The Centrality of ‘Guilt’ in Youth Justice – Conceptualising Child ‘Guilt’ for Child First Justice

Abstract

Children are extremely vulnerable yet often treated as adults, measured by adult-centric conceptualisations of ‘guilt’ and expected to decide on their own culpability for law infringement. In addition, system agents incentivise children to admit guilt by offering contingent support or implying further consequences for refusal, resulting in a youth justice system that exacerbates this by requiring admissions of guilt throughout the process. We explore difficulties of applying adult-centric understandings of ‘guilt’ to children through our typology of guilt, which examines responses children might give to questions of guilt and asks whether applying adult-centric notions of guilt erodes ‘Child First’ youth justice.

Keywords

Child First children guilt responsibility youth justice

Introduction

What does it mean when a child ‘admits guilt’ in relation to a crime? Why is this such a central and pervasive feature within youth justice in England and Wales? Is it straightforward when a child admits an offence in criminal proceedings, or are there hidden complexities and consequences? Do children experience particular disadvantages with the question of guilt, despite the ostensibly ‘child-friendly’ nature of the youth justice system?

In this article, we propose that the integrity of guilty admissions by children is compromised by their complex and largely unacknowledged understandings of ‘guilt’, compounded by limited experience and understanding of the ‘system’ and potential consequences of their involvement. These will adversely affect their views of its legitimacy and subsequently their system engagement. Drawing on research from related areas of children’s capacity, culpability and responsibilisation, we argue that adult-centric notions of guilt (and responsibility), as applied in legal settings, are insufficiently sensitive to the complex/changing influences and environment wherein children develop their sense of agency and personal responsibility. To illustrate this, we introduce a theorised typology of ‘guilt’, applying specifically to children, to explore relationships between culpability and actions. We conclude by situating these complexities within the English/Welsh context of ‘Child First’ justice, discussing potentially damaging implications for youth justice interventions ensuing from children’s admissions of guilt.

Questions of child culpability and justice systems’ predilection for acquiring professions of guilt are relevant across many international jurisdictions (Hendriks et al., 2022; Stuewig et al., 2015; Zaccari et al., 2020), however our primary focus is the youth justice system (YJS) of England and Wales, wherein removal of the rebuttable presumption of doli incapax for children between 10 and 13 (Crime and Disorder Act 1998) assigned full responsibility to children, rather than recognising their developmental status, or acknowledging external systemic and socio-structural influences (Michael, in Case, 2018; Newbury, 2008). Children have been ‘adultified’ with little appreciation of, or concession to, developmental differences (Kilkelly and Forde, 2020; Scott and Steinberg, 2010) despite, paradoxically, the concept of a YJS being predicated on the understanding that children should be treated differently to adults (UN, 1985).

We address three problematic issues with seeking professions of (adult-centric) guilt from children: systemic non-appreciation of children’s status as actors with ‘evolving capacities’ (Lansdown, 2005; Petofta et al., 2023), constrained in their understanding and ability to make informed decisions; systemic ‘push factors’ – including moral pressure to satisfy expectations and direct coercion (such as implying more serious charges or heavier sentences); and systematic ‘pull factors’, including enticement (‘it will go better for you if you admit this’), to satisfy authority figures, and the desire to end the ordeal and go home.

Understanding and defining ‘guilt’

When questioned by police, suspects are routinely asked to profess or deny guilt for offences. Admissions of guilt are incentivised – potentially offering (implied or real) quicker procedures, lesser sentencing, quicker/earlier release from police custody (Alge, 2009), but which mask more serious consequences not mentioned at the emotionally fraught point of arrest and interview (Helm, 2021a). This could reflect positive aspirations to reduce victim trauma or promote offender ‘redemption’, but other potentially less worthy ‘system’ incentives abound. Admissions of guilt at any stage simplify criminal processes, saving time, improving clear-up rates, reducing system costs, avoiding expensive court trials and bringing greater certainty of conviction. Thus, admissions of guilt are desirable for pragmatic (and systemic) as much as principled reasons (Alge, 2009; Henham, 1999).

There is also symbolic significance in individualised ‘guilt’ and personal responsibility as a cornerstone of rights, justice and due process, constructed within a neo-liberal retributional framework (Liebenberg et al., 2015). However, rationalist assumptions behind admissions of guilt are not transparently obvious or problem-free (Harwood, 2021; Helm, 2021a; Kassin, 2014).

Defining ‘guilt’

Legally, guilt comprises two parts: actus reus – an act/offence, and mens rea – the ‘legally blameworthy’ state of mind; with both aspects needed for attribution of guilt¹ (Westbrook, 1965). Mens rea is often incorrectly characterised as a ‘guilty mind’, with conscious intention to commit the act. However, conscious intention is rarely required and, instead, mens rea is ‘a decision to bring about . . . the commission of the offence . . . no matter whether the accused desired that consequence or not’ (‘R v Mohan’, 1976). Moreover, while intent is a common basis for determining mens rea, depending on the offence in question, the mental component can be recklessness, negligence, dishonesty, knowledge or malice. Intention itself can also be either direct (where the consequences of actions are desired) or oblique/indirect (where a consequence is foreseen by a defendant as ‘virtually certain’, albeit not desired for its own sake). An illustration of oblique intent was given by Lord Bridge in ‘R v Moloney’ (1985) through the example of an aeroplane owner who plants a bomb on their plane to make a fraudulent insurance claim. Although the owner knows the passengers will die and does not desire this outcome, he also knows that it is a virtually certain consequence of his actions.

