#5814 - Defences Infancy - Irish Criminal Law

Infancy

Children's Act 2001, (as amended)

s. 52 (1) A child under twelve can not be charged with an offence except:

• A child of of 10 or 11 can be charged with murder, manslaughter, rape, rape under s.4 or aggravated sexual assault.

• The Doli Incapax rebuttable presumption formerly applied to children 7-14 is abolished

• DPP's consent required to take further criminal proceedings against a child under fourteen.

s.53 Where a garda has reasonable grounds to believe that a child under 12 is committing what would otherwise be an offence they must endeavour to take the child to their parent or guardian. Where the child is not receiving adequate care or protection, the HSE must be contacted and the provisions of the Children's Act 1991, must be applied.

s.54 Anyone who aids, abetts, counsels or procures a child under 14 in relation to what would otherwise be an offence shall be guilty of that offence.

s.76C Allows a court to dismiss a case against a child under 14 where 'having had due regard to the child's age and level of maturity, it determines that the child did not have a full understanding of what was involved in the commission of the offence.

C v DPP (HoL 1995)

Facts

• The accused, aged 12, was found by a police officer interfering with a motor cycle using a crowbar and ran off.

• He was caught and charged with interfering with a motor vehicle with intention to commit theft.

• He raised the defence of doli incapax and the Divisional Court found that the presumption was outdated and no longer applied.

Issue

• Doli incapax

Judgment

• Lord Jauncey of Tullichettle (concurring)

• The current rule is absurd but its reform lies within the responsibility of Parliament rather than the courts.

• Lord Bridge of Harwich (concurring)

• Lord Ackner (concurring)

• Lord Lowry (concurring)

• The presumption that a child between 10 and 14 was doli incapax was still part of English law and required that the prosecution bring evidence to prove beyond reasonable doubt that the child knew that he was performing a wrong act, as opposed to an act of mere naughtiness or childish mischief.

• The 'knowledge of wrong' is inappropriate in modern conditions, where failure to prove knowledge of wrong doesn't save a child from punishment, but rather help.

• However, in light of the continued recognition by Government committees of the doctrine it should not be swept away by judicial legislation.

• Lord Browne-Wilkinson (concurring)

V v United Kingdom (EctHR 1999)

Facts

• The applicants, infants, had been convicted in England of the murder of a two year old boy.

• They had been tried in a court as adults.

Issue

• Infancy – Trial as an Adult – Right to a fair trial

Judgment

• Article 6 of the Convention protects the right of the accused to participate fully in his trial.

• A child charged with an offence must be dealt with in a manner that takes full account of his A) age, B) level of maturity and C) intellectual and emotional capacities and in addition steps must be taken to promote his ability to understand and participate in the proceedings.

• It follows that in respect of a young child charged with a serious offence which has raised huge media interest, it is necessary to conduct the hearing so as to minimise his or her feelings of intimidation and inhibition – this can be balance with the interest of the community in a fair trial through selected attendance rights and judicious reporting.

• The formality and ritual of the court impacted on the right of the child to have the trial conducted in a way that minimised such discomfort.

• In light of the psychological trauma caused to the child by his experiences in court, he could not be said to have been afforded an adequate opportunity to partake in his trial.

Monagle v Donegal County Council (HC 1961)

Facts

• The applicants brought proceedings for the loss of property arising out of a fire caused out of the malicious actions of an eight year old boy.

Issue

• Infancy – Doli Incapax

Judgment (Murnaghan J)

• The onus in on the applicant to show that if the damage was caused by children, that such children were not doli incapx, either because they were over fourteen or between seven and fourteen and appreciated the consequences of...