Court-Martial Appeals
DEFENCE ACT
Section 178E
F186[
Appeal to summary court-martial.
178E.— (1) This section and sections 178F and 178G shall apply in relation to a compensation order made under section 177C or 178C as they apply to a punishment awarded under the said section 177C or 178C, as the case may be, and for the purpose of such application references in this section and sections 178F and 178G to a punishment shall be construed as references to a compensation order.
(2) A person in respect of whom, under section 177C or 178C—
(a) a charge has been disposed of summarily, and
(b) a determination made and punishment awarded by an authorised officer or commanding officer, as the case may be,
may appeal in the manner prescribed by court-martial rules to the summary court-martial against the determination or the punishment or both the determination and the punishment.
(3) An appeal under this section shall be brought—
(a) within seven days beginning with the date on which the punishment was awarded (“the initial period”), or
F187[(b) within such longer period as the summary court-martial may allow following an application made in that behalf to the summary court-martial before the end of the initial period.]
(4) The respondent to an appeal under this section shall be the Director.]
Annotations
Amendments:
F186
Inserted (1.09.2008) by Defence (Amendment) Act 2007 (24/2007), s. 26, S.I. No. 254 of 2008, subject to transitional provisions in s. 3 and sch. 1, para. 4(1).
F187
Substituted (4.04.2022) by Defence (Amendment) Act 2007 (33/2021), s. 12, S.I. No. 179 of 2022.
Editorial Notes:
E38
Power of military judge to refer question of law in an appeal made under section extended by Courts-Martial Appeals Act 1983(19/1983), s. 22A, as inserted (1.09.2008) by Defence (Amendment) Act 2007 (24/2007), s. 11 and sch. 4, S.I. No. 254 of 2008.
Section 178F
F188[
Hearing of appeal by summary court-martial.
178F.— (1) An appeal under section 178E against a determination shall be by way of—
(a) a rehearing of the charge, and
(b) except where section 178G(2) applies, a rehearing as regards punishment.
(2) An appeal under section 178E against punishment shall be by way of a rehearing as regards punishment.
(3) The appellant may, if he so wishes, be represented at the hearing of the appeal by counsel (within the meaning of section 196) or by an officer subject to military law.]
Annotations
Amendments:
F188
Inserted (1.09.2008) by Defence (Amendment) Act 2007 (24/2007), s. 26, S.I. No. 254 of 2008, subject to transitional provisions in s. 3 and sch. 1, para. 4(1).
Section 178G
F189[
Powers of summary court-martial.
178G.— (1) At a rehearing of the charge concerned under section 178F, the summary court-martial may confirm or quash the determination concerned.
(2) Where the summary court-martial quashes a determination, or where there is more than one determination, every determination, made in respect of the appellant, the summary court-martial shall quash the punishment which relates to that determination or, as the case may be, those determinations.
(3) At a rehearing as regards punishment under section 178F, the summary court-martial may—
(a) confirm the punishment awarded,
(b) quash that punishment, or
(c) substitute any other punishment which it would have been within the powers of the authorised officer or commanding officer, as the case may be, who heard the charge against the appellant summarily, to award.
(4) Where the summary court-martial substitutes a punishment under subsection (3)(c) of this section, the substituted punishment shall take effect on and from the date on which the original punishment was awarded or such other date as the military judge may order.
(5) Where an appeal is made to the summary court-martial under section 178E, the military judge—
(a) shall, if requested by the appellant or the respondent, unless the military judge considers the request frivolous, and
(b) may, without request,
refer any question of law arising in that appeal to the Courts-Martial Appeal Court for determination in accordance with the Courts-Martial Appeals Act 1983.]
Annotations
Amendments:
F189
Inserted (1.09.2008) by Defence (Amendment) Act 2007 (24/2007), s. 26, S.I. No. 254 of 2008, subject to transitional provisions in s. 3 and sch. 1, para. 4(1).
Section 179
F190[Charges against privates and seamen.
