Joint review of diversion from prosecution

1. Throughout this report, where 'offending' or 'offences' are mentioned in relation to diversion from prosecution, this refers to alleged offending or alleged offences.

2. Scottish Government, National Strategy for Community Justice (2016).

3. Scottish Government, National Strategy for Community Justice (2022).

4. Established by the Community Justice (Scotland) Act 2016, the role of Community Justice Scotland is to oversee and report on the performance of community justice services, and promote and support improvement and awareness of community justice.

5. Community Justice Scotland, National Guidelines on Diversion from Prosecution in Scotland (2020).

6. Scottish Government, Justice Social Work Statistics.

7. This data can only be an approximation and should not be taken to represent the actual conversion rate because some cases commenced within the five-year period will have been referred before that period, and some referred cases may not have commenced until after the period.

8. This data can only be an approximation and should not be taken to represent the actual success rate because some successfully completed cases within the five-year period will have been commenced before the five-year period and some cases commenced within the period will not have been completed under afterwards.

9. A first substantive marking for diversion refers to the prosecutor's initial assessment of the case. In some of these cases, the accused person may not go on to be diverted, for example, because they are assessed as unsuitable by justice social work.

10. Data on those who faced multiple charges has been excluded from this analysis because it is not possible to determine from the data which of the charges the diversion marking referred to. For example, an accused may face three charges, but a sufficiency of evidence only exists in relation to one of those charges. The accused can only be diverted in relation to that charge while no action will be taken in respect of the other two charges.

11. The results of our case review are statistically significant with a confidence interval of 95%±10%.

12. Scottish Government, National Strategy for Community Justice (2022).

13. While the effective operation of diversion from prosecution requires a multi-agency approach, prosecution policy remains a matter for the Lord Advocate and the decision to refer an accused person for an assessment of suitability for diversion is one solely for COPFS.

14. Scottish Government, A fairer, greener Scotland – Programme for Government 2021-22, page 101.

15. Scottish Government, National strategy for community justice (2022).

16. The 2016 Act requires Scottish Ministers to publish a performance framework in relation to community justice, known as the Outcomes, Performance and Improvement Framework. The Framework is currently being revised.

17. Police Scotland, Reports and statements: standard operating procedures (March 2022).

18. See paragraph 108 for more detail on NICP.

19. Police Scotland, Harm Reduction Strategy 2020-23.

20. Scottish Drugs Deaths Taskforce, Changing lives – our final report (July 2022).

21. Section 27 of the Social Work (Scotland) Act 1968 covers the 'Supervision and care of persons put on probation or released from prisons etc.' Section 27 and subsequent sections make provision for the related grant funding. This is the key funding received annually from Scottish Government which is allocated to local authorities to pay for justice social work services.

22. And/or the Scottish Children's Reporter Administration (SCRA), where appropriate.

23. Information relating to police incidents where the people involved are deemed to be vulnerable are recorded on iVPD by police officers and can be shared electronically with partner agencies such as social work and SCRA. The iVPD is owned by Police Scotland and no other public bodies have direct access to it.

24. In this report, percentages may not add up to 100 due to rounding.

25. Abbreviated SPRs were introduced by Police Scotland in an effort to improve efficiency and reduce demand on reporting officers. The format has similar sections to a standard SPR template but is sometimes used in relation to what may be considered lower level offending, such as possession of a controlled substance.

26. The Whole System Approach (WSA) is the Scottish Government's programme for addressing the needs of young people involved in offending. It is underpinned by Getting it Right for Every Child, which aims to ensure that support for children puts their and their family's needs first. WSA highlights the importance of different organisations and professions working together to support children, and emphasises offering alternatives to prosecution such as diversion.

27. For further information about the public interest, see the COPFS, Prosecution Code (2001).

28. Operational Instructions 5 of 2019 (Prosecution policy on accused under 18 years and diversion) and 5 of 2021 (Briefing on the United Nations Convention on the Rights of the Child).

29. A pilot scheme is currently operating whereby undertaking cases calling at Dundee, Hamilton and Paisley Sheriff Courts are being marked by NICP. It is likely that this pilot will be extended in 2023 so that NICP marks all undertaking cases.

30. Scottish Government, Criminal Justice Social Work Statistics 2020-21, Table 4.

31. The National Guidelines on Diversion from Prosecution state that an accused person does not have to accept guilt in order to be assessed as suitable for diversion.

32. Scottish Drug Deaths Taskforce, Changing lives – our final report (2022) at page 8.

33. Scottish Drug Deaths Taskforce, Changing lives – our final report (2022), Recommendation 9.

34. Scottish Parliament Official Report 22 September 2021, from col 19.

35. Crown Counsel is the collective term for the Law Officers (Lord Advocate and Solicitor General) and advocate deputes, Scotland's most senior prosecutors.

36. The practice of sending the SPR to justice social work as part of the diversion referral has since ceased – see paragraph 136.

37. The National Driver Improvement Scheme was introduced in Scotland in 2004. Its purpose is to provide an alternative to prosecution for drivers charged with a contravention of section 3 of the Road Traffic Act 1988 (careless driving). In suitable cases, the accused person will be diverted from prosecution and will attend a driver improvement course.

38. This is a term used to denote a variety of roles including social work assistants and justice officers.

39. The timescale reverted to 20 working days on 1 October 2022.

40. Restorative approaches refer to a range of methods and strategies which can be used both to prevent relationship-damaging incidents from happening and to resolve them if they do happen. They enable those who have been harmed to convey the impact of the harm to those responsible, and for those responsible to acknowledge this impact and take steps to put it right (Restorative Justice Council).

41. The Outcomes Star is a suite of collaborative, person-centred tools for supporting and measuring change when working with people. It includes versions for young people, families, people with learning disabilities, and people involved with the justice system. There is a cost associated with obtaining training for, and a license to use, any of the Outcomes Stars.

42. SHANARRI is part of the Getting It Right For Every Child approach and consists of eight wellbeing indicators – Safe, Healthy, Achieving, Nurtured, Active, Respected, Responsible and Included.

43. START-AV (the Short-Term Assessment of Risk & Treatability: Adolescent Version) is a structured professional judgement risk assessment focusing on short-term risk (up to three months) and strength factors in adolescents.

44. AIM3 is an assessment framework to assess sexual violence risk for 12-18 year old males, including technology-assisted sexual offences such as downloading indecent images.

45. The Caledonian System is a behaviour change programme provided in some local authorities in Scotland for men convicted of domestic abuse offences, and offers support, safety planning and advocacy services for their partners (or ex-partners) and children.

46. Community Justice Scotland, National guidelines on diversion from prosecution (2020), page 9.

47. Views were gathered from people with experience of diversion who had been selected by the local authority to participate. Their views may therefore not represent a universal experience of being diverted from prosecution.

48. As happened in one of the cases we reviewed, noted at paragraph 172, where a report of further offending to COPFS prompted it to halt the diversion process.

49. Communication between the accused person and justice social work has already been considered above at the relevant stages in the diversion process (including the suitability assessment and the diversion intervention).

50. For example, CYCJ has noted that speech, language and communication needs are extremely common in the youth justice population with major studies showing that 50% to 70% of males have significant difficulties with language function. See Section 9 of CYCJ, A guide to youth justice in Scotland: policy, practice and legislation (2017).

51. Other categories of victims and witnesses also meet VIA criteria, but the ones listed are most relevant to cases involving diversion from prosecution.

52. See paragraphs 17 to 20.

53. See paragraphs 175 and 237.