Lord Advocate: Use of diversion from prosecution in sex cases to be reviewed

Scotland’s Lord Advocate has ordered a review of how prosecutors deal with diversion from prosecution in cases of serious sexual offences such as rape.

Lord Advocate Dorothy Bain said she is “acutely aware” of the trauma victims experience and has ordered the review to ensure that diversion is being used appropriately.

Diversion from prosecution is one of a range of community justice interventions prosecutors will consider.

It sees prosecutors refer someone accused of a crime to local authority social work services or a partner agency for support, treatment, or other action to address the underlying causes of the alleged offending and prevent further criminality.

The Lord Advocate said: “Sexual offences are among the most difficult cases prosecutors deal with.

“I am acutely aware of the trauma experienced by victims and their loved ones. As public prosecutors, we are trusted to make appropriate decisions and must uphold the trust placed in us.

“Diversion can be an appropriate intervention to prevent perpetrators re-offending which, in turn, builds towards a safer society for all. Addressing needs which have contributed to offending behaviour is in the interest of the wider community.

“Such intervention can be particularly effective in cases of children’s offending, changing the direction of young lives for the better.

“I have instructed this review as there is a responsibility on the Crown Office and Procurator Fiscal Service (COPFS) and criminal justice partners to ensure that diversion is being used appropriately.

“The review is timely in ensuring we are continuing to consider the rights of children under UN Convention on the Rights of the Child guidance.”

She said that the review will engage with victims and listen closely to their views and will also involve partners across the criminal justice system.

The Lord Advocate added: “Justice for victims will always remain the focus of what we do.”

Diversion from prosecution is considered as an option by the procurator fiscal in any case where the person reported to the Crown Office and Procurator Fiscal Service (COPFS) has an identifiable need that has contributed to the offending, and where it is assessed there is enough evidence and that diversion is the most appropriate outcome in the public interest.

COPFS said that the use of diversion is guided by the Scottish Prosecution Code and its use for offenders under 18 is in keeping with obligations to children in terms of the UN Convention on the Rights of the Child (UNCRC).

It will publish revised guidance on diversion for sexual offences in the Prosecution Code in due course.

A review of diversion from prosecution published by watchdog bodies in February this year found that it is working well and is developing in a positive direction.

The number of diversion from prosecution cases started rose by 20% between 2020-21 and 2021-22 to 2,700 – the highest level in the last decade.

By far the most likely people to get diversion from prosecution, as a proportion of the overall population, were those aged 16 to 17.

Commenting on the review ordered by the Lord Advocate, Scottish Conservative justice spokesman Russell Findlay MSP said victims have “effectively shamed the authorities into ordering this review”.

He added: “The SNP is so pathetically weak on crime that some victims even wonder why they bothered reporting what happened to them in the first place. That is damning.

“If this review is to have any chance of succeeding then victims must be at the heart of any discussions and proposed changes.”

A Scottish Government spokesman said: “We recognise the devastating impact of sexual crimes on victims, their families and wider society.

“Decisions relating to prosecution policy, including diversions from prosecution, are a matter for the Lord Advocate as independent prosecutor.

“The Scottish Government is taking a wide range of steps to strengthen how victims and witnesses in sexual offence cases are supported and informed through the justice system.”