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Diversion from prosecution into psychiatric care: who controls the gates?

This article examines the `construction' of potential psychiatric diversion cases in Scotland. In theory, the prosecution service decides which offenders should be diverted from prosecution but, in practice, selection is largely determined by the police. The police report plays the crucial role in starting the diversion process and prosecutors generally respond neutrally to the `cues' provided by the police. Consequently, any systematic bias, leading to the atypical nature of diverted offenders, is not caused by prosecutorial decision making but is imported at an earlier stage in the process. Further, the ky to expanding diversion from prosecution into psychiatric care is to require the police to provide more information.

In recent years, considerable emphasis has been placed upon diverting offenders from the ordinary processes of criminal justice. In Scotland, this was reflected in the appointment of the Stewart Committee, in 1977, to study alternatives to prosecution for the growing number of minor offences. The aim of the government was to ease the pressure of work upon the prosecution service and the court system. The Stewart Committee, in its second report, recommended inter alia the diversion of mentally disturbed offenders(1) for psychiatric treatment (1983: paras. 3.23-8, 5.07-13). It observed that it was already within the discretion of the procurator fiscal (the Scottish term for the public prosecutor) to divert, rather than prosecute, an alleged offender for a variety of reasons. The Committee noted that occasionally psychiatric treatment did replace prosecution on an informal and ad hoc basis but it voiced concern that the `unrecognized nature' of this form of diversion meant that procurators fiscal were `influenced' against disposing of cases in such a manner.(2) After making a number of suggestions about the way in which a more structured process of diversion for psychiatric treatment might work, the Stewart Committee recommended that there should be `formal recognition of procedures which would enable offenders to agree to seek or continue with medical treatment in lieu of prosecution' (para. 3.28).

As a result of the Stewart Committee's deliberations, the first psychiatric diversion scheme in Scotland was set up in 1984 in Glasgow (Cooke 1990) and, thereafter, further schemes were set up in Inverness and, more recently, in Dundee (see Duff and Burman 1994). In all three cases, the implementation of the scheme followed consultations between staff at the relevant procurator fiscal's office and psychiatrists working in nearby NHS psychiatric facilities. Consequently, each scheme is the product of a local initiative although, in practice, they operate with similar criteria and procedures. Thus far, these represent the only three formal mechanisms for offering psychiatric treatment as an alternative to prosecution.

At this stage, it is useful to set out the mechanics of psychiatric diversion. The process starts with the identification of potential cases by depute fiscals engaged in `marking'(3) crime reports received from the police. Possible psychiatric diversion cases are referred to a superior. If the senior fiscal is satisfied that a case is suitable, a pro forma letter is sent by the fiscal's office to the accused, noting that the conduct of the recipient has been reported and that there is sufficient evidence to prosecute. It then states that the fiscal is prepared to consider an alternative and enquires whether the accused would be prepared to be interviewed by a psychiatrist to be assessed for treatment. The letter emphasizes that the recipient has the right to refuse this offer and that such a refusal will not prejudice the case in any way. Finally, it `strongly suggests' that if the alleged offender is unsure about what to do, advice should be sought from a solicitor or other responsible person. If the offer of an assessment interview is taken up by the accused, the forensic psychiatrist is supplied with a copy of the police report and the assessment is arranged at a local facility. A report of the interview is sent to the fiscal's office and, if the psychiatrist can help the accused and the latter is prepared to accept this assistance, the fiscal informs the alleged offender that prosecution is waived or, alternatively, deferred for three months. In the latter event, the fiscal secures a further report from the psychiatrist after three months and, if this is satisfactory, the accused is informed by letter that there will be no proceedings.

This article is based upon research which attempted to assess whether the existing psychiatric diversion schemes could be expanded and to explore the potential for such schemes elsewhere. Various methods of enquiry were adopted. First, in Dundee and Inverness, files on virtually all cases where there was an attempt at diversion for psychiatric treatment were scrutinized.(4) The number of such cases was very low.(5) In Inverness, where the procurator fiscal's office receives around 7,500 crime reports per annum, only 50 offenders were offered diversion for psychiatric treatment between 1 January 1990 and mid-May 1993. In Dundee, where the annual workload is around 15,000 cases, a mere 17 offenders were offered psychiatric diversion from the inception of the scheme on 1 December 1991 until mid-May 1993. Further, fiscals in the Perth procurator fiscal's office were asked to imagine that a psychiatric diversion scheme had been set up in Perth and to set aside any cases which they thought might be suitable. This produced four cases between mid-November 1992 and the end of March 1993, from an annual workload of around 11,000 cases. Thus, a total of 71 case files were examined. Secondly, virtually all fiscals in the Dundee, Inverness and Perth offices were interviewed -- 17 respondents -- as well as a number of fiscals from elsewhere. Finally, in both Dundee and Inverness, random samples of case files from the procurator fiscal's office were examined in order to ascertain whether fiscals were missing potentially suitable cases for diversion.

In this article, I intend to focus upon one vital aspect of the diversion process.(6) This concerns the way in which a fiscal(7) learns or deduces that an alleged offender might be mentally disturbed and comes to consider the possibility of an offer of psychiatric treatment as an alternative to prosecution. Clearly, the communication of the necessary information to the fiscal is an essential stage in diversion: if the fiscal marking a case fails to realize that an alleged offender might have psychiatric problems, diversion is unlikely to occur. Thus, in the first part of the article, I shall establish the central role played by the police report in bringing the relevant information to the attention of the fiscal and also outline the argument that cases are not neutral artefacts but are `constructed, by the police (see Box and Russell 1975; Sanders 1988; McConville et al. 1991). In the second section, I shall describe the extent to which the cases analysed were shaped by the police -- whether consciously or subconsciously -- in a way which encouraged fiscals to attempt diversion for psychiatric treatment. The third part of the article comprises a discussion of the extent to which opportunities for diversion were either inadvertently missed or deliberately ignored by fiscals. Combined with the preceding section, this will demonstrate that the police have a very strong influence over the diversion process despite their lack of a formal role. Finally, some concluding remarks are ventured. First, I shall suggest that any systematic bias leading to certain types of offenders being diverted from prosecution for psychiatric treatment does not appear to stem from the operation of prosecutorial discretion. Secondly, I shall argue that the only realistic way of expanding psychiatric diversion at an early stage in the criminal justice process, in Scotland at least, is to encourage the police to provide more information about the mental state of alleged offenders.

Before looking at the role played by the police report in diversion process, it is useful to outline very briefly the type of case that is thought suitable for psychiatric diversion from prosecution. In general terms, fiscals and psychiatrists, although enthusiastic about diversion, were convinced that it was only appropriate in `minor' cases. In essence, diversion was perceived as just one of the available `pathways' for securing psychiatric attention for mentally ill offenders; prosecution was seen as providing various other routes to the same destination and was thought to be more appropriate for both serious offences and severely disturbed offenders (see Duff and Burman 1994: ch. 3.).(8) In all three areas studied, the nature of the cases selected for possible diversion was very similar, despite the fact that each scheme was the product of a purely local initiative.(9) This almost certainly reflects the common working culture of fiscals and, to a lesser extent, that of psychiatrists.(10) More details of these cases appear in Tables 1 and 2.