The legal benchmark applied is of an autonomous, neuro-typical adult making ‘reasonable assumptions’, both in the commission of the criminal act and subsequent admissions of guilt (Helm, 2021a). This establishes equivalence between internalised and legal meanings of guilt, which can include objective tests based on the standards of the ‘reasonable man’ or ‘ordinary decent people’, equating offender intentions with determination of responsibility (on which legal procedures and outcomes are based).² So, an admission of guilt (to the police) or a finding of guilt (by the court) both require conclusive evidence that, if the mens rea of the offence is ‘intention’, that the act was intentionally committed by the offender (although they do not have to appreciate its illegality), or that they were cognisant of the potential risk of harm from their actions but reckless or negligent in continuing to do them anyway.³ The offender then qualifies for the prescribed sanction and should also accept responsibility for the criminal act.

While this formal equivalence is an important basis for legitimacy and authority within the legal system, it leaves unaddressed several important questions concerning the notion of guilt specifically concerning children. In short, each element of guilt – the act, criminal intention and admission/finding – may be problematic. The act itself may or may not have occurred exactly as described in the formal legal setting, and the individual’s part in it may be unclear – for example, where it was committed as part of a ‘group’ enterprise, under duress or in response to provocation. The action could have been deliberate, but the consequences not foreseen or understood (thereby questioning recklessness or negligence).

Crucially for children, with limited life experience, it is questionable whether the outcome or consequences of an ‘act’ could reasonably be anticipated by them in the same way as a ‘reasonable adult’, in order to fulfil either ‘recklessness’ or ‘negligence’ in the notion of guilt (Stark, 2020). Even if accepted, this formulation will not resolve all issues in terms of understanding or attributing criminal intent or mens rea, which still rely on binary options of guilt/innocence, applied in the abstract, irrespective of other contributing factors (Arthur, 2015). Of course, this is partly accounted for by the establishment of a minimum age for criminal responsibility (MACR). However, the fact that this is set at 10 years of age in England and Wales makes the yardstick applied to assess mens rea of a ‘reasonable adult’ unsupportable. This is particularly indefensible, since the United Nations Committee on the Rights of the Child state that the MACR should be no less than 14 years of age, which is now the world average (UN, 2019) and, in addition, the European Court of Human Rights in ‘T v United Kingdom (24724/94)’ (2000), condemned according to articles 3 and 6 of the European Convention on Human Rights.⁴ It makes no concession for children’s ‘evolving capacities’ (Lansdown, 2005), especially within legal contexts (requiring that a child ‘understands information but also retains, uses, weighs it, and communicates a decision’; Daly, 2020: 474); borne out within a range of neuroscientific, psychological and sociological evidence (Smith, 2010; Daly, 2020; Petofta et al., 2023). Therefore, ascribing ‘guilt’ on adult-centric terms questions its very applicability to children at all, suggesting the need for a more child-appropriate yardstick.

The final qualification to the de-contextualised legal definition of ‘guilt’ relates to admission or acceptance of formal responsibility for an offence which, for children, depends on several modifying factors largely beyond their control (Smith, 2010). For example, Helm (2021a: 194) identified children as particularly susceptible to pressure and incentives, increasing their likelihood (compared with adults) of admitting guilt in formal proceedings even when innocent, emphasising the importance of considering these issues specifically relating to children, aside from adult-focused literature. Here, too, supposed equivalence between legal (adult-centric) measures of guilt and the understanding of this by children must be questioned.

Conceptualising guilt/innocence in the context of child development and (im)maturity

For a child to be able to answer questions of guilt, they need understanding of the concept and its application (Misailidi, 2018), but this is complex, particularly for children, who are less likely to appreciate nuanced concepts (abstract understanding begins at the formal operational learning stage, from around 12 years of age; Kohlberg, 1984, further problematising a MACR of 10). This is exacerbated in a justice cohort over-represented by children with developmental delays, neurodivergence and communication difficulties (see Bryan et al., 2015; Day et al., 2024; Winstanley et al., 2021).

Children below the MACR are presumed incapable of mens rea. Even where there is actus reus, without mens rea, there is no crime, and therefore no ascription of responsibility or prosecution. The legal framework, albeit crudely, accepts the ‘evolving capacities’ of children in their ability to know, understand and make moral judgements (Daly, 2020; Lansdown, 2005). Although abilities to make fairly complex moral judgements from relatively early ages are now recognised in neurotypical children (Nobes et al., 2016), their capacity to appreciate or predict consequences to actions or understand nuanced legal situations is nonetheless compromised by difficulties in memory recall, obstacles to effective communication, unfamiliarity with justice situations, heightened suggestibility (Lamb and Sim, 2013) and neuro-underdevelopment/difference. A virtually complete lack of legal education for primary school children also diminishes the likelihood of their understanding complex legal processes and systems (Hampson, 2024).

