Written Question · S5W-25476 · Session 5
Further to the answer to question S5W-24721 by Humza Yousaf on 6 September 2019, whether the Lord Advocate in his role as head of the Crown…
The question
To ask the Scottish Government, further to the answer to question S5W-24721 by Humza Yousaf on 6 September 2019, whether the Lord Advocate in his role as head of the Crown Office and Procurator Fiscal Service will rule out implementing restorative justice as an alternative to prosecution, allowing it to run only in parallel with existing criminal justice processes.
The answer
The decision to divert a case from prosecution is properly a matter professional prosecutors within the Crown Office and Procurator Fiscal Service (COPFS). Diversion from prosecution is a process by which a prosecutor may refer a case to social work or other relevant agencies as a means of addressing the underlying causes of alleged offending when this is deemed the most appropriate course of action by the prosecutor, applying the Scottish Prosecution Code.
Diversion from prosecution will be considered in any case where the individual reported to COPFS has an identifiable need and where it is assessed that diversion from prosecution is in the public interest. There must be a sufficiency of evidence before COPFS can refer an individual for diversion from prosecution. The relevant agency may in appropriate cases devise a diversion programme for an individual which includes a restorative justice element.
Restorative justice has been a feature of diversion in Scotland for a number of years. Restorative justice projects are recognised by COPFS as one of the suite of diversion options. Restorative justice projects can offer a valuable mechanism to provide victims of crime with meaningful participation in the criminal justice system and closure and it can be welcomed by both victims and perpetrators, in appropriate cases.
COPFS are currently engaged with the Scottish Government in the development of the ‘Restorative Justice Action Plan’. The Action Plan makes it clear, in line with the Scottish Government Guidance for the delivery of restorative justice that, “ risk assessments must be carried out throughout the RJ process and will take full cognisance of the role of the Crown Office and Procurator Fiscal Service (COPFS) as the independent public prosecution service for Scotland. In that respect, RJ will not impinge on any ongoing criminal proceedings. Decisions relating to the prosecution or diversion of a case from prosecution are matters solely for COPFS”.
Diversion from prosecution will be considered in any case where the individual reported to COPFS has an identifiable need and where it is assessed that diversion from prosecution is in the public interest. There must be a sufficiency of evidence before COPFS can refer an individual for diversion from prosecution. The relevant agency may in appropriate cases devise a diversion programme for an individual which includes a restorative justice element.
Restorative justice has been a feature of diversion in Scotland for a number of years. Restorative justice projects are recognised by COPFS as one of the suite of diversion options. Restorative justice projects can offer a valuable mechanism to provide victims of crime with meaningful participation in the criminal justice system and closure and it can be welcomed by both victims and perpetrators, in appropriate cases.
COPFS are currently engaged with the Scottish Government in the development of the ‘Restorative Justice Action Plan’. The Action Plan makes it clear, in line with the Scottish Government Guidance for the delivery of restorative justice that, “ risk assessments must be carried out throughout the RJ process and will take full cognisance of the role of the Crown Office and Procurator Fiscal Service (COPFS) as the independent public prosecution service for Scotland. In that respect, RJ will not impinge on any ongoing criminal proceedings. Decisions relating to the prosecution or diversion of a case from prosecution are matters solely for COPFS”.
In the Official Report
No contribution in the Official Report cites S5W-25476 by reference.