Publication - Corporate report

Prosecution of young people: report

Published: 27 Nov 2018
Directorate:
Justice Directorate
Part of:
Children and families, Law and order
ISBN:
9781787814011

The Inspectorate of Prosecution in Scotland's thematic report on the prosecution of young people in the Sheriff and Justice of Peace courts.

78 page PDF

971.9 kB

78 page PDF

971.9 kB

Contents
Prosecution of young people: report
Chapter 3 – Diversion

78 page PDF

971.9 kB

Chapter 3 – Diversion

126. Diversion refers to decisions by prosecutors, as an alternative to prosecution, to refer a person to a Local Authority for the purpose of receiving support, treatment or to undertake a programme of action designed to deal with the underlying causes of their offending behaviour.[87] The Local Authority delivers diversion by criminal justice social work (CJSW) teams or through commissioning services from third sector organisations, such as Barnardo's.

127. Diversion is an important and necessary tool in the armoury of prosecutors to tackle the causes of offending behaviour and keep young people out of the criminal justice system.

COPFS Policy

128. COPFS guidance explains that:

  • The objective of diversion is to obtain, in a case in which prosecution would otherwise be justified, a disposal that, having regard to the personal circumstances of the offender, is more satisfactory on humanitarian grounds than prosecution or which may prevent the re-occurrence of offending conduct through early or intensive intervention;
  • People rather than cases are diverted;
  • Diversion should not be restricted to an exhaustive list of types of offences but would, generally, be suitable for low-level offending conduct which does not present a risk of serious violence or danger to the community; and
  • As a general rule the more serious the criminal conduct, the more likely prosecution, rather than diversion, should take place.
  • Other than in exceptional circumstances, there is a presumption against diversion from prosecution for offenders aged 16 or 17 subject to a CSO. The assumption is that in deciding to deal with the case the prosecutor considers that it is necessary to prosecute the case in the public interest.

129. The guidance signposts prosecutors to a Diversion from Prosecution Toolkit[88] (the toolkit), of which COPFS was a key contributor. The toolkit was published in 2011 to assist prosecutors and practitioners providing diversion services and reflects a historical approach to delivering diversion through schemes. The presumption against diversion from prosecution for offenders aged 16 or 17 subject to a CSO and the principles that underpin the delivery of diversion are currently under review by COPFS, CYCJ, CJS and social work practitioners.

130. All interventions should be proportionate to need. As one of the higher tariff alternatives to prosecution, young people should not be diverted unless their offending behaviour is sufficiently serious to justify a prosecution or there is an identifiable need that requires to be addressed. For many young people other alternatives, such as a warning or a Fiscal Fine, should be considered. Such an approach avoids net-widening and unnecessary use of resources.

131. This chimes with the outcome focused prosecution policy, issued following a review by COPFS in 2017, where prosecutors are instructed to take the lowest competent form of action to address the offending behaviour.

Diversion Models

132. There are three types of diversion models:

  • Waiver – where the option of prosecution is relinquished in favour of diversion once the individual is assessed and accepted as suitable.
  • Deferred Prosecution – the decision whether to prosecute is deferred until the conclusion of engagement with CJSW services.
  • Dual Approach – the decision not to prosecute is taken before diversion is concluded on the basis of a positive assessment/progress report.

133. The Deferred Prosecution model is the favoured approach. In determining whether to prosecute considerable weight is given to the social worker's assessment of their engagement with the young person, including an update on progress made in addressing the problems/difficulties which diversion was intended to remedy and their assessment of the risk of further offending.

Diversion Case Review

134. We examined 86 cases referred for diversion by the prosecutor in 2016/17. Contrary to the presumption there were two offenders who were subject to a CSO. The review considered: outcomes; the availability of diversion; compliance with COPFS policy; communication with offenders; timeliness of decision-making; and whether there was any scope for streamlining or improving processes.