179.— (1) A commanding officer may, in accordance with regulations made under section 184, delegate to any officer under his command the power of disposing of charges against privates or seamen under the command of the commanding officer in respect of any of the scheduled offences specified in Part I of the Eleventh Schedule to this Act and every officer to whom such power is delegated shall, for the purposes of this section, be a subordinate officer.
(2) A subordinate officer investigating a charge against a private or seaman, who is subject to military law, of having committed any of the offences referred to in subsection (1) of this section shall—
(a) dismiss the charge if, in his discretion, he considers that it should not be proceeded with, or
(b) where the subordinate officer considers that the charge should be proceeded with, refer the charge to the commanding officer who shall deal with the charge in accordance with sections 178 to 178D, or
(c) subject to this section and in accordance with regulations made under section 184, deal with the charge summarily.]
Annotations
Amendments:
F190
Substituted (1.09.2008) by Defence (Amendment) Act 2007 (24/2007), s. 27, S.I. No. 254 of 2008.
Editorial Notes:
E39
Previous affecting provision: section amended (24.06.1987) by Defence (Amendment) Act 1987 (8/1987), s. 3(3), commenced on enactment, subject to transitional provision in s. 16; substituted as per F-note above.
Section 179A
F191[
Notice.
179A.— Where a subordinate officer proposes to investigate a charge against a private or seaman in respect of any of the offences referred to in section 179(1), the private or seaman shall be entitled to receive, in the prescribed manner, at least 24 hours before the charge is to be so investigated—
(a) written notice in the prescribed form of the date on which and the time and place at which the charge is to be so investigated, and
(b) a copy of the charge sheet containing particulars of the offence concerned, a list of the witnesses who will be giving evidence against the person and copies of any available evidence to be given against the person and of any witness statements.]
Annotations
Amendments:
F191
Inserted (1.09.2008) by Defence (Amendment) Act 2007 (24/2007), s. 28, S.I. No. 254 of 2008.
Section 179B
F192[
Right to elect to have charge disposed of summarily by commanding officer.
179B.— (1) Before disposing of a charge summarily under section 179C, the subordinate officer shall, in the prescribed manner, ask the private or seaman whether he elects to have the charge disposed of summarily by the subordinate officer or to have the charge referred to the commanding officer and, if the private or seaman elects to have the charge so referred, the subordinate officer shall refer the charge to the commanding officer who shall deal with the charge in accordance with sections 178 to 178D but otherwise the subordinate officer shall proceed to dispose of the charge summarily under section 179C and may do so then and there.
(2) Where two or more charges are brought against a private or seaman, an election to have any of the charges dealt with summarily by the commanding officer shall take effect as an election in respect of all of them.]
Annotations
Amendments:
F192
Inserted (1.09.2008) by Defence (Amendment) Act 2007 (24/2007), s. 28, S.I. No. 254 of 2008.
Section 179C
F193[
Summary disposal by subordinate officer.
179C.— (1) This section applies where a private or seaman elects under section 179B to have the charge disposed of summarily by the subordinate officer.
(2) The subordinate officer may, subject to subsection (5) of this section, dismiss the charge at any stage of the hearing.
(3) If the subordinate officer determines that the charge has not been proved he shall dismiss the charge.
(4) The subordinate officer may, after hearing the evidence or without hearing the evidence, refer the charge to the commanding officer who shall deal with the charge in accordance with sections 178 to 178D.
(5) After hearing the evidence or, if the private or seaman consents to the attendance of witnesses being dispensed with and admits the offence charged, having considered the available evidence, where the subordinate officer makes a determination that the charge has been proved, he shall—
(a) record the determination, and
(b) subject to subsections (6) and (7) of this section, award one or a combination of the following punishments:
(i) a fine not exceeding an amount equal to three days’ pay of the private or seaman at the most recent applicable rate;
(ii) stoppage of local leave or shore leave, as the case may be, for a period or periods not exceeding a total of seven days, as may be prescribed under section 184;
(iii) additional duties as may be prescribed under section 184;
(iv) a warning.
