JC van Zyl
25 October 2018

For the unfortunate few who may have been exposed to criminal charges, incarceration and then (most likely) an inevitable criminal record, diversion is, for the ill-fated few, a legal innovation which offers a proverbial fresh-start.

Diversion, in the broad sense of the word, is defined as an activity that diverts or redirects something from its current course – in applying this universal definition to the context of criminal matters, it, chiefly seeks to prevent a recurrence of further illegal conduct by simply addressing the following:

  1. the offence itself;
  2. the behavior from which the offence originated; and also
  3. highlighting the transgressor’s attitude and future conduct.

In addressing these factors and, because diversion is based on the principles of restorative justice, remorseful offenders are offered “rehabilitation” as opposed to staining a spotless record by being branded as a criminal.

Though the route of diversion might be a sound legal instrument, it is largely available to young, first time transgressors who, at first glance, are law abiding citizens and who, upon successful completion of a prescribed program will not be convicted of a criminal offence.

Diversion allows offenders to “compensate” for their transgression by way of geniune community service and attending constructive programs which encourage altering ‘defects’ in character rather than punishing a single lapse in judgment with a permanent criminal record – legitimate programs are offered by accredited entities such as The Way Recovery for recovering users as well as NICRO, the National Institute for Crime Prevention and the Reintegration of Offenders. In the event of a conviction, the likelihood of the transgressor committing further offences and engaging in anti-social behavior is greater, and as such, diversion is aimed at preventing misconduct from developing into an illicit and self-destructive lifestyle.

Offences for which diversion may usually be considered are possession of narcotics, speeding, driving under the influence, theft, shoplifting and common assault, to name a few. These offences, to a large extent, lack the element of violence and the prospect of preventing a recurrence in most cases, are rather clear.

Practically anyone may be considered for diversion, it however, depends mainly on the alleged offence, surrounding circumstances as well as the view of the prosecutor (or his/her senior known as the Senior Control Prosecutor) whom the matter has been allocated to. Every transgression must be dealt with based on its own merits and legal representations are typically submitted to the prosecuting authority outlining the circumstances and factors that necessitate consideration.

The prosecuting authority is normally susceptible to genuine mitigating factors and, in a perfect world, also investigates aspects such as the transgressor’s personal circumstances as well as the nature and seriousness of the offence.

In some cases, an interview is conducted with a social worker who, in return, will make certain recommendations in respect of an appropriate course for the transgressor and, subject to the prosecuting authority’s approval, will then be deemed a suitable candidate for a diversion program – prosecution will be stayed until the program has been completed satisfactorily, whereafter the charge(s) will formally be withdrawn.

The nature of the course/program will naturally depend on the transgression necessitating it and may vary from attending a single meeting, engaging in counselling, serving community service for hundreds of hours and/or being subjected to regular drug tests.

If you have been arrested for an “insignificant” offence (and are not a repeat offender), like driving under the influence or exceeding the speed limit, consult with your legal practitioner as to the possibility of exploring diversion as an alternative to a costly trial as well as a potential criminal record.