135. The waiver model was only applied in two cases. Eighty four used the deferred prosecution model or the dual approach. Referrals were made to CJSW or youth justice teams who engaged directly with the young person or, where necessary, commissioned services from third sector organisations, such as Sacro.

Nature of Offences

136. Chart 4 illustrates the type of offences where diversion was offered.

Chart 4

Chart 4 illustrates the type of offences where diversion was offered

Outcome of Cases

137. We found a high success rate for those offered diversion as an alternative to prosecution.

138. Of the 86 cases:

  • In 69 (80%), based on receipt of a report from CJSW, diversion was recorded as successful.
  • In 13 (15%) diversion was recorded as unsuccessful.
  • In three, a change in the personal circumstances of the offender meant diversion was no longer appropriate.
  • One was ongoing.[89]

Successful Outcomes

139. Through proportionate, timely and targeted interventions diversion was instrumental in achieving positive outcomes as demonstrated by the case studies below:

A 16 year old, following a heated family argument, took the family car without the owner's permission or a valid driving licence or insurance.

The offender had been experiencing difficulties as a result of his parents separating. He was referred for diversion.

The social work team put the offender in touch with Skills Development Scotland who provided advice on obtaining references, helped draft a CV and letters to potential employers and formulated a career development plan.

A mediation service worked with the offender and his family, in individual and group sessions, all of which had a positive impact.

Following completion of the diversion process there have been no further reports of offending.[90]

140. While diversion is more commonly used for low-level offences, it can be an effective disposal for more serious offences as shown by the following case study.

A 17 year old was reported for offences of theft, vandalism and possession of a knife in a public place.[91] On seeking advice from the social work team on the suitability of the offender for diversion the prosecutor was advised that the offender had a background of sexual abuse, which had affected her mental health, but had demonstrated a commitment to address the circumstances that had led to the offending.

The programme included:

  • one-to-one sessions on anger management;
  • work on understanding the consequences of actions; and
  • providing assistance in accessing welfare benefits.

During diversion the offender was referred by her GP to psychiatric services and on becoming homeless, social work arranged temporary accommodation. Following completion of the diversion programme there have been no further reports of offending.

141. In many cases information provided by the police, on the individual circumstances of the young person and their attitude to the offending, was pivotal in the prosecutor offering diversion.

In a case involving an offence of possession of cannabis in the vicinity of a school where drugs had been a problem, a police officer, who was also a youth engagement officer, took time to speak to the school and established that the offender had been seeking help for drug addiction. In the police report, he advised that the offender was remorseful and was being referred to a local addiction team and recommended that an intervention may steer him away from offending.

The social work completion report advised that the offender had engaged throughout and had started college. He has not subsequently re offended.

142. Such favourable outcomes demonstrate the benefit of a targeted approach to addressing the underlying reasons for offending behaviour and the potential for life changing outcomes for the young person, their family, and the wider community.

Unsuccessful Outcomes

143. We examined the 13 cases where diversion was recorded as unsuccessful. We found:

  • Seven were due to process or system issues[92] rather than the attitude or behaviour of the young person;
  • One was assessed as unsuitable due to the unavailability of interpreting services; and
  • Five were due to the attitude/behaviour of the young person:
    • Three failed to co-operate;
    • One did not accept responsibility for the offending behaviour; and
    • One could not proceed due to the offender being remanded in custody for other offences.

144. The failure of diversion in only three cases due to the offender not co-operating or committing further offences is extremely positive.

145. Of the 13 cases, where diversion was recorded as unsuccessful, none were prosecuted:

  • In eight, where the failure was due to system issues or the unavailability of interpreting services, there being no fault on the part of the young person, prosecution was not in the public interest;
  • In one due to the time that had elapsed since the offence, it was no longer in the public interest to prosecute;
  • In one where the offender was remanded, the low-level nature of the offence was unlikely to have impacted on any sentence, if convicted;
  • In three it was not possible to ascertain the reason for not prosecuting from the case files.

