Diversion

Diverting offenders from prosecution is the referral of an accused to social work or other agencies where it is believed that formal criminal justice proceedings are not necessary (i.e. where there is no overriding public interest for a prosecution). The accused is then dealt with through 'diversion schemes' which aim to address underlying causes of offending. Diversion is designed to prevent individuals being prematurely 'up-tariffed' into a custodial sentence, and is primarily targeted towards young people, female offenders and those with substance misuse issue.

The national Diversion from Prosecution scheme, rolled out in 2000/2001, applies to offenders of all ages; 16 and 17 year olds are one of the target groups. The approach is designed to prevent a person, who has committed a relatively minor crime and does not represent a significant risk of harm to the public, from being prematurely up-tariffed through the Criminal Justice System. Diversion is a ‘direct measure’ as an alternative to prosecution, available to the Procurator Fiscal in all areas where there are diversion schemes. Procurators Fiscal are responsible for identifying which of the accused reported to them by the police are potentially suitable for diversion into social work interventions. Procurators anticipate this will have more beneficial impact on future offending behaviour than a prosecution.

In relation to young people diversion can be a particularly useful intervention with positive outcomes in respect of reoffending. Most current youth justice diversion schemes adopt a deferred prosecution model and prosecution is suspended until the young person has successfully completed the diversion programme. An agency such as social work, addiction services or restorative justice manages the diversion programme. Normally a young person on diversion is involved in individual and /or groupwork sessions which cover a range of areas such as offending behaviour, alcohol and drug use, social skills, education, employment and training and problem solving. A report on progress would be required by the Procurator Fiscal after 3 months.

Diversion may be considered early intervention, but it should not be considered a replacement for police warnings or other kinds of direct measures such as Procurator Fiscal warnings, compensation offers or Procurator Fiscal fines. There is a danger of net widening if diversion is used where other direct measures would be less intrusive and equally or more effective.

The experience of the well established Youth Justice Diversion from Prosecution scheme in Dumfries and Galloway suggests that careful preparation, close links between the local authority Youth Justice Service and the Procurator Fiscal, and good background information from the police can result in positive outcomes. Between May and August 2010, 80 young people were diverted in Dumfries and Galloway; only 5 have reoffended. The current Diversion from Prosecution pilot in Ayrshire is based on the Dumfries and Galloway model of diverting young people to a 6 week social work programme of work.

Nationally the use of diversion from prosecution has halved since 2005, the reasons for which are unclear. Greater use of good youth justice diversion from prosecution schemes would reduce the volume of court reports and probation orders; and promote positive outcomes for young people committing low level offences; but also in certain circumstances, more serious offences can be addressed by offering programmes which address offence and welfare needs in a time frame much closer to the date when the offence was committed.

A national Toolkit for Diversion from Prosecution has been devised by the Crown Office and Procurator Fiscal Service (COPFS), Local Authorities, the police and the third sector, which will offer detailed guidance on establishing and maintaining a youth justice diversion scheme.

There is little published research from a Scottish perspective on topic of diversion, although the Scottish Government website has a 'web only' publication of the Evaluation of the 100% Funding Pilot Programmes in the late 1990's. Much of the literature relevant to diversion tends to fall under the heading of restorative justice, a topic that is dealt with elsewhere on the site. However, there are a few articles that may be of interest:

• Comparative Review of Best Practice Guidelines for the Diversion of Drug Related Offenders (Bull, 2005)
• Evaluating the Usefulness of a Prostitution Diversion Project (Wahab, 2006)
• The Limits to Diversion from Prosecution (Sanders, 1988)
• Outcomes of Mandated and Nonmandated New York City Jail Diversion for Offenders with Alcohol, Drug, and Mental Disorders (Broner et al, 2006)