Scotland has seen a marked increase in the use of "diversion from prosecution" in recent years, with critics saying the practice has been applied to suspected rape and sexual assault cases that many believe should have been prosecuted. Official statistics show the number of diversion cases rose to 3,594 in 2024–25, up 7.2% from 3,351 the previous year and 37% higher than the 2,624 recorded in 2022–23.
Opposition politicians and some victims’ campaigners say the growth in diversions has allowed suspected sexual offenders to avoid court and formal convictions. Since a review ordered by the Lord Advocate in 2023, 13 alleged rape cases have been recorded as diverted rather than proceeding to trial, and 108 alleged sexual assaults have not resulted in criminal convictions under the diversion scheme since 2022. Of those 108 cases, 85 involved people who were under 18 at the time of the alleged offending.
Diversion from prosecution allows prosecutors to refer accused people to councils or other agencies for interventions such as social work supervision or therapy instead of pursuing court proceedings. The Crown Office says diversion can be used only "where there is sufficient evidence and where it is assessed that diversion is the most appropriate outcome in the public interest." It was originally intended for low-level offences such as theft and vandalism and has been used frequently in cases involving children or people with learning disabilities.
The practice prompted a review by Lord Advocate Dorothy Bain after a high-profile case in which a teenager, Kaitlyn Ward, waived anonymity and described her distress at seeing her alleged attacker avoid trial. Ward was 14 at the time of the attack; the accused, then 16, was given social work meetings instead of facing a High Court trial. Following the review, the Lord Advocate said she would not change the rules immediately but directed that all future diversion decisions in suspected serious sexual offence cases be taken only by senior Crown counsel appointed by her.
Senior Crown Office officials say prosecutors face complex decisions in sexual offence cases, particularly when both the victim and the accused are children. Katrina Parkes, Deputy Crown Agent at the Crown Office and Procurator Fiscal Service, said sexual offences "are among the most difficult cases prosecutors deal with," and that diversion is an intervention intended to address underlying causes of offending when judged to be in the public interest.
Opposition politicians have seized on the statistics. Scottish Conservative shadow justice secretary Liam Kerr said the public would be "alarmed and appalled" that so many alleged sex offenders are not facing court. Kerr said diversion orders "should never be used to deal with sexual criminals" and accused the Scottish National Party administration of weakening the justice system and prioritising keeping offenders out of prison.
A Scottish Government spokesperson said ministers recognise "the devastating impact of sexual crimes on victims, their families and wider society" and outlined steps intended to strengthen support for victims and witnesses in sexual offence cases. Those steps include establishing a specific Sexual Offences Court if the Parliament passes the Victims, Witnesses, and Justice Reform Bill currently before it.
Legal experts and campaigners say the issue highlights tensions between reducing court backlogs, supporting rehabilitation, and ensuring victims see alleged perpetrators brought to justice. Proponents of diversion argue it can address the root causes of offending, reduce reoffending and spare vulnerable people the trauma of formal prosecution. Critics counter that diversion can deny victims the accountability and formal record of conviction that come with a successful prosecution.
Figures published by the Scottish Government show diversion has been used increasingly in recent years as pressure on the court system has grown. Crown Office guidance states diversion is appropriate only where there is sufficient evidence and where it is assessed to be in the public interest, and participation is voluntary. If an accused person elects to take part, the outcome is not recorded as a criminal conviction.
The debate is likely to intensify as legislators consider the Victims, Witnesses, and Justice Reform Bill and as the Lord Advocate’s direction to senior counsel is implemented. Police, prosecutors and victims’ groups continue to call for clarity about when diversion should and should not be used in cases involving serious sexual offending, while opposition parties say stronger safeguards are needed to prevent perceived miscarriages of justice.