Re-offending

146. We examined the 69 cases where diversion was recorded as a success to assess the impact of diversion and, in particular, whether the young person had re-offended following completion of the diversion process.

147. For 43 offenders, almost two thirds, a year after the end of diversion, no further police reports had been received.[93] Where a prolonged period of time has elapsed (a year or more) and there has been no further offending behaviour, an inference can be drawn, at least in part, that diversion has had a positive impact.

148. For the remaining 26 offenders, further reports of offending were received. Eleven had one further report, three had a further two, two had a further three and 10 had persistently offended with more than three reports being received.

149. Of the 26:

  • 16 were subsequently prosecuted, with five being placed on petition. For three, proceedings were subsequently discontinued.
  • Eight involved low-level offences where an alternative to prosecution was offered including, for one offender, a further opportunity of diversion as discussed in the case study below.
  • For one no action was taken; and
  • For one no decision has been made on whether to take action.[94]

150. Looking at re-offending in isolation does not provide a complete picture. For those from more chaotic backgrounds or who have experienced trauma and adversities in their childhood, lapses in their behaviour during the maturation process are not surprising and a one-off intervention is unlikely to suffice. Exposure to preventative interventions for low-level offending is more likely to change behaviours than entering the criminal system.

A 16 year old was reported for a breach of the peace involving fighting in the street with others.

The offender was diverted. CJSW focused on:

  • victim awareness;
  • alcohol and drug awareness; and
  • the consequences of anti-social behaviour.

Following diversion there was a positive completion report.

Six months later, the offender was reported for another breach of the peace and offences involving obstructing police officers engaged in their duties.

The prosecutor opted to divert the offender yet again. The social work team tailored a further programme to deal with his needs, emphasising the likely consequence of prosecution, if he re-offended.

He successfully completed the programme and, over a year later, there have been no further reports of offending.

Persistent Offenders

151. While diversion is generally not regarded as an option for persistent offenders, for some young people, it may be premature to discount it and prosecute.

152. The internationally renowned longitudinal Edinburgh Study of Youth Transitions and Crime found that those involved in persistent offending are amongst the most vulnerable group of people in our society and justice cannot be delivered unless their broader needs are addressed in ways that are not stigmatising and criminalising.[95]

153. Of the ten persistent offenders, where more than three further police reports were received, the SPR identified a range of needs in four of the reports, including learning disabilities, mental health problems and behavioural disorders. No information was provided on the individual circumstances of the other six offenders. For those identified as having deep seated needs, a one-off intervention is unlikely to resolve the underlying issues responsible for the offending behaviour. The following case study demonstrates the value, in some cases, of persisting with diversion.

A 16 year old was reported for a breach of the peace and conduct associated with self-harming/suicidal behaviour.

The offender was diverted. On completion, the social worker reported that the offender was receiving ongoing support from CAMHS (Child and Adolescent Mental Health Services), was engaging and performing well academically.

However, within three months of diversion being completed, the police submitted another report for a breach of the peace. Subsequently, another five reports were received all involving offences associated with self-harming behaviour and, at times, harmful behaviours to others, including allegations of assaulting police officers who were called to assist. All of the offences were associated with the offender's mental health problems.

Due to evidential difficulties no action was taken regarding the breach of the peace offence. Four of the reports, concerning offences associated with mental health problems, in accordance with good practice, were dealt with together and the prosecutor opted to divert the offender again.

On completion, the social work report confirmed the offending was associated with the offender's mental health problems, occurring mostly at acute times of distress. The report advised that the offender had been given a medical diagnosis; was receiving ongoing access to mental health support; had left school after performing well and no other support was required.

Following the positive outcome no action was taken regarding the remaining report and the offender has not subsequently offended.

154. The case study demonstrates that for those with vulnerabilities or underlying issues there are no "quick or easy solutions" to prevent re-offending. Prosecution is a blunt tool which, in the main, is unlikely to resolve the underlying cause of the offending and result in the offender having the stigma of a criminal record, impacting on their life chances, including their ability to secure employment. For many, intensive support from health, social work and other professionals over a prolonged period, perhaps on repeated occasions, is likely to achieve a better, more targeted outcome.

