Diversion at the Police Station: A Police Station Representative’s Field Guide

For most clients picked up by the police, the most consequential thing a defence representative can do is argue for an outcome that avoids charge entirely. Diversion is the family of frameworks that makes this possible. It also remains one of the most under-used arguments at the custody desk. This article sets out what diversion is, where it operates, and how the police station representative argues for the right disposal in the moment.

What Diversion Is

Diversion is the practice of resolving a criminal matter through an alternative to charge and prosecution. The route may be informal, like an officer giving words of advice on the street. It may be highly structured, like a court-supervised treatment programme. What they have in common is that the conventional path of charge, plea, trial and sentence is interrupted or avoided in favour of something else.

Diversion is not the same as no further action for evidential reasons. Where there is no case to answer, the conventional pathway never opens. Diversion is the active redirection of a case that could be pursued.

Four Stages of the Pathway

Diversion can occur at any point along the criminal-process pathway. The temporal stages are four.

1. Pre-Arrest / Street-Level

Decisions made before anyone enters custody: no further action with informal words of advice, community resolutions agreed on the spot between offender, victim and police, and street triage where mental-health practitioners work alongside police to redirect people in crisis under s.136 Mental Health Act 1983.

2. Pre-Charge in Custody

The person is in custody but a charging decision has not yet been made. The current operational framework is the six-tier system of out-of-court disposals: community resolutions, cannabis warnings, khat warnings, penalty notices for disorder, simple cautions, and conditional cautions under s.22 Criminal Justice Act 2003. The new two-tier Diversionary and Community Caution framework under the Police, Crime, Sentencing and Courts Act 2022 has been enacted but not yet commenced, awaiting a commencement order and regulations. Until then, the six-tier framework remains the live position. Deferred prosecution schemes including Checkpoint and Turning Point operate alongside the statutory framework in some force areas. Force-level drug diversion schemes operate similarly.

3. Post-Charge / Pre-Trial

Charge has been laid but the case has not yet reached substantive hearing. CPS discontinuance on public-interest grounds, where the CPS is the gatekeeper and defence representations to the reviewing lawyer can shift the public-interest analysis. Restorative justice referrals. Mental Health Act diversions under ss.35–48 MHA 1983.

4. Court-Based

The case is before a court but the disposal avoids conventional conviction-and-sentence. Problem-solving courts, deferred sentence under s.278 Sentencing Act 2020, treatment requirements on community orders (Mental Health Treatment Requirement, Drug Rehabilitation Requirement, Alcohol Treatment Requirement), and hospital orders under s.37 MHA 1983.

Pathways That Cut Across the Stages

Some diversion mechanisms are not located at a single temporal stage. They are pathways that operate from arrest onwards, intersecting with the stages at different points.

Liaison and Diversion

NHS-commissioned teams placed in custody suites and courts. NHS England commissioning achieved 100% population coverage across England in March 2020. L&D practitioners screen for mental health conditions, learning disabilities, substance misuse, neurodiversity, and traumatic brain injury, and refer to community services. The L&D referral made at stage 2 in custody can be the foundation for a Mental Health Treatment Requirement argument at stage 4 in court.

The Youth Framework

A parallel system with its own statutory architecture, operating from the moment of arrest through to court disposal. Youth Cautions and Youth Conditional Cautions under ss.66ZA–66ZB Crime and Disorder Act 1998 (as inserted by the Legal Aid, Sentencing and Punishment of Offenders Act 2012). Community resolutions for young people. YOT triage and Joint Decision-Making Panels. Outcome 22. Referral Orders under the Sentencing Code. The Child First principle, that children in the youth justice system should be treated as children first and offenders second, was originally developed by Haines and Drakeford in Young People and Youth Justice (1998) as “Children First, Offenders Second” (CFOS), later developed by Haines and Case into “Positive Youth Justice” (2015), recommended for adoption by the Taylor Review (2016), and formally adopted as the Youth Justice Board’s guiding doctrine in its 2021–24 Strategic Plan. It is the strategic frame these mechanisms operate within.

Mental Health and Learning Disability Cohorts

Mental health and learning disability cohorts have their own diversion architecture that intersects with, but is broader than, the L&D service. AMHP assessments triggered from custody can result in admission under the Mental Health Act 1983 rather than charge. The diversion of suspects with serious mental illness from prosecution to treatment, where the offending behaviour is closely linked to untreated illness, has been a recognised pathway since the 1990 Reed Report and remains in current CPS guidance on prosecuting cases involving mentally disordered offenders.

Specialist and Cohort-Based Pathways

Schemes targeting particular groups, intersecting with the temporal stages at different points. The Female Offender Strategy 2018 supports women’s centre referrals as conditions of caution and as alternatives to custody. Neurodiversity-informed diversion practice has been developing since HMI Probation and Criminal Justice Joint Inspection reports identified the over-representation of neurodivergent people in the justice system. The National Referral Mechanism is the formal route for identifying and supporting victims of modern slavery and human trafficking, and it functions as a diversion pathway for offences committed as a direct consequence of trafficking, operating from the point of arrest forward and underpinning the s.45 Modern Slavery Act 2015 defence.

The Adult-Youth Asymmetry

The single most important point about diversion is this: it exists for everyone, but the framework, political emphasis and practical availability differ significantly between adults and children. Treating the two as interchangeable produces representations that miss the mark.

Statutory architecture. Adult diversion currently sits under the Criminal Justice Act 2003, with the new two-tier framework under the Police, Crime, Sentencing and Courts Act 2022 enacted but awaiting commencement. Youth diversion sits under the Crime and Disorder Act 1998 as amended by LASPO 2012. These are parallel systems, not a single system with age modifiers.

