Diversion from Prosecution

– in the Scottish Parliament on 22nd September 2021.

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Photo of Annabelle Ewing Annabelle Ewing Scottish National Party

The next item of business is a statement by Dorothy Bain, the Lord Advocate, on diversion from prosecution. The Lord Advocate will take questions at the end of her statement, so there should be no interventions or interruptions.

The Lord Advocate (Dorothy Bain QC):

On 17 June 2021, the Scottish Parliament agreed a motion on tackling drug-related deaths. In relation to myself, as the new Lord Advocate, the Scottish Parliament indicated, first, that it would support a review of guidance on recorded police warnings and, secondly, that a statement on the principles and practicalities of diversion would be beneficial.

This is my first opportunity to address the Scottish Parliament as the Lord Advocate, and I welcome the chance to do so on such a significant and important issue. I recognise the extent of the public health emergency that we face in Scotland and the ability of prosecutors to help.

It might be useful 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 when they believe that there is sufficient evidence that an offence has been committed. It is then for the prosecutor to decide what prosecutorial action—if any—is in the public interest.

One of those limited exceptions to reporting to the prosecutor is the recorded police warning scheme, which 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 the Lord Advocate, I issue guidelines to the police in relation to the operation of the scheme, including which offences may be considered for a recorded police warning. The 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 and C drugs.

At the time of the debate on 17 June, 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. First, the scheme extends to possession offences only; it 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; they 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, and 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 from referring a vulnerable person to support services.

On that final point, prosecutors, working with fellow members of the drug deaths task force, 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 to refer individuals to a mentor for the provision of 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.

I now turn to the principles and practicalities of diversion. I am aware that the term “diversion” is used in many different contexts, so 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 that are set out in the published Scottish prosecution code. Prosecutors will exercise their professional judgment and will identify what prosecutorial action—if any—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, when relevant, the impact on any victim. The range of options that are available to prosecutors includes formal warnings, financial penalties, diversion and prosecution. There is no one-size-fits-all response; each case will be considered on its own facts and circumstances.

Diversion is an alternative to prosecution. It is a process by which prosecutors are able to refer a case to social work or another identified agency as a means of addressing the underlying causes of offending, when that 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 who are reported to the Crown Office and Procurator Fiscal Service when an identifiable need has contributed to the offending that can best be met through a diversion scheme. Prosecutors will consider all the circumstances and will determine an appropriate outcome in the public interest.

When 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 another agreed agency, which then assesses whether the person is suitable for diversion and reports the assessment to the prosecutor. It may be that a person is assessed as being unsuitable for diversion—for example, when they have declined support or require no intervention. In those cases, prosecutors will then decide what alternative action—if any—is required.

When a person is assessed as being suitable, prosecutors refer the individual for diversion. Any decision to prosecute the person is normally deferred until completion of a diversion programme of support. Any diversion programme should be tailored to the needs of the individual and should provide an opportunity to meet the underlying causes of their offending and, ultimately, prevent reoffending. At the conclusion of the diversion programme, the results are reported to the prosecutor. When the programme 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 number of diversions offered for single-charge possession cases increased significantly, from 57 in 2017-18 to 1,000 in 2020-21. The increase in the past year alone represents a doubling of offers of diversion, despite the challenges posed by the pandemic.

Not every individual who uses drugs will be suitable for or require diversion. Some accused persons will face simply a warning or a fine, which might be an appropriate and proportionate response. Approximately two thirds of people who are reported to the Crown Office and Procurator Fiscal Service when the only offence reported is possession of drugs are dealt with by alternatives to prosecution, and the vast majority of those people are offered a financial penalty.

Any alternative to prosecution—a warning, fine or diversion—is an offer only, and an accused person always has the right to reject such an offer.

There will be cases in which prosecution is the appropriate response in the public interest. When an accused person is subsequently found guilty, the courts have a range of sentencing disposals that are appropriate to the individual accused and offence.

The range of options that are available to police, prosecutors and courts reflects the fact that, in Scotland, there is no one-size-fits-all response to an individual being found in possession of a controlled substance or to an individual being 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 uphold the law and to help to tackle the drug deaths emergency.

Photo of Liam McArthur Liam McArthur Liberal Democrat

Thank you, Lord Advocate. The Lord Advocate will now take questions on issues relating to her statement, for which I intend to allow 20 minutes. I call Jamie Greene.

