The centrality of ‘guilt’ in youth justice- conceptualising child ‘guilt’ for Child First justice

Kathy Hampson (Aberystwyth University) and Stephen Case (Loughborough University)

Introduction

Children are routinely incentivised by the criminal justice system to admit guilt for actions being investigated, whether this be because of the threat of more serious action, or the promise of support should they agree. However, this generally happens in the absence of any real consideration of what ‘admitting guilt’ really means, what the true (and lasting) consequences might be for children, and the potential effect of inappropriate guilty admissions on children’s engagement with any subsequent criminal proceedings, or on their sense of self. This blog explores why trying to gain a decontextualised guilty admission from children might be extremely harmful to them and to the credibility of the whole system.

The legacy of a risk approach to youth justice

The current youth justice system (YJS) of England and Wales was largely set in place by the Crime and Disorder Act 1998, which established Youth Offending Teams (YOT) to work directly with children in conflict with the law, overseen by the Youth Justice Board (YJB), which establishes and disseminates strategy and policy. The YJB has identified ‘Child First’ as its ‘strategic approach and central guiding principle’, which encompasses four tenets of: seeing children as children, developing pro-social identity for positive child outcomes, collaboration with children and diversion from criminal systems. However, this comes in stark contrast to the previous approach, which was predicated on ‘risk’ (seeing children as risky rather than at risk), the legal framework of which acted as something of an escalator to court action. Children could be given a police reprimand, then a final warning, before going to court; however, they needed to admit guilt in order to access these pre-court outcomes. Children not admitting guilt would (if their case was proceeded with) be sent directly to court and could only be given harsher outcomes than if they had made a guilty admission. This rigid escalating structure was softened somewhat by the re-introduction of cautioning through the Legal Aid, Sentencing and Punishment of Offenders Act 2012, which then allowed children to receive outcomes diverting them away from court, even if they had previously offended. However, although this development took us closer to seeing children as children rather than causers of harm, it did little to change the fact that all dealings with children in criminal justice spaces depended heavily on admissions of guilt – children could only be given these new cautions if they admitted guilt, with strong incentives also given for accepting guilt in court-level cases.

The problems with emphasising guilt

In the brave new world of ‘Child First’, the continuing emphasis on gaining admissions of guilt from children threatens to derail its full integration as the youth justice system. Why? Because it assumes a high level of legal understanding on the part of children who could potentially be just 10 years old (the current minimum age of criminal responsibility in England and Wales), thus negating any real understanding of treating them as children (with correspondingly under-developed levels of capacity, higher risk of being influenced or exploited by others, and an established higher risk of them falsely confessing). Additionally, the system actively incentivises children to admit guilt, by offering support contingent on guilty admissions (for example, the requirement for admissions of guilt for pre-court diversionary interventions by YOTs) or through coercion by veiled threats of more serious outcomes if they do not (for example, being sent to court where more serious disposals could be given, rather than being able to accept a caution). The use of these carrots and sticks potentially blurs further children’s understanding of their responsibility – if they admit guilt out of fear of more serious consequences but know that they did not actually commit the crime (or feel that responsibility lies elsewhere because of exploitation), then this could cause serious confusion, adversely affecting their sense of self and any engagement with services which then ensue out of the incongruence of saying one thing but thinking another.

Possible responses to guilt

To further explore the potential outcomes from these perverse incentives to admit guilt, we have typologised the responses which might ensue, along with consideration of the potential ramifications. These are based on established definitions of ‘guilt’ as involving both actus reus (the criminal act) and mens rea (the guilty mind behind it) – both are needed for guilt to be valid, as someone could conceivably do a criminal act without knowing it, or have the desire or motivation to commit an offence but not actually do it. Neither of those would add up to ‘guilt’, the first being illustrated by a small child picking up a packet of sweets in a shop and walking out without paying, not knowing that they needed to. This illustration also demonstrates something of the under-developed capacity of children – combining this with their differential development (and the developmental delays common with justice-involved children) leads to difficulties in identifying the age at which children can reasonably be held accountable for their actions (the minimum age of criminal responsibility), and therefore meaningfully be held responsible. The average age arrived at across Europe is 14 years, whereas England and Wales remain stubbornly young at 10 years old. This is despite significant developments in neuroscience showing children’s brain development to take much longer than originally thought, often leaving them without true understanding of the consequences of actions or the ability to control their emotions, both of which are likely to significantly affect behaviour. Criminalising behaviour which is not properly understood by the actor ignores the need for mens rea in understandings of ‘guilt’, and risks responsibilising where no real sense of responsibility lies.

