Questions to ask
What principles should a diversion scheme be based on?
Diversion schemes, and guidance to develop them, should be based on the following principles:
Key to the success of diversion is avoiding harming someone’s life chances with a declarable criminal record that can negatively impact on employment, education, and other opportunities, and increase the risk of reoffending.
Avoid harmful net widening or deepening. There is a risk that with access to a new disposal that is less onerous in terms of time and resources, officers will be tempted to increase use of other enforcement tools, for example stop and search, or otherwise draw more vulnerable people into contact with the criminal justice system, ultimately increasing harmful criminalisation.
Ensure failure to complete the diversion scheme does not lead to escalation in penalties beyond those the person would have otherwise faced
Schemes should allow people to pass through them more than once.
Drug dependency is frequently a relapsing condition - this reality should not be punished. People with drug dependency issues often need more than one opportunity before they can engage successfully with support.
Where people are not dependent on drugs, a criminal record is still a counterproductive way to manage drug use, even when people are found in possession more than once
Ensure an effective evaluation framework, based on agreed key indicators and methodologies, is in place from the outset. This should include an equality impact assessment, to monitor and respond to any racial, social, or geographic disparities in who is (or isn’t) diverted, and conditions placed on participants
Develop schemes in partnership with all the agencies involved, and with meaningful input from people who use drugs, to ensure all participants share the aims of the scheme and a vision of how it should be delivered
Keep eligibility criteria broad to avoid unnecessarily low referral numbers, and to ensure people with and without dependency issues are included
Where possible avoid the impact of formal admissions of guilt on eligibility and participation, especially for people from groups which tend to have less trust in the criminal justice system
Ensure the referral process is quick and simple to encourage practitioners to refer people, and not excessively onerous on participants so they are inclined to refuse to join the scheme
Deliver interventions tailored to needs of the individual, avoiding cookie-cutter responses where possible
Avoid excessive interventions which participants may struggle to complete, and coerced treatment (e.g. under threat of sanction for failure to complete, or maintain abstinence) which is both unethical and less effective
How will the scheme operate?
Any diversion scheme should seek to ensure that people caught for low level drug offences are diverted away from the criminal justice system to an appropriate intervention. For example, police forces could adopt a street warning scheme (like the cannabis warning scheme) or a referral to an education programme similar to a speed awareness course, showing them a cannabis awareness film, or referring them for an assessment by a treatment service.
Ideally, street diversion should be adopted rather than an arrest diversion scheme to reduce formal contact with the criminal justice system, on the basis formal contact can result in a higher incidence of ‘re-contact’ with law enforcement. Street diversion also reduces the burden on police resources.
Some considerations for forces:
Who is the scheme for? While the scheme should be for everyone, it is worth considering how it will work bearing in mind age, gender, ethnicity, social and cultural background, past history of drug use and criminal activity, type of offence
What is the budget available? All existing schemes save money, but some require upfront funding, for example, Checkpoint to employ and train ‘navigators’ for clients, or create an App for referrals, fund assessments
Are Memorandums of Understanding (MoUs) or contracts between services needed? For example, between the provider of the scheme people are being diverted to (youth services, health or education providers) and police, so that there is a shared understanding from the outset
How does the diversion program operate in the broader criminal justice, and health and social care systems? And what institutional dynamics may facilitate or impede effective operation?
How should building support/understanding from police who will deliver the scheme be planned and implemented? This is essential as without it schemes can have very low numbers, wavering support, inappropriate or discriminatory referrals.
Some steps that can assist in building support are:
Having clear guidelines and MoUs
Structured education and training within police about purpose, rationale, and delivery on an ongoing basis e.g. in Australia there is regular training in some police agencies about diversion: “ ‘One-off’ training will be insufficient”
Structured implementation e.g. pilot plus sequenced roll-out across a force area
Providing evidence-base or case examples.
How will you ensure adequate services are in place to manage referrals and inter-agency cooperation?
It is important to have a systems approach to:
Preemptively map out expected demands on the system and ensure there are adequate services in place to meet them
Ensure that, from the outset, there are shared understandings and expectations for police and other stakeholders of what is success or failure for a person who is diverted looks like, and how to assess processes and outcomes. For example, does a treatment service (if used) need to report non-compliance back to police?
Which offences are covered, and how is diversion determined?
Diversion should apply to all those who are caught in possession of a controlled drug for personal use regardless of offending history. Consideration may be given to incorporating low level supply offences where the offender is involved in social supply or supply to support their own drug dependency, this is the approach that has been adopted in Durham police force.
Some considerations for forces:
Is the scheme just for drug offences (e.g. Bristol DEP), or is it part of a wider diversion scheme e.g. Checkpoint?
Cannabis and/or other drugs? - If the diversion scheme is more onerous than the existing cannabis warning scheme that should be used, with people only diverted if they are caught for a third occasion
Do you include or exclude people with other concurrent offences?
Quantity thresholds - Most diversion schemes differentiate between possession for personal use, and possession with intent to supply. In the UK this is done using existing circumstantial evidence of alleged intent to supply (e.g. large amounts of cash, scales and small drug bags)
Do you include minor supply offences? Durham has expanded its Checkpoint diversion scheme to include people involved in small-time dealing selling to support their own use, on the basis that these people are ”Sad, not bad.” It is also used for people who are sharing amongst peers and not making a profit. It does fall to the investigating officer’s discretion (where category 4 or less) but to help judge eligibility the Sentencing Guidelines are used as an indicator.