Before the 1990s ‘punitive turn’ (Muncie, 2008), doli incapax was presumed in England and Wales for children between the ages of 10 and 14 years, requiring substantive proof of mens rea. Importantly, this acknowledged children’s evolving capabilities and perceptions (Daly, 2020; Lansdown, 2005; Petofta et al., 2023), allowing that children might not have the requisite mens rea to be criminally responsible (clearly acknowledged in Crown Prosecution guidelines; CPS, 2023). However, this presumption was abolished under section 34 of the Crime and Disorder Act 1998, immediately placing an assumption of adult-centric understandings of legal process and consequential thinking on very young children. The scope of section 34 has also been considered by the House of Lords in ‘R v T’ (2009), which found that it had been abolished as both a rebuttable presumption and a defence. While some of the principles from doli incapax may be used as part of other defences (such as diminished responsibility and insanity) and the possibility remains of introducing expert evidence to suggest the child was not capable of formulating the mens rea of an offence, practitioners must now seek for/deploy other legal doctrines to safeguard children’s rights. This further highlights the legal system of England and Wales as one of the least child-friendly in the world.

While the England and Wales MACR (Law Commission, 2016) assumes that mens rea is adult-normative from the age of 10, developmental psychologists and neuroscientists argue that children develop at very different rates (Blakemore and Robbins, 2012; Daly, 2020; Lansdown, 2005; Royal Society, 2011). What one child understands regarding guilt/culpability is not necessarily shared by another, problematising the MACR evidentially, emotionally, maturationally, legally, ethically and practically. Furthermore, this stands in stubborn opposition to the ‘Beijing Rules’ minimum standards for juvenile justice (UN, 1985) and adult-focused legal criteria for fitness to plead (Pritchard Criteria, established in ‘R v Moyle’, 2008), whereby defendants must be able to understand and follow court proceedings, ‘plead with understanding’, challenge jurors, question evidence and instruct their own counsel (POST, 2018: 3). Most children are not able to satisfy these criteria (Helm, 2021a), where surely the necessity for them to have this level of understanding is as important as for adults. While some legal safeguards exist for children concerning fitness to plead, including that the Youth Court can decide whether the accused did the act without determining guilt in certain circumstances,⁵ in practice these seem rarely used (Law Commission, 2016). Indeed, despite detailed guidance for legal professionals and courts on assessing capacity in adults (where lack of capacity is only seen in the context of disability), there is little guidance on applying this to children, with their reduced ability to control higher-level functions like complex decision-making (Lang and Betsch, 2018) and more general lack of life autonomy. This is crucial because children, by their very nature, have reduced capacity, rather than this being necessarily due to individual deficiency (Daly, 2020). This leaves no facility to acknowledge developmental difference (to adults) within current definitions of ‘guilt’, and by extension, responsibilisation (Kambam and Thompson, 2009). The only realistic option becomes that of sentencing mitigation after ascription of guilt, which only then addresses such concerns after a child is criminalised (and therefore, responsibilised). Where sentencing guidelines differ for children than for adults, recognising their vulnerabilities and developmental difference (Sentencing Council, 2017), the same approach should surely apply to mens rea, with child-centric understandings of criminal intention and consequential thinking (relating to recklessness and negligence) being the yardstick applied for child suspects.

Constructing a typology of child guilt

Applying adult-centric understandings of guilt to children creates further difficulties for criminal outcomes (either through court or out-of-court disposals), as children without adult levels of cognitive and psychological development are less likely to be able to assimilate this to their own intentions and motives, thereby creating cognitive dissonance. For children, therefore, an admission of guilt (however gained) is developmentally less likely to translate straightforwardly into understanding and acceptance of responsibility (culpability),⁶ potentially threatening engagement with ensuing YJS interventions (Cancino-Montecinos et al., 2020). Our typology addresses this misalignment between guilt (using adult-centric understandings of mens rea) and the child’s own understanding of guilt and responsibility, underlining the inappropriateness of applying an adult-centric guilt yardstick to children. Another troubling issue our typology addresses is the increased likelihood that children (as opposed to adults) admit offences when completely innocent (Helm et al., 2018). This is especially concerning, considering the centrality of admittance and acceptance of guilt to YJS operations, despite its remit to be child-centric in acknowledging their additional vulnerabilities just because they are children.

The YJS’s failure to recognise these complexities is illustrated by offers of support contingent on a monolithic adult-centric construction of guilt within a responsibilising and adultifying system (Helm et al., 2018). Admission of guilt is taken as acceptance of the need to change based on culpability, alongside capacity to do so, unlocking contingent support. However, markers of culpability, like formalised system contact (McAra and McVie, 2015), recorded involvement, reports of (non)cooperation, processing or the assignation of a criminal record (an adverse ‘flag’ in enhanced criminal records checks), reinforce blameworthiness and negative prognoses, while establishing material constraints and limitations on life chances (Helm, 2021a).

Given these issues, how can the concept of ‘guilt’ be appropriately de/reconstructed and contextualised? We suggest that our typology of child guilt fulfils several functions. It facilitates systematic critical scrutiny of children’s admissions of guilt, allowing exploration of their understanding. It highlights otherwise-hidden complexities and dynamics lying behind admissions of guilt, questioning its relationship with ‘responsibility’. It challenges a system that centralises an adult-centric and monolithic notion of guilt. This typology enables us to critically elaborate prevailing definitions of guilt, alongside mechanisms for eliciting and responding to its admission, and facilitates the proposal of alternatives.