Photo of Jamie Greene Jamie Greene Conservative

I warmly welcome the Lord Advocate and the Solicitor General to the Government benches today. I thank them for advance sight of the statement and I apologise for the tardy arrival of Conservative members.

The statement came through a little bit late, which is reflective of the fact that the Government gave no indication of the nature and content of today’s statement, despite its being a relatively major policy shift. I believe that Parliament rightly needs to scrutinise the gravity of a decision such as the one that has been made today. I believe that it should be the subject of a full debate, not the question-and-answer session that we have.

Scotland’s drug deaths crisis is our national shame, but surely the way to tackle it is by improving access to treatment and rehabilitation, not by diluting how seriously we treat possession of deadly class A drugs such as heroin, crystal meth and crack cocaine, which are the scourges of our streets and our society.

The answer to our drug deaths crisis is treatment, not de facto decriminalisation by the back door, as is the case today. Sadly, nothing that has been said in today’s statement will stop drug deaths or guarantee access to the needed treatment that our proposed right to recovery bill will call for.

There is a fine balance between possession of drugs and drug dealing. How are police officers expected to enforce the new guidance? What consultation did the Government have with Police Scotland before the announcement of the decision today? Will Parliament get a say on any of this, with a full and proper debate on the matter and a full and proper vote on a decision of such importance and magnitude?

The Lord Advocate:

T he causes of drug-related deaths in Scotland are complex, and the reasons why people take drugs are complicated. No one measure will reverse the appalling levels of drug-related deaths that Mr Greene so rightly referred to.

However, the criminal justice system has a role to play in reducing the harms that are caused by drugs to our communities, both in terms of disrupting the activities of drug dealers and in ensuring that, where appropriate, help is offered to vulnerable individuals. There is a significant distinction to be made between those who are involved in the supply of drugs and who are the drug dealers who destroy communities, and the vulnerable individuals who are addicted to drugs for a variety of reasons, many of which relate to real difficulties in their background, significant problems in their childhood and vulnerabilities that are not of their own making. There is therefore a significant distinction to be made between what I am talking about today, which is possession of drugs, and supply. It is an important distinction. My point is that it is important that the criminal justice system respond appropriately to individuals who are caught in possession of drugs.

As I pointed out in my statement, diversion represents an opportunity to engage with potentially vulnerable individuals in a productive way that attempts to address the causes of their offending and to prevent reoffending. Diversion is a criminal justice response; it is not a replacement for community treatment and support. Recorded police warnings are a criminal justice response and not “de facto decriminalisation”.

The success of diversion is dependent on a number of factors. They include the quality of the information that is provided to prosecutors regarding the individual’s background and potential vulnerability; engagement by the individual; and availability of effective diversion schemes. The establishment of Community Justice Scotland provides significant opportunities to enhance use of diversion across Scotland and to establish a consistent approach to the availability of diversion schemes that are tailored to people who are experiencing drugs or alcohol issues.

The Deputy Presiding Officer:

Lord Advocate, I am going to have to ask you to give slightly briefer responses, as we have a lot of questions to get through.

The Lord Advocate:

I will conclude there.

Photo of Claire Baker Claire Baker Labour

I welcome the statement from the Lord Advocate and recognise her commitment to supporting a proportionate and reasonable response to the drug deaths crisis in Scotland.

This weekend, the recovery walk Scotland 2021 takes place in Perth; last night I attended a civic reception to welcome to Perth those who are attending. I heard from people who are living through recovery, which underlined the need to make it as easy as possible to get treatment, and to ensure that people who are in need of support can approach services without fear of judgment or reprisal. The Lord Advocate’s announcement today will help towards that.

The Lord Advocate will be aware of the growing support for safe consumption rooms. I ask for clarity on whether anything in the statement will enable their establishment on a more formal footing. As she described, we know that it is not enough to do what is done now in isolation, and that diversion from prosecution needs to be backed with access to services on the ground and good links with police and services.

I notice from the notes that diversion as an outcome has doubled in the past year. What discussions has the Lord Advocate had with partners to ensure that there are enough resources to deliver on that? Can she confirm that Police Scotland is already familiar with the recorded police warning scheme and that her announcement relates to an extension of that scheme?

The Lord Advocate:

I confirm that the police are familiar with the recorded police warning scheme, which has been in place in Scotland since 2016. The police are aware of the change in guidance that I have provided in relation to class A drugs, and of the extension that I have described in relation to recorded police warnings.