Table 1 Number of offences
Breach of peace   30
Shoplifting       17
Assault (minor)    5
Theft (petty)      3
Vandalism          3
Indecency          2
Various           11

Table 2 Offenders (N = 71)

No. Males(a)                  45   Unemployed            36
No. Females(a)                26   Manual Worker          9
                                   Retired                9
No previous convictions       41   Housewife              6
One previous conviction        7   School/Student         6
Minor criminal record         11   Clerical/Non manual    5
Substantial criminal record   12   Professional           2


(a) Average age = 35

The Central Role of the Police Report

There are various ways in which the fiscal marking a case may come to realize that an alleged offender is potentially suitable for psychiatric diversion. For example, the police might expressly inform the fiscal that the accused has psychiatric problems. Alternatively, the bare facts of the incident, as related in the police report, might allow the fiscal to draw the inference that the alleged offender might be mentally disturbed. Another possibility is that the fiscal might be contacted by a doctor or social worker, with details about the offender's psychiatric state. Alternatively, the offender's solicitor might intervene with the fiscal in an explicit attempt to forestall prosecution. In fact, the analysis of diverted cases demonstrated that it is nearly always the police report which alerts the fiscal to the possibility of psychiatric diversion. It was the determining factor in 60 of the total of 71 cases: 41 out of 50 in Inverness; 16 out of 17 in Dundee; and 3 out of 4 in Perth. Cooke (1990: 97) discovered a similar phenomenon in his study of the psychiatric diversion scheme in Glasgow, leading him to conclude that the police report is the `lynchpin of any diversion scheme'. Chiswick et al. (1984: 31-4), in a study of mentally disturbed offenders, also emphasize the vital role, of the police in influencing or limiting' subsequent stages of the prosecution process, claiming that the `interdependence' of the police, who gather the information, and the fiscal, who acts upon it, `opens the gate into the formal criminal justice process'.(11)

The fiscals interviewed in the present study were unanimous that the police report is the `trigger' or `the first clue' to the possibility of diversion in most cases. Fiscals regarded it as the most important source of information about the accused's mental state: the `primary source document'. It was generally accepted by fiscals that they have to rely upon the police to inform them whether the offender's actions were a result of psychiatric problems: `They see the people, we just see the paper. The police have to bring it alive for you.' In this context, it is worth noting that fiscals interviewed by Cameron and McManus (1993: 19) also indicated that the police were the most important source of information about the psychiatric state of accused persons.(12) Similarly, in their study of social work diversion, Stedward and Millar (1989: 11) found that fiscals viewed the information contained in crime reports as `pivotal'.

It is clear, therefore, that the police report usually plays the crucial role in starting the process of psychiatric diversion. Most fiscals thought that the police are generally good at providing the relevant details of the accused's psychiatric problems. Fiscals readily accepted that this is only their own perception and that they have no way of checking its veracity. It was also thought that individual police officers vary in the extent to which they attempt to discover if the accused is mentally ill and whether they choose to record this information in the crime report. Chiswick et al. (1984: 17-18) suggested not only that the approach of individual police officers may depend upon their experience but also that the views and practice of particular forces may vary considerably from area to area. Similarly, some of the fiscals and social workers interviewed by Stedward and Millar (1989: 11-12) commented on the variation between crime reports in the provision of social information': for example, more details tended to be provided in rural areas where the police had better local knowledge. Although Cooke (1990: 12) did not deal with the point directly, he recommended that the information provided by the police as to the offender's behaviour should be standardized. This implies that he found some variability in the provision of such detail.

It must be emphasized that the main function of the police report is to alert the fiscal to the fact that a crime has been committed and to provide enough information to enable the fiscal to determine how to proceed. Thus, it contains an account of the incident and details of the alleged offender, including age, sex, occupation and previous criminal record. In practice, it is purely within the discretion of the police whether to comment upon the offender's behaviour or include details about his or her mental state. The resulting variability in the quality of the information contained in the police report is probably exacerbated because, on some occasions, it may well suit the police to investigate and report the offender's psychiatric problems and, on other occasions, it may not.

At this stage, it is useful to refer to the recent study of the prosecution process in England and Wales, carried out by McConville et al. (1991). In brief, they argue that every criminal case -- embodied in a growing file -- is `constructed', in the sense that the police control and shape the nature of the case. The case is not the product of a search for an objective truth, nor does it necessarily represent the reality of the events upon which it is founded. Rather, the structural position of the police, within an adversarial criminal justice process, makes it almost inevitable that, in practice, they generally `construct' the case with the conviction of the suspect in mind, in preference to attempting to bring out all the facts in an impartial manner. The Crown Prosecution Service is very much the junior partner in this enterprise: in most cases, it simply relies upon the information supplied by the police and it is generally reluctant to interfere with the `momentum' built up by the police towards prosecution. In short, McConville et al. argue that the case against an alleged offender is selectively put together by the police with the passive connivance of the Crown Prosecution Service in order to bring about the desired result -- usually, but not always, a conviction (see also Sanders 1988; Stephenson 1992: 114-16).(13) Similarly, Sanders, in a comprehensive discussion of diversion from prosecution, proposes that a criminal case is `an argument for a course of action -- either prosecution or diversion -- which rarely offers pros and cons of two or more alternatives' (1988: 521); see also Evans 1993). Elsewhere, Sanders argues that the police tend to `eliminate ambiguity' from a case in order to show a `logical progression' from the initial incident to the decision whether to prosecute (1994: 123).(14)

It must be noted that the position of the procurator fiscal in Scotland is somewhat different from that of the Crown Prosecutor in England and Wales (see Moody and Tombs 1982, particularly chs. 1 and 2; Sheehan 1990). In essence, for historical and cultural reasons, the fiscal plays a more independent and impartial role and generally enjoys a much higher standing than his English counterpart. In practice, the principal difference is that the police simply present crime reports to the procurator fiscal and it is the latter who decides whether to commence proceedings. As a result, Scottish cases have not built up as much `momentum' towards prosecution as English cases have when received by the prosecutor. Nevertheless, Moody and Tombs, in the only major piece of research on the procurator fiscal service, note that the submission of a report to the fiscal by the police `inevitably involves a strong presumption in favour of prosecution' (1982: 47). It might be objected that this presumption is not always inevitable because occasionally the police might have some other end in mind. Further, the proportion of reported cases prosecuted by the fiscal is far lower now than it was when Moody and Tombs carried out their original research (Tombs and Moody 1993). What is important, however, is that the police, as the sole source of information, still exercise a considerable measure of control over a case.

As we saw above, the view of our respondents was that the quality of the information contained in the police report about the accused's state of mind varies widely. Various factors might have an influence. For instance, several fiscals observed that sometimes the only reason the police report a crime is to secure psychiatric attention for the accused. In this situation, the crime report will include as much relevant information as possible about the accused's mental health. In the study conducted by Chiswick et al. the police themselves confirmed that a crime report is sometimes submitted because this is the only way in which medical help for the offender can be obtained (1984: 28; see also Sanders 1988: 520).

Conversely, there are many possible reasons why a police report might fail to mention the psychiatric problems of the accused (Sanders 1988; Sanders and Young 1994: ch. 4; Moody and Tombs 1982: 47-8). The most obvious is that the police may simply not notice that the alleged offender is mentally ill. Even if the suspect's behaviour is peculiar, it may be put down to the effects of drink or drugs. The failure of the police to spot mental disturbance might sometimes result from misconceptions about the nature of psychiatric illness, or insufficient training, or from a lack of sensitivity or concern, or from the pressures on time and resources. In England and Wales, a recent study suggested that mentally disturbed suspects, taken to a police station, are often not identified as such, particularly where their illness is not severe (Gudjonsson et al. 1993).