Admission of guilt

Critical analyses of the current YJS in England and Wales indicate at least three constructions of a child’s admission of guilt and three interpretations of denial.

Fully-responsible admission of guilt

A child admits guilt and accepts that they are guilty, knowing that they have committed the act (actus reus) and had a legally ‘blameworthy mind’ at the time (mens rea). This is the only admission which avoids cognitive dissonance between accepted and perceived responsibility. Although this may seem straightforward and desirable, it is not entirely without issue (in common with the question of (adult-centric) guilt being put to children) because it still ignores the context of the act, as well as children’s developmental immaturity in perceiving consequences, while entirely responsibilising them for an action which may well be much more nuanced (as opposed to expanding this to consider more systemic factors, or adults also involved/influential, for example). The increased likelihood of younger more ‘suggestible’ individuals to falsely accept responsibility (Redlich and Goodman, 2003) is clearly concerning here.

Partially-responsible admission of guilt

A child could admit guilt but feel ‘not completely guilty’. This may not necessarily relate to lack of mens rea, but reduction in their sense of culpability because they were exploited by adults or acting under duress (e.g. County Lines criminal exploitation). Here the child has committed the actus reus and may possess the mens rea required, but could also have a defence, grounded in their questionable capacity to act independently/fitness to plead, or significant mitigation, leaving them feeling (understandably) ‘not entirely guilty’. Cognitive dissonance results and responsibility is not internalised, potentially compromising engagement with subsequent YJS intervention, reducing its effectiveness or increasing the likelihood of court order breaches. This illustrates injustice associated with ascribing adult-centric guilt to children where others (or systems) also bear some responsibility, leaving only post-conviction options of sentencing mitigation, based on limited justificatory arguments, available for their protection. Studies also suggest that children’s sense of responsibility can be significantly reduced where offences are committed as part of a group (Rowan et al., 2022).

Induced/instrumental admission of guilt

A child admits guilt, even if they did not commit the action (no actus reus or mens rea), because of contingent support (instrumental pull factors) such as offers of better treatment, or threats of further action (coerced push factors) such as more serious charges (Goldson’s (1999) ‘perverse incentive’ to admit guilt). Cognitive dissonance results and verbally accepted responsibility is disingenuous, compromising justice (and potentially engagement with interventions, especially when these are offence-focused), fracturing notions of guilt and responsibility. Pressuring a child to admit guilt (coerced or instrumental, even when this was unintentional) might cause compliance out of fear or questioning of their own innocence (Redlich and Goodman, 2003).

An additional danger to this is that children might internalise a sense of fault or blameworthiness (Stuewig et al., 2015) following formal attribution of guilt, as well as a sense that the ‘powers that be’ are not interested in whether they are actually guilty or not. This is potentially deleterious to their sense of self while further disconnecting ‘guilt’ from their developing understanding and sense of moral judgement, possibly undermining moral development.

Denial of guilt

Similarly, problematic issues surround a child’s decision to deny guilt. For instance, variations between ethnicities in willingness of children to admit formal guilt give a prima facie case for questioning routinised approaches grounded in supposedly value-neutral principles of ‘due process’ to the ascription of ‘guilt’ and responsibility (Hunter, 2019). Failing to take account of this potentially perpetuates persistent disproportional treatment of certain ethnic groups within the YJS and over-criminalisation of ethnic minorities (Lammy, 2017).

Valid denial of guilt

A child denies guilt because they have not committed the offence (no actus reus or mens rea), so cognitive congruence is maintained, but miscarriage of justice remains possible if coerced or instrumental admission is pursued (Harwood, 2021), or guilt is ‘proved’ in court, the psychological consequences of which are explored by Brooks and Greenberg (2021). The inherent system power imbalances privilege existent adult-centric definitions of innocence and guilt, irrespective of the perceptions of those affected (O’Connor, 2010).

Denial of responsibility/partial denial of guilt

A child denies guilt because they feel limited or no responsibility, despite having actually committed the act (actus reus). Lack of internalised responsibility could be associated with limited capacity to anticipate consequences, raising again the importance of a developmentally-appropriate construction of ‘guilt’ for children (Lamb and Sim, 2013). As previously mentioned, children are sometimes constrained or coerced into committing offences – they understand what they are doing but fear consequences of not complying. System responses could therefore be compromised, with predictable adverse impacts on engagement with formal interventions. Here, participation in the act itself still brings risk of prosecution and conviction (albeit with mitigation in sentencing available) in the face of evidence proving actus reus with no reference to the impact of constraining factors (e.g. coercion, pressure). Therefore, the child maintains cognitive congruence in not accepting responsibility, because their (sense of their own) culpability is reduced by coercion/pressure, which may have driven them to commit the offence.

Invalid denial of guilt

A child denies guilt even though, internally, they understand and accept that they are guilty (actus reus and mens rea). A child in this position may be trying to evade punishment for something for which they understand themselves ‘responsible’ (playing the game). Children may also believe (with some justification; e.g. Lammy, 2017) that the justice system is unfairly loaded against them. In this case, denial may be tactical – responsibility is accepted internally but denied externally, so a subsequent finding of guilt and formal disposal may be sufficient to reset the child’s relationship with the justice system.