Initial action at point of contact/offence
Is the diversion post arrest, or does it avoid arrest altogether? Avoiding arrest is generally preferable as less negative impact on the person concerned, and less police time required.
Confiscation/disposal of drugs - normally standard procedure
Can initial action be done in the field, or does it have to be done at the station?
What is the process for implementing different sanctions/responses?
What is the referral process? For example if the response is to divert people to assessment or treatment, how are the relevant services notified by police rapidly to ensure an appointment is made with minimal delay? e.g. Thames Valley Police use a phone App. One Australian jurisdiction has an online referral system (SupportLink). This was advantageous not just for health reasons, but because police, who were notified when people attended the assessment service, encouraging them to divert more.
What are the different possible actions/sanctions available? What combination is used? And what are the criteria for applying them?
No further action taken after confiscation and informal warning
Community resolutions (no arrest) with Diversion (Thames Valley Police)
Diversion to education course (Bristol involves no arrest). There are various approaches that could be taken in respect of an educational course for example, the provision of this could be online, face to face or telephone (affects costs and outcomes)
Diversion to assessment for treatment (need a discussion around coercion) and/or other service - e.g. housing, healthcare, other council services
Stepped approaches e.g. First offence - no action (or warning). Second offence referral to education programme, and assessment of treatment need
Arrest but deferred or no prosecution with subsequent Diversion - options avoiding arrest are preferable where possible
Fine/other sanction. If using fines – could it be worked off via other means e.g. community service, or can people pay in installments. If not can create problems of net widening, disproportionately impacting young people, those on lower income, unemployed, or homeless
Fine but with penalty waiver if person attends education programme/treatment. Some schemes require attendee to pay for course (e.g. Sussex Druglink course), but this similarly risks inequality of access if poorer people can’t afford to pay
Are there “offences” for non-compliance? If so, what are they? Are they proportionate? The response to non-compliance can be more onerous than for the original offence, so it important to consider this in program design. Will they be actively followed up by police? For example in Australia many jurisdictions say that non-compliance may lead to additional proceedings but this is rarely applied in practice. Under the TVP scheme there is no immediate consequence of failure to engage properly with the scheme, but this will be fed back to police and if caught in possession again, the person may be arrested and not given the diversion option again.
How are actions/sanctions recorded?
How are different actions and sanctions processed, and who by?
While should be no formal criminal record, it is also key to avoid any record of the intervention appearing during external criminal record checks except in exceptional circumstances.
Dealing with repeat offences
Most diversion programs in Australia allow repeat offences - but may differ in requirements and responses for further offences.
The Bristol Drug Education Programme only allows one offence to be eligible for diversion.
TVP scheme concluded one chance was not adequate as many people with drug problems will require more than one engagement with services to help them, so permit people with previous convictions or can divert an individual in several occasions as long as they are engaging
Dealing with youth
There are particular sensitivities around young people, requiring different stakeholder involvement
Must make decisions around whether to treat under 18s, or other young people (including up to what age someone qualifies as young) differently. For example, the Bristol DEP has a separate course for under 18s
If police already have youth caution or “no action” scheme but introduce a drug diversion scheme should the latter operate instead of or in addition to the youth scheme? If it is in addition then it is important to establish clear guidelines, eligibility criteria and flows so you do not end up with the wrong people receiving drug diversions
Diversion for example to an education course, may be used as an alternative to exclusion when young people are caught with illegal drugs
Key things to avoid
Escalation to criminal charges (e.g. for non-payment of fine, failure in treatment, repeat offences, relapse etc) as this is counterproductive and likely to disproportionately impact most vulnerable
Discriminatory application against minority groups and children/young people, or by geography, socio economic status - so an equality impact assessment should be carried out throughout implementation
Harmful net widening or deepening. There is a risk that with a new ‘tool’ in the toolbox that is less onerous in terms of time and resources officers will be tempted for example to increase stop and search, or otherwise pull people into the net who wouldn’t have been
Coerced/forced treatment which is both unethical and less effective
Breaches of due process rights
Establishing a system that is more onerous than the status quo for any of the participants, including those who must deliver it.
Monitoring and evaluation framework - Outcomes:
Program penetration, numbers diverted compared to numbers eligible for diversion, by demographic. This is important for assessing if there is discriminatory application, with particular groups being over or under diverted
Cost of diversion versus traditional criminal justice response
Costs or benefits accruing outside (e.g. to treatment groups, health, housing service etc) as well as within the criminal justice system
Rates and patterns of re-offending of people diverted, for those diverted who do not comply and comparable offences not diverted
Client knowledge of alcohol and other drug risks and treatment services pre- and post-diversion
Client quality of life measures pre and post diversion incl. mental health, employment etc
Drug use (in particular, high risk drug use) pre- and post-diversion among treatment completers and non completers, and/or comparable people not diverted
Analysis of net-widening and net-deepening both for numbers stopped and searched, and found in possession, but also for numbers being engaged with services as a result
Qualitative survey of attitudes to police pre and post diversion and any related impacts. For example, Bristol police say that due to better relationship with people who use drugs they are receiving better intelligence about the drugs market
Level of knowledge about drug diversion options amongst key stakeholder groups e.g. people who use drugs, police, treatment providers and lawyers
Level of support for drug diversion amongst key stakeholder groups and the public
Consistency of application e.g. within police force, demographically and geographically