The failure of a police report to mention the accused's psychiatric problems may sometimes result from more than mere inadvertence. In essence, the police may suspect -- or even know -- that the offender has psychiatric problems but take a conscious decision not to relay this information to the fiscal. Sometimes, the police may feel that the offender's mental state is irrelevant or peripheral and not worth drawing to the fiscal's attention, particularly if the offence is trivial. On other occasions, the police may think that it would only complicate matters if it were to be officially recognized that the accused was mentally disturbed -- for example, there are various safeguards to be met if such persons are to be interrogated. As Stephenson (1992: 236) postulates, failure by the police to arrive at the truth, may on occasion be `determined not by cognitive failures but by the need of police officers to render the outcomes of their labours more predictable and acceptable given what they believe to be the truth of the matter'. Alternatively, the police may wish to ensure that the offender does not `get off' with the offence because of his or her mental condition (for an example, see Sanders 1988: 523). More generally, the cultural and structural pressures upon the police to succeed, by securing a conviction may outweigh any sympathy for the accused.

It might be thought that the apparent freedom of manoeuvre enjoyed by the police is constrained by the fact that where the offender does have psychiatric problems, these are likely to emerge at a later stage in the prosecution process, and the failure of the police to mention or investigate these will be criticized. This argument is considerably weaker than it might seem at first glance for at least three reasons. First, many petty offenders simply plead guilty by letter and there is thus no opportunity for the psychiatrically disturbed state of the accused to come to the fiscal's or court's attention. Secondly, defence solicitors may sometimes not reveal their client's psychiatric problems to the court because, most commonly, the `going rate' for the offence -- a small fine perhaps -- is likely to be less onerous than a therapeutic disposal (Cameron 1993: 18; see also Carson 1989). Thirdly, even if it becomes apparent to the fiscal during a court appearance that an accused's behaviour is -- or was -- somewhat odd, it is unlikely that the failure of the police to discover or mention this fact will have repercussions. In order to question the conduct of the police, the fiscal would have to raise the matter with his superiors who would, in turn, have to voice concern to the senior police officer designated as the appropriate point of contact between the police and the fiscal service. It is unlikely that this would happen in a case which is regarded as sufficiently trivial to be suitable for diversion.

`Constructing' the Case for Psychiatric Diversion

It has been seen that police reports may well vary quite widely in terms of how specifically they address the mental state of the alleged offender. In this section, I shall attempt to demonstrate that the process through which alleged offenders are diverted from prosecution to psychiatric treatment in Scotland provides strong support for the argument that such cases are often `constructed'. For the purposes of analysis, it is useful to divide the 71 cases examined into five broad groups. Four groups encompass those cases where the information about the offender's possible psychiatric illness came from the police report alone and these groups are categorized according to the level of detail provided. Broadly speaking, the specificity of the information supplied reflects the extent to which the case was actively constructed, by the police for possible diversion.(15) The fifth and final category comprises those cases where the fiscal was first alerted to the offender's psychiatric illness by a source other than the police report.

Police report reveals that the offender has received psychiatric attention

In eight of the 17 Dundee cases, the police provided details of psychiatric attention already received by the offender. In two of these, the police report revealed that its subject was undergoing some form of residential treatment (D2, D12). In a further three, the fiscal was informed that the offender had previously been admitted to the local mental hospital (D6, D11, D13. In the sixth case, the fiscal was informed that the accused had received medical help in the past and that his previous family doctor had described him as having a `personality disorder' (D15). In the seventh case, the police report noted that, upon being apprehended, the offender said: `I'm still under psychiatric treatment for this' (D10). In the final case, the accused was in custody and the police had summoned a psychiatrist before the fiscal arrived upon the scene (D17).

Similarly, in 16 of the 50 Inverness cases, the fiscal was informed by the police that the offender had already had some contact with the psychiatric services. Twelve of these offenders had clearly received psychiatric treatment for their condition and in the other four cases, the psychiatric attention was so recent that the police report did not indicate whether treatment had actually followed. In two of the latter instances, the behaviour of the accused at the time of the offence was such that the police called in the police surgeon to carry out a psychiatric assessment (90/7, 91/2); in another, the police took the offender to hospital after a drug overdose and, thereafter, the accused was committed to the local mental hospital (91/10); and in the final case (91/3, which involved a youth who had made a series of obscene phone calls, the police report disclosed that his mother had agreed to take him to the family doctor.

Finally, in two of the four Perth cases, the fiscal was expressly informed that the accused was currently under psychiatric treatment at the local mental hospital.

The fact that the police chose to discover and report details of this type indicates that their role is not merely to transmit raw `facts'; it extends to `constructing' the case by pursuing certain lines of inquiry and deciding what information to include in the crime report. Obviously, in some situations, the police were almost bound to mention the offender's possible psychiatric problem -- for example, in those cases where, as a result of concern over the offender,s mental condition, the police took the offender to a mental hospital or summoned the police surgeon. In other cases, however, it was clear that the police had actively sought out information about the offender's psychiatric problems and relayed this to the fiscal. The police report sometimes included considerable detail on the offender's past treatment and, not infrequently, identified the doctor or psychiatrist concerned. It is worth noting that the study by Chiswick et al. (1984: 25) indicated that it was very common for the police to obtain `on-the-spot information' about the offender's psychiatric problems either from the offender himself or his family and friends.

It was also clear that, while the police were sometimes content simply to inform the fiscal of the offender's psychiatric problems and leave it at that, on other occasions, they attempted to play a more active role in the fiscal's decision as to how to proceed. One fiscal observed that in minor cases the police report often gives you a nod and a wink not to prosecute'. For instance, one report outlined the accused's past psychiatric treatment and continued: `At present he is receiving no psychiatric treatment.' The psychiatrist who assessed this offender for treatment observed that the case was `perfect' for diversion and that it had probably `leapt off the page' at the marking fiscal (D13). Other fiscals commented that there is sometimes an explicit suggestion by the police that some form of psychiatric intervention is necessary. One police report, for instance, stated: `It is requested that consideration be given to a request for psychiatric reports in relation to this incident' (underlined and with block capitals in the original) (D12). Other similar examples were: `The accused is obviously unstable ... and is obviously in need of medical attention' (91/10); `It is requested that (the offender) be recommended for medical or psychiatric assistance' (93/6). It is worth reminding ourselves that Chiswick et al. (1984: 28) found that it is common for a minor charge to be brought by the police purely as means of obtaining medical help for the offender. In such cases, the police report will obviously be directed towards securing the desired outcome instead of prosecution.

Police report explicitly suggests that the offender is mentally ill

In two Dundee cases, the police did not state whether the offender had ever received psychiatric attention but they did suggest that the offender had psychiatric problems. In one case, which involved child abuse, the police report recorded that the accused had `a history of anxiety problems and has attempted suicide on several occasions' and also revealed that the social work department had long been involved with the offender (D9). In the other such case, the police report noted that the accused was `apparently mentally ill and his condition is according to the witnesses deteriorating'. Further on, it was stated: `Accused is clearly mentally unstable and both witnesses see police involvement as a means of forcing accused into obtaining suitable assistance. They both see him as a nuisance more to be pitied than feared.' The fiscal's office subsequently wrote to the police asking them how they had secured the information that the accused was mentally ill. The police response was not recorded on the file but it must have satisfied the fiscal's office that diversion was appropriate because an offer of assessment for psychiatric treatment was made (D16).

