 The next item of business is a statement by Dorothy Bane, Lord Advocate, on diversion from prosecution. The Lord Advocate will take questions at the end of her statement, and so there should be no interventions or interruptions. I call on the Lord Advocate up to 10 minutes, Lord Advocate. On 17 June 2021, the Scottish Parliament passed a motion on tackling drug-related deaths. In relation to myself, as a new Lord Advocate, the Scottish Parliament indicated that, firstly, it would support a review of guidance on recorded police warnings, and secondly, a statement on the principles and practicalities of diversion would be beneficial. This is my first opportunity as Lord Advocate to address the Scottish Parliament, 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 may be useful at the outset if I set some context. In Scotland, prosecutors act as 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 where they believe that there is sufficient evidence that an offence has been committed. It is then for the prosecutor to decide what of any prosecutorial action is in the public interest. One of those limited exceptions to report to the prosecutor is the recorded police warning scheme. The scheme 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 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. Those 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 class C drugs. At the time of the debate, 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 of 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 was to make four things clear. Firstly, the scheme extends to possession offences only. The scheme does not extend to drug supply offences. Robust prosecutorial action will continue to be taken in relation to the supply of controlled drugs. Secondly, the recorded police warnings do not represent decriminalisation of an offence. Recorded police warnings 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 accuse 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 referring a vulnerable person to support services. On that final point, prosecutors working with fellow members of the drug task force have played an important role in the development of a pilot scheme to support such referrals. The scheme was launched in Inverness at the beginning of July 2021 and is led by Medics Against Violence. The purpose of the scheme is for individuals to be referred to a mentor to provide support at the first point of contact with the police. Such support is available whether or not an individual is subsequently reported for a criminal offence. Turning then to the principles and practicalities of diversion, I am aware that the term diversion is used in many different contexts. 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 set out in the published Scottish prosecution code. Prosecutals will exercise their professional judgment and identify what, if any, prosecutorial action 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 where relevant to the impact on any victim. The range of options available to prosecutors includes formal warnings, financial penalties, diversion and prosecution. There is simply no one-size-fits-all. Each case will be considered on its own facts and circumstances. Diversion is an alternative to prosecution. Diversion is a process by which prosecutors are able to refer a case to social work or other identified agency as a means of addressing the underlying causes of offending when this is the most appropriate course of action. In 2019, the Len Lord Advocate reviewed prosecution policy and directed that diversion should be considered for all individuals reported to the Crown Office and Procurator Fiscal Service where there is an identifiable need that has contributed to the offending that can best be met through a diversion scheme. Prosecutors will consider all the circumstances and determine an appropriate outcome in the public interest. Where 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 other agreed agency, who then assess whether the person is suitable for diversion and report the assessment to the prosecutor. It may be that a person is assessed as unsuitable for diversion, for example where they have declined support or they require no intervention. In those cases, prosecutors will then decide what alternative action, if any, is required. Where a person is assessed as suitable, prosecutors refer the individual for diversion. Any decision to prosecute the person is normally deferred until the completion of a diversion programme of support. Any diversion programme should be tailored to the needs of each individual and provide the opportunity to meet the underlying causes of their offending and ultimately prevent re-offending. At the conclusion of the diversion programme, the results are reported to the prosecutor. Where 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 numbers of diversions offered for a single charge possession case increased significantly, from 57 in 2017 to 18 to 1,000 in 2020 to 21. The increase in the last year alone represents a doubling of the offers of diversion, despite the challenges that are faced and posed by the pandemic. Not every individual who uses drugs will be suitable for nor require diversion. Some accused persons will simply face a warning or a fine, and it may be that an appropriate and proportionate response is just that. Approximately two thirds of people reported to the Crown Office and Procurator Fiscal Service, where the only offence reported is possession of drugs, are dealt with by alternatives to prosecution, with the vast