(6) Save as provided for by subsection (10) of this section, only the following combinations of punishments may be awarded by a subordinate officer:
(a) in the case where the subordinate officer awards a fine under subparagraph (i) of paragraph (b) of subsection (5) of this section, he may also award—
(i) stoppage of local leave or shore leave under subparagraph (ii) of the said paragraph (b), or
(ii) additional duties under subparagraph (iii) of the said paragraph (b);
or
(b) in the case where the subordinate officer awards stoppage of local leave or shore leave under subparagraph (ii) of paragraph (b) of subsection (5) of this section, he may also award additional duties under subparagraph (iii) of the said paragraph (b).
(7) Where the subordinate officer records a determination that two or more charges against the private or seaman have been proved, he shall award a single punishment or combination of punishments in accordance with subsections (5) and (6) of this section in respect of the charges taken together.
(8) The private or seaman may have an assisting person present at but not participating in the hearing before the subordinate officer.
(9) The evidence against the private or seaman taken before the subordinate officer shall, if the private or seaman so demands, be taken on oath, and in that event there shall be administered to each witness the same oath or solemn declaration as that required to be taken by a witness before a court-martial, and for this purpose the subordinate officer may administer oaths and solemn declarations.
(10) Where the subordinate officer makes a determination under this section that a charge has been proved and the offence charged occasioned any personal injury, expense or loss or destruction of, or damage to, any property, the subordinate officer may, instead of or in addition to any punishment which he is authorised by this section to award in respect of the offence, order that there shall be paid by the private or seaman, as compensation for the personal injury, expense, loss, damage or destruction so occasioned, to any person who has suffered such personal injury, expense, loss, damage or destruction, such sum as the subordinate officer may direct not exceeding the lesser of—
(a) the amount required to make good such personal injury, expense, loss, damage or destruction, or
(b) an amount equal to seven days’ pay of the private or seaman.
(11) A compensation order under subsection (10) of this section may provide for payment of the compensation by such instalments and at such times as the subordinate officer shall in all the circumstances consider reasonable.]
Annotations
Amendments:
F193
Inserted (1.09.2008) by Defence (Amendment) Act 2007 (24/2007), s. 28, S.I. No. 254 of 2008.
Section 179D
F194[
Appeal to commanding officer.
179D.— (1) This section and section 179E shall apply in relation to a compensation order made under section 179C as they apply to a punishment awarded under the said section 179C, and for the purpose of such application references in this section and section 179E to a punishment shall be construed as references to a compensation order.
(2) A private or seaman in respect of whom, under section 179C—
(a) a charge has been disposed of summarily, and
(b) a determination made and punishment awarded by a subordinate officer,
may appeal in the prescribed manner to a commanding officer against the determination or the punishment awarded (or both).
(3) An appeal under this section shall be brought—
(a) within two days beginning on the date on which the punishment was awarded (“the initial period”), or
(b) within such longer period as the commanding officer of the private or seaman concerned may allow, by leave given before the end of the initial period, which longer period shall not exceed five days beginning on the date on which the punishment was awarded.]
Annotations
Amendments:
F194
Inserted (1.09.2008) by Defence (Amendment) Act 2007 (24/2007), s. 29, S.I. No. 254 of 2008, subject to transitional provisions in s. 3 and sch. 1, para. 4(2) .
Section 179E
F195[
Hearing of appeals by commanding officer.
179E.— (1) An appeal under section 179D against a determination shall be by way of a rehearing of the charge and a rehearing as regards punishment.
(2) An appeal under section 179D against punishment shall be by way of a rehearing as regards punishment.
(3) The appellant is entitled to have an assisting person present at but not participating in the hearing of the appeal.