Here also, advice from lawyers to make ‘no comment’ in police interview (again for tactical reasons, but this time, adult-led) might also cause cognitive dissonance, if the child wanted to talk about what happened. However, as with the other forms of denial, prosecution and conviction may still confirm for the child and others that ‘guilt’ and ‘responsibility’ are constructed and negotiable rather than fixed or definitive. Here, ‘game theory’ (Tsebelis, 1990) might be an appropriate lens through which to view intervention and engagement with children than formal attributions of guilt and responsibility, which are nonetheless contingent, negotiable and contextually determined (Ferguson and Stegg, 1998).

This typology explores some of the complexities surrounding children’s admissions and denials of guilt, especially in relation to demonstrably adult-centric legal concepts of actus reus and mens rea. Children might admit guilt and relate this to a sense of responsibility for the offence (and associated feelings of shame/remorse), but equally they might admit guilt, tactically or under a sense of obligation, while feeling cognitive dissonance between this, the act itself and their own feelings of culpability, possibly encouraged by the carrot of supportive intervention or the stick of more serious sanctions (Helm, 2021b). Similarly, they may deny guilt despite feeling internal responsibility, but this denial could indicate that while evidence points to guilty action, they feel no responsibility or are ambivalent about its extent (Ferguson and Stegg, 1998).

Drivers of professions or denial of guilt

Whether a child admits guilt or not does not simply concern whether they have committed a crime but encompasses several influential factors. We have demonstrated how maturation, experience and developmental considerations all affect children’s understanding of their actions (Smith, 2010). However, system processes can also induce children (by threat or persuasion) to admit guilt (Helm, 2021b), especially given the enormous power imbalances at play between children and adult actors, with other factors such as institutional discrimination equally impacting on a child’s willingness to trust in a fair outcome.

The centralisation of ‘guilt’ within youth justice – development of coercive or manipulative practices

It is important, given concerns with the legitimacy surrounding definitions of guilt and a child’s admittance of it, to appreciate how significant this apparently small step has become within youth justice processes in England and Wales. The current YJS was established through the Crime and Disorder Act 1998, with the Youth Justice Board (YJB) providing managerialist oversight of sector performance and multi-agency Youth Offending Teams (YOTs) working directly with children. Crucially, this system animated its strategies through risk-based language (risk of offending/reoffending; risk of causing serious harm); a deliberate departure from previous historical welfare and justice oscillations (see Case, 2018; Hazel, 2008). Significantly, this emphasis towards determining future risk had implications both for the framing of ‘guilt’ and the work this concept now had to do. ‘Guilt’ (for a past action) became a formal signifier of future risk, with admissions pivotal in ‘targeting’ responses to children at all points of the system – ranging through arrest, diversion, sentencing, custody and even post-release resettlement – particularly in shaping assessment, relationship-building and intervention planning and implementation (Case and Hampson, 2019). Used in this way, current adult-centric conceptions of ‘guilt’ became objectified and deterministic, operating consistently and uniformly, with regularised measurement and a supposedly precise, calibrated response.

The ‘new youth justice’ guilt-dependent escalator

The Crime and Disorder Act 1998 and subsequent Youth Justice and Criminal Evidence Act 1999 established a complex escalatory system of pre-court and court disposals, all dependent on admissions of guilt.⁷ In court, a guilty plea made possible a lower tariff and supposedly ‘restorative’ Referral Order (YOT-administered community order). Ironically, as our typology and much available evidence suggest, this does not accord with the often-complex process for children at various stages of development of negotiating and making sense of ‘guilt’ (Helm, 2021a; Redlich and Goodman, 2003). Where they do not accept sole or exclusive responsibility for a dispute with the offence victim, attributing guilt one-sidedly to them may complicate ‘emotional dynamics’ and obstruct rather than facilitate a restorative process (Rodogno, 2008).

For children convicted after pleading not guilty after 1998, a ‘Supervision Order’ was likely (later replaced by the Youth Rehabilitation Order),⁸ creating the additional future hazard of a criminal record. Children not admitting guilt even for low-level offences (probably otherwise attracting a Reprimand or Final Warning) could be taken to court, offering clear incentive to admit guilt, regardless of their perception of this (see Helm, 2021a/b). Importantly, however, this apparent incentive did not encourage black children as much as their white counterparts (Bateman et al., 2023; Cushing, 2014; Ofori et al., 2022). Underlying distrust of the YJS among this group still appears to precipitate more frequent refusals to acknowledge guilt; closing off some potential advantages of admittance, like reduced sentencing, while exacerbating ethnicity-related disproportionality (Bateman, 2020).

Restorative diversion or restoring diversion? The centrality of ‘guilt’ within diversion

In the nearly two decades since 2008, the abolition of the ‘offences brought to justice’ policing target has catalysed a range of diversionary-restorative schemes, favouring more flexible Community Resolutions, Youth Cautions and Youth Conditional Cautions (Legal Aid, Sentencing and Punishment of Offenders Act [LASPO], 2012). This heralded a decade-plus trajectory of successful ‘diversion’, with consistent and significant reductions in proven offences by children (down 78%), arrests of children (down 78%), formal pre-court disposals (down 91%), first-time entrants into the formal YJS (down 81%), community sentences (down 76%) and use of custody (down 73%) (Ministry of Justice, 2022).