majority of those being offered a financial penalty. Any alternative to prosecution, warnings, fines or diversions, are offers only. An accused person always has the right to reject such an offer, and there will be cases when prosecution is the appropriate response in the public interest. Where an accused person is subsequently found guilty by the courts, in turn, the courts have a range of sentencing disposals appropriate to the individual accused and offence. The range of options available to police, prosecutors and courts reflects the fact that, in Scotland, there is no one-size-fits-all response to an individual found in possession of a controlled substance or an individual 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 both to uphold the law and to help to tackle the drug-death emergency. Thank you very much indeed, Lord Advocate. The Lord Advocate will now take questions on the issues relating to her statement. I intend to allow around 20 minutes for questions with any member who wishes to ask a question. Please press the request-to-speak button now or as soon as possible those joining us remotely should press an R in the chat function. Thank you, Presiding Officer. 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 also pass apologies for the tardy arrival of members of these benches. The statement came through a little bit late. That is reflective of the fact that the Government gave no indication of the nature of today's statement and the content, despite it being a relatively major policy shift. I believe that this Parliament needs to rightly scrutinise the gravity of a decision like that made today. That should be the content, I believe, of a full debate, not of a question-and-answer session like we have had. Scotland's drug-death crisis is our national shame, but surely the way to tackle it is by improving access to treatment and rehabilitation, not to dilute how seriously we treat the possession of class A drugs, deadly drugs like heroin, crystal meth and crack cocaine, the scourges of our streets and the scourges of our society. The answer to our drug-death crisis is treatment, not de facto decriminalisation by the back door, as is the case today. Sadly, nothing has been said and today's statement will stop drug deaths. Nothing that has been said today will guarantee access to that needed treatment, something that our right to recovery bill is calling for. May I ask the Lord Advocate on this matter? There is a very fine balance between possession of drugs and drug dealing. How are police officers expected to enforce this new guidance? May I ask what consultation was had by the Government with Police Scotland before today's announcement and decision was made? Finally, 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 like this, a decision of such importance and magnitude? Thank you for the question, Mr Greene. The causes of the death, drugs-related deaths in Scotland are complex and the reasons people take drugs are complicated. No one measure is going to reverse the appalling levels of drug-related deaths that you so rightly refer to. The criminal justice system has a role to play in reducing harms caused by drugs to our communities, both in terms of disrupting the activities of drug dealers and ensuring that where appropriate help is offered to vulnerable individuals. There is a significant distinction to be made by those involved in the supply of drugs and those who are drug dealers who destroy communities and those vulnerable individuals who are addicted to drugs for a whole variety of reasons, many of which relate back to real difficulties in their background, significant problems in their childhood and vulnerabilities that are none of their own making. There is a significant distinction to be made between what I am talking about today, which is the possession of drugs and supply. That is an important distinction. My point is that it is important that the criminal justice system responds appropriately to the individual who is caught in the possession of drugs. Diversion that I pointed out in my statement represents an opportunity to engage with potentially vulnerable individuals in a productive way that attempts to address the causes of their offending and prevent re-offending. Diversion is a criminal justice response and is not a replacement for community treatment and support. Recorded police warnings are a criminal justice response and it is not de facto decriminalisation. The success of diversion is dependent on a number of factors. The quality of the information provided to prosecutors regarding the individual's background and potential vulnerability, the engagement of the individual and the availability of effective diversion schemes, the establishment of community justice Scotland, which provides significant opportunities to enhance the use of diversion across Scotland and establish a consistent approach to the availability of diversion schemes tailored to those experiencing drugs or alcohol issues. I am going to have to ask you to slightly brief our responses. We have a lot of questions to get through. Thank you. I think that it is a very welcome statement this afternoon from the lawyer advocate and I recognise her commitment to supporting a proportionate and reasonable response to the drug deaths crisis that we are facing in Scotland. This weekend, the recovery walk Scotland takes place in Perth, and last night I attended a civic reception to welcome them to Perth. I heard from people who are living through their recovery, who only underlined that they need to make it