Diversion from prosecution: joint review

Methodology

23. In this review, we have sought to assess the operation and impact of diversion from prosecution in Scotland. We have provided an overview of diversion practice from a policing, prosecution and justice social work perspective, highlighted what is working well and explored any barriers to the more effective use of diversion.

24. The review was carried out by HM Inspectorate of Constabulary in Scotland (HMICS), HM Inspectorate of Prosecution in Scotland (IPS), the Care Inspectorate and HM Inspectorate of Prisons for Scotland (HMIPS) (the scrutiny partners).

25. Each of the four scrutiny partners has an inspection framework which underpins our approach to scrutiny. All of the frameworks are informed by the European Framework for Quality Management (EFQM) Model, the latest iteration of which incorporates three overarching tenets: direction, execution and results. In the context of diversion from prosecution, we considered:

• direction – the extent to which the police, the Crown Office and Procurator Fiscal Service (COPFS) and justice social work, alongside other community justice partners, share a vision for diversion from prosecution and collaborate on a strategy for delivery, while respecting the important principle of independent prosecutorial decision making
• execution – the effectiveness of systems and processes that support diversion from prosecution and the progress made in implementing the national guidelines on diversion
• results – the extent to which the impact of diversion is understood and the intended outcomes are being achieved.

26. In relation to execution, we considered the individual and collective roles that the justice partners play at the various stages in the diversion process:

• the Standard Prosecution Report (SPR)
• the decision to divert
• the referral to justice social work
• the suitability assessment and the response by COPFS
• the diversion intervention
• the completion report and the response by COPFS
• communication with the accused
• communication with the complainer.

27. In support of our review, we gathered evidence from a range of sources including:

• a review of relevant strategies, policies, guidance, procedures and other documentation relating to diversion from prosecution
• analysis of data on diversion
• a survey of all community justice partnerships in Scotland regarding the operation of diversion from prosecution in their local area
• extensive interviews with those involved or with an interest in the diversion process
• a review of cases in which an initial decision to divert the accused from prosecution had been taken by COPFS, as well as some cases in which diversion did not appear to have been considered.

28. Our interviews with those involved in diversion included in-depth interviews in four local authority areas with justice social work staff, other community justice partners, and 13 people who had been diverted from prosecution. The people who had experience of being diverted were put forward for interview by justice social work. We also interviewed professionals involved in diversion in a further three local authority areas which had highlighted particularly notable or novel practice in their responses to our survey. Interviews were also carried out with a range of relevant personnel within Police Scotland and COPFS, as well as third sector organisations involved in delivering diversion interventions and other key stakeholders such as Community Justice Scotland, Social Work Scotland and the Children and Young People's Centre for Justice (CYCJ).

29. With the assistance of Victim Support Scotland, we sought to gather the views and experiences of complainers in cases where the accused person had been diverted from prosecution. This proved challenging however, as often complainers are unaware that the accused person has been diverted.

30. We reviewed a statistically significant sample of 90 cases in which the first substantive marking decision taken by prosecutors was to divert the accused from prosecution to justice social work.^[11] These marking decisions were all taken in the three months between 1 March and 31 May 2021. This allowed sufficient time for the referral to justice social work to have been made and for the diversion intervention to have been delivered and the case closed before we assessed it in the summer of 2022. The 90 cases were randomly selected for review. Ten cases were selected from each of the four local authority areas in which we carried out in-depth interviews. The remaining 50 cases were randomly selected from across the rest of Scotland.

31. While suitability assessments are usually submitted to COPFS within 20 days of referral and diversion interventions are usually completed within three months, these timescales were temporarily extended in 2020 in response to the Covid-19 pandemic. This meant that all of the cases we reviewed were subject to extended timescales with suitability assessments due within six to eight weeks of referral and six months being allowed for the diversion intervention to take place.

32. In each of the 90 cases, we reviewed:

• the content of the SPR submitted by the police to COPFS
• the decision taken by prosecutors to divert the accused person from prosecution
• how the case was managed by justice social work, including any suitability assessment, diversion intervention and completion report.

33. We reviewed a further five cases in which the accused person was charged with a sexual offence and in which the first substantive marking decision was for diversion. All of the accused persons were aged under 18. We reviewed these cases with a particular focus on the prosecutor's decision to divert and whether this was informed by any discussions with justice social work, and what communication took place with the complainer.

34. We also reviewed 30 cases featuring charges which often result in a diversion marking but which were not marked for diversion. This was not a statistically significant sample, but we assessed these cases with a view to checking whether any should have been marked for diversion.