(4) Subsections (2) to (11) of section 178C and section 178D shall apply, with any necessary modifications, to the hearing of an appeal under this section as they apply for the purpose of the summary disposal of a charge under the said section 178C.]
Annotations
Amendments:
F195
Inserted (1.09.2008) by Defence (Amendment) Act 2007 (24/2007), s. 29, subject to transitional provisions in s. 3 and sch. 1, para. 4(2), S.I. No. 254 of 2008.
Section 179F
F196[
Suspension of operation of certain punishments pending appeal.
179F.— The operation of a punishment awarded (other than stoppage of local leave or shore leave) or a compensation order made under this Chapter shall be suspended—
(a) in any case until the time for bringing an appeal (whether against the determination, punishment or compensation order, as the case may be) under section 178E or 179D has expired, and
(b) in a case where the appeal is brought within that time, until the appeal or, in the case of an appeal under section 179D, any further appeal is finally determined (and the determination, punishment or compensation order, as the case may be, has been confirmed) or abandoned or the time for bringing any further appeal has expired.]
Annotations
Amendments:
F196
Inserted (1.09.2008) by Defence (Amendment) Act 2007 (24/2007), s. 30, S.I. No. 254 of 2008.
Section 180
Revision of summary awards.
180.—F197[…]
Annotations
Amendments:
F197
Repealed (1.09.2008) by Defence (Amendment) Act 2007 (24/2007), s. 4(1), S.I. No. 254 of 2008, subject to transitional provisions in s. 3 and sch. 1, para. 5.
Section 181
Trial of accused without preliminary investigation.
181.—(1) Where an offence against military law is alleged to have been committed by a person subject to military law and a court of inquiry has been held in respect of matters relating to the alleged offence, an officer having power to convene a court-martial may, if satisfied that there is prima facie evidence of the commission of such offence, order such person to be tried by court-martial without any previous investigation of the charge against such person.
(2) Where a person is ordered to be tried by court-martial under subsection (1) of this section, a statement of the evidence of the witnesses proposed to be called for the prosecution at the trial and a copy of the proceedings and findings of the court of inquiry shall be delivered to him before the trial.
Section 182
Confession of desertion or fraudulent enlistment.
182.—(1) Where a man of the Permanent Defence Force or a man of the Reserve Defence Force F198[called out on permanent service or deployed on military service under section 91A] signs a confession that he has been guilty of the offence of desertion or of fraudulent enlistment, a prescribed military authority may by order dispense with his trial by court-martial, and may by such order or a subsequent order do any one or more of the following things, that is to say:—
(a) reduce him, if he holds a non-commissioned army rank, to any lower non-commissioned army rank or, if he holds a non-commissioned naval rank, to any lower non-commissioned naval rank;
(b) forfeit in the prescribed manner his seniority of rank;
(c) in case any expense, loss, damage or destruction is occasioned by the commission of such offence, direct that there shall be paid by him as compensation for such expense, loss, damage or destruction such sum (not exceeding the amount required to make good such expense, loss, damage or destruction) as may be specified in such order.
(2) When a man of the Permanent Defence Force or a man of the Reserve Defence Force F198[called out on permanent service or deployed on military service under section 91A] signs a confession that he has been guilty of the offence of desertion or fraudulent enlistment and evidence of the truth or falsehood of such confession cannot then be conveniently obtained, the record of such confession signed by the commanding officer of the man shall be entered in the service books, and such man shall continue to do duty in the service corps in which he may then be serving or to which he may be transferred until he is discharged or, if he is a man of the Permanent Defence Force, is transferred to the Reserve Defence Force or until legal proof can be obtained of the truth or falsehood of such confession.
Annotations
Amendments:
F198
Substituted (4.04.2022) by Defence (Amendment) Act 2021 (33/2021), s. 11, S.I. No. 179 of 2022.
Section 183
Summoning of civilian witnesses before authorised officers and commanding officers.
183.—(1) Every person not subject to military law required to give evidence before an authorised officer or a commanding officer investigating a charge under this Chapter may be summoned or ordered in the prescribed manner to attend as a witness before the authorised officer or the commanding officer.
