Court-Martial

Table of Contents

Revised Courts Martial

The more serious disciplinary offences by members of the Defence Forces may be tried by court-martial. The commanding officer may remand an accused soldier for court-martial trial if the offence is triable only by court-martial if the accused elects for trial by court-martial in certain cases, or where it is triable summarily or by court-martial and the commanding officer or the superior authority does not consent to it being tried summarily.

The Defence (Amendment) Act 2007 made new and revised provisions for courts-martial. It establishes an independent court-martial administrator. The administrator is to be of a rank not below colonel or equivalent and is to be independent in the performance of his duties.

The administrator is to manage and control generally the administration and business of court-martial, including convening general or court-martial, referring matters for trial by the summary court-martial and selecting members of court-martial boards. The court-martial administrators act under the general supervision of the judge advocate general.

Director of Military Prosecutions

The Director of Military Prosecutions is an independent military prosecution authority which is established under the 2007 A=act. It decides all issues relating to the prosecution of offence before a court-martial. The Director is to be a barrister or solicitor of 10 years standing and an officer of the Defence Forces. He is not to be below the rank of colonel or equivalent in another service.

There are provisions for a committee to recommend the appointment of the Director. The Director is independent in his functions. He may consult with the Attorney General and DPP.

There is a provision for appointment by the Director of prosecuting officers. They must be barristers or solicitors and may exercise the function of the directors as authorised. The Director is responsible for all prosecutions of court-martial. The director has powers similar to those applicable to the DPP in respect of offences triable before the civil court.

Military Judge

There is to be an independent military judge office consisting of one or more military judges. Their role is similar to that of a civilian judge. The judge is appointed by the President on the recommendation of a Minister of an officer of the Defence Forces who is practising barrister or solicitor of 10 years standing to be a military judge.

There are provisions for appointment to the office. The judge is to be independent in the performance of his functions and must not hold other any other paid officer employment.

The Defence Amendment Act 2011 amended and updated the Defence Acts by providing for an expansion of the potential candidature for appointment to the post of military judge and the Director of Military Prosecutions to persons other than members of the Defence Forces and for the appointment of a Circuit Judge to perform the functions of the military judge where the military judge is not available for whatever reason.

Appointment

The Act also provided for an amendment to the powers of the Selection Committees established for the purposes of selecting a suitable and qualified candidate for appointment to the posts of Director of Military Prosecutions and military

The Committee established under section 184D of the Defence Act 1954 for the purposes of identifying candidates and informing the Minister of their suitability for appointment to the post of Director of Military Prosecutions, may determine a candidate’s qualification for the post. There is provision for an expansion of the potential candidature for appointment to the post of the Director of Military Prosecutions to persons other than officers of the Permanent Defence Force.

The Committee established under section 184K of the Defence Act 1954 for the purposes of identifying candidates and informing the Government of the suitability of those candidates for appointment to judicial office, may determine a candidate’s qualification for the post of military judge. There is an expansion of the potential candidature for appointment as a military judge to persons other than officers of the Permanent Defence Force.

The Minister for Defence, having consulted the Minister for Justice and Equality, may request the President of the Circuit Court to temporarily designate a Circuit Court Judge to perform the functions of a military judge under certain circumstances. This would include circumstances where:—

no person has been appointed as military judge;
a military judge appointed under the Principal Act is ill, absent or otherwise unable to carry out his or her functions; and
a military judge cannot properly deal with a matter before him or her.

The military judge presides over court-martials and performs other judicial functions as may be prescribed. There is a provision for the appointment of a chief military judge where there is more than one military judge. Where the court-martial appeals court reverses the finding of a court-martial, it may order a retrial.

Courts Marital

The Court-martial administrator convenes court-martial. Subject to the directions of the DMP to convene general and limited court-martial or to refer matters for trial by summary courts-martial.

A summary court-martial is established as a permanent court comprised of a military judge sitting alone. It has jurisdiction to deal with offences that the DMP consider should be dealt with by a court-martial with lower powers of punishment than a general or limited court-martial. It also hears appeals from some summary awards made by authorised or commanding officers and applications for legal aid.