The extension of recorded police warnings is not linked to any proposal to establish drug consumption facilities. That is an entirely separate proposal to the recorded police warning scheme, which is designed as part of a proportionate criminal justice response to lower-level offending.

In relation to availability of suitable support following diversion, I understand that that is in place and has been significantly supported by Criminal Justice

I will find the name of the organisation; I cannot quite remember it.

There has been significant involvement of the criminal justice system and there has been engagement through the Crown Office and Procurator Fiscal Service and prosecutors. The appropriate agencies that deliver the schemes will assist with rehabilitation of those who have been dependent on drugs. In those circumstances, I am confident that the step that I am taking today, which relates to diverting, by virtue of the recorded police warning system, individuals from prosecution for possession offences, will assist in the process that is under way to bring to people who need them help and support to get off drugs and to become useful members of the community.

The Deputy Presiding Officer:

I am conscious that we are eight and a half minutes into this item of business but have covered only two questions. We need questions and answers to be as succinct as possible. I recognise that that is not always possible, but we have covered a fair bit of ground with the statement already.

Photo of Audrey Nicoll Audrey Nicoll Scottish National Party

I welcome the Lord Advocate to the chamber. Will she clarify the criteria for whether a person is suitable for diversion?

The Lord Advocate:

Prosecution policy on diversion is that it should be considered in all appropriate cases where there is an identifiable need that has contributed to offending. An accused person’s need might be identified as a result of information that is provided by the police or criminal justice social work to prosecutors, or it might be evident from the circumstances of the offence. Dependency on drugs may be an identifiable need.

Photo of Russell Findlay Russell Findlay Conservative

Today’s statement claims that those who reject a fiscal fine as an alternative to prosecution for drugs possession can be prosecuted, but in pre-pandemic 2018-19, only one in three of those who rejected a fine went on to be convicted. Does the new guidance mean that more people who are caught in possession of drugs will be let off the hook?

The Lord Advocate:

I do not accept that. As I have indicated, the underpinning rationale for the statement today is to ensure that the criminal justice response to such cases is tailored to the needs of the individual, provides the opportunity to deal with the underlying causes of offending and, ultimately, prevents reoffending.

Photo of Fulton MacGregor Fulton MacGregor Scottish National Party

I, too, welcome the Lord Advocate to her role.

We have heard a lot previously about the positives of diversion schemes elsewhere, and we have talked about drug misuse being more a public health issue than it is a criminal justice issue. Is Scotland leading the way in establishing diversion from prosecution, by bringing in the individualised and tailored approach to possession of drugs that the Lord Advocate has announced today?

The Lord Advocate:

Diversion from prosecution schemes have long existed in Scotland. They are administered by procurators fiscal, under the direction of the Lord Advocate, rather than by the police.

However, the establishment of Community Justice Scotland—the name that I could not remember previously—has provided a significant opportunity to enhance use of diversion across Scotland and to establish a consistent approach to the availability of diversion schemes across the country and their use in appropriate cases, by prosecutors.

Photo of Pauline McNeill Pauline McNeill Labour

Further to Claire Baker’s question, and on the ground that the Misuse of Drugs Act 1971 does not preclude supervision of safe consumption, will the Lord Advocate give clarity to those who are supervising drug consumption rooms—and therefore saving lives—about whether they will be safe from prosecution?

The Lord Advocate:

I indicated at the outset that recorded police warnings and the issues that I am dealing with today are very different and distinct from drug consumption rooms.

In 2017, the then Lord Advocate was asked by Glasgow City Health and Social Care Partnership to confirm—by way of guidelines, letters of comfort, protocols or a formal policy—that the health board, the council and its staff, partners and organisations, as well as service users of proposed drug consumption rooms, would not be prosecuted for a broad range of potential offences, including what are, in my view, some very serious offences. The then Lord Advocate considered that proposal carefully and concluded that the public interest objective in consumption facilities is about health rather than justice. However, in relation to what was asked of him, the then Lord Advocate concluded that it was not possible to grant the request.

The Lord Advocate can make decisions as to whether a criminal offence will be prosecuted, but the Lord Advocate cannot make an activity unlawful, nor is it open to the Lord Advocate to grant, in advance, immunity from prosecution. I agree with the then Lord Advocate’s response to the specific proposal and request. Any future proposal would have to be considered on its specific merits. I would be prepared to consider any such future proposal, but it would have to be specific and underpinned by evidence, and it would require fresh consideration.