(2) If any person not subject to military law on being duly summoned or ordered to attend as a witness before an authorised officer or a commanding officer and after payment or tender of the reasonable expenses of his attendance makes default in attending, he shall be guilty of an offence under this section and shall be liable on summary conviction thereof to a fine not exceeding F199[€2,000].
Annotations
Amendments:
F199
Substituted (1.09.2008) by Defence (Amendment) Act 2007 (24/2007), s. 4(2) and sch. 2, S.I. No. 254 of 2008. A fine of €2,000 translates into a class C fine, not greater than €2,500, as provided (4.01.2011) by Fines Act 2010 (8/2010), ss. 3, 6(3) and table ref. no. 1, S.I. No. 662 of 2010.
Modifications (not altering text):
C50
Application of section extended (24.06.1987) by Defence (Amendment) Act 1987 (8/1987), s. 8(2), commenced on enactment.
Production of documents in evidence.
8.— …
(2) A person summoned or ordered under section 183 (1) of the Principal Act to attend as a witness before an authorised officer or a commanding officer investigating a charge under Chapter IV of Part V of that Act may by letter signed by such authorised officer or commanding officer, as may be appropriate, be required to produce to such officer any document, record or other thing in the person’s power or control being a document. record or other thing which is either specified in the letter or is of a class or description so specified and being in either case a document, record or other thing which such officer considers necessary for the purposes of the investigation.
…
Editorial Notes:
E40
Power pursuant to section exercised (1.01.1955) by Defence Forces (Summoning of Civilian Witnesses) Regulations 1954 (S.I. No. 297 of 1954).
E41
Previous affecting provision: fine in subs. (2) increased (24.06.1987) by Defence (Amendment) Act 1987 (8/1987), s. 2, item 7, commenced on enactment, subject to transitional provision in s. 16; further increased as per F-note above.
F200[Regulations]
Annotations
Amendments:
F200
Inserted (21.04.2007) by Defence (Amendment) Act 2007 (24/2007), s. 31, commenced as per s. 1(3).
Section 184
F201[
Regulations in relation to investigation and summary disposal of charges.
184.— (1) For the purposes of this Chapter, the Minister may make regulations, not inconsistent with this Act, in relation to all or any of the following matters:
(a) the investigation and summary disposal under this Chapter of charges against persons subject to military law, including the exercise of the right to elect for trial by court-martial, which regulations may include:
(i) the practice and procedure to be followed;
(ii) the form of notices and the giving of such notices under this Chapter;
(iii) the summoning of witnesses and the production of relevant documents and other things;
(iv) evidence;
(v) the administration of oaths or solemn declarations to witnesses in a case where the person charged is subject to military law and demands that the witnesses be sworn;
(b) where a person is remanded for trial by court-martial pursuant to this Chapter, the appointment of an officer to take a written summary of evidence in the case;
(c) the officers in whom are to be vested the powers and duties of authorised officers and commanding officers and the officers in whom may be vested by delegation the powers and duties of subordinate officers;
(d) the delegation to a subordinate officer of power to deal summarily with a case;
(e) the making of an application to the Director to deal summarily with a charge against a person for an offence specified in Part II of the Eleventh Schedule to this Act;
(f) the referral of charges for summary investigation to an authorised officer under section 177(2);
(g) the reference back by the Director of charges for summary disposal;
(h) the making and retention of records of proceedings and determinations made in respect of the investigation and summary disposal of charges;
(i) the effective dates of, and the carrying into effect of, punishments awarded and compensation orders made under section 177C, 178C or 179C, as the case may be;
(j) the stoppage of local leave or shore leave under section 178C or 179C, including the times at which any such stoppage may be imposed;
(k) the additional duties which may be awarded by a commanding officer under section 178C or by a subordinate officer under section 179C, including the nature of those duties and the period for which and the times at which those duties may be performed which period shall not in any case exceed three hours per day for seven days;
(l) the making of an appeal by a private or seaman to a commanding officer under section 179D;
(m) any person, matter or thing referred to as prescribed or to be prescribed;
(n) any other matter or thing necessary for carrying this Chapter into effect.
