New safeguards for ‘diversion from prosecution’ decisions in rape cases

Scotland’s top prosecutor has put new safeguards in place around the way prosecution decisions are made in cases where children are accused of crimes like rape.

It comes after concerns were raised about the use of “diversion from prosecution” – where cases are referred to social workers or another agency rather than going straight to a trial.

It can be used where children are accused of criminal offences or in circumstances involving learning disabilities.

The Lord Advocate, Dorothy Bain KC, announced a review of the practice in July 2023 after acknowledging the “trauma experienced by victims and their loved ones”.

Her review also included the way prosecutors handled referrals to the Children’s Reporter in cases of serious sexual offences.

Communication with victims is central to the new policy

Now, decisions on diversion and referral will only be taken by senior crown counsel appointed by the Lord Advocate to exercise her authority.

These cases will also prioritise communication with victims.

The Lord Advocate said: “I am intensely aware of the trauma experienced by victims of sexual crime and their loved ones. These are among the most difficult cases we deal with.

“We are trusted to make appropriate decisions and must uphold the trust placed in us.

“I am pleased to note that communication with victims is central to the new policy.

“I have instructed that the views of the victim should be obtained before any application is made for a decision to be taken, and victims are to be informed as soon as an outcome is determined.

“The considerations we will bear in mind in deciding what should be done in these cases are multi-layered and must reflect the rights of everyone involved.”

Ms Bain also told the Sunday Mail newspaper, which has campaigned on the issue, that she had read the “very powerful accounts given by girls and women” who said they had been let down by the justice system.

The newspaper has reported on a 17-year-old who was accused of rape in 2023 but later given a diversion from prosecution.

The new policy is due to be published by the Crown Office on Monday.

Ms Bain ordered the review after 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.

Scottish Conservative justice spokesman Liam Kerr said: “This move to safeguard victims of rape is welcome — but will have come much too late for many Scots.

“Diversion from prosecution was only ever intended to be used for low-level offending.

“Young men accused of some of the worst crimes imaginable should not be kept away from the courts.

“The Children’s Reporter should never be the key arbiter in cases of sexual assault.

“We look forward to the Lord Advocate providing early evidence arising from this change of policy.”