Diversion | COPFS

Introduction

Diversion from prosecution (sometimes referred to as diversion or DfP) is where the prosecutor in Scotland refers an accused person to a local authority, or other partner agency, for support, treatment or other action, to address the underlying causes of the accused’s alleged offending behaviour.

Diversion from prosecution is considered as an option by the prosecutor in any case where the accused has an identifiable need that has, or appears to have, contributed to their offending.

An identifiable need can include (but will not be limited to):

addiction/problematic drug or alcohol use

mental health needs

learning disabilities

homelessness

It can only be offered where there is sufficient evidence and where it is assessed that diversion is the most appropriate outcome in the public interest.

Benefits of diversion

Diversion from prosecution provides the accused with an opportunity to get help and support with any needs that may have contributed to the offending behaviour.

The aim of diversion is to reduce the risk of re-offending. In some cases, an accused may be offered diversion more than once.

Diversion should provide assurance that the offending is being addressed.

Diversion is not a criminal conviction. This means that the accused avoids receiving a criminal conviction, which could harm their future chances in life. That is one reason that diversion can be particularly beneficial in cases involving children who commit offences.

The diversion process

Prosecutors will consider if diversion is the most appropriate outcome in the public interest.

They will take into account a range of factors (all set out in the Prosecution Code) and which will include the views of the victim (see below).

Participation in a diversion programme is voluntary. The local authority/partner agency will talk to the accused about whether they are willing to engage fully with such a programme.

The diversion programme that the local authority or other partner agency develops will be specifically designed for the accused and will depend on the nature of the alleged offence and what it appears the accused needs support with.

If the accused chooses to participate, they must accept the help offered by the social work team/partner agency and the programme they design. This may include attending appointments.

If the accused agrees to diversion

Where an accused agrees to take part in a diversion programme, the prosecutor has two options. They can:

decide not to prosecute the accused for the alleged offence. This is the waived model of diversion and doesn’t tend to be used where there is an identifiable victim.

wait to see how the accused has co-operated with the programme, before making a decision on whether to prosecute. This is known as deferred model of diversion. Most of the time the deferred model is used.

In most cases, prosecutors will be content that social work (or other partner agency) can start the diversion programme as soon as the accused accepts the offer of diversion and is assessed as suitable.

In other, potentially more serious, complex or sensitive cases (including allegations of domestic abuse, stalking or sexual offending) the prosecutor will want to know what social work (or other partner agency) can do by way of a diversion programme, before work is started.

Most diversions will be completed within 3-4 months, but in some cases may last as long as a year.

If the accused refuses diversion

An accused person can also refuse the offer of diversion.

Where an accused refuses the offer of diversion, the prosecutor will reconsider what other action (if any) may be in the public interest.

Diversion is not a criminal conviction

If an accused chooses to participate in the diversion programme it is not recorded as a criminal conviction. There is no need for an accused to formally admit their guilt. Participation in the diversion programme may be disclosed as part of a disclosure check. For further information please visit the Disclosure Scotland website.

Timeline for diversion and what happens afterwards

In most cases, the local authority/partner agency will report back to the prosecutor after about three months. The report will provide an update on how the diversion programme went, the accused’s engagement with the programme and whether, in their view, the programme can be considered successfully completed.

In some cases, it will take longer than three months to complete the work that the local authority/partner agency consider is required. Any extended timescales should be agreed with the Procurator Fiscal.

When the programme of work is completed, the local authority/ partner agency will provide a report to the prosecutor.

The prosecutor will then decide whether to prosecute the accused or not. The prosecutor can also decide not to prosecute at that time but reserve the right to take action in the future, for example if the accused offends in a similar way again.

Victim views on diversion

The views of victims are important and are a factor which will be taken into consideration by the prosecutor when deciding whether it is appropriate to offer diversion.

Where the victim is a child, the views of the child, where appropriate, should be sought and given due weight in accordance with the age and maturity of the child in accordance with Article 12 of the UNCRC, regardless of whether views are provided by a parent/carer.

However, a victim’s views will not be determinative as to whether diversion is appropriate in the circumstances of each case and the prosecutor’s assessment of the public interest requires them to take into consideration a range of different factors.

What we can tell victims about diversion

Specific information about the diversion programme itself (i.e. the nature of the programme, what is involved etc.) and/or personal details of the accused will not be shared. This will often be sensitive and confidential.

However, victims can be told (where applicable):

that the accused has chosen to undertake a programme of diversion;

that where the accused has chosen to undertake diversion, any undertaking conditions or special conditions of bail will no longer apply;

that if there is evidence of further offending whilst the accused is undertaking the programme, the prosecutor can re-consider the diversion to divert;

if the programme of diversion is taking longer than expected;

that the accused has successfully completed the programme of diversion;

that the accused has failed to engage with the programme of diversion;

that the prosecutor has decided to prosecute (or not) following completion of the programme;

that where the prosecutor has decided not to prosecute, that the victim has a right to request a review of that decision.