(2) Every regulation made under this section shall be laid before each House of the Oireachtas as soon as may be after it is made and, if a resolution annulling the regulation is passed by either such House within the next twenty-one days on which that House has sat after the regulation is laid before it, the regulation shall be annulled accordingly, but without prejudice to the validity of anything previously done under the regulation.]
Annotations
Amendments:
F201
Substituted (21.04.2007) by Defence (Amendment) Act 2007 (24/2007), s. 31, commenced on enactment as per s. 1(3).
Editorial Notes:
E42
Previous affecting provision: power pursuant to section exercised (1.09.2008) by Rules of Procedure (Defence Forces) 2008 (S.I. No. 204 of 2008); revoked (2.12.2019) by Rules of Procedure (Defence Forces) 2019 (S.I. No. 555 of 2019), rule 73(1) and sch., in effect as per rule 1(2), subject to transitional provision in rule 73(2).
E43
Power pursuant to section exercised (1.01.1955) by Defence Forces (Summoning of Civilian Witnesses) Regulations 1954 (S.I. No. 297 of 1954).
Chapter IVA
Court-Martial Administrator
Section 184A
Appointment of Court-Martial Administrator.
184A.— (1) An officer of the Permanent Defence Force not below the army rank of colonel or the equivalent naval rank may by warrant of the Judge Advocate-General be appointed as the Court-Martial Administrator.
(2) A warrant under this section may be made subject to such restrictions, reservations, exceptions and conditions as the Judge Advocate-General thinks fit including terms and conditions relating to the delegation by the Court-Martial Administrator of his functions under this Act.
(3) A warrant under this section—
(a) may be addressed to an officer by name or by designation of his office or partly in one way and partly in another, and
(b) may or may not, according to the terms of the warrant and the mode in which it is addressed—
(i) be limited to an officer named, or
(ii) be extended to a person for the time being performing the duties of the office named, or
(iii) be extended to the successors in office of an officer.
(4) The Court-Martial Administrator shall be independent in the performance of his functions.
(5) The Court-Martial Administrator shall neither report on, nor be the subject of any report in respect of, the performance of his functions under this Act.]
Annotations
Amendments:
F202
Inserted (21.04.2007) by Defence (Amendment) Act 2007 (24/2007), s. 32, commenced as per s. 1(3).
Section 184B
F203[
Functions of Court-Martial Administrator.
184B.— (1) The Court-Martial Administrator shall manage and control generally the administration and business of courts-martial and shall perform such other functions as may be specified or prescribed by or under this Act.
(2) The Court-Martial Administrator shall act under the general supervision of the Judge Advocate-General.
(3) The Court-Martial Administrator shall provide to the Judge Advocate-General such information in relation to the performance of his functions as the Judge Advocate-General may from time to time require.
(4) The Court-Martial Administrator shall—
(a) as directed by the Director under this Part, convene general courts-martial and limited courts-martial and refer any charge or other matter to the summary court-martial, and
(b) in the case of a general court-martial or limited court-martial, specify the members of the court-martial board.
(5) Subject to the terms of the warrant under section 184A, the functions of the Court-Martial Administrator may be delegated by him from time to time to any other person or persons or class or classes of persons for such purposes as may be specified in the warrant.]
Annotations
Amendments:
F203
Inserted (21.04.2007) by Defence (Amendment) Act 2007 (24/2007), s. 32, commenced as per s. 1(3).
Chapter IVB
Director of Military Prosecutions
Section 184C
F204[
Appointment of Director of Military Prosecutions.