Similarly, in six Inverness cases, the police simply expressed an opinion that the alleged offender was mentally ill, suggesting that offender was, for example: ` ... of unstable mind ... ' (90/15); ` ... in need of some form of psychiatric treatment for his problem' (93/7); or ` ... appears to have some form of depressive disorder ...' (93/4). In another case, the police report emphasized that the accused's imminent mastectomy `has led to depression and drinking' and further noted: `Both officers were previously involved with the accused when she attempted to commit suicide.' (92/8). Finally, in the one Perth case in this category, the police report commented: `Accused's conduct may indicate a need for psychiatric assessment ...'.

Again, it appeared that these cases were, to some extent, actively `constructed' by the police in the sense that they had turned their attention to the offender's mental state and relayed their conclusions to the fiscal. As these were all minor cases, the police report would certainly alert the fiscal to the possibility of psychiatric diversion. Again, the police sometimes went further, for example, suggesting explicitly that psychiatric treatment might be appropriate or expressing an opinion about the nature of the offender's psychiatric illness. It is significant that as regards both categories of case so far discussed the police report often adopted psychiatric or psychological terminology. This served to strengthen the hint or cue to the fiscal to consider diversion, for example: `The accused suffers from depression and may require a certain amount of psychiatric treatment' (90/20); `The accused appears to be a some-what immature young man who may be starting to develop some sort of behavioural disorder' (91/3).

Police report describes peculiar behaviour

In a number of cases, the police report made no specific mention of the offender's psychiatric state but narrated a course of behaviour sufficiently bizarre to ensure that the fiscal would be alerted to the possibility of mental illness. Six Dundee cases fell into this category. Two of these involved young men masturbating at the windows of their homes in full public view (D1, D8). A further two cases involved persons threatening to harm themselves (D3, D5).

The fifth case involved two charges of vandalism. The police report explained that it involved a 22-year-old male student, with no previous convictions, out for the evening with two friends who noticed he was in a strange mood, talking of death and murder'. On the way home, the accused smashed a window for no apparent reason and shortly thereafter threw himself upon the ground and appeared to have a fit. An ambulance and the police were summoned. The ambulance crew established that there was nothing wrong with the accused and he was apprehended by the police. At the police station, he became irate and head-butted and kicked a wall which resulted in the second charge. Presumably, the fiscal suspected that this sort of irrational behaviour might well be symptomatic of an underlying psychiatric problem (D14).

The final case (D4) was one of fire-raising. An unemployed youth was discovered feeding a fire behind an advertising bill-board at the side of a building but denied lighting it. The police report commented: `His parents keep a clean and tidy home and appear genuinely concerned with his upbringing. ... Accused seems to be slightly immature for his age and tends to keep the company of younger children, particularly his brothers, and when together they are known to be the source of many petty rather than malicious acts.' It is fair to say that other than the nature of the offence -- which might well have been perceived simply to amount to run-of-the-mill petty vandalism -- and the comment about his immaturity, there was no other evidence to suggest that an attempt at psychiatric diversion might be appropriate.

In eight of the Inverness cases, all involving breach of the peace, the fiscal appears to have been alerted to the possibility of psychiatric diversion solely by the account of the conduct of the accused. Six offenders had threatened to commit suicide or otherwise harm themselves -- for instance, one 20-year-old female was apprehended at 01.30 for threatening to jump into the River Ness and drown herself (90/9). One of the two remaining cases involved a 72-year-old male exposing himself to two young children in the back of a bus. On arrest, he commented that he had suffered from this problem all of his life, only succumbing to temptation once every ten years or so, and that he was disgusted with himself and needed psychiatric help (91/12). The other involved apparently motiveless vandalism by a 21-year-old woman. The police report commented that she worked full-time and also looked after her disabled mother and that this led to `frustration and excessive drinking' (90/13).

It seemed that in most of these cases the police allowed the facts to speak for themselves rather than expressing their own opinion that the offender might have psychiatric problems. Many fiscals confirmed the significance of peculiar behaviour in identifying potential psychiatric diversion cases. It was observed that the behaviour of the accused is sometimes so `bizarre' that it `leaps off the page'. On other occasions, it indicates that there is `something not quite right' about a case and that the matter `warrants a closer look'. Various common examples of such cases were cited: minor indecencies, such as `flashing' or masturbation in public; threats to commit suicide where the conduct of the offender is `an obvious cry for help';(16) bizarre conduct' such as shouting at cars or invisible people in the street; acts of random vandalism and fire-raising; and some cases of child neglect. Fiscals felt that in many such cases there is `something so obvious about the accused's conduct that it is evident that he needs some form of treatment'.

The extent to which these cases are `constructed' by the police is variable. Obviously, if the conduct involves `flashing' the police can hardly avoid mentioning the bizarre behaviour of the accused in their report upon the incident. On the other hand, if the accused's conduct involves some sort of public disturbance or petty vandalism, there is some scope for either emphasizing or playing down the oddity of the behaviour. Similarly, it is open to the police to record any threats of suicide or other strange remarks made by the accused or, alternatively, simply to provide a straight-forward narrative of the accused's actions. If the suspect's comments do not appear in the police report, the case may well resemble run-of-the-mill public disturbance or petty vandalism. In practice, there were some very similar cases, in terms of the accused's actual behaviour, in both the sample of diverted cases and the sample of non-diverted cases (see below). The difference usually lay in the description of the accused's attitude and comments.

`Late offending' and the shoplifting cases

In 11 Inverness shoplifting cases, there was no obvious hint to the fiscal that the accused might have psychiatric problems. However, nine of these cases involved `late offending', in the sense that the accused was either middle-aged or elderly, had a hitherto unblemished record and was not suffering from any obvious financial problems.(17) Several fiscals, both in Inverness and elsewhere, observed that `late offending' is an obvious cue for psychiatric diversion, and the offence most commonly cited in this context was that of shoplifting. Several fiscals noted that the stereotypical `menopausal offender' could be of either sex. One fiscal observed that `late offending' would not automatically lead to an attempt at psychiatric diversion but the `inappropriate' nature of the behaviour would lead him to look for other `crisis points' in the accused's life, such as recent bereavement or redundancy, which might have contributed to mental disturbance. In this context, another fiscal stated: `We are capable of identifying when someone is not quite right -- we don't have to be a psychiatrist to see it'. The decisions by the fiscal's office in Inverness to try to divert these cases were supported by the fact that five of the late offenders, were diagnosed by the psychiatrist at the assessment interview as suffering from mental illness. Only two were adjudged to have no such problem.(18) (In the other two cases, one offender refused the offer of diversion (90/16) and the other was unable to attend an assessment interview (91/4).)