155. For offenders, with challenging needs, some Local Authorities have commissioned services from third sector organisations to provide intensive interventions. One example is the Assertive Outreach Service delivered by Sacro.

The Assertive Outreach Service aims to assist persistent young offenders or those involved in anti-social behaviour who have disengaged with services.

A key worker tailors support to the individual's needs within the family dynamic. By working with the young person and their family, barriers are broken down, trust is gained, routines are established and over time the young person is encouraged to re-engage with services and get their life back on track.

Such preventative inputs are resource intensive but for some more problematic young people, more intensive and constant support is essential to disrupt their offending.

Key Findings

  • There was a high success rate (80%) for the 16/17 year olds diverted as an alternative to prosecution.
  • Diversion only failed in three cases (3.5%) due to a lack of co-operation or further offending.
  • Of the 69 offenders where diversion was completed successfully almost two thirds (43) did not re-offend.
  • For those with complex needs more than one intervention may be necessary to address the causes of the offending behaviour.

156. Our findings should enhance confidence in the use of diversion as an effective disposal. They support a more flexible approach including consideration of diversion on more than one occasion for some offenders.

Recommendation 5

COPFS should facilitate the maximum use of diversion (or a lesser form of alternative action) for all young people under 18 years. Where there are compelling reasons in the public interest to prosecute they should be clearly recorded by prosecutors.

Outcome Focused Approach

157. Diversion is resource intensive often involving social work engagement over a number of weeks and, at times, multiple sessions with input from a variety of professionals. For low-level offending the prosecutor has lower tariff disposals available, including issuing a warning letter or, depending on the circumstances of the offender, a compensation order or fiscal fine, which could address the offending in a shorter timescale with the option of graduating to diversion if there is any further offending.

158. We identified 10 cases where a disposal other than diversion may have sufficiently addressed the offending behaviour.

  • In five, where the offender was successfully diverted, the offences were low-level; three of the offenders had no criminal record and two were already engaging with social work.
  • In five, where no vulnerabilities were identified, other alternatives could have achieved a proportionate and speedier resolution:
  • o Three involved offences of assault; two were minor in nature and in the other, where the offender and victim had resolved their differences, the victim did not wish any criminal proceedings. While diversion was successful, one took six months to complete and the other two took a year, involving considerable social work resource.
  • o In two, involving minor disorder offences, diversion was ultimately unsuccessful due to system failures; the consequential delay contributed to the decision to take no action.

159. Taking an outcome focused approach prosecutors should remain alert to the risk of up-tariffing.

Timeliness of Decision-making and Implementation

160. Prosecutors must be mindful that when dealing with young people, cases should be progressed with urgency to provide a speedy response.[96]

161. As discussed in chapter two, COPFS should make an initial decision within 10 working days for all jointly reported cases. It also has a target to take and implement decisions in at least 75% of all cases within four weeks of the date on which the report is received.

162. We found:

  • 37 cases (43%) took more than four weeks for an initial decision to be taken. On average it took just over seven weeks.
  • 48 cases (56%) took more than four weeks to implement the decision (the prosecutor writing to social work referring the offender) from the date the report was received.
  • On average, it took nine weeks for initial decisions to be taken and implemented with 18 (21%), taking over three months and five taking over nine months.

163. To alleviate anxiety, it is important to minimise exposure to the criminal justice system. Delays in offering and completing diversion, while retaining the potential for prosecution, could adversely affect a young person, detracting from the positive aspects of diversion.

164. To provide effective and meaningful support/intervention in a young person's life diversion should occur in close proximity to the offending behaviour.

165. In three cases, the time taken to refer the offenders for diversion, one year after the offence took place, diluted the effectiveness of diversion as demonstrated by the case study below:

A case involving a low-level assault and property damage using knives was committed by the offender within the family home, whilst drunk.

