The Witness Was 11. The Defence Asked the Question. The Judge Relied on a Deposition Instead.

I went back into the Lough Mask trial transcript looking at something else entirely. And then I hit this.

Martin Kerrigan was 11 years old. His testimony implicated Michael Flynn, Thomas Higgins and Patrick Higgins in a case where three men were facing the death penalty.

Before Martin was sworn, defence counsel Richard Adams asked: “Before this little boy is sworn, he ought to be asked if he understands the nature of an oath?” Justice O’Brien asked whether Martin had previously made a deposition. He was told yes. His response? “Then I will receive his evidence on that ground alone.” And Martin was sworn.

That sent me down another rabbit hole. Under the common law at the time, a child’s competency to give sworn evidence depended on the child’s understanding of the nature and consequences of an oath. The surviving transcript records no examination of Martin’s understanding.

But then I wanted to see the deposition O’Brien had just relied on. And that’s where this gets even more interesting.

Martin’s deposition was taken at Galway Jail on October 14, 1882. He spoke Irish and was examined last, after his father, mother and older brother. In that deposition, Martin said: “I heard shots. I was then in the house and went out to the door.” He then described seeing “the two dead bodies lying on the boreen.”

But at the Dublin trial, Martin gave a materially different account. He testified that he was outside and witnessed Patrick Higgins strike the elder Huddy with a stone, along with events surrounding the killing. The defence confronted him with the difference. And Justice O’Brien later acknowledged it too.

In his charge to the jury, O’Brien suggested that because Martin had been examined last, perhaps the person taking his deposition had recorded only the substance of his evidence rather than the whole account. But Resident Magistrate Andrew Newton Brady testified that he took the Kerrigan depositions. And so far, I have not found Brady saying that he shortened Martin’s account for that reason.

That leaves me with one hell of a question.

The previous deposition was the very reason O’Brien gave for receiving this 11-year-old child’s sworn evidence without the competency examination the defence had requested. Yet that deposition contained a materially different account from the testimony Martin ultimately gave to the jury.

Three men were facing death. We cannot know what was going on in the mind of that 11-year-old boy, what he truly saw, what he understood or what he was carrying into that courtroom. But the contradictions in the surviving record? Those we can examine.

And if Ireland’s 2026 policy prevents credible surviving evidence from even being examined simply because a conviction happened before 1922, what are we supposed to do with evidence like this? Ignore it because it’s old?

That’s exactly how evidence gets silenced.

And hey, who am I? I’m just a mother of three asking questions.

Research & Analysis: Erin Flynn
Founder & Principal Researcher
The Pre-1922 Justice Project

Oireachtas Committee Ref: R2026 0192
Department of Justice Ref: DJE-MO-09081-2026