The general court-martial consists of a military judge and a court-martial board equivalent to a jury who will be designate senior members similar to the foreman. The minimum number of members and ranks are specified.

A limited court-martial consists of a military judge and a court-martial board. Legislation prescribes the minimum ranks and the minimum number of members of limited court-martial boards. Non-commissioned officers may be members of the board.

Certain persons are ineligible to serve on a court-martial board, including members of the military police force, barristers, solicitors and members of the same military chain of command as the accused.

Summary Courts Martial

The summary court-martial may deal with appeals against summary awards and trial of certain offences for all unlisted ranks and certain commissioned ranks. Specified serious offences are excluded and the maximum term of imprisonment is six months.

A summary court-martial shall not have jurisdiction—

to try any person who is for the time being an officer holding the army rank of lieutenant colonel or the equivalent naval rank or higher commissioned rank,
to try any person for a relevant offence,
to award to any person any sentence greater than imprisonment for a term of six months or
in the case of an appeal, to award any punishment greater than that awardable on summary disposal of the matter.

The limited court-martial jurisdiction was amended in 2007, so the trial of non-commissioned officers in the rank of battalion, quartermaster, sergeant and higher non-commissioned rank are excluded from its remit. Specified serious offences are excluded from its jurisdiction. The pre-existing law for limited court-martial is permitted to deal with manslaughter, rape and sexual assault if the offence is committed by a person in active service or dispatched overseas. These were now excluded.

A limited court-martial shall not have jurisdiction—

to try any person for any offence against military law committed by the person while subject to military law as an officer,
to try any person who is, for the time being, an officer or a man of the army rank of battalion quarter-master sergeant or the equivalent naval rank or of any higher non-commissioned rank,
to try any person for a relevant offence or
to award to any person any sentence greater than imprisonment for a term of two years.

General Courts Martial

The general court-martial has jurisdiction in relation to rape and aggravated sexual assault even where the offence is not committed by a person in active service or dispatch from military service overseas. It may deal with the offence where the offence was committed by a person subject to military law who was neither on active service nor despatched for service outside the State when the offence was committed.

A general court-martial may try any person subject to military law on a charge of having committed that offence where—

The person in respect of whom the offence was committed is, or was when the offence was committed, subject to military law, and has consented in writing to the trial of the offence by court-martial, and
the Director of Public Prosecutions has given his prior consent.,

Publicity

The military judge can prohibit publication and impose restrictions on the publication of information considered to be sensitive. It is intended to permit bona fide members of the press to be present during trials.

There are provisions as to who may be present at trials for offences of a sexual nature. Notwithstanding restrictions or findings, some sentences are announced in public. Persons may be excluded from trial at the discretion of the judge in the case of offences of a sexual nature.The judge is not to be present during deliberations of the court martial board.

The accused can object to members of the court-martial board and the military judge decides whether or not to allow the objections.

Procedure

All corrections and questions on questions of law practice and procedure relating to the charge or trial are decided by the military judge. This changed the pre-existing position whereby the board decides matters on the advice of the judge.

The accused may cross-examine the witnesses, and the questions and answers are added to the summary. The evidence is read back to the witness and signed. No Counsel or representative is allowed to appear for the accused or the prosecution at the taking of the summary.

Once all the evidence is taken, the accused may make an unsworn statement or give evidence. A caution that evidence may be used against him is given. Failure to administer the caution makes the evidence inadmissible.

The accused may call and examine witnesses in his defence, and their sworn statement is taken down. The officer making the summary may put questions as deemed necessary to investigate the facts, but he may not cross-examine.

Witnesses cannot be compelled to attend, or it is impractical for them to attend, and the officer taking the summary so certifies a written statement by him purporting to be his evidence signed by him may suffice. If the person can be compelled to attend. The accused may demand that he attend for cross-examination. A summons is served, requiring him to attend.

Capacity

The military judge may decide whether a person is fit to stand trial. The Criminal Law (Insanity) Act 2006 provisions are reflected in military law. The summary court-martial or court-martial board decides questions of fact, including whether the person is not guilty by reason of insanity. The military judge determines whether the person is in need of inpatient care or treatment in a designated centre.