However, to access diversionary outcomes outlined above a child must first accept guilt⁹; although it is unclear how well informed they are of their rights and the implications of such admissions (Kemp et al., 2011), which should be clear and unequivocal. The mushrooming of different situations in which children are being asked to admit guilt to unlock pre-court action (avoiding more serious action, or to access promised support; Helm, 2021a) raises serious questions about protection of children’s best interests, according to internationally agreed standards (Liefaard, 2016).

This was exemplified by the Youth Restorative Disposal (YRD) which provided a new, discretionary diversionary-restorative pre-court option for the police to address children’s low-level offending. The disposal avoids ‘official’ escalating action but requires (and thus rewards) admittance of guilt and led to the development of Triage (England) and Bureau (Wales). Triage, situated within police station custody suites, facilitates negotiations between YOT workers and police officers regarding arrested children who admit guilt. Outcomes could include diversion (from the system), restorative activities (e.g. letter of apology), ‘supportive interventions’, or at the higher end, expedited court (not diversionary) for children assessed as more serious and/or prolific offenders. Evaluation was ambivalent about improved outcomes, beyond reduction in first-time entrants (mirroring wider reductions), and positive police engagement (Institute for Criminal Policy Research, 2012).

The Bureau model focuses on diverting children into non-criminalising interventions, offering ‘Child First’ responses to offending including promoting positive behaviours and outcomes, legitimacy (fair, moral, just treatment) and responsibilising adults (not children) for securing children’s access to services, universal entitlements and rights (Haines and Case, 2015). Importantly however, like Triage, it still requires children to admit guilt; albeit while prioritising their needs and rights.

These examples highlight a wider problem for interventions grounded within an adversarial justice system, whatever their intended outcomes – namely, the strict equation between ‘guilt’ (formal recorded acceptance of full responsibility) and system response, predicated on assumptions about future risk as well as culpability, in comparison to the more nuanced picture represented by our typology. In the context of diversion, issues associated with ‘invalid admissions of guilt’ are significant (Bateman et al., 2023; McAra and McVie, 2007).

Importantly some recent developments appear to have acknowledged difficulties with support contingent on guilty admissions, with evidence of adoption of ‘Outcome 22’ responses in some areas, where referrals for voluntary YOT support are made (NPCC, 2019). Crucially, Outcome 22 needs no admission of guilt, but does trigger an entry onto the Police National Computer (PNC) (so will still feature in enhanced criminal records checks), with attendant risks of implicit criminalisation, even in the absence of an admission. However, its use so far appears somewhat problematic, with concerns that some police officers erroneously thinking offence admission to be a necessary pre-cursor (HMICFRS, 2023), and some police areas declining to adopt it, possibly because it currently constitutes a negative outcome for police as a non-detection (YJB, 2022). There are also concerns that already-problematic ethnic disproportionalities are being exacerbated by its discretionary use (Keenan, 2022).

Restoration and responsibilisation – the centrality of guilt within restorative justice

Although restorative justice (RJ) has been widely operationalised in youth justice, it suffers from reliance on admissions of guilt (Daly, 2016), as children are expected to ‘take responsibility’ for their actions and to repair any harm caused (e.g. to the victim, their family, society). RJ affords an ostensibly more positive value-base than adversarial legal processes, assisting children with contextual appreciation of the effects of their behaviour, mending relationships and improving future decision-making (Braithwaite, 2002). However, awareness of harm may not actually be instrumental in changing children’s behaviour (Stuewig et al., 2015), particularly if it bears little relationship to why they offended in the first place (Gray et al., 2021); or if their own assessment of the extent of their responsibility has not been considered.

Importantly for children, awareness of harm may instil damaging feelings of shame as distinct from guilt (Maxwell and Morris, 2002), with rather different implications for self-image and future behaviour (Stuewig et al., 2015).¹⁰ This might be especially true for children who have experienced disruption, trauma and adverse childhood experiences, common for justice-involved children (Gray et al., 2021; Stuewig and McCloskey, 2005). This highlights other potential concerns such as RJ’s lack of focus on systemic causes for children’s behaviour (McAlister and Carr, 2014) or difficulties emotionally immature children might encounter within highly charged environments (e.g. meeting victims) (Suzuki and Wood, 2018).

RJ represents a context for ‘partial’ acceptance of guilt, according to our typology, requiring negotiation and mutual engagement. Even if RJ is thought appropriate, unlocking it through induced or coerced admissions of guilt is likely to be only partially understood or ‘owned’ by a child (Helm, 2021a) and may well be qualified or rejected from their subjective viewpoint (as unfair, involuntary, insincere, uninformed or instrumental).

Safeguarding and constructions of ‘guilt’

Of course, confessions by vulnerable suspects have been subject to much debate, for whom the Police and Criminal Evidence Act 1984 (PACE) provided protections, like the right to free legal advice, and the presence of an ‘appropriate adult’ for children and vulnerable adults during police interviews. This is particularly relevant to children, after the infamous wrongful conviction based on false confessions of three teenagers for the murder of Maxwell/Michelle Confait in 1972, the youngest of whom was just 14 (Fisher, 1977). However, children seem uniquely likely to have those very safeguards breached (Kassin, 2014). Regardless of positive intent, applying diversionary responses contingent on admissions of guilt could (unwittingly or not) also be problematic in side-stepping due process and PACE safeguards.