as easy and as possible to get treatment and that those in need of support can approach services without fear of judgement or reprisal. I believe that this announcement today will help towards that. The Lord Advocate will be aware of the growing support that there is for safe consumption rooms and I am looking for some clarity on whether anything within the statement would help with enabling the establishment of those on a more formal footing. As she has described, we know that it is not enough to do what is announced today in isolation, that diversion from prosecution needs to be backed with access to services on the ground and good links with police and those services. I noticed 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 is enough resources to deliver on that? Can she finally confirm that Police Scotland is already familiar with the police recorded warning scheme and that this is an extension of that scheme? Lord Advocate. I can confirm that the police are familiar with the recorded police warning scheme. The recorded police warning scheme has been in place in Scotland since 2016. The alteration or the change in guidance that I have provided in relation to classy drugs is again the police are aware of the extension that I have described today 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 scheme or that is an entirely separate proposal to the recorded police warning scheme, which is an entirely separate scheme designed as part of a proportionate criminal justice response to lower level offending. In relation to the availability of suitable support following on diversion, I understand that that is in place and that it has been significantly supported by the criminal justice, I just get the name of the organisation, I can't quite remember the name of it, but what has happened is that there has been significant involvement of the criminal justice system and that there has been engagement through the procreative fiscal service and prosecutors with the appropriate agencies that deliver the schemes that will assist in the rehabilitation of those who are dependent on drugs and in circumstances, I am confident that the step that I am taking today relates to diverting individuals for possession offences by virtue of recorded police warning systems will assist in the process that is under way in order to try and bring to those individuals who really need it the help and support to get off drugs and to go forward and become useful members of the community. Lord Advocate, I am conscious that we are eight and a half minutes in and we have covered two questions. We are going to have to have sink sink questions and the sink answers as possible. I recognise that it is not always possible, but we have covered a fair bit of ground with the statement already. I call Audrey Nicholl to be followed by Russell Finlay. Thank you, Presiding Officer, and I welcome the Lord Advocate to the chamber this afternoon. Can I ask the Lord Advocate to clarify the criteria behind whether a person is or isn't suitable for diversion? Prosecution policy on diversion is that it should be considered in all appropriate cases where there is identifiable need that has contributed to offending. An accused person's need may be identified as a result of information provided by the police or the criminal justice social work to prosecutors or be evident from the circumstances of the offence. Dependency on drugs may be unidentifiable need. Today's statement claims that those who reject a fiscal fine as an alternative to prosecution for drugs possession can be prosecuted. Yet, in 2018-19 pre-pandemic, only one in three of those who rejected those went on to be convicted. Does that new guidance mean that more people caught in possession of drugs will simply be let off the hook? I do not accept that. As I have indicated, the proposals and the underpinning rationale for the statement today is that what has been done is to ensure that any criminal justice response, or any dealing of those cases by the criminal justice process, is tailored to the needs of each individual and provides the opportunity to each individual to meet the underlying causes of offending and, ultimately, prevent re-offending. I welcome the Lord Advocate to her role. We have heard a lot previously about diversion schemes elsewhere in the positives of those. We have also talked about drug misuse being more a public health issue than a criminal justice one. Is it actually the case that Scotland is indeed leading the way in establishing diversion from prosecution by bringing such an individualised tailored approach to possession of drugs, as has been announced by the Lord Advocate today? Diversion from prosecution schemes have long existed in Scotland. They are administered by the procurator fiscal under the direction of the Lord Advocate rather than by the police. However, the establishment of community justice Scotland has provided a significant opportunity to enhance the 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. Further to Claire Baker's question, will the Lord Advocate give clarity to those supervising drug consumption rooms who are saving lives, will they be safe from prosecution and on the grounds that the 1971 act does not preclude supervision of safe consumption and, after all, people are saving lives? I think I indicated at the outset that recorded police warnings and the issues that I am dealing with today are very different and distinct to 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, council and their staff, partners and organisations and