It is far from obvious that the police reports on these offences were `constructed' in a way which encouraged the fiscal to attempt psychiatric diversion. Nevertheless, the information supplied by the police was crucial to the fiscal's decision. The phenomenon of `late offending' was revealed only by the details about the offender routinely provided in the police report. In other words, the diversion process started as a result of the way in which the police report is structured to provide the relevant facts. Police reports, which follow a national style, take the form they do largely because they are specifically designed to meet fiscals' requirements. If fiscals were not satisfied with the amount or type of information received, they would instruct the police to supply the particular details desired and, if necessary, demand amendment of the format of the police report. Consequently, although it cannot be said that the police `constructed' these cases for psychiatric diversion, the factors which alerted the fiscal to the possibility of psychiatric diversion did not come to the fiscal's attention in a random or accidental fashion.

In the other two Inverness shoplifting cases, there appeared to be less reason for the fiscal to assume that the offence might be symptomatic of underlying psychiatric problems. The first involved a 19-year-old female student, with no previous convictions. She showed no sign of mental disturbance but could not explain her behaviour. In the event, the psychiatrist deemed her unsuitable for diversion because there was no evidence of psychiatric illness (90/11). The second such offender was a 26-year-old male manual worker with several previous convictions, including three for theft. On apprehension, he simply claimed that he had no money and needed the stolen items for his wife and child. There seemed to be no reason for suspecting that he might be mentally ill but, ironically, the psychiatrist thought that psychiatric diversion was appropriate in order that help could be provided to restore the offender's `low self esteem' (90/14).

It is significant that these 11 shoplifters were all offered the opportunity of diversion during the regime of the previous procurator fiscal. Since the current incumbent took over, there has been no attempt to divert shoplifters unless there is clear evidence of psychiatric problems.(19) The new procurator fiscal confirmed the existence of a new policy towards first-time shoplifters. He stated that he did not believe in `speculative' diversion, principally because he wished to avoid the risk of wasting the time of the psychiatric services with a high proportion of unsuitable cases. Obviously, the extent to which fiscals can indulge in speculative, diversion depends upon the level of accuracy in spotting suitable cases which is acceptable to the relevant psychiatrists.

Cases of outside intervention

In nine of the 50 Inverness cases, the fiscal was first alerted to the possibility of psychiatric diversion by a source other than the police report. The relevant information came from a lawyer on four occasions,(20) a psychiatrist in another four cases, and a social worker once. On seven of these nine occasions, the intervention occurred before the fiscal had seen the police report. In four instances, the police report would almost certainly have alerted the fiscal to the offender's psychiatric illness, thus the intervention ultimately may not have been critical to the fiscal's decision to attempt diversion. On the other three occasions, the information contained in the police report would probably not have resulted in the fiscal considering psychiatric diversion. Finally, in the two remaining cases of outside intervention, proceedings had actually commenced before the relevant information was brought to the fiscal's attention and, in both instances, the prosecution was immediately abandoned. In neither of these cases was there any information in the police report to suggest that the offender might be mentally ill.

In only one of the 17 Dundee cases was the fiscal alerted to the possibility of psychiatric diversion by outside intervention. In this instance, a letter was received from the accused's GP before the police report arrived at the fiscal's office, but it was obvious from the latter document, when it did arrive, that the accused had psychiatric problems. Finally, in one of the four Perth cases, the critical information about the offender's psychiatric problem was communicated to the fiscal by a forensic psychiatrist. This letter arrived after the case had been marked for prosecution and there was nothing in the police report to suggest that the offender might be mentally ill. Although there was no psychiatric diversion scheme to use as an alternative to prosecution, Perth fiscals thought it probable that proceedings would be abandoned in any case.

Thus, in five of the 11 instances of outside intervention, the intervention was probably superfluous. In these cases, the facts detailed in the police report would almost certainly have been sufficient in themselves to alert the fiscal to the possibility of psychiatric diversion. In other words, those cases were `constructed' in such a way that an attempt at diversion was very likely. Thus, in only six out of 71 cases did the police report lack the critical information to persuade the fiscal to attempt psychiatric diversion.(21)

`Deciding' not to Divert

It is perhaps slightly misleading to talk of the `decision' not to attempt psychiatric diversion because there is rarely a conscious determination to this effect on the part of the fiscal. The `decision' is almost always implicit in the fiscal's choice of the appropriate disposal for a case, whether that be prosecution, a fixed penalty, a fiscal fine, a warning letter or no proceedings. As a general rule, the possibility of psychiatric diversion will only be considered where there is some evidence that the accused is mentally ill. In other words, the fiscal does not normally think about the possibility of psychiatric diversion and then dismiss it; in most cases, the question simply does not arise.

As we have seen, it is clear that the fiscal is extremely unlikely to attempt psychiatric diversion unless a case is appropriately constructed but, if it is, does the fiscal always accept the cue from the police and mark the case accordingly? Or do fiscals sometimes fail to attempt diversion in appropriately constructed cases? These are important practical and theoretical questions. One of the factors which precipitated the research upon which this article is based was official concern that psychiatric diversion was not being used in more cases. There was a fear that fiscals might be inadvertently overlooking suitable cases or, possibly as a result of antipathy towards diversion, actively deciding against attempting it. On a more theoretical level, the central role that the police report has been seen to play in psychiatric diversion cases raises the question of the extent to which the police actually control the process. In the abstract, the fiscal is `master of the instance' and thus entirely independent of the police but, in practice, how often do fiscals ignore or over-rule the cue for an attempt at diversion provided by the police?

As regards the possibility that fiscals might simply overlook potential cases, senior prosecutors in Dundee and Inverness did fear that their less experienced colleagues' consciousness of psychiatric diversion was not what it should be. The main worry was that because diversion cases occur only rarely, it is not an option which remains at the forefront of deputes' minds in the pressurized routine of marking large number of minor cases.(22) Most deputes, however, denied that they slip into a routine which favours the use of the more common disposals, even when faced with a large number of files to be marked in a short time. One commented: `diversion cases jump out and hit you between the eyes'. Thus, deputes were generally confident that they did not miss many potential diversion cases, always assuming that the relevant information had been brought to their attention.

As regards the possibility that fiscals might actively be deciding not to attempt diversion in potentially suitable cases, virtually all our respondents thought this unlikely. It was clear that there was a great deal of enthusiasm for diversion amongst fiscals in the Dundee and Inverness offices, one depute commenting on the general `pro-diversion atmosphere'.(23) They felt that there was no such thing as a `bureaucratic imperative' to prosecute. In both places, all cases thought by a depute to be potentially suitable for psychiatric diversion were scrutinized by a senior fiscal (see above). Deputes from one office could not remember any such case ever being rejected and deputes from the other office were emphatic that cases were very rarely rejected and, where this did occur, an explanation was always provided (usually relating to the senior fiscal possessing additional information which changed the complexion of the case). Thus, fiscals' own impressions were that the cues in police reports for an attempt at diversion were rarely ignored.

In a more systematic attempt to assess the extent to which possible opportunities for psychiatric diversion might be overlooked or ignored by fiscals, a sample of marked cases from each of the Dundee and Inverness offices was examined.(24) As a result of constraints upon resources, these were relatively small, comprising: in Dundee, 240 out of the 13,325 cases reported to the fiscal in 1992; and, in Inverness, for the same year, 371 out of 8,403 cases.(25) The approach adopted was straightforward. Interviews with fiscals and analysis of the diverted cases had already revealed the broad -- and largely informal -- criteria used by fiscals in determining whether an offender was suitable for psychiatric diversion and casefiles were simply checked for these criteria.(26) In total, the files on 285 non-traffic offences and 326 traffic and vehicle related offences were reviewed.

