particular circumstances.

59. A review of the national guidelines commenced in November 2021 and is expected to conclude in Spring 2023. This is being led by Community Justice Scotland with the involvement of key partners including Social Work Scotland, COPFS and Police Scotland. We anticipate that the revised guidelines will reflect the findings of our review. Most community justice partners we spoke with welcomed the work being done on the guidelines and hoped that they would be relaunched with a view to achieving greater awareness and impact across the relevant agencies.

Agency-specific guidance

60. As well as the national guidelines, some of the diversion partner agencies have their own guidance relevant to diversion. Police Scotland has guidance for officers on completing Standard Prosecution Reports (SPRs) in the form of a reports and statements writing guide.^[17] While this provides useful guidance on a range of issues that must be considered and included in an SPR, it does not make specific reference to diversion from prosecution nor what is expected of the reporting officer in this regard. That said, the guidance does require reporting officers to provide relevant information on the accused person's circumstances and potential vulnerabilities within the antecedents section of the report.

61. Additional detailed guidance is available on the police intranet in the form of report writing guides. These provide instruction on the completion of the antecedents and remarks sections of an SPR.

62. COPFS also has useful guidance for staff on diversion from prosecution. This was a combination of general guidance on marking cases for diversion and guidance on marking specific types of cases (in relation to which diversion may be an appropriate prosecutorial option). There were some inconsistencies in the COPFS guidance however, with the marking instructions for some offence types making clear reference to diversion considerations while instructions for other offences did not. There was relatively comprehensive guidance to inform decisions to divert children from prosecution, but staff felt the guidance was less clear in relation to adults. There was no reference to the national guidelines on diversion in COPFS guidance, and there were some inconsistencies between COPFS guidance and the national guidelines on how diversion cases should be managed.

63. A review of COPFS guidance is required to ensure that it is clear, consolidated and includes reference to the national guidelines where appropriate. The inclusion of practical examples and scenarios for case markers relevant to the consideration of diversion would be beneficial. We anticipate any revision of COPFS guidance will reflect the findings of our review.

Impact of centralised marking on partners

64. Within COPFS, the National Initial Case Processing (NICP) unit was established to promote consistency and efficiency in the marking of cases, and to facilitate a national approach to prosecution.^[18] In the past, marking had been carried out by prosecutors working in local offices. The centralisation of much case marking by COPFS was an issue raised by several CJPs in their responses to our survey and in interviews with justice social work staff. They felt centralised marking negatively affected their ability to communicate with COPFS at a local level, to liaise over decisions about diversion and for COPFS to be responsive to local priorities. Some felt there had been a loss of local knowledge within COPFS, and they described difficulties knowing who to contact at COPFS.

65. In some areas, we noted there was some disconnect between the partners and a lack of understanding among other partners of COPFS policy on and processes for diversion including (for example, a lack of knowledge about the rebuttable presumption against prosecution for a child accused). However, there were examples of some areas reporting better engagement with COPFS and COPFS staff attending local partnership meetings. In these areas, communication between agencies and a better understanding of each other's roles was evident. While we consider that centralised marking has brought benefits in terms of consistency and efficiency, there is clearly more for COPFS to do to better manage its relationships at a local level and to make itself more accessible to partners.

Training and awareness-raising

66. There was no national training programme for diversion from prosecution at the time of our review. At a local level, joint training had been introduced in some areas and included partners such as the police, justice social work and the Crown Office and Procurator Fiscal Service (COPFS). Where joint training had taken place, we heard that it had benefits, including developing a shared understanding of diversion roles, processes and terminology. We also heard that joint training had been more widespread before the pandemic but had declined recently. However, some of the community justice partnerships (CJPs) we met were developing plans for joint training on issues relevant to diversion. In relation to joint and agency-specific training, there was a general sense that more was available on diverting children from prosecution, but less was available in relation to adults leading to a gap in knowledge.

67. A review and re-launch of the national guidelines presents an opportunity for the further development and delivery of joint training. Joint training would help staff gain a better understanding of the roles of other agencies involved in the diversion process and would facilitate communication between partners, all with a view to improving case outcomes. This would be particularly helpful in supporting agencies to respond to the changing profile of accused persons and offences being diverted.

68. There were no internal diversion training or awareness raising programmes operating within Police Scotland. The need for training and awareness raising was recognised by senior officers, some of whom considered that this could be aligned to raising awareness of the force's harm reduction strategy^[19] given the links to identifying and understanding vulnerabilities. While direct measures and alternatives to prosecution featured in the training of probationers, there was no input regarding diversion from prosecution. Those responsible for probationer training indicated a willingness to incorporate this into future training following liaison with local and specialist police divisions on what may be required.

69. Some COPFS staff had received inputs from justice social work, which they felt had provided a useful insight into diversion interventions. While there was no widespread training across COPFS focusing on diversion from prosecution, we heard that training on diversion is included as part of the induction for case markers in National Initial Case Processing unit (NICP). NICP staff felt there was a good level of training on diversion as well as awareness raising, but said this was not consistently available for staff working in other units. Most staff considered that additional training would be useful, including refresher training for NICP and training and awareness raising for those in other teams who mark cases and including those who administer the diversion process.

