Diversion from prosecution review welcomed

The Lord Advocate has welcomed a review of diversion from prosecution in Scotland which has concluded the practice is working well and developing in a positive direction.

Diversion from prosecution is one of a range of community justice interventions available to the Crown Office and Procurator Fiscal Service.

In diversion an accused person is referred to local authority justice social work or partner agency for support, treatment, or other action as a means of addressing the underlying causes of the alleged offending and preventing further offending.

Lord Advocate Dorothy Bain KC said:

“There is a human cost to all crime and successful diversion in appropriate cases benefits the accused person and the wider community by breaking a cycle of harm.

“I welcome the finding that practice is moving in the right direction, with an increasing number of accused persons given the opportunity to address issues that led to their offending.”

Diversion from prosecution is considered as an option by the Procurator Fiscal 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.

The review was carried out by HM Inspectorate of Prosecution in Scotland, HM Inspectorate of Constabulary in Scotland, the Care Inspectorate and HM Inspectorate of Prisons for Scotland. A collaborative approach to the review was considered appropriate as effective partnership working is essential to the delivery of diversion.

The scrutiny bodies welcomed the increase in the number of cases being diverted overall and noted that where diversion commences, it works well. In the case sample reviewed, 90% of accused persons who started diversion completed it successfully.

Feedback from people diverted from prosecution was “overwhelmingly positive” and they welcomed the opportunity of a “second chance” to get support to make meaningful changes in their lives.

The review said that creation of a national case marking system by COPFS has promoted consistency in decision making.

Lord Advocate Dorothy Bain KC added:

“I am grateful for this detailed report which has clearly benefitted from looking at the whole diversion journey and the collaboration between criminal justice agencies.

“Work has begun on responding to the report’s recommendations and the Crown Office and Procurator Fiscal Service has already taken meaningful steps to make the improvements identified for them. COPFS will be happy to participate in the working group of partners so that improvements are coordinated across the system.”

The number of diversion from prosecution cases commenced rose by 20% between 2020-21 and 2021-22 to 2700, the highest level in the last decade.

By far the most likely people to get diversion from prosecution, as a proportion of the overall population, were those aged 16 to 17. They accounted for 26 per cent of people getting diversion from prosecution in 2021-22 but only three per cent of the Scottish population aged 16 to 70.

Case Study

A 16-year-old female was reported to the Procurator Fiscal for an assault and was offered diversion from prosecution with community justice organisation Sacro.

She undertook the following:

  • work around use of cannabis and understanding its impact
  • work in relation to understanding what led up to the incident, and identifying opportunities for making better choices
  • sessions relating to consequential thinking and understanding the impact of her actions on others

The subject engaged well and attended all sessions as arranged. She regretted her actions and understood the consequences of further offending.

In the meantime, she has passed her exams, obtained an educational placement to study Hair and Beauty and has a part time job in a local care home.