service users of proposed drug consumption rooms would not be prosecuted for a broad range of potential offences, including, in my view, some very serious offences. The then Lord Advocate considered the proposal carefully and reached the conclusion that the public interest objective in consumption facilities was a health rather than justice one. However, in relation to what was asked of him, the then Lord Advocate concluded that it was not possible to grant the request. What the Lord Advocate can do is make decisions as to whether or not a criminal offence will be prosecuted. The Lord Advocate cannot make an activity lawful, nor is it open to the Lord Advocate to grant in advance immunity from prosecution. The Lord Advocate responded to the specific proposal and request. I agree with that response to the specific proposal and request made. Any future proposal would require to be considered on its own specific merits, and I certainly would be prepared to consider any such future proposal, but it has to be specific, it has to be underpinned by evidence, and it requires a fresh reconsideration. Can the Lord Advocate outline the considerations that led to the decision to expand the scope of the RPW scheme? We have heard about police forces in England who are diverting individuals for possession offences at the point of arrest. Can the Lord Advocate outline why that process cannot be adopted in Scotland? In relation to the question about police forces in England who are diverting individuals from possession offences at the point of arrest, there are a limited number of police-administered diversion schemes in operation in England and Wales, and those diversions, however, I would say that the diversion in Scotland predates those schemes, and in Scotland it is prosecutors who administer the schemes, not the police, and in Scotland prosecutors act as the gatekeepers to the criminal justice system, and with limited exceptions it is prosecutors, rather than the police officers who determine how a case should be dealt with. As I say, there is no one size that fits all. In relation to offering diversion to everybody who is dependent on drugs, or should we not be offering diversion to everybody found in possession of drugs, again, I say that one size does not fit all the circumstances, and not all persons found in possession of drugs are dependent on drugs and would be suitable for diversion. So, what we need to do is look at the most appropriate response in a particular individual case and identify whether or not we can understand what is brought about the individual's offending and what we can do to prevent re-offending. Insofar as what we have considered about the question of diversion, we have looked at how those offenses have been dealt with by police and by prosecutors, and we have identified that, in the majority of cases, simple possession offenses are dealt with through non-court disposals. It is that understanding of the way in which the prosecution of those types of offenses is dealt with by the courts and, indeed, the decision-making of the prosecutors that led to a review of the diversion policy and led to my statement this afternoon. I am grateful to the Lord Advocate for coming to the chamber today. It follows a Liberal Democrat request back in June, backed by this Parliament, for such a statement on this matter and for such a change. The Government has insisted for years that diversion has been key to their approach, but we have just discovered that it only happened 57 times in 1718. That begs the question as to why we are imprisoning the same number of people for possession that we were 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 to connect families to support when users encounter law enforcement? Lord Advocate. I have said before that the role of the prosecution service in Scotland is a role that requires them to consider whether or not the system can assist in reducing the harms caused by drugs to communities, disrupting the supply of drugs and delivering where it is necessary support to those vulnerable people who are caught in possession—those who are vulnerable 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 that I mentioned in my statement in 2019 and the understanding of the powerful impact that so many childhood experiences can have on individuals and the powerful impact that economic and social circumstances and indeed poor educational circumstances can have on individuals who find themselves addicted to drugs and alcohol and other difficult other such things. It is the case that there is an increase in diversion. It relates probably to the understanding of the real vulnerability of the individuals who are caught often in possession of drugs. It is understanding that there is an appreciation of the need to engage with the potentially vulnerable people to provide a productive way out of the difficulties that they have, identify the cause of their offending and to assist to prevent re-offending. Thank you Lord Advocate. I have five more questions that I need to get through. I intend to get through them, not least because we finished portfolio questions slightly early, but I would appreciate slightly more succinct responses if at all possible Lord Advocate. Christine Grahame is followed by Pam Gothel. Many addicts are indeed victims of things that have happened in their life, and I distinguish that clearly from those who supply. I welcome diversion where appropriate is tailored to the individual. Does Lord Advocate agree with me that diversion is certainly not a soft option, but