70. A national forum led by the Children and Young People's Centre for Justice provided a useful platform for a wide range of practitioners and senior personnel across statutory partner agencies and key stakeholders. Meetings were well attended and played an important role in raising awareness of diversion from prosecution and associated services and interventions. The forum was also considered to be helpful in developing a shared understanding of the role and practice of other partners. Of the staff we interviewed during our review, those who had attended the forum typically had a better understanding of the strategic context for diversion as well as a better awareness of national guidelines and understanding of diversion processes.

Consultation with victims, communities and those with lived experience

71. There was limited evidence of consultation with victims and affected community groups in the planning of diversion services. Most strategic leaders and frontline managers in justice social work recognised that there was a lack of understanding of diversion within communities and, as a result, perhaps a negative public perception of it. There was a need to build public confidence in diversion as an alternative to prosecution. Some areas highlighted plans to address this through greater collaboration with organisations providing support to victims and improved community engagement. Some areas described plans for increased consultation with victims and those with lived experience of diversion in relation to service planning and other developments that may affect them, which we would welcome.

Readiness for expansion of diversion from prosecution

72. Among strategic leaders, there was a clear commitment to expand the use of diversion from prosecution in line with the national strategy for community justice, the programme for government and the recommendations made by the Scottish Drugs Deaths Taskforce.^[20] Indeed, in our review, we have noted several ways in which the number of accused persons diverted from prosecution could be expanded, through better identification of accused persons suitable for diversion and through improvements in diversion processes. If these are addressed in line with our recommendations, the demand for diversion should increase.

73. While most community justice partnerships (CJPs) valued diversion services and recognised the benefits of diversion, they noted that additional services and interventions would be needed to meet the expected rise in demand, which would come at additional cost.

74. Moreover, additional services and interventions would be required to meet the increasing complexity of cases being referred for diversion. Community justice partners report that there has been a gradual increase in accused persons being considered for diversion in relation to more serious offending, including domestic abuse and sexual crime. Should referrals in such cases rise, justice social work will require to provide more specialist interventions, often requiring the skills of qualified social workers rather than paraprofessionals. This will also require additional resource.

75. While some felt ready to meet this demand, many frontline justice social work staff raised concerns about their capacity to manage an increase in diversion referrals. They highlighted already stretched resources and limits on staff capacity to meet demand, as well as the need to prioritise the supervision of individuals subject to statutory orders. It will therefore be important for CJPs and statutory partners to work together to achieve a shared understanding of what will be required to manage an increase in referrals for diversion and ensure the availability of appropriate interventions.

Funding

76. The Scottish Government funds justice social work to deliver a wide range of justice-related functions and services within a local authority area, referred to as section 27 funding.^[21] The funding landscape is complicated by the range of partner agencies and services involved with accused persons who are subject to diversion, including statutory agencies and the third sector.

77. The current funding arrangements for diversion were considered by some community justice partners to be a potential barrier to achieving an increase in the use of diversion and other early intervention measures, with some areas raising concerns about the lack of ring-fenced funding for diversion. While Covid-19 funding provided for local authorities by the Scottish Government had been used creatively in some areas to increase capacity for diversion, there were concerns over the sustainability of this. Nonetheless, the vision expressed by the majority of CJPs was to ensure that diversion was an option available to anyone considered suitable.

Recommendation 1

While prosecution policy remains a matter for the Lord Advocate, the Scottish Government should lead a working group comprising the diversion partner agencies to coordinate implementation of the recommendations in this review.

Recommendation 2

Community justice partners should ensure that appropriate services and interventions are available to all those who have been assessed as suitable for diversion. They should carry out joint strategic needs and strengths assessments to understand the needs of their local population, to inform service planning, and to assess their ability to meet an increased demand for diversion services.

Recommendation 3

Community Justice Scotland should ensure that the revised national guidelines on diversion take account of the findings of this review. The revised guidelines should be re-launched, such that they are widely disseminated to community justice partners. Diversion partner agencies should ensure that they are used by staff and embedded in the planning and delivery of diversion processes and interventions.

Recommendation 4

Through robust governance, community justice partnerships should improve collaboration and communication between statutory partners regarding people subject to diversion. In particular, the Crown Office and Procurator Fiscal Service (COPFS) should consider what more it can do to improve communication with partners at a local level.

Recommendation 5

The diversion partner agencies should develop a training strategy that meets the needs of individual agencies and ensures that staff involved in diversion from prosecution are equipped to undertake their role effectively. At a national level, this should include awareness raising for the police, COPFS, justice social work, the third sector and other key partners. Locally, community justice partnerships should identify opportunities to deliver joint training across statutory partners and key agencies with a role in diversion from prosecution.

Recommendation 6

Community justice partnerships should consult with victims, people with lived experience of diversion, and affected community groups in the planning of diversion services.

Recommendation 7

The Scottish Government should review funding arrangements to maximise the use of diversion from prosecution and ensure the provision of interventions at the earliest opportunity.