Photo of Rona Mackay Rona Mackay Scottish National Party

Can the Lord Advocate outline the considerations that led to the decision to expand the scope of the recorded police warnings scheme? We have heard about police forces in England that divert individuals for possession offences at the point of arrest. Can the Lord Advocate outline why that process cannot be adopted in Scotland?

The Lord Advocate:

The member asks about police forces in England that divert individuals from possession offences at the point of arrest. A limited number of police administered diversion schemes are in operation in England and Wales, but diversion in Scotland predates those schemes and, in Scotland, prosecutors administer the schemes, not the police. In Scotland, prosecutors act as the gatekeepers to the criminal justice system and, with limited exceptions, it is prosecutors rather than police officers who determine how a case should be dealt with. As I said, no one size fits all.

On whether we should offer diversion to everybody who is dependent on drugs or not offer diversion to everybody found in possession of drugs, I say again that one size does not fit all the circumstances. Not all persons who are found in possession of drugs are dependent on drugs and would be suitable for diversion. We need to look at the most appropriate response in a particular case and identify whether we can understand what has brought about the individual’s offending and what we can do to prevent reoffending.

In considering diversion, we have looked at how such offences have been dealt with by the police and prosecutors and we have identified that, in the majority of cases, simple possession offences are dealt with through non-court disposals. It is that understanding of the way in which the prosecution of such offences is dealt with by the courts and, indeed, prosecutors’ decision making that led to a review of the diversion policy and to my statement this afternoon.

Photo of Alex Cole-Hamilton Alex Cole-Hamilton Liberal Democrat

I am grateful to the Lord Advocate for coming to the chamber. It follows a Liberal Democrat request, made in June and backed by Parliament, for a statement on the matter and for such a change. The Government has insisted for years that diversion has been key to its approach, but we have just discovered that it happened only 57 times in 2017-18. That begs the question: why are we imprisoning the same number of people for possession as we imprisoned a decade ago? Thousands of children are affected by parental imprisonment and drug use. Both are adverse childhood experiences. What guidance is the Lord Advocate giving on connecting families to support when users encounter law enforcement?

The Lord Advocate:

I have said that the role of the prosecution service in Scotland requires prosecutors to consider whether the system can assist in reducing the harms caused by drugs to communities, both by disrupting the supply of drugs and, where necessary, by delivering support to vulnerable people who are caught in possession of all different classes of drugs. The fact that there has been an increase in diversion relates specifically to the review in 2019, which I mentioned in my statement, and the understanding of the powerful impact of childhood experiences, economic and social circumstances and poor educational circumstances on individuals who find themselves addicted to drugs, alcohol and other such things.

That there is an increase in diversion probably relates to the understanding of the real vulnerability of those who are often caught in possession of drugs. There is an appreciation of the need to engage with potentially vulnerable people to provide a productive way out of the difficulty that they have, to identify the cause of their offending and to assist to prevent reoffending.

The Deputy Presiding Officer:

I have five more questions to get through and I intend to get through them, not least because we finished portfolio question time slightly early. I would appreciate more succinct responses, if at all possible, Lord Advocate.

Photo of Christine Grahame Christine Grahame Scottish National Party

Many addicts are indeed victims of things that have happened in their life. I distinguish those people clearly from those who supply drugs. I welcome diversion where it is appropriate and tailored to the individual. Does the Lord Advocate agree that diversion is certainly not a soft option, but that there is a chance that the addict can break their destructive habit, which is not something that prison can often achieve?

The Lord Advocate:

Yes, I agree. Diversion is not a soft option. Diversion involves a commitment by an accused person to engage with social work services and a tailored programme of support. At the conclusion of the diversion programme, social workers provide prosecutors with a report on the accused person’s level of engagement. Prosecutors reserve the right to take prosecutorial action in appropriate cases. However, in most cases, accused persons recognise the opportunity that diversion represents to help them and to tackle the causes of their harmful behaviour.

Photo of Pam Gosal Pam Gosal Conservative

In her statement, the Lord Advocate said that

“recorded police warnings do not represent decriminalisation of an offence.”

However, Police Scotland guidance states that recorded police warnings seek to have

“a positive impact on individuals by not criminalising them”.

Are those two statements not contradictory?

