Diversion from prosecution: joint review

Results

283. During our review, we considered the extent to which desired outcomes are being achieved for those accused persons who are diverted from prosecution. We also considered the extent to which the impact of diversion is understood at a strategic level.

284. Generally, we found that across agencies and across areas, outcomes were defined, gathered, recorded, communicated and used in varying ways. This variation contributed to missed opportunities to compare and benchmark performance in support of improvements in service design and delivery. A shared understanding of the outcomes and impact of diversion from prosecution is needed across partner agencies.

Person-centred outcomes

285. While the impact diversion had on an accused person was usually noted in the completion report by justice social work and data existed on successfully completed diversions, there was no consistent approach across areas to gathering and reporting on outcomes. As a result, justice social work and community justice partnerships (CJPs) more generally were not always in a position to demonstrate either the impact of the diversion intervention or that intended outcomes had been achieved.

286. Where the Outcomes Star was being used to assess outcomes in individual cases, it supported a 'shared language' between agencies and with the accused person. However, there were limitations as to how effectively this information could be analysed and used to demonstrate specific diversion outcomes. Where feedback from people on diversion was sought, it was not always used consistently to demonstrate outcomes, or to inform service design or delivery.

287. The national strategy for community justice envisages there being greater consistency in diversion from prosecution. However, there are significant variations between local authorities in, for example, the rates at which diversion referrals are converted to cases commenced and at which cases commenced are successfully completed.^[52] Some variation in local data is to be expected taking into account differences in the frequency and type of offending across areas. Differences in recording practices may also contribute to variations in data to some extent. However, the reasons for the significant local variations do not appear to be well-understood and require further exploration.

288. Accused persons should have equal access to diversion from prosecution. However, we are concerned that this may not always be the case. Some issues highlighted in this report that may contribute to inequity of diversion outcomes include:

• There was some variation in police awareness of diversion and in the level of information about accused persons included in SPRs. Some local policing divisions had arrangements in place that supported better quality SPRs and which increased the chances of the accused person being diverted from prosecution.
• While the creation of the National Initial Case Processing unit (NICP) promoted consistency in case marking by the Crown Office and Procurator Fiscal Service (COPFS), marking was still carried out by a range of other prosecutors outside of NICP. They tended to have less awareness of and training on diversion than their NICP colleagues, which risked diversion not being considered more routinely as a prosecutorial option.
• There appeared to be variations in the efforts made by justice social work to engage accused persons in the diversion process.
• Although there had been a significant shift towards delivering bespoke, person-centred diversion interventions which supported the achievement of positive outcomes for accused persons, some inconsistency in service provision still existed with regard to particular types of offending or accused persons with particular needs.
• Delays during the diversion process may negatively affect outcomes for the accused persons involved. These include unavoidable delays in reporting or marking cases, but also avoidable delays arising from poor case management or communication between partners.

289. These issues all require to be addressed to promote equal access to diversion and equity in outcomes for accused persons. To support greater consistency, there is scope to make more effective use of local and national data. This would help diversion partner agencies and CJPs better identify, understand and address variations in practice and the outcomes experienced by those diverted from prosecution.

290. As noted in the earlier section on communication with complainers, we found no data and very little information on outcomes for complainers in cases where the accused person had been diverted.

Strategic impact of diversion

291. CJPs require to understand the impact of diversion and the outcomes being achieved in their areas so that they can plan services and interventions effectively. As noted at paragraph 47 however, they found this challenging due to a lack of shared vision for diversion and agreement on intended outcomes. In particular, many CJPs highlighted their inability to track the effectiveness of diversion in terms of reducing further offending as a significant gap. As the profile of accused persons and the alleged offending in relation to which they are diverted develops, there is a need for further research in this area.

292. Gathering and analysing data is one means of monitoring the impact and outcome of diversion. While data is gathered by both justice social work and COPFS, inconsistencies in recording practices (see paragraphs 164 and 174) as well as a lack of nuance in the data currently limits its usefulness.

293. Within justice social work, measuring diversion outcomes was often limited to using the annual statistical returns required by the Scottish Government for inclusion in its Criminal Justice Social Work Statistics series. The national guidelines outline the diversion data currently gathered by justice social work for the Scottish Government and suggest additional data that would be useful for monitoring purposes. A review of the data gathered and shared with the government could form part of the broader review of the national guidelines.

294. Data on diversion held by COPFS is not published and is not yet routinely shared with partner agencies although there has been recent progress in this regard in some areas, which we welcome. There appeared to be no monitoring of diversion outcomes by COPFS, meaning data was not being used to inform policy or practice or to support improvement. While diversion is viewed very positively by COPFS staff, confidence in diversion could be boosted even further if prosecutors had a greater awareness of successful diversion outcomes.

295. The national strategy for community justice includes the aim of optimising the use of diversion and intervention at the earliest opportunity. It is expected that intended outcomes for CJPs will be aligned to priority actions outlined in the strategy, with a delivery plan and a revised Outcomes, Performance and Improvement Framework due to be published shortly.

296. Some CJPs and justice social work services were already using or planning to use improvement plans, quality assurance mechanisms, strategic needs and strengths assessments, and performance monitoring to look at the effectiveness of diversion services and to support continuous improvement. These were not all specific to diversion and were sometimes used for all justice social work interventions or community justice planning. There was evidence in the cases we reviewed of routine quality assurance in some areas in the form of line managers counter-signing reports submitted to COPFS.

297. We have already noted that justice social workers said they rarely heard from COPFS about the final outcome for accused persons who have been diverted from prosecution.^[53] Similarly, police officers said they were unlikely to hear from COPFS about cases that had been diverted. While this may not be necessary or desired in all cases, a general awareness of circumstances in which diversion from prosecution is used would improve officers' understanding of diversion and encourage them to express a view on whether diversion may be appropriate when writing SPRs. This could be achieved through sharing case studies and outcome data, for example, during training for officers on diversion.

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.