As regards the 285 non-traffic cases, most were sufficiently minor to render them suitable for an attempt at psychiatric diversion.(27) In only four instances, however, was there any indication in the police report that the offender might be mentally disordered. In one case, the file had actually been marked for possible psychiatric diversion, a very obvious decision because the police report stated that the offender had previously received residential treatment for psychiatric illness and his behaviour was bizarre.(28) As regards the other three possibilities, however, there was no attempt to divert the offender for psychiatric treatment.

The first of these involved an unemployed 18-year-old who lived with his mother and from whom he stole 87 [pounds sterling]. He had no previous convictions but there were seven separate charges of theft -- six of which involved opening a lockfast place pending against him. The police report noted that he has a mental disorder and is awaiting placement in a special home'. Perhaps more significantly, it went on to record that similar incidents had occurred before and that the matter was reported to the police by the accused's mother, who was hoping that if proceedings go ahead it will mean that her son gets the help he needs more quickly.' This latter statement clearly indicates that, despite the offender's psychiatric problems, the case was `constructed' by the police to encourage the fiscal to prosecute. The cue which would normally have led to diversion was expressly over-ridden by the provision of further information to the effect that prosecution might well move matters along more satisfactorily to all concerned. In brief, the case does not appear to be an example of the fiscal ignoring or over-riding a hint from the police.

The second such case involved a charge of indecent exposure which was marked for summary prosecution in the sheriff court. The offender, a 25-year-old holiday-maker, had two convictions for similar offences in 1987 and 1991 which had resulted in his being placed upon probation on each occasion. There was no comment by the police about the offender's psychiatric state, thus it was the nature of the offence which raised the possibility of diversion rather than any hint from the police. Fortunately, it proved possible to ask the fiscal who had marked the case about his decision to prosecute. Although he had no specific memory of the case, he claimed -- credibly, in my view -- that he would have considered psychiatric diversion but would have rejected that possibility for two reasons: first, the existence of the previous convictions -- especially because they were for similar offences -- necessitated prosecution; secondly, the fact that the offender lived in England meant that a course of psychiatric treatment in Inverness was out of the question. Again, this was clearly not a case of the fiscal ignoring or over-ruling a cue from the police.

The final case involved a 56-year-old man charged with shoplifting who had received a fiscal fine. The police report -- which in shoplifting cases usually provides only a few brief details -- made no mention of psychiatric problems or any peculiar behaviour by the offender. However, a close scrutiny of his criminal record, which detailed 12 previous convictions, revealed that ten involved minor shoplifting, all committed over the past 18 months, and that the other two offences had been committed around 40 years previously, each resulting in the accused being detained in a mental hospital. Thus, there was a flurry of `late offending' by someone who, at a much earlier stage in his life, had been diagnosed as suffering from psychiatric problems. Psychiatric diversion might well have been appropriate in this case. It is possible that the depute simply overlooked the relevant information because it was not mentioned in the police report, only being revealed by careful examination of the offender's previous convictions. It is also possible that the depute might have noticed the information and yet decided against diversion for any of the following reasons or combination thereof: prosecution could more appropriately be avoided through the use of a fiscal fine; the sheer number of recent offences rendered diversion inappropriate; there was no evidence of recent psychiatric problems. In any event, this case was not an example of a fiscal rejecting a hint from the police.

The traffic-related cases produced only one very remote possibility for psychiatric diversion.(29) It involved a postman who, following a minor collision with a parked car, failed to stop or report the accident for which he was prosecuted. The police report stated that at the time of the offence the accused `claimed that he was under stress due to emotional problems'. There was nothing beyond this to indicate that the accused might have psychiatric problems. Obviously, the comment by the police was lukewarm at best. It proved impracticable to speak to the fiscal who had marked the case, thus it was impossible to discover whether the possible cue was discounted because of its weakness or the need to endorse the offender's driving licence or whether it was simply overlooked.

In summary, it seemed that fiscals very rarely missed or ignored a cue for psychiatric diversion in the police report. If the case were assembled by the police -- whether deliberately or otherwise -- in a way which was likely to encourage the fiscal to attempt diversion, it was almost certain that the fiscal would indeed choose that option.

Conclusion

At this stage, it is important to remind ourselves of the factors which appeared to influence fiscals to select cases for possible psychiatric diversion. It must be emphasized that the police supplied the crucial information in 60 of the 71 cases. It must also be remembered that in five of the remaining 11 cases (of outside intervention) the relevant information was also contained in the police report. In most cases, the fiscal was provided with details of the accused's history of psychiatric problems or a description of obviously bizarre behaviour, whereas these phenomena were very rarely mentioned by the police in non-diverted cases. Thus, it is clear that the police report is generally the critical element which sets the psychiatric diversion process in motion. Police officers are generally the sole source of information available to the fiscal about the offender's state of mind. Thus, to a large extent, potential diversion cases are constructed' by the police, whether consciously or subconsciously. Further, it seems that, generally, fiscals do not tend to select for themselves particular types of offender for potential diversion; rather, they simply respond to the cues provided by the police. In the absence of firm evidence of psychiatric illness, fiscals are disinclined to indulge in `speculative' diversion. Moreover, it seems that fiscals rarely miss or ignore the cues in police reports when they are marking cases. Thus, the assembly of the case by the police largely determines whether the fiscal will attempt psychiatric diversion.

The above conclusions have some important implications. First, there is the question of whether there is systematic bias in the selection of those alleged offenders diverted from prosecution. It is clear that psychiatric divertees do tend to be older, less criminal and more likely to be female than those who are not diverted. However, the existence of these characteristics seems to have little bearing on fiscals' decisions to attempt psychiatric diversion. Fiscals simply seem to respond neutrally to any information about the accused's mental state contained in the police report.(30) In particular, fiscals do not seem more willing to assume that female offenders arc likely to suffer from psychiatric illness than their male counterparts.(31) On the contrary, in the absence of information from the police indicating the likelihood of psychiatric illness, fiscals do not generally appear to regard one type of offender as more likely to be suitable for psychiatric diversion than another type.

Clearly, there are various other possible explanations for the atypical nature of psychiatric divertees. On the one hand, it is perfectly possible -- although perhaps unlikely -- that there is no systematic bias in the criminal justice process affecting the selection of offenders for possible psychiatric diversion. For instance, their profile might simply reflect objectively the distribution in the community of the type of mental illness which is likely to bring persons into conflict with the criminal law. Certainly, Cooke (1990: 28) suggests that the high ratio of women among Glasgow psychiatric divertees is partly explained by the higher prevalence of psychological disturbance among women. It is also possible that certain types of person are more likely to seek medical help for psychiatric disturbance and it might also be the case that the medical profession is more likely to categorize certain types of person as suffering from psychiatrical illness. In short, a combination of factors unrelated to the criminal justice process might explain -- partly or wholly -- the atypical nature of psychiatric divertees.