Rather than arrest, children are increasingly offered voluntary interviews (Pierpoint, 2020), assisting ‘Child-Centred Policing’ (NPCC, 2015), but casual language could tempt children into waiving their rights (such as independent legal advice), thus becoming in effect (if not intention), a form of deception. Voluntary interviews are meant to carry the same safeguards as interviews under arrest (free legal advice, cautioning, appropriate adult), the only difference being the ability to leave the interview at will. Voluntary interviewees must be informed of their rights and give consent, but threat of arrest can be coercive (Pierpoint, 2020). Voluntary interviews can take place in the child’s home or other informal setting, causing further confusion (Pierpoint, 2020), leading to children not recognising a potential need for legal representation/advice (Pierpoint, 2020; YJLC, 2017). Indeed, Kemp and Hodgson (2016) found that some police claimed that free legal representation was only available on arrest, denying legal support for those voluntarily interviewed.

The presence of appropriate adults whenever children are interviewed should secure their rights and defend against coercion or inducement, with a duty on YOTs¹¹ to provide personnel (staff/trained volunteers) for children without appropriate family members available. However, this may only apply from police interview stage, where in reality support should be available from pre-arrest to release (Bevan, 2024). As appropriate adults are usually family members, they lack training around children’s rights, making them poorly equipped to fulfil the role (Coombs, 2018). Children are less likely to request legal advice with a familial than professional appropriate adult (Kemp and Hodgson, 2016), while interview room posters sometimes implied a cost (Kemp et al., 2011). Younger children seem generally less likely than adults (or older children) to request legal advice (Kemp et al., 2011), especially if it is implied that this will make the process longer (Kemp and Carr, 2023).

Professional appropriate adults usually insist on legal representation, because the police are only obliged to ensure that children are aware of this right (Kilkelly and Forde, 2020). However, a child’s ability to exercise these rights (especially with a familial appropriate adult, with no training) in the emotionally overwhelming context of arrest and detention, is severely diminished (Bevan, 2024). Police will try to explain rights in child-appropriate language, but while children may say that they understand, they may still be unable to articulate what was said (admitting this to researchers, rather than the police) (Kemp and Carr, 2023). Kemp and Carr (2023) found increasing take-up of legal advice by children, possibly due to falling numbers of arrests (commensurate with the employment of alternatives). However, concerns remain over the quality of this legal work, centring around in/appropriate communication with children, lack of specific training and lesser kudos attached to child representation (Pierpoint, 2006; Wigzell et al., 2015).

Complexities around children’s understanding of what it means to admit guilt (when coerced or influenced by those in control of the processes – the adults) and meeting conditions for an admission to be truly valid (Helm, 2021a/b) are easily lost in the absence of trained appropriate adults and effective legal representatives (Pierpoint, 2006).

The effects of admissions of guilt on criminal records (disclosure)

Of further concern is the effect of guilty admissions on criminal records (Sands et al., 2018). Children convicted in court gain (or add to) a criminal record, which could damage future opportunities by way of criminal records disclosure, with little concession for age (Helm, 2021a). It is unclear how much guidance children are given to understand these more future-focused consequences (ironically, despite the future-oriented nature of risk calculations embedded in the justice process) with even legal advisors sometimes adding pressure to admit guilt regardless (Wigzell et al., 2015).

The adverse effect of criminal records for children has been used as an argument against their criminalisation for years (see Case, 2018; Sands et al., 2018). Criminal records can become ‘spent’ after a specified time, depending on offence and disposal (Rehabilitation of Offenders Act 1974, updated by LASPO, 2012), but when applying for employment in certain sectors (e.g., the National Health Service), applicants require enhanced Disclosure and Barring Service (DBS) checks which disclose all convictions.¹² Only basic checks exclude spent convictions and other PNC information, underlining the punitive effects of the approach adopted in England and Wales, when compared with other countries with no facility for expunging records when children turn 18 (Carr, 2019). There are therefore serious consequences to consider before accepting guilt (Helm, 2021a) even when informal disposals are on offer, and even if admission is made more attractive by short-term incentives like being able to go home earlier (Waxman, 2020).

However, these concerns extend to any contact between police and children, including informal actions such as Community Resolutions (which require an admission of guilt) (see McAra and McVie, 2007), and PNC-recorded allegations, which inform enhanced DBS checks at ‘police discretion’ (Beard, 2019: 8). Information disclosed can be included if it ‘might be true’ (Beard, 2019: 9). Individuals can apply for record deletion, but children are unlikely to be aware of this. This indicates clear concern about children speaking informally to police without independent advice, where potential outcomes of guilty admissions may be far-reaching and disproportionate, but impossible for a child to appreciate.

