Scottish Youth Justice and the Legacy of Kilbrandon: a provocation paper

Abstract

First paragraph: Although consolidated under the same political union, the four nations of the United Kingdom take different legal approaches in response to youth offending. Scotland has, since the 1970s, followed a distinctly welfare-based approach through its unique tribunal system of children’s hearings: where decisions are made in the best interests of children who commit criminal offences.[i] The children’s hearings system (CHS) was established on the basis of the Kilbrandon Report[ii], which remains influential to its current operation. The Report determined that all children in need of compulsory state intervention, for whatever reason, should be subject to the same system and treated on the same welfare basis, in light of common adversities, circumstances and (unmet) needs. The wisdom of Kilbrandon in this regard has since been vindicated by a wealth of empirical evidence on the lived experience of children subject to state intervention, which confirms the links between adversity, vulnerability, and offending behaviour.[iii] Although the Kilbrandon Report has a lasting legacy in Scots law and policy, not all children enjoy similar treatment in practice. There are contradictions in approach towards some children, particularly those who offend. This provocation paper explores the uniquely Scottish approach to youth justice by reflecting on the legacy of Kilbrandon and highlighting inconsistencies towards the treatment of some children who come into contact with the Scottish youth justice system. It concludes by arguing that the identified contradictions could be resolved by raising the age of criminal responsibility to the cusp of adulthood.