While the circumstances of the offending indicated the offender was experiencing difficulties and may benefit from diversion, a year had elapsed since the commission of the offence. No consideration was given to ascertaining whether circumstances may have changed since the report was submitted and whether diversion was still the best option.

A programme of work was undertaken with the offender over seven months before being closed as a success. The social work report acknowledged that by the time they made contact with the offender, her life was back on track – she was about to go to university and doing voluntary work.

Being aware that the decision on whether or not to prosecute was dependent on the successful completion of the diversion programme, she would have had this hanging over her during the seven months of the diversion programme and in excess of 18 months since the commission of the offence.

166. On average, it took seven months from the date of receipt of the police report to the completion of the diversion process, with the longest taking 18.4 months.

167. Following a decision to offer diversion, we found a lack of rigour in the implementation processes. There were frequent delays in issuing letters to offenders and social work teams and on receiving updates of the offender's progress.

168. In seven cases, ten months or more had elapsed before the prosecutor requested a progress report.

169. While there are some problematic cases where social work will require an extended period to undertake a prolonged programme of engagement with the offender, there is considerable scope to improve the timelines for decision-making, implementation and completion of the diversion process.

Key Findings

  • In 56% of cases, it took more than four weeks to implement the decision to divert the offender.
  • Close proximity between the offence and the commencement of engagement with Criminal Justice Social Work (CJSW) is essential for diversion to be effective and relevant for the offender.
  • The average time between receipt of the police report and the completion of diversion was seven months.
  • Updates on progress from CJSW need to be obtained in a timely manner to ensure final decisions can be taken as swiftly as possible to minimise any adverse impact on the young person.
  • Recommendation 6

COPFS should improve the timeline of cases involving young people where diversion is offered.

Evaluation of Diversion

170. We note that in response to a query from the Justice Committee on what monitoring exists to evaluate the effectiveness of diversion,[97] COPFS responded that they would seek to secure agreement within the Community Justice partnership to monitor and evaluate diversion. We commend the commissioning of such evaluation to better inform where diversion should be targeted to make the most difference.

Communication

171. While COPFS guidance provides a national process for communicating with Local Authority CJSW teams and offenders, in practice, different processes, reflecting the preferences of the Local Authorities, are being applied. Some prefer COPFS not to communicate with the offender until a suitability assessment has been conducted whereas others prefer the prosecutor to write to the offender prior to any interview. This creates inconsistencies in the manner of communication between COPFS and offenders and introduces unnecessary complication and delay.

Communication with Offenders

172. In five cases there was no correspondence with the offender.

Initial Contact

173. In the remaining 81 cases:

  • In 69 the prosecutor wrote to the offender prior to social work making contact.
  • In 10 the initial letter to the offender was sent after the social worker had made contact and assessed them as suitable. In two, the letter from COPFS explained the deferred prosecution model, advised that social work would be in contact and that, if they chose to, they could opt-out - given that they had already been interviewed and agreed to participate - the letter was likely to cause confusion.
  • In two, following receipt of a successful completion report, the first contact by the prosecutor was to advise there would be no prosecution.

Contact Following Completion of Diversion

  • In 51, contrary to COPFS guidance, there was no correspondence to advise the offender of the outcome.
  • In 29 the prosecutor wrote advising there would be no further action. In six the letter advised that a decision had been taken not to prosecute but went on to state that they should be of good behaviour and co-operate with the social work department. As the social work team had already provided a report indicating no further engagement was necessary, the correspondence was contradictory.
  • One is ongoing.[98]

174. We heard from members of the CYCJ, who chair a practitioners forum on the delivery of diversion, that failure to provide information on whether or not there would be a prosecution caused anxiety for many young people. It also contravenes the Council of Europe Guidelines on Child-friendly Justice which promote the provision of information on the general progress and outcomes of proceedings or interventions.

A police report containing allegations of vandalism by a 17 year old foreign national highlighted that, if convicted of an offence punishable by imprisonment, the court may be asked to recommend his deportation.