‘Child First’ justice and its implications for conceptualising guilt

The YJB has recently changed its overarching youth justice rationale in England and Wales (YJB, 2021); moving away from previous responsibilising, adultifying and interventionist neo-liberal/correctionalist agendas (Goldson, 2014), now stating that ‘all of our work will be guided by a Child First, offender second principle’ (YJB, 2021: 3). This is consolidated through Child First-focused National Standards (the framework for effective practice, quality assurance, innovation and inspection; YJB, 2019) and case management guidance (YJB, 2022). ‘Child First’ is defined in terms of: prioritising children’s best interests, recognising their needs, capacities, rights and potential; promoting children’s individual strengths and capacities in order to develop their pro-social identity for sustainable desistance; encouraging children’s active participation, engagement and wider social inclusion; and promoting a childhood removed from the justice system, using pre-emptive prevention, diversion and minimal intervention (see Hazel et al., 2017; Case and Browning, 2021; YJB, 2021). However, these laudable aims will only be successful if not compromised by the application of adult-centric constructions of guilt which do not recognise complexities and ambiguities in children’s choices and behaviour; as well as their distinctive qualities, characteristics and vulnerabilities.

We suggest that currently absent from strategic/policy interpretations of ‘Child First’ justice is recognition or acceptance of the individualised and de-contextualised responsibilisation of children within youth justice processes, despite the socially structured and developmental nature of childhood itself. Some behaviours can only be viewed, understood and responded to as aspects of the maturation process (Lamb and Sim, 2013). Arguments regarding children’s relative immaturity and irresponsibility inform much of the debate around the MACR and suggest that current ‘Child First’ practice may not be sufficiently child-friendly, when adult-centric legal definitions of guilt still predominate. The system cannot be truly ‘Child First’ while it operates within a fundamentally responsibilising framework, inducing children to acknowledge responsibility, leading to confused and contradictory outcomes relating to legitimacy, child-appropriateness, risk and blame-based interventions (Helm, 2021a). Applying current adult-centric conceptions of guilt to children lacks legitimacy, especially if children do not perceive the process as fair or sensitive to their own understanding of responsibility and ‘guilt’. Youth justice responses effectively compromise children’s engagement from the outset because current adult-centric definitions of guilt are insufficiently nuanced and fail to the extent that they accept children’s admissions simply at face value.

Conclusion

There runs, throughout the YJS in England and Wales, the assumption that adult-centric definitions of guilt (incorporating what the ‘reasonable’ person (adult) might understand about recklessness and consequences of actions) apply to children (particularly perverse given the unfeasibly low MACR). It is also assumed that children have a perfect understanding of what ‘guilt’ means; and can make informed decisions on this basis, notwithstanding far-reaching consequences. Our typology mapped out a diversity of children’s potential understandings of ‘guilt’, which do not accord with a highly dichotomised judicial process, whereby outcomes, interventions and ‘labels’ depend on crude binary distinctions. While the YJS is attempting to move away from responsibilising processes, this has not led to its questioning the continuing application of adult-centric notions of ‘guilt’.

Compounding this, a system requiring admissions of guilt to facilitate support creates further difficulties. Speaking guilt while feeling innocence/ambivalence creates cognitive dissonance which likely leads to ‘disengagement’ from resultant interventions. This disengagement may militate against desistance from offending, quite apart from the widely acknowledged criminalising effects of system contact (Liberman et al., 2014; McAra and McVie, 2007). Absence of adequate explanation, legal advice and trained appropriate adults all contribute to a failure to either protect, or promote a properly responsive approach to children’s behaviour viewed as problematic. Systemic push factors can encourage admissions of guilt to avoid deeper system contact in the short term (Padfield et al., 2012), with acceptance of cautions or Community Resolutions incentivised by police to avoid criminal conviction, or offers of support made contingent on admittance. All of this can detrimentally affect children through the negative effects of system contact over the longer term and may, of itself, be criminogenic, especially if the child feels compromised or ‘cornered’.

Children have a separate YJS due to their age and ‘evolving capacities’, with more lenient sentencing guidelines, advocates who are at least able to present arguments based on doli incapax principles and an emphasis on diversion from formal systems. However, there is no correspondingly appropriate child-centric definition of guilt to acknowledge their reduced ability to foresee consequences to actions. Children’s lack of understanding and their vulnerability, while ostensibly allowed for by official policies and procedures, are compromised through the requirement for them to take full adult responsibility for accepting their own culpability (guilt) for a criminal offence. Until perverse incentives are removed, and attention is paid to more nuanced meanings of guilt, grounded in a child-centric definition and with associated child-centric procedures, in accordance with our typology, Child First youth justice in England and Wales will not be able to achieve its full progressive potential.

Footnotes

Funding

The author(s) received no financial support for the research, authorship, and/or publication of this article.

ORCID iDs

Kathy Hampson

Stephen Case

Roger Smith

Rosemary Toll

Notes

Author biographies

Kathy Hampson is Senior Lecturer in Criminology at Aberystwyth University. Her research and publications focuses on youth justice systems, ‘Child First’ justice, and child-friendly approaches to working with justice-involved children.

Stephen Case is Professor of Youth Justice at Loughborough University, UK. His research and scholarship focus on the promotion of positive, ‘child first’, rights-based and anti-risk management approaches to working with children in conflict with the law.

Roger Smith is emeritus Professor of Social Work from Durham University, and a former youth justice practitioner and social policy lead for a national children’s organisation.

Rosemary Toll is a Lecturer in Commercial Law at Aberystwyth University. Her research focuses on intellectual property and creative industries. As a member of the Bar of England and Wales, she coordinates mooting activities at Aberystwyth, where she guides students on various matters relating to criminal and civil justice.

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