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Lord Advocate statement on Diversion from Prosecution

The Lord Advocate Dorothy Bain QC made this statement to the Scottish Parliament on Diversion from Prosecution:

 On 17 June 2021 the Scottish Parliament passed a motion on tackling drug related deaths. In relation to myself, as the new Lord Advocate, the Scottish Parliament indicated that:

  • Firstly, it would support a review of guidance on Recorded Police Warnings and
  • Secondly, a statement on the principles and practicalities of diversion would be beneficial.
This is my first opportunity as Lord Advocate to address the Scottish Parliament and I welcome the chance to do so on such a significant and important issue. I recognise the extent of the public health emergency we face in Scotland and the ability of prosecutors to help.

 It may be useful at the outset if I set some context.

In Scotland, prosecutors act as the gatekeepers to the criminal justice system and, subject to some limited exceptions, it is the duty of the police to report a case to the prosecutor where they believe there is sufficient evidence that an offence has been committed. It is then for the prosecutor to decide what, if any, prosecutorial action is in the public interest.

One of those limited exceptions to report to the prosecutor is the Recorded Police Warning scheme. The scheme provides officers with a speedy, effective and proportionate means of dealing with low-level offending. Officers may choose to deal with low-level offences by issuing a Recorded Police Warning.

As Lord Advocate, I issue Guidelines to the police in relation to the operation of this scheme including which offences may be considered for a Recorded Police Warning. These Guidelines are set by me, acting independently of any other person. They extend beyond drug possession offences and are therefore properly confidential. However, I can confirm that the Guidelines previously permitted the police to issue Recorded Police Warnings for possession of Class B & Class C drugs.

At the time of the debate, the Guidelines were already under review. The review examined drug possession only case outcomes. I have considered the review  and I have decided that an extension of the Recorded Police Warning Guidelines to include possession offences for Class A drugs is appropriate. Police officers may therefore choose to issue a Recorded Police Warning for simple possession offences for all classes of drugs.

In confirming the extension, I wish to make four things clear:

  • Firstly, the scheme extends to possession offences only. The scheme does not extend to drug supply offences. Robust prosecutorial action will continue to be taken in relation to the supply of controlled drugs.
  • Secondly, Recorded Police Warnings do not represent decriminalisation of an offence. Recorded Police Warnings represent a proportionate criminal justice response to a level of offending and are an enforcement of the law.
  • Thirdly, neither offering nor accepting a Recorded Police Warning is mandatory. Police officers retain the ability to report appropriate cases to the Procurator Fiscal. Accused persons retain the right to reject the offer of a warning.
  • Finally, neither offering a Recorded Police Warning nor reporting a case to the Procurator Fiscal prevents an officer referring a vulnerable person to support services.
On that final point, prosecutors, working with fellow members of the Drugs Death Taskforce, have played an important role in the development of a pilot scheme to support such referrals. The scheme launched in Inverness at the beginning of July 2021 and is led by Medics Against Violence.

 The purpose of the scheme is for individuals to be referred to a mentor to provide support at the first point of contact with police. Such support is available whether or not an individual is subsequently reported for a criminal offence.

Turning to the principles and practicalities of diversion, I am aware that the term diversion is used in many different contexts. I will describe the long-standing Scottish system of diversion from prosecution.

When any case is reported to the Procurator Fiscal and there is sufficient evidence, prosecutors will apply the principles set out in the published Scottish Prosecution Code. Prosecutors will exercise their professional judgement and identify what, if any, prosecutorial action is in the public interest.

In identifying the appropriate outcome in the public interest, prosecutors take into account a range of factors, including the nature of the offending, the circumstances of the accused and, where relevant, the impact on any victim. The range of options available to prosecutors include formal warnings, financial penalties, diversion and prosecution.  

There is simply no one size fits all. Each case will be considered on its own facts and circumstances.Diversion is an alternative to prosecution.  

Diversion is a process by which prosecutors are able to refer a case to social work or other identified agency as a means of addressing the underlying causes of offending when this is deemed the most appropriate course of action.

In 2019 the then Lord Advocate reviewed prosecution policy and directed that diversion should be considered for all individuals reported to COPFS where there is an identifiable need which has contributed to the offending which can best be met through a diversion scheme.  Prosecutors will consider all the circumstances and determine the appropriate outcome in the public interest.

Where the prosecutor is satisfied that the public interest would be best served by an offer of diversion, they refer the individual to social work or other agreed agency who then assess whether the person is suitable for diversion and report the assessment to the prosecutor.

It may be that a person is assessed as unsuitable for diversion. For example, where they have declined support or they require no intervention.   In those cases, prosecutors will then decide what alternative action, if any, is required.

Where a person is assessed as suitable, prosecutors refer the individual for diversion. Any decision to prosecute the person is normally deferred until completion of a diversion program of support. Any diversion program should be tailored to the needs of each individual and provide an opportunity to meet the underlying causes of their offending and ultimately to prevent reoffending.

At the conclusion of the diversion program, the results are reported to the prosecutor. Where the program has been successfully completed, the prosecutor will routinely decide that no further action is required and that is the end of the matter.

Following the 2019 review of prosecution policy by the then Lord Advocate, the numbers of diversions offered for single charge possession cases has increased significantly from 57 in 2017-18 to 1,000 in 2020-21.  The increase in the last year alone represents a doubling of the offers of diversion, despite the challenges posed by the pandemic.

Not every individual, who uses drugs will be suitable for, nor require, diversion.

For some accused persons a warning or fine may be an appropriate, proportionate response. Approximately 2/3rds of people reported to COPFS where the only offence reported is possession of drugs, are dealt with by alternatives to prosecution, with the vast majority of those being offered a financial penalty.  

Any alternative to prosecution: warnings, fines or diversion, are offers only. An accused person always has the right to reject such an offer and there will be cases where prosecution is the appropriate response in the public interest. 

Where an accused person is subsequently found guilty the courts, in turn, have a range of sentencing disposals appropriate to the individual accused and offence.

The range of options available to police, prosecutors and courts reflects the fact that in Scotland there is no one size fits all response to an individual found in possession of a controlled substance or an individual dependent on drugs.

The most appropriate response -the smartest response - in any drugs case, must be tailored to the facts and circumstances of both the alleged offence and the offender. Scotland’s police and prosecutors are using the powers available to them to both uphold the law and help tackle the drug death emergency.