On the other hand, the differences between psychiatric divertees and other offenders might well reflect systematic bias in the operation of the criminal justice system. If so, such bias would generally seem to operate at an earlier stage in the psychiatric diversion process than the point at which the fiscal becomes involved.(32) Given the central role of the police report, it is obviously possible that the police might bear some responsibility for the atypical nature of divertees. Perhaps they are more likely to suspect, notice, or enquire about possible mental disturbance if the offender is female and/or older and/or has no previous convictions. Clearly, any such bias is not necessarily conscious; it simply reflects the way in which the police -- and probably the wider social audience -- view the world. The subsequent inclusion in the police report of any details discovered about the offender's mental state would skew the profile of those offered psychiatric diversion by the fiscal away from the run-of-the-mill offender. The present research was not designed to investigate this possibility.(33) It is worth noting that Box and Russell make a similar point about the way in which complaints against the police tend to be `disarmed' by the police, who do not necessarily achieve this through malevolent design but often because the complainant is `discredited' through `commonsense understandings' and granted meanings embedded in `learned, unreflective routines, (1975: 341).

A second implication of the research relates to the possibility of expanding the number of those diverted from prosecution to psychiatric treatment. Fiscals and psychiatrists argued that the range of cases in which psychiatric diversion is presently used could not be greatly extended. It was generally thought that there are more appropriate ways of dealing with serious offences and seriously disturbed offenders. Nor were they convinced that there was much scope for fiscals to be more `adventurous' or `speculative' in suggesting cases for possible psychiatric diversion. Consequently, it would seem that the only practical way to divert more offenders from prosecution into psychiatric care is to encourage the police to provide the relevant information in more cases. In theory, this should be relatively easy because the fiscal is notionally in charge of the police investigation. The fiscal service could seek the amendment of the national style of police report in order to require more information from the police as to the mental state of the accused.

Other researchers into diversion from prosecution in Scotland have reached similar conclusions. Cooke (1990: 97), for instance, suggested that, as the police report is the `lynchpin' of any diversion scheme, it would be desirable if the police were to describe the offender's behaviour in all cases, even if this simply meant noting `no unusual behaviour'. Cameron and McManus (1993: 44-5) call for more training in order to enable criminal justice personnel better to identify mentally disturbed offenders and for more inter-agency co-operation. With regard to England and Wales, Sanders (1988) has emphasized how crucial gathering of information by the police is to the diversion process. In particular, there has been concern that mentally ill suspects are not always identified by the police (Sanders and Young 1994: 111-13; Laing 1995). In order to facilitate this process, the Royal Commission (1993: 45) recommended that police surgeons should have access to psychiatric assistance. It also suggested that duty psychiatrists should be made available on an experimental basis to busy city-centre police stations.

In short, although in Scotland it is theoretically the procurator fiscal who decides which alleged offenders should be offered psychiatric treatment as an alternative to prosecution, in practice it is generally the police who determine which persons are selected for this form of diversion. Assuming that the present criteria for diversion remain unchanged, this means that any attempt to change the profile of divertees or to increase the number of persons diverted would have to focus upon the police. The key clearly lies in their training, working practices and culture as well as in the availability of resources. This reflects the fact that, in reality, the police, rather than the prosecution service, act as the gatekeepers to psychiatric treatment as an alternative to prosecution.

References

Allen, H. (1987), Justice Unbalanced: Gender, Psychiatry and Judicial Decisions. Milton Keynes: Open University Press.

Box, S., and Russell, K. (1975), `The Politics of Discreditability: Disarming Complaints against the Police', Sociological Review, 23: 315.

Cameron, G. (1993), `Defence Agents and the Mentally Disturbed', Journal of the Law Society of Scotland, 16.

Cameron, G., and McManus, J. (1993), Consideration of the Mental State of Accused Persons at the Pre-Trial and Pre-Sentencing Stages. Edinburgh: Scottish Office Central Research Unit Paper.

Carson, D. (1989), `Prosecuting People with Mental Handicaps', Criminal Law Review, 87.

Chiswick, D., McIsaac, M., and McClintock, F. (1984), Prosecution of the Mentally Disturbed: Dilemmas of Identification and Discretion. Aberdeen: Aberdeen University Press.

Cooke, D. (1990), Treatment as an Alternative to Prosecution: Diversion to the Douglas Inch Centre. Edinburgh: Scottish Office Central Research Unit Paper.

Duff, P., and Burman, M. (1994), Diversion from Prosecution to Psychiatric Care. Edinburgh: Scottish Office Central Research Unit Paper.

Evans, R. (1993), `Comparing Young Adult and Junior Cautioning in the Metropolitan Police District', Criminal Law Review, 572.

Gelsthorpe, L. (1989), Sexism and the Female Offender. Aldershot: Gower.

Gudjonsson, G., Clare, I., Rutter, S., and Pearse, J. (1993), Persons at Risk during Interviews in Police Custody: The Identification of Vulnerabilities, Royal Commission on Criminal Justice, Research Study No. 12. London: HMSO.

Heidensohn, F. (1994), `Gender and Crime', in M. Maguire, R. Morgan and R. Reiner, eds., The Oxford Handbook of Criminology, 997. Oxford: Clarendon.

Laing, J. (1995), `The Mentally Disordered Suspect at the Police Station', Criminal Law Review, 371.

McConville, M., Sanders, A., and Leng, R. (1991), The Case for the Prosecution. London: Routledge.

Moody, S., and Tombs, J. (1982), Prosecution in the Public Interest. Edinburgh: Scottish Academic Press. Royal Commission on Criminal Justice (1993), Cmnd. 2263. London: HMSO.

Sanders, A. (1988), `The Limits to Diversion from Prosecution', British Journal of Criminology, 28:513.

Sanders, A., and Young, R. (1994), `Constructing the Case for the Prosecution', in N. Lacey, ed., A Reader on Criminal Justice. Oxford: Oxford University Press.

Sheehan, A. V. (1990), Criminal Procedure. Edinburgh: Butterworth.

Steward, G., and Millar, A. (1989), Diversion from Prosecution: Diversion to Social Work, Edinburgh: Scottish Office Central Research Unit Paper.

Stephenson, G. (1992), The Psychology of Criminal Justice. Oxford: Blackwell.

Stewart Committee (1983), Keeping Offenders Out of Court: Further Alternatives to Prosecution. Cmnd. 8958. Edinburgh: HMSO.

Tombs, J., and Moody, S. (1993), `Alternatives to Prosecution: The Public Interest Redefined', Criminal Law Review, 357. (1) Technically speaking, persons diverted from prosecution in this way should be described as `alleged offenders' because they are never actually convicted.

(2) For example of this sort of case, see Chiswick et al. (1984; 34,46) who found that in 12 per cent of cases where the fiscal sought a psychiatric report, the result was no proceedings, an admonition or discharge.

(3) This is the term used to describe the stage at which the fiscal considers reports concerning alleged criminal incidents and determines whether and how to proceed: see Moody and Tombs (1982).

(4) In Inverness, the sample included all cases where psychiatric diversion was offered but did not take place because the offender either declined the offer or was deemed unsuitable by a psyhiatrist at an assessment interview. In Dundee, the way in which cases were filed in the fiscals office made it impossible to trace every unsuccessful attempt at diversion which had occurred before the research began. Nevertheless, two such cases were recovered and another emerged during the course of the research (see below). It is extremely unlikely that there were more than one or two untraced cases. It is also very probable that those that were traced were typical. See Duff and Burman (1994: paras. 2.8, 5.44 Man 6.2).