The prosecutor wrote to the offender using a template letter. The explanatory note in the letter advised that:

"if the offender accepted the proposal the prosecutor may decide either not to prosecute or to wait and see how they co-operated before finally deciding whether to prosecute"

The prosecutor subsequently sought an update from the social work team but, despite contacting the team on a number of occasions, no completion report was provided. Due to the time that had elapsed since the offence no further action was taken.

There was no correspondence advising the offender of the decision.

It is unknown whether the offender had been informed of the potential for deportation, if convicted, but, if so, the uncertainty of what had happened with his case is likely to have caused considerable anxiety.

175. In addition to the inconsistencies in the manner of contact, the content of the letters, sent to offenders differed. Some letters were overly complex with unnecessary jargon and legal terms that would be difficult for a young person to understand as demonstrated by the following extracts:

176. Extract from initial letters:

  • "If you accept the proposal and the Procurator Fiscal considers that you would benefit from this assistance, the Procurator Fiscal may decide either not to prosecute you for the alleged offence or to wait to see how you have co-operated before finally deciding whether to prosecute you. If you are prosecuted, the content of the discussions you have had with the Social Work Department will not be referred to at your trial. If you are convicted, mention may be made to the court of this proposal".

177. Extract from correspondence following completion of diversion:

  • "Please be advised that should you re-offend, it is likely that you will not be offered the opportunity of Social Work assistance as a direct alternative to prosecution."

178. In contrast to the extracts above we found examples of good practice where more straightforward language was used:

  • "Following your participation in the diversion from prosecution scheme, I can advise that social work have now provided me with a completion report. Accordingly, I can confirm that I do not intend to take any further proceedings in this matter."

Equality Considerations

179. It is acknowledged that communicating with offenders, many of whom have their own legal representative, is not a primary consideration for prosecutors. However, at the stage that diversion is being offered the offender is unlikely to have a legal representative and, given the vulnerabilities that are often encountered by this group, correspondence must be clear and straightforward. Contrary to COPFS' plain English guide and guidance on accessible information, none of the correspondence sent by the prosecutor was tailored to the individual. Standard letters were sent without consideration of the needs and vulnerabilities of the offender. We identified equality issues in nine cases:

  • In eight, where the offenders were written to prior to any contact with the social work team, standard letters were issued despite the police report highlighting the offenders had mental health problems, learning disabilities, learning difficulties, behavioural or development disorders or poor cognitive function. For some, it is extremely doubtful that the content of the letter would be understood.
  • In one, the police report advised that the offender required an interpreter indicating that there were language barriers which may have impeded the offender's understanding of the content of the letter.

180. Communication with children and young people should be adapted to their age and maturity and in a language they understand.[99]

A police report containing allegations of a 16 year old assaulting police officers was sent to the prosecutor.

The offender was autistic with mental health problems and the mental capacity of a 12 year old.

The prosecutor wrote to the offender using a template letter. The explanatory note in the letter advised that:

"if the offender accepted the proposal the prosecutor may decide either not to prosecute or to wait and see how they co-operated before finally deciding whether to prosecute"

Given the mental capacity of the offender it is unlikely that she would be able to understand the content and it may have caused confusion or even distress.

After being assessed as suitable for diversion, no letter was sent advising the offender of the decision to divert the case.

Within three months, a progress report was sent to the prosecutor advising that the offender had co-operated and that there had been no further offending. The case was closed but, contrary to COPFS guidance, no letter was sent to advise the offender of the decision to take no further action.

181. A more appropriate approach would have been to enquire whether the offender had a legal guardian or for social work to make initial contact by phone or in person.

Key Findings

  • Communication with offenders during the diversion process was inconsistent and often at variance with COPFS guidance.
  • Letters sent to offenders were overly complex and contained legal jargon.
  • Communication was not tailored to offenders' needs taking account of, any known, equality issues.