184C.— (1) Subject to this Chapter, the Government shall appoint an officer of the Permanent Defence Force F205[, or a qualified person other than an officer of the Permanent Defence Force,] to be the Director of Military Prosecutions (in this Act referred to as the “Director”).
(2) Subject to this Chapter, an officer F206[, or a person other than an officer of the Permanent Defence Force,] who is a practising barrister or practising solicitor of not less than 10 years standing shall be qualified for appointment as the Director.
(3) For the purposes of this section service for any period in a position in the full-time service of the State (including as a member of the Permanent Defence Force and as a civil servant within the meaning of the Civil Service Regulation Act 1956) for which qualification as a barrister or solicitor was a requirement shall be deemed to be practice as a barrister or a solicitor, as the case may be, for that period and an officer, while holding that position, shall be deemed to be a practising barrister or a practising solicitor, as the case may be.
F207[(3A) For the purposes of this section—
(a) service, in respect of which a determination has been made in accordance with section 184D(3A), shall be deemed to be practice as a barrister or a solicitor, as the case may be, for the period to which that service relates, and
(b) the officer in respect of whom that service relates shall be deemed to be a practising barrister or a practising solicitor, as the case may be, while holding the position to which that service relates.]
F208[(3B) For the purposes of this section, having regard to the appointment of a person other than an officer of the Permanent Defence Force—
(a) service for any period in a position in the full-time service of the State (including as a member of the Permanent Defence Force and as a civil servant within the meaning of the Civil Service Regulation Act 1956) for which qualification as a barrister or solicitor was a requirement shall be deemed to be practice as a barrister or a solicitor, as the case may be, for that period, and
(b) a person, other than an officer of the Permanent Defence Force, while holding that position, shall be deemed to be a practising barrister or a practising solicitor, as the case may be.]
(4) The Director shall not be below the army rank of colonel or the equivalent naval rank.]
F209[(5) Where a qualified person, referred to in subsection (1), is to be appointed under subsection (1) to be the Director that person shall, for the purposes of subsection (4), be nominated for appointment as a commissioned officer under section 42 at the rank specified in subsection (4).]
Annotations
Amendments:
F204
Inserted (21.04.2007) by Defence (Amendment) Act 2007 (24/2007), s. 33, commenced as per s. 1(3).
F205
Inserted (9.11.2011) by Defence (Amendment) Act 2011 (17/2011), s. 3(1), S.I. No. 568 of 2011.
F206
Inserted (9.11.2011) by Defence (Amendment) Act 2011 (17/2011), s. 3(2), S.I. No. 568 of 2011.
F207
Inserted (9.11.2011) by Defence (Amendment) Act 2011 (17/2011), s. 3(3), S.I. No. 568 of 2011.
F208
Inserted (9.11.2011) by Defence (Amendment) Act 2011 (17/2011), s. 3(4), S.I. No. 568 of 2011.
F209
Inserted (9.11.2011) by Defence (Amendment) Act 2011 (17/2011), s. 3(5), S.I. No. 568 of 2011.
Section 184D
F210[
Committee.
184D.— (1) For the purpose of identifying officers, F211[and persons other than officers,] and informing the Minister of their suitability for appointment as Director, there shall be established a committee consisting of—
(a) the Chief of Staff,
(b) a Judge of the High Court, nominated by the President of the High Court, and
(c) the Director of Public Prosecutions.
(2) (a) In the case of the person specified in subsection (1)(b) of this section signifying at any time unwillingness or inability to act for any period as a member of the committee, the President of the High Court may nominate any other available Judge of the High Court to be a member of the committee in place of that person for that period.
(b) In the case of the Director of Public Prosecutions signifying at any time unwillingness or inability to act for any period as a member of the committee, the Minister may, after consultation with the Attorney General, appoint as a member of the committee in place of the Director of Public Prosecutions, for that period, a practising barrister nominated by the General Council of the Bar of Ireland or a practising solicitor nominated by the Law Society of Ireland.
(3) The committee may adopt such procedures as it considers appropriate to carry out its functions under this section.