Political emphasis. Youth diversion has had consistent cross-party political support, with a lineage running back through the 2008 Scaled Approach and earlier reforms. The Taylor Review of the Youth Justice System (December 2016) re-stated the case for the avoidance of formal sanction as the default response to youth offending, and the Child First doctrine was formally adopted as the Youth Justice Board’s guiding doctrine in 2021. Adult diversion has been more contested. The PCSC two-tier framework has been enacted but is yet to commence, more than four years after Royal Assent, and the policy emphasis has shifted between governments.

Practical availability. Every local authority has a Youth Offending Team. Most forces operate Joint Decision-Making Panels with their YOT. The NPCC Child Gravity Matrix, where in use, provides a structured tool for selecting the right disposal level, supplementing the broader Child First analytical framework that has reshaped YOT practice since 2021. Adult diversion is patchier. L&D now covers the population of England, but the named pre-charge schemes (Checkpoint, Turning Point, drug diversion pilots) exist only in some force areas.

The implication for the practitioner: where the client is a child, the starting assumption should be that diversion is available and appropriate. Where the client is an adult, the police station representative works harder to make the case.

Five Questions to Ask Before You Argue

The PSR’s physical work is concentrated at stages 1 and 2 of the pathway. The intellectual work spans the whole pathway, because the disposal decision made now shapes everything that follows, including consequences such as DBS disclosure, immigration status and professional registration that will surface years later. Every diversion argument starts with the same five questions.

Is the evidential test for charge met? This is the first question, not the last. If the evidence does not support a realistic prospect of conviction, the right advice is silence and NFA, not acceptance of any disposal. A caution is a recorded admission. It is worse than no record at all where the prosecution would not have proceeded anyway.
Which stage? Where on the pathway is the client? The PSR almost always operates at stage 1 or stage 2, but the disposal argued for now should be shaped by what the downstream stages will allow. A caution accepted at stage 2 closes off the harder downstream stages. A file kept open at stage 2 may produce a stronger disposal at stage 3 (CPS discontinuance) or stage 4 (treatment requirement on a community order).
Which framework? If the client is under 18 on the date of charge, the youth framework applies. If 18 or over, the adult framework applies. If the client may be a victim of modern slavery, the NRM pathway applies in parallel. The analysis must address every applicable framework, not just the most obvious one, because the strongest disposal often sits where two frameworks intersect.
Which scheme is locally available? Diversion schemes are force-specific. A scheme that is not operating locally is not a real option. Know what your force actually runs, what the eligibility criteria are, and what the conditions typically look like. A representation that names a scheme by name and addresses each eligibility criterion in turn is far harder to refuse than one that asks generally for diversion.
Is the disposal realistic? Can the client actually comply with the conditions? Will the downstream consequences, including DBS disclosure, immigration consequences and professional registration, be worse than the realistic court outcome? A caution accepted on the night that the client cannot in fact comply with is worse than charge: breach triggers prosecution, and the admission is already on the record.

Skip any of these and the representation falls. Build the argument around all five, and the custody sergeant has something concrete to respond to.

“A custody sergeant who is asked for a specific disposal by name, on stated criteria, is in a different position from one being asked to consider diversion. Specific asks get specific answers. Vague asks get vague refusals.”

When Diversion Is Not in the Client’s Interest

A caution can look like a soft option. Sometimes it is. Sometimes it is worse than charge. The discipline of recognising when diversion is the wrong answer is the same discipline as arguing for it when it is right.

Four situations in particular:

Where the evidential case is so weak that prosecution is unlikely. Silence costs the client nothing. A caution costs them a record.
Where the conditions cannot be complied with. Breach triggers prosecution with the admission already on the record.
Where the downstream consequences exceed the realistic court sentence. DBS disclosure, immigration consequences, professional registration. For some clients, a caution does more damage than a successful defence at court would do.
Where the client genuinely denies the offence. Admission is the precondition for every formal caution, including Youth Cautions and Youth Conditional Cautions, and will be the precondition for the new Diversionary and Community Cautions once that framework commences. Community resolutions and Outcome 22 disposals operate on a lower threshold of acknowledgement of responsibility, but the practical effect on the file and on any downstream proceedings can be similar. An admission or acknowledgement given to “resolve” the matter is defective if it does not reflect the client’s actual position, and the disposal it founds is challengeable.

The Structural Picture

Diversion rates are not racially neutral. Black, Asian and minority ethnic suspects, adult and child, are statistically less likely to be diverted at every stage of the pathway, a pattern identified by the Lammy Review (2017) and persisting in current Youth Justice Board and HMICFRS data. The police station representative who understands this and argues against it, by naming the disparity, by insisting on the same eligibility analysis for every client, by escalating refusals that don’t withstand scrutiny, is doing more than technical defence work. They are countering a documented structural inequality in real time, one client at a time.

This is part of the standard expected of an accredited representative. It is not a separate equality module. It is the same eligibility analysis applied consistently across every client a representative sees.

Train to Do This Properly

AccrediLaw’s training for PSRAS treats diversion as a discipline, not an afterthought. The practical framework set out above, the stages, the pathways, the five questions, the recognition of when diversion is wrong, is built into the course from the foundation, with scripted custody-sergeant representations and the structural-disparity analysis integrated throughout.

Diversion is the highest-value defence work most police station representatives will do. The training is built to make that work consistent, defensible and effective.

Start your PSRAS training →