We have typologised children’s responses to the question of guilt, which considers that some may respond verbally to the question ‘are you guilty’ in ways which are incongruent with either their emotions or their understanding. They may admit guilt because they know they were present when an offence occurred, whilst questioning why others (who took a more significant role) are not responsibilised. They may admit guilt because they need help and see the support on offer from the YOT should they ‘accept’ a caution as worth it, without fully understanding that this may have longer-term effects on their future should they need an enhanced criminal records check in the future for employment. They may admit guilt whilst questioning why their actions were apparently wrong (not understanding the law), which could severely compromise any engagement with subsequent services, due to feelings of unfairness in the system. It is unclear whether police officers themselves, who are generally the ones asking the question, really understand the complexity of what of the question (for a child in an adult system), and the pressures brought to bear to gain a guilty admission by threats of more serious action, or promises that they can go home quicker.

Derailing the developing ‘Child First’ approach

This analysis has started to question something which is so commonplace as to be a part of every interaction between police and a child thought to have committed an offence, and yet has never been thoroughly questioned as to its validity (as a process), given the specific needs and characteristics of children. Yet without properly understanding the nuances at work when children are asked ‘are you guilty’ (or perhaps even more questionable, given its ignorance of the necessity of mens rea, ‘did you do it’), the consequences (perhaps unintended) could derail the fledgling development of ‘Child First’ as the true ‘strategic approach and central guiding principle’ of youth justice in England and Wales.

References

Case, S.P. and Browning, A. (2021) Child First: The research evidence-base. Available online at https://repository.lboro.ac.uk/articles/report/Child_First_Justice_the_research_evidence-base_Full_report_/14152040

Case, S., and Hampson, K. (2019) ‘Youth Justice Pathways to Change: Drivers, Challenges and Opportunities’, Youth Justice, 19(1): 25–41 Goldson B. (1999) Youth Justice: Contemporary Policy and Practice. Abingdon: Routledge

Goldson B. (1999) Youth Justice. Contemporary Policy and Practice. London: Routledge

Lamb M.E. and Sim M.P.Y. (2013) ‘Developmental Factors Affecting Children in Legal Contexts, Youth Justice, Vol. 13(2): 131-144

Lansdown G. (2005) The Evolving Capacities of the Child. UNICEF. Available online at www.unicef-irc.org/publications/pdf/evolving-eng.pdf

Ministry of Justice/Youth Justice Board (2013) Youth Cautions Guidance for Police and Youth Offending Teams. Available online at https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/354050/yjb-youth-cautions-police-YOTs.pdf

Redlich A. and Goodman G.S. (2003) ‘Taking Responsibility for an Act Not Committed: The Influence of Age and Suggestibility’, Law and Human Behavior, Vol. 27(2): 141-156

Waxman, S. (2020) ‘Innocent Juvenile Confessions’, Journal of Criminal Law and Criminology, Vol. 110(1): 1-9

Westbrook J.E. (1965) ‘Mens Rea in the Juvenile Court’, Journal of Family Law, 5: 121-138

Winstanley M., Webb R. and Conti-Ramsden G. (2021) ‘Developmental language disorders and risk of recidivism among young offenders’, The Journal of Child Psychology and Psychiatry, Vol. 62(4): 396-403

YJB (2021) Strategic Plan 2021 – 2024. Available online at https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/966200/YJB_Strategic_Plan_2021_-_2024.pdf

Zimring, F. (2015) Juvenile Justice in Global Perspective. New York: NYU Press