Diversion from prosecution: joint review

Recommendations

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.

Recommendation 8

Police Scotland should ensure that reporting officers have an appropriate level of awareness of the overarching principles of diversion from prosecution, including the role of partner agencies, and a good working knowledge of the national guidelines on diversion.

Recommendation 9

Police Scotland should ensure that internal police guidance, standard operating procedures and templates provide adequate information to guide reporting officers on the completion of Standard Prosecution Reports (SPRs) as they relate to diversion.

Recommendation 10

Police Scotland should ensure that adequate supervision and quality assurance processes are in place to improve the quality of SPRs relevant to diversion.

Recommendation 11

Police Scotland should ensure that information known to the police that is relevant to the diversion assessment, such as that held on the Interim Vulnerable Persons' Database, is included in SPRs.

Recommendation 12

COPFS should ensure that prosecutors record the reason an accused person is being referred to justice social work for an assessment of their suitability for diversion. The identifiable need in relation to which the accused person is being considered for diversion by COPFS should be noted in the referral to justice social work.

Recommendation 13

COPFS should review its internal guidance on diversion to ensure it is compatible with the national guidelines on diversion, reflects current practice and provides consolidated, comprehensive guidance for staff.

Recommendation 14

COPFS should provide training to its staff on diversion from prosecution. This should be available to all staff involved in marking and managing cases for diversion.

Recommendation 15

COPFS should identify the most appropriate process for referring an accused person for diversion and ensure:

• the process is reflected in clear, accessible instructions for staff and communicated to justice social work
• the guidance includes direction on whether and in what circumstances justice social work should await an instruction to proceed with diversion following a positive suitability assessment
• the revised process is followed in practice.

Recommendation 16

Justice social work should be proactive in its efforts to engage with a person referred for assessment before concluding that they are not suitable. These efforts should be recorded in the suitability assessment sent to COPFS.

Recommendation 17

COPFS and justice social work should work together to ensure that all referrals, assessments and completion reports are tracked and submitted timeously. A more robust system for following up overdue reports or responses should be put in place.

Recommendation 18

When revising the national guidelines on diversion, Community Justice Scotland and partners should clarify what giving 'specific consideration' to victims during the diversion process entails. They should make clear to staff what is expected of them and establish or adapt processes as needed.

Recommendation 19

Justice social work should ensure that staff delivering diversion interventions involving domestic abuse and harmful sexual behaviour are appropriately trained and supported to do so.

Recommendation 20

While conducting the suitability assessment and throughout the diversion period, justice social work staff should assess whether the accused person's needs necessitate a diversion intervention lasting longer than three months. Where this is envisaged, COPFS should be informed.

Recommendation 21

When revising the national guidelines on diversion, Community Justice Scotland and partners should develop a standardised, nationally agreed template for diversion planning. Justice social work should ensure that people diverted from prosecution actively contribute to and agree their diversion plans.

Recommendation 22

Justice social work should develop and use a standard tool for gathering feedback from people who have been diverted from prosecution. This feedback should be incorporated in completion reports and should inform the continuous improvement of the service.

Recommendation 23

COPFS and justice social work should improve communication between them in support of the diversion from prosecution process. Communication is particularly important in more complex or serious cases.

Recommendation 24

When creating diversion plans, justice social work should provide a clear rationale for the intended levels of contact during the diversion intervention commensurate with the circumstances of the case.

Recommendation 25

COPFS and justice social work should review their processes for managing diversion from prosecution to ensure they are suitable for all types of cases. In particular, the process for managing cases involving more serious offending should be sufficiently robust. The agreed processes should be reflected in guidance and training for all relevant staff.

Recommendation 26

Community Justice Scotland and partners should develop standardised templates for suitability assessments and completion reports which comply with the national guidelines on diversion. Consideration should also be given to developing abbreviated and full templates if new diversion processes are adopted in light of Recommendation 25.

Recommendation 27

The diversion partner agencies should agree how further offending by the accused person during the diversion period affects their diversion from prosecution. Where the person has been diverted in relation to more serious charges, protocols should be developed to gather and share information about further offending which should be used to inform decisions about the final prosecutorial action or whether to continue diversion.

Recommendation 28

COPFS should inform justice social work of the final marking in cases where the accused person has received a diversion intervention.

Recommendation 29

COPFS should review when and how it communicates with the accused person in cases that have been diverted from prosecution. In particular, COPFS should:

• revise its template letters to accused persons who are being diverted from prosecution
• ensure letters are in plain English and tailored to the individual needs of the accused person
• ensure letters are sent promptly at key stages of the diversion process
• ensure this improved approach is clearly set out in the national guidelines and in COPFS policy and instructions to staff.

Recommendation 30

COPFS should revise its approach to complainers in cases where the accused person is diverted from prosecution. The new approach should be reflected in policy and in guidance and training for staff. Complainers meeting specified criteria should be referred to Victim Information and Advice and kept informed of developments in their case.

Recommendation 31

COPFS should clarify whether the Victims' Right to Review applies in cases where the accused person has been diverted from prosecution and this information should be shared with staff and made public.

Recommendation 32

Community justice partnerships should implement effective mechanisms to monitor the impact of diversion and outcomes for people who have been diverted. This information should be used by all diversion partner agencies to inform service design and delivery.

Recommendation 33

COPFS and justice social work should ensure that assessment, diversion intervention and case outcomes are recorded accurately, consistently and in accordance with the national guidelines on diversion. To support this:

• guidance on recording should be provided to staff
• those who have not engaged in the assessment process should be recorded separately to those who have been assessed as not suitable for diversion
• COPFS should consider the need for more nuanced marking codes which more accurately reflect diversion outcomes.

Recommendation 34

The Scottish Government should review the diversion data it requests and publishes annually to ensure that national data on diversion is comprehensive, accurate, and usefully informs measuring the effectiveness of diversion.