Diversion is not Aversion

Keith Gardner, Head of Partnerships and National Engagement at Community Justice Scotland, has drafted new guidance around the use of diversion from prosecution.

In the same way that not every nail needs the same size of hammer, there are myriad ways for the justice system to respond when people need to be held accountable for their actions – especially where others have been harmed in some way.

Diversion from prosecution (DfP) is probably one of the lesser understood justice-based responses which can bring a number of advantages for people, their families and the wider community. I’ve recently been involved in drafting new guidelines with partners: Police Scotland, Social Work Scotland, Local Authority Justice Social Work, the Children & Young People’s Centre for Justice, Third Sector partners and the Crown Office and Procurator Fiscal Service about how the process can work so that, when DfP is considered suitable, it can hopefully be used more often.

Following on from the first publication of revised guidance in 2020, partners came together to further refine and develop the guidance as the practice around DfP and the justice landscape had changed due to the pandemic. The need to update guidance was highlighted again following the publication of a thematic review of diversion from prosecution in February 2023. The joint review was carried out by HM Inspectorate of Prosecution in Scotland, HM Inspectorate of Constabulary in Scotland, HM Inspectorate of Prisons for Scotland and the Care Inspectorate to assess the operation and impact of DfP in Scotland, highlight what was working well and explore any barriers to the more effective use of diversion.

The Procurator Fiscal first determines two aspects: is there a sufficiency of evidence to prosecute and would it be in the public interest to do so at this time. Where the alleged offence has complex factors such as mental health, trauma, etc. the Procurator Fiscal can ask the local authority to assess the person with a view to offering them a targeted intervention to help the person understand and deal with any issues they have – in particular their thoughts, feelings and behaviour in respect of the alleged offence.

If a Procurator Fiscal offers DfP to an individual it is that person’s choice whether they decide to accept. If they decide they don’t want to accept, the Procurator Fiscal will then make a determination on how that case will proceed which might include prosecution. Until the DfP concludes, the Procurator Fiscal retains the option to prosecute if the circumstances determine such an outcome, for example, if the person does not comply with the DfP intervention.

Where DfP is seen as beneficial and the person wants help to address issues they have, then a short course of work is undertaken and, when fully completed, a report is sent back by the local authority to the Procurator Fiscal and the case is brought to a conclusion.

What this means is a three-fold benefit of DfP:

The nature of the alleged offences considered for DfP is wide-ranging as it is a mechanism to address people’s individual needs which relate to the alleged offence, e.g. low-level and inconsistent shoplifting, breach of the peace, personal alcohol or drug-related issues, etc. are most common referrals for DfP, although every case considered by the Procurator Fiscal is open to the possibility of DfP.

The nature of the work undertaken by the local authority varies from person to person and all DfP interventions are specifically tailored to the needs of the individual as an effective means of helping them move on with a clear focus on how to avoid any repeat of the alleged offence in the future.

Feedback from people who have undergone the DfP process has shown it is a valuable and welcome option within the justice system and, in many cases, this form of targeted intervention is sufficient to ensure the person has no further interaction with the justice system.