12-year-old on trial for murder: In the early 1970s, a debate ensued over the fact that a child aged between seven and 14 could be convicted of a crime, writes Alison Healy.
The trial of a 12-year-old-boy for the murder of his father was the subject of much controversy in 1969 and the early 1970s, according to files in the National Archives.
The judge directed the jury to acquit the boy of the murder of William Kilpatrick (41), from Inver, Co Donegal, following legal argument. The farmer was found shot dead outside his house. The boy's 14-year-old brother was also returned for trial but a nolle prosequi was entered by the prosecution in the Central Criminal Court. The court heard that the boys had come to Donegal from England after their mother died.
A public debate ensued over the fact that a child aged between seven and 14 could be convicted of a crime. Only children under the age of seven were presumed to be incapable of forming a wrongful intent (doli incapax). The presumption still applied between the ages of seven to 14, but it could be rebutted by evidence that the child knew he was committing a crime.
The Minister for Justice at that time, Mr Michael Moran, told the Dáil there was some case for raising the lower limit of seven years. "I should have serious doubt as to whether it should be raised to the extent that a child of, say, 12 years, could never be guilty of a crime," he said.
A month later, one of Mr Moran's officials wrote to the secretary of the Department of Education on the issue. He said the Minister was considering raising the age limit from seven to 10, but he first wanted the views of the Minister for Education.
The files do not contain a response from the Department of Education, but they shows that Government Departments received many letters on the issue, including one from a Mr John O'Regan from Navan.
He said many people were "extremely disturbed" that children of seven could be sentenced for criminal offences. "Can you please give me some indication as to when we may expect this savage law to be repealed?" In 1972, the Bar Council set up a committee to look at the inadequacy of legal representation in the Children's Court. It found that children between seven and 15 were not getting the benefit of doli incapax. The Bar Council's memo to the then Minister for Justice, Mr Desmond O'Malley, called for "far-reaching changes" for young people who came before the Law.
Most children were not receiving free legal aid, and did not even know that it was available as the notice informing them of their rights was hidden behind the court door.
The Bar Council called for an increase of the age of criminal responsibility to 12.
Thirty-two years later, the age of criminal responsibility is still seven. The Children's Act 2001 contains a provision to increase the age to 12, but a spokeswoman for the Department of Justice said this had not been implemented, and there were no plans to commence that section of the Act.
"The Minister has previously discussed this issue with Minister of State Brian Lenihan, who has responsibility for children, and they've agreed to review the provision as they have serious doubts about it as it currently stands," the spokeswoman said.