(5) This article focuses on one of the principal reasons for the low use of psychiatric diversion. The various other reasons are discussed in Duff and Burman (1994). It is worth noting that the fiscals offices in Dundee and Inverness also operate `social work diversion' schemes but their operation was not within the remit of this research. For a description and analysis of social work diversion in Scotland, see Stedward and Millar (1989). In Inverness, there was also a separate `drugs/alcohol, diversion scheme for offenders with a problem of substance abuse This scheme also involved psychiatric treatment but did not fall within the remit of the research. At the time of the research, the number of offenders diverted to the `drugs/alcohol' scheme was very low, totalling just four in 1992. See Duff and Burman (1994: paras. 4.45-50).

(6) It should be noted that here I am concerned only with diversion from prosecution. Diversionary mechanisms which operate at later stages of the criminal justice process are beyond the scope of this article.

(7) I will use the term `fiscal' generically to include the procurator fiscal the assistant fiscal and depute fiscals.

(8) It is outwith the scope of this article to discuss whether the present criteria for diversion from prosecution are suitable and the extent to which it is appropriate to prosecute mentally disturbed offenders.

(9) It is also significant that the offender/offence profile was almost identical to that found in the study of the Glasgow psyhological/psychiatric diversion scheme by Cooke (1990: chs. 2, 5). The social work diversion cases analysed by Stedward and Millar (1989: ch. 3) were also very similar, comprising a mixture of the same minor offences -- shoplifting, breach of the peace, assault, indecencies -- committed by a group of offenders who were also older, less criminal and more likely to be female than the average offender. I shall return to divertees' characteristics below.

(10) Stedward and Millar (1989: 22) also comment on the `remarkable similarity' between the cases diverted under the 12 social work diversion schemes they examined, despite the fact that each scheme resulted from an independent local initiative

(11) Their study was concerned with a much wider range of cases than those which might be deemed suitable for diversion. In particular, it tended to focus upon more serious cases in terms of both offence type and degree of mental disturbance.

(12) Again, this was a more general study of mentally disturbed persons in the criminal justice system.

(13) In similar vein, Box and Russell argue that the police, in response to complaints against them, `construct' a portrait of the complainant and an account of the incident which tends to invalidate the complaint (1975: 319).

(14) Stephenson (1992: 212-14) observes that research indicates that probation officers indulge in a similar process of case construction in order to persuade judges of the appropriateness of one sentence or another. (15) It should be noted that, in practice, most cases span more than one category. For example, a police report might well describe an offence involving peculiar behaviour and go on to state that the alleged offender is already undergoing psychiatric treatment. In such a case, the latter information is probably more influential upon the fiscal and the case is categorized accordingly It must also be stressed that, in reality, the boundaries between the categories are sometimes not as clear-cut as this exercise might suggest.

(16) This type of behaviour is usually categorized by the police as a breach of the peace in order to allow them to intervene.

(17) The youngest of these offenders was 30 but this is still very late for a first offence to be committed. The next youngest was 42, well into `menopausal, category.

(18) The success rate' of fiscals in spotting suitable cases for diversion was normally higher: out of a further 28 assessment interviews set up by the Inverness fiscal's office, only two offenders were deemed by the psychiatrist not to be mentally ill. (19) Only two shoplifting cases have been diverted under the new regime and in both of these the fiscal was informed that the offender was already receiving psychiatric attention.

(20) Cameron and McManus (1993) identified defence agents as an important source of information about the offenders mental state, particularly in those custody cases where the accused is quiet and orderly. As regards psychiatric diversion cases, which rarely involve custody, the vast majority of offenders did not appear to consult a solicitor at any stage in the process and, hence, the defence solicitor was rarely the source of information.

(21) One or two of our respondents expressed a mild concern that outside intervention might operate in a class-biased way. It was suggested that by consulting their GP or solicitor soon after apprehension by the police, those persons with the necessary resources and initiative might improve their chance of avoiding prosecution: `the neds don't have solicitors and usually end up in court'. `Neds' is a Scottish word meaning `yobs'. Of the 11 offenders on whose behalf there was an intervention, only two could be described as middle or upper class (although in one further case, where the offender was a schoolboy, it was difficult to tell). The numbers involved are, of course, far too low to permit any meaningful conclusion to be drawn. More generally, of the 71 offenders selected for possible diversion, most were from the lower social strata: see Table 2 above. Cooke also addressed this concern about class bias but came to rather mixed conclusions. At one point, he observed that such fears are unfounded because only 11 per cent of divertees were from the higher social classes but at a later stage, he does suggest that individuals with higher socio-economic status were more likely to be diverted (1990: 30, 75-6).

(22) Cameron and McManus (1993: 42) also voice this fear.

(23) There was less enthusiasm for psychiatric diversion in Perth where, of course, no formal psychiatric diversion scheme yet exists. Familiarity appeared to breed content.

(24) It was thought to be too artificial to attempt to discover whether fiscals in Perth were missing potentially suitable cases for the entirely fictitious psychiatric diversion scheme which they had been asked to imagine existed.

(25) For further details, see Duff and Burman (1994: paras. 2.22-3). Cooke (1990:71) carried out a comparable exercise in order to identify the factors which distinguished diverted cases from the rest. His sample comprised 377 out of the 75,000 or so cases processed annually by the Glasgow procurator fiscals office but it was structured to exclude those cases where diversion was not likely to be an option.

(26) An alternative -- and superficially attractive -- methodology might have involved using different and more adventurous criteria. This possibility was discarded for a number of reasons, only one of which is significant in the present context. Quite simply, the police have to write crime reports, or `construct' cases, within the existing framework. The crucial issue, as regards the argument advanced in this article, is the extent to which the police dictate the fate of offenders by `constructing' cases to conform with the criteria presently used by fiscals and psychiatrists. The fact that the use of more adventurous criteria might produce more opportunities for psychiatric diversion is simply not relevant here. See Duff and Burman (1994: paras. 2.19-20).

(27) Of the remaining cases, a handful were too serious and a few were probably too trivial. For a detailed breakdown, see Duff and Burman (1994: paras. 5.42-3, 5.49-50).

(28) In the event, psychiatric diversion did not take place because the forensic psychiatrist deemed the accused unsuitable. Note 4 explains why this Dundee case was not included in the survey of cases where diversion had been attempted.

(29) It is worth noting that they did include one case which resulted in social work diversion. It was a very obvious case for the use of this option.

(30) Cooke (190: 83) found that the most powerful discriminator between diverted and non-diverted cases in the Glasgow fiscal's office was a reference in the police report to reported psychological illness. However, he also found that gender and age were influential independent variables but the present study indicates that this does not appear to be the case in Dundee and Inverness. Chiswick et al. (1984: 40) found that fiscals' reasons for requesting psychiatric reports on offenders related principally to the offender's psychiatric history or the nature of the offence and thus not the characteristics of the offender.

(31) For useful discussion of the literature on whether offenders' gender affects the response of the criminal justice system, see Allen (1987); Gelsthorpe (1989: ch. 1); Heidensohn (1994).

(32) Obviously, a limited exception to this conclusion relates to the small number of late offenders charged with shoplifting in Inverness who were identified by fiscals, rather than by the police, as candidates for diversion.

(33) Cameron and McManus (1993: 3) did not deal with the role of the police in their study of the identification of mentally disturbed offenders in the pre-trial and pre-sentencing stages of the criminal justice process but they also note that the police stage of the process needs research.
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