there is a chance that the addict can break the destructive habit, and it is not something that prison can often achieve? I agree that diversion is not a soft option. Diversion involves a commitment by an accused person to engage with social work and a tailored programme of support. At the conclusion of the diversion programme, social work provides prosecutors with a report on accused persons 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 and tackle the causes of their harmful behaviour. Lord Advocate, your statement says 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. Lord Advocate, are those two statements 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 recorded police warning scheme involves the police identifying a sufficiency of evidence indicating to an individual that the recorded warning system procedure is open to them. If the system is accepted, the warning stays on the record for two years and it is available to the police to consider when the individual may come in contact with the criminal justice system again. In addition to that, it is available to prosecutors to consider also. I simply reject that what has been said, that it is de facto decriminalisation, is simply not for the reasons that I have explained. I welcome the Lord Advocate to the chamber for the statement and I welcome that statement. I am very pleased to see the extension of the recorded police warning guidelines to include possession offences for class A drugs as appropriate, meaning that possession of all classes of drugs is now covered by RPWs. That is a very important step on the way to ensuring a public health approach to the drugs crisis that Scotland faces and to decriminalisation of possession of drugs. In her statement, the Lord Advocate— Question, please, Ms Tatman. Coming to that, thanks. The figures for diversion offered for single charge possession cases standing at 1,000 for last year. Can she tell us how many of those diversions resulted in a successful completion of the diversion programme, i.e. when prosecutors decided that no further action was required and more generally what the value of those diversions has been in terms of better outcome for the accused, their families and communities, and the costs saved by the criminal justice system, freeing up resources for other support systems? Lord Advocate. Thank you for the question and thank you for the support for the review of the recorded police warning system, which I recognise, as you have, that is tailored to the needs of each individual and provides the opportunity to meet the underlying causes of offending. You have asked a number of questions about the figure of 1,000 diversions in the year 2020-21, including the extent to which they were successful and the response by prosecutors. I think that you asked a number of other questions that I did not have time to note, but I cannot specifically answer those today. I am prepared to write to the member to indicate a response to each of those individual questions as quickly as I can. I am sorry that I cannot give the precise answer to that series of questions this afternoon, but I undertake to do so. That is perfectly acceptable. Stephanie Callaghan, to be followed by Katie Clark. Lord Advocate, you spoke earlier of providing mentoring at the first point of contact with police. Can I ask what evidence is available that mentoring reduces re-offending? As far as mentoring reduces re-offending is concerned, the system that is in place in Inverness that has been there since July 2021 is probably the way in which we would be able to understand the benefit of the referral to a mentor. The purpose of the scheme is for individuals to be referred to a mentor to provide support at the first point of contact. I suspect that the best way in which to identify the benefit of mentoring at the first point of contact is to see the consequences of the scheme that is lodged in Inverness at the beginning of July this year. Insofar as the evidence that is available to all those who have considered those issues is certainly 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. I welcome what the Lord Advocate has said about criminal justice responses. In the past, the problem that the courts have often experienced is a lack of resource when it has come to looking at alternatives to custody. I am pleased that she is now satisfied with the resources that are in place. What does she understand are the financial implications of the statement that she has made today, particularly in relation to putting appropriate support in place for the most vulnerable individuals? In relation to the financial implications of the statement, the member must appreciate the position that I hold, and that is Lord Advocate, head of prosecution service. Understanding that role, I look to identify the way in which the criminal justice process can assist the needs of the very vulnerable people who are often coming into contact with the police in relation to those types of offences. The resources that I have and the work that has been done by prosecutors has been done extensively and well and thoroughly investigated and thoroughly supported by the evidence base that has allowed me to make the statement today. Insofar as the funding that is available to others such as the Scottish Courts Tribunal Service, I am not in a position to advise on that today. If there is a particular question relating to the issue that the member wishes me to answer, I can respond in writing, given the limited time that we have available for this particular question.