The Lord Advocate:

I do not accept that the two statements are contradictory. The recorded police warning scheme represents a proportionate and timely criminal justice response for officers to use in appropriate circumstances, but it is still a criminal justice response.

The scheme involves the police identifying a sufficiency of evidence and indicating to an individual that the recorded police warning procedure is open to them. If the warning is accepted, it stays on the individual’s record for two years and is available for the police to consider if the individual comes into contact with the criminal justice system again. The warning is also available to prosecutors to consider.

I simply reject the comment the scheme is de facto decriminalisation—for the reasons that I have explained, it is not.

Photo of Maggie Chapman Maggie Chapman Green

I welcome the Lord Advocate to the chamber, and I welcome her statement. I am pleased to hear about the extension of the recorded police warning guidelines to possession offences for class A drugs as appropriate, meaning that possession of all classes of drugs is now covered by RPWs. That is an important step towards ensuring a public health approach to the drugs crisis that Scotland faces and towards the decriminalisation of possession of drugs.

In her statement, the Lord Advocate—

The Deputy Presiding Officer:

Can I have a question, please, Ms Chapman?

Photo of Maggie Chapman Maggie Chapman Green

I am coming to it, Presiding Officer.

Last year, diversion was offered in 1,000 single-charge possession cases. Can the Lord Advocate tell us how many of those resulted in successful completion of the diversion programme, being the point at which prosecutors decided that no further action was required? More generally, what was the value of those diversions in terms of better outcomes for those accused, their families and their communities, and costs saved by the criminal justice system, thereby freeing up resources for other support systems?

The Lord Advocate:

I thank Ms Chapman for her support of the review of the recorded police warnings system, which, like her, I recognise is tailored to the needs of each individual and provides an opportunity to address the underlying causes of offending.

Ms Chapman asked a number of questions about the 1,000 diversions in 2020-21, including in relation to the extent to which they were successful and the response by prosecutors. She also asked a number of other questions that I did not have time to note. I cannot answer those specific questions today, but I am prepared to write to her with a response to each of her questions as quickly as I can. I am sorry that I cannot give the precise answers this afternoon, but I undertake to do so in writing.

The Deputy Presiding Officer:

That is perfectly acceptable, thank you.

Photo of Stephanie Callaghan Stephanie Callaghan Scottish National Party

The Lord Advocate spoke earlier of providing mentoring at the first point of contact with the police. What evidence is available that mentoring reduces reoffending?

The Lord Advocate:

On whether mentoring reduces reoffending, we would probably be able to understand the benefit of referral to a mentor by looking at the system that was launched in Inverness in July 2021.

The purpose of the scheme is to refer individuals to a mentor to provide support at the first point of contact, and I suspect that the best way to identify the benefits of such mentoring is to look at the consequences of the scheme. To those who have considered such issues, there is good evidence to support the suggestion that immediate referral to someone who provides help, support and direction is far more beneficial than processing an individual through the criminal justice process.

The Deputy Presiding Officer:

Thank you, Lord Advocate—I must ask you to conclude there.

Photo of Baroness Katy Clark Baroness Katy Clark Labour

I welcome what the Lord Advocate has said about criminal justice responses.

In the past, the problem that the courts have often experienced when it comes to considering alternatives to custody is a lack of resource, so I am pleased that she is now satisfied—

The Deputy Presiding Officer:

Question please, Ms Clark.

Photo of Baroness Katy Clark Baroness Katy Clark Labour

—that the resources are in place.

What is the Lord Advocate’s understanding of the financial implications of her statement, particularly in relation to putting in place appropriate support for the most vulnerable individuals?

The Deputy Presiding Officer:

Thank you. Please respond as briefly as possible, Lord Advocate.

The Lord Advocate:

Yes, Presiding Officer.

In relation to the financial implications of my statement, the member must appreciate that, in my position as Lord Advocate and head of the prosecution service, I look to identify how the criminal justice process can support the needs of the very vulnerable people who often come into contact with the police in relation to these offences.

On the resources that I have, the work of prosecutors on that issue has been extensive and done well. The matter has been thoroughly investigated and the approach is supported by the evidence base, and that has allowed me to make my statement today.

I am not in a position to advise on the funding that is available to others, such as the Scottish Courts and Tribunals Service. We have had limited time available for the statement, but if the member has a particular question relating to that issue that she wishes me to answer, I can respond in writing.

The Deputy Presiding Officer:

Thank you very much indeed, Lord Advocate.