Recommendations 7, 8, 9 and 10

  • COPFS should introduce a national streamlined process for communicating with social work departments and offenders to support the effective operation of diversion.
  • COPFS should review and simplify all correspondence issued to young people being offered diversion.
  • COPFS should tailor communication to the individual needs and vulnerabilities of young offenders taking account of, any known, equality issues.
  • COPFS should, on completion of diversion, confirm in writing what action, if any, is to be taken.

Barriers to Diversion

Acceptance of Offending Behaviour

182. Only one offender was assessed as unsuitable because they denied any involvement in the commission of the offence.

183. Criminal justice social workers advise that it is relatively common for a young person to acknowledge they have difficulties but to minimise or not accept the full extent of their offending behaviour. However, unless there is an element of restorative justice, this does not necessarily preclude them from diversion. If they are willing to engage with CJSW, the team can provide the appropriate support, ranging from tackling drug or alcohol misuse, resolving an acute crisis such as homelessness or referring the young person for specialist treatment. Very often, at the conclusion of the diversion process, those diverted accept they were responsible, at least in part, for the conduct that triggered the referral.

184. It is only where the offender denies responsibility and is unwilling to co-operate that diversion should be ruled out as an appropriate disposal.

Availability of Diversion

185. Historically, diversion was delivered through "diversion schemes". The schemes were often tailored to the offending conduct rather than the offender's needs resulting in those who did not meet the criteria of the available scheme(s) being assessed as unsuitable. During our review, we heard references to diversion not being suitable for certain offences and unavailable due to the absence of specific type of programmes.

186. This approach is out of step with the WSA ethos and the needs-led approach to dealing with young people.

187. COPFS and CJSW have different responsibilities and roles in the delivery of diversion. It is for the prosecutor to assess whether it is in the public interest to offer diversion, having regard to the competing interests of any victim, the offender and the community. An assessment of risk is factored into such decisions.

188. Thereafter, it is the responsibility of CJSW to assess the individual needs of the offender and address these through the universal services available in the Local Authority, or through commissioning the appropriate services.

189. Based on this shared understanding of approach we were reassured by senior representatives from CJSW and practitioners, who deliver diversion, that any offence referred by the prosecutor can be considered and that their overriding objective is to engage with young people in a welfare-based system and to keep them out of the criminal justice system.

190. The dual approach of tailoring diversion to the individual offender's needs through a range of universal services and dedicated prosecutors, within the national marking unit (NICP), making decisions in the majority of summary cases should provide greater accessibility to, and consistency in the use of diversion.

Capacity of Services

191. Other than the case declined due to the unavailability of an interpreter, there were no cases, in our review, not accepted by CJSW due to lack of availability of services or capacity.

192. We are aware, however, that capacity to deliver diversion has been an issue in some Local Authorities. One Local Authority has a backlog of cases – some from April this year[100] – awaiting assessment for suitability by CJSW. We were told that measures have been taken to remedy the situation.

193. Delays of this nature have the potential to undermine confidence in diversion and dilute the impact of the intervention on the young person. The closer the intervention to the offending, the greater the likelihood of a positive outcome.

194. All Local Authorities have the necessary skills and expertise to work with young offenders subject to a CPO. Diversion requires similar skills and provides the young person with the appropriate support but at an earlier stage and crucially before the offender enters the adult criminal system. It is, undoubtedly, more cost effective than prosecution with the possibility of the offender being made subject to a CPO or a period of detention.

195. We recognise that fluctuations in the number of referrals for diversion by COPFS have historically created difficulties for some Local Authorities to deliver a consistent service. The combination of a dedicated prosecutor dealing with cases involving 16/17 year olds and an approach by COPFS to maximise the use of diversion for all young people under 18 years should provide greater consistency in the number of young people being referred.

196. With that in mind, to secure the objective of keeping as many young people out of the formal justice system, consideration should be given to re-aligning the current funding streams for CJSW to better resource a preventative, earlier intervention approach through diversion.


Contact

Email: Carolyn Sharp