- What is diversion?
- When can diversion be considered?
- Who is eligible for diversion?
- How does diversion work?
- If I want diversion what will I have to do?
- What are my rights in relation to diversion?
- How can I find out more about diversion?
What is diversion?
Diversion is a scheme that has been operating for almost two decades, which provides an opportunity for Police to deal with some offences and/or offenders without going through formal court prosecution.
The purposes of diversion are to:
- address offending behaviour that has resulted in charges
- balance the needs of victims, the offender and their communities
- give offenders an opportunity to avoid conviction
- reduce re-offending.
Diversion involves an offender agreeing to fulfil certain conditions in exchange for the charges being withdrawn. The charges are withdrawn only once the conditions have been fulfilled. The benefit of this scheme is that it provides an incentive for non-recidivist offenders involved with low level offending to be punished and take responsibility for their actions without receiving a conviction.
When can diversion be considered?
There are several key criteria for determining when diversion should be considered. Firstly it is important that there is sufficient evidence and public interest in pursuing the prosecution of case. Once this burden has been established the following factors need to be satisfied:
- generally, it is the offender's first offence (unless the offence is dissimilar to earlier offending or the offender has not offended for more than five years)
- the offence is not serious
- the offender has accepted full responsibility for the offences as described in the summary of facts
- the offender has been explained their legal rights
- the offender agrees to the terms (conditions) of diversion.
Who is eligible for diversion?
Certain types of offending are considered too serious to be eligible for diversion. What is serious is generally determined on the merits of each case. Different types of offences have different aggravating and mitigating factors about them that might make them ineligible for diversion. For example, previous traffic offending and/or current demerits might prevent an offender from receiving diversion for a careless driving offence. Alternatively a clean driving record would greatly improve the chance of getting diversion.
Other categories of offences are serious enough in nature to be automatically considered not appropriate, they include:
- burglary or dishonesty offences
- violent offences including family violence offences
- sexual offences or offences with sexual overtones
- serious drug offences
- traffic offence which carry a mandatory minimum disqualification
- offences for breaching a court order.
How does diversion work?
The Police Prosecution Service (PPS) consider whether an offender is eligible for diversion. This means you do not need to apply for this scheme.
Each case reviewed by a PPS prosecutor prior to the case being prosecuted. It is at this time prosecutors consider the appropriateness of diversion. Prosecutors take into account the views of the victim, the officer dealing with the case and the offender as well as the nature and circumstances of the offence.
The prosecutor will advise the Court and offender (or their duty solicitor or lawyer) whether the case may be is suitable for diversion. If you wish to be considered for diversion your case will be adjourned for a sufficient time to allow for the completion of an interview with a police diversion officer.
If I want diversion what will I have to do?
If the prosecutor considers your case may be suitable for diversion and your case is adjourned, you will need to meet with a police diversion officer to provide information on the circumstances that led to your offending. You will be asked confirm that you accept responsibility for the offending. At that time the diversion officer will also explain what diversion involves.
A written agreement will be prepared and signed which will be tailored to change your offending behaviour, prevent re-offending and make reparation to the victim or community. A number of conditions can appear in the agreement including the requirement to:
- make an apology to the victim
- make reparation to the victim
- attend counselling, education programmes, addiction treatment or other therapeutic programmes
- make a donation of a specified sum to an approved group
- be part of a restorative justice process (where appropriate).
Diversion conditions must be appropriate to the offence and offender; achievable in the timeframe and proportionate to the maximum penalty for the offence and what a court might impose as a sentence. Whatever the conditions are you must agree to them before the diversion agreement can be finalised and put into action.
You are responsible for ensuring the agreed conditions are met and evidence of this achievement is forwarded to the diversion officer by the agreed date. The officer will then advise the prosecutor that the conditions have been completed. If all these conditions have been satisfied and evidence provided to the diversion officer there is no need for you to attend court again. The prosecutor will advise the Court that diversion has been successfully completed and that the charges have been withdrawn.
What are my rights in relation to diversion?
As a willing participant in this scheme there are a variety points during diversion process where you have the ability to act on your rights. You always have the right to seek legal advice in relation to the decisions they make about diversion.
If you are not considered eligible for diversion or disagree with conditions of the agreement, you can request a review (either verbally or in writing) of the diversion decision. This is done either by a prosecutor or district prosecution manager within five working days of receipt of the request.
You can seek name suppression while undertaking diversion or after completing it. This is not automatic. You will need to notify the Registrar or Judge of your intention to do so and put your case at your first or any subsequent appearances.
Finally, an individual who has agreed to diversion can change their mind at any time and subsequently decide to go to court instead of continuing with diversion.
How can I find out more about diversion?
An information pamphlet has also been prepared to assist those who might be personally affected by diversion.
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