There is an appeal to the court-martial appeal court against findings by a court-martial in relation to mental disorder or being unfit to stand trial. There is an appeal by the defence or prosecution against a decision of a court-martial to make an order of committal of a person under the above provisions.

Victim Impact

There is provision for a victim impact statement in offences of a sexual or violent nature. They are to be heard and taken into account.

The definition of contempt to court-martial is extended. There is provision for a fine on summary convictions for the offence. There are provisions of prosecutions subject to the consent to the DPP.

Sanctions

The legislation updates for persons subject to military law, fines and punishments. It provides newer form of punishment that can be ordered directly by a military judge as an alternative to the offender being tried for contempt of court-martial.

The punishments which can be imposed by court-martial for offences against military law are amended. The scale of offences for persons sentenced as officers has been updated. There is provision for a reduction of pay increasing with a maximum fine to 14 days’ pay.

The earlier mandatory requirement in a court-martial to sentence an officer to dismissal has been limited to situations where imprisonment exceeds six months. An officer awarded imprisonment for less than six months may be sentenced to dismissal with disgrace or to dismissal or reduced in rank to a lower commissioned rank.

Where a court-martial reduces an officer to a lower rank, it may determine the point and scale of pay for the lower rank and decide the seniority of the rank of the reduced officer.

The scale of punishments applicable to non-officers has been revised, broadly reflecting the above. There is a provision for discharge with disgrace in the case of offences with sentences of more than six months. There is a provision for a demotion and reduction in pay scale.

Custodial Sentences

A person may not be sentenced to imprisonment, dismissal or discharge if they did not have legal representation at some time after the finding of guilt and prior to sentence.

There is provision for suspension of custodial sentences other than where mandatory terms apply. The suspension may apply both to officers and men. A person in respect of whom a suspension order is made must keep the peace and be of good behaviour for the period of suspension.

If he is convicted of another offence in the period, he must be remanded to appear before a court-martial of the same class. If he is convicted of another offence and awarded a custodial sentence, the custodial sentence will not commence until the expiration of the suspended term of imprisonment.

Where it is believed the person is about to contravene a condition of suspension, he must refer the matter to the Director of Military Processions. The Director can require the person to appear before a court-martial of the same class with a view to varying or revoking the suspension.

In certain cases, the DMP may appeal leniency of the sentence to the court-martial’s appeal court.

Compensation

There is provision for a compensation order. It is broadened to that in the pre-existing legislation to include personal injury, private loss and damage. The financial limits are as follows:

Summary court-martial €10,000
Limited court-martial €20,000
General court-martial €100,000

The military judge is to have regard to a person’s means in deciding compensation. Compensation may be awarded payable by instalments. The terms of the fine are at the discretion of the military judge.

Rules of proceduremay be made for court-martials. Rules may cover the procedures of courts of inquiry and boards. The procedures provide for remand through trial, through the court-martial and sentence. Rules governing pleading practice and procedure are made by the Court-martial Rules Committee.

Appeals

A range of minor amendments were made to the Court-Martial Appeals Act 1983. Provision is made for persons not guilty by reason of insanity.

Where an appeal is made against the decision of a court-martial to order or not to order committal, the appeals court has no power to make any order which would have been open to the court-martial to make without prejudice to any review of the order under the insanity legislation.

Where an appeal against conviction against the verdict of not guilty by reason of insanity on the ground that the person has been found unfit be tried on the grounds the person is not guilty by reason of insanity. The appeal court has the same powers to deal with the accused as the court-martial would have had if it came to the same conclusion.

There is a provision for appeal by the DMP against the leniency of a court-martial sentence. The time frame for the appeal is specified.

Sex Offences

Persons subject to military law who commit rape, rape under section 4, sexual assault or aggravated sexual assault are liable to be tried by courts-martial only where these offences were committed outside the State. Where such offences occur within the State, they will be dealt with by An Garda Síochána and the civilian courts. Military law will continue to apply where such offences take place overseas as An Garda Síochána does not have jurisdiction.

It provides that a general court-martial does not have jurisdiction to try a person subject to military law for the offences of rape, rape under section 4, sexual assault or aggravated sexual assault unless the offences occurred outside the State.