F212[(3A) A committee established under this section, having considered—
(a) the service of an officer, other than an officer referred to in section 184C(3), who is a qualified barrister or solicitor in a position in the full-time service of the State (including as a member of the Permanent Defence Force and as a civil servant within the meaning of the Civil Service Regulation Act 1956) for any period following that qualification, and
(b) the duties and role discharged by the officer in relation to the service, during that period,
may determine that it is satisfied that—
(i) such duties and role are substantially similar in substance and effect to those discharged by an officer referred to in section 184C(3), and
(ii) such duties and role were carried out by the officer on a day to day basis throughout that period.]
(4) The committee shall, whenever so requested by the Minister, select an officer or officers, F213[or, as the case may be, one, or more than one, person other than an officer,] for appointment under section 184C and shall inform the Minister of the selection made and of his or their suitability for the appointment.
(5) The Government shall not appoint F214[an officer, or a person other than an officer, to be the Director unless the officer, or person,] was selected or amongst those selected by the committee pursuant to a request under subsection (4) of this section in relation to that appointment, but—
(a) if the committee is unable to select F215[a suitable officer or person other than an officer,] pursuant to a particular request under that subsection, or
(b) if the Government decide not to appoint to be the Director F216[the officer or any of the officers, or such person or any of such persons selected by the committee] pursuant to a particular request under that subsection,
then either—
(i) the Government shall F217[ appoint an officer, or as the case may be, a person other than an officer, to be the Director,] who was selected or amongst those selected by the committee pursuant to a previous request (if any) under that subsection in relation to that appointment, or
(ii) the Minister shall make a further request to the committee under that subsection and F218[the Government shall appoint an officer, or such person, to be the Director] who was selected or amongst those selected by the committee pursuant to that request or pursuant to another request under that subsection in relation to that appointment.
(6) All proceedings of the committee and all communications to the committee shall be confidential and shall not be disclosed except for the purposes of this Chapter.]
Annotations
Amendments:
F210
Inserted (21.04.2007) by Defence (Amendment) Act 2007 (24/2007), s. 33, commenced as per s. 1(3).
F211
Inserted (9.11.2011) by Defence (Amendment) Act 2011 (17/2011), s. 4(1), S.I. No. 568 of 2011.
F212
Inserted (9.11.2011) by Defence (Amendment) Act 2011 (17/2011), s. 4(2), S.I. No. 568 of 2011.
F213
Inserted (9.11.2011) by Defence (Amendment) Act 2011 (17/2011), s. 4(3), S.I. No. 568 of 2011.
F214
Substituted (9.11.2011) by Defence (Amendment) Act 2011 (17/2011), s. 4(4)(a), S.I. No. 568 of 2011.
F215
Substituted (9.11.2011) by Defence (Amendment) Act 2011 (17/2011), s. 4(4)(b), S.I. No. 568 of 2011.
F216
Substituted (9.11.2011) by Defence (Amendment) Act 2011 (17/2011), s. 4(4)(c), S.I. No. 568 of 2011.
F217
Substituted (9.11.2011) by Defence (Amendment) Act 2011 (17/2011), s. 4(4)(d), S.I. No. 568 of 2011.
F218
Substituted (9.11.2011) by Defence (Amendment) Act 2011 (17/2011), s. 4(4)(e), S.I. No. 568 of 2011.
Section 184E
F219[
Terms and conditions of appointment.
184E.— (1) Subject to this Chapter, the Director shall hold and vacate office on the terms and conditions determined by the Minister with the consent of the Minister for Finance.
(2) The Director shall be independent in the performance of his functions.
(3) The Director shall neither report on, nor be the subject of any report in respect of, the performance of his functions under this Act.
(4) The Attorney General, the Director of Public Prosecutions and the Director may consult together from time to time in relation to matters pertaining to the functions of the Director.]
Annotations
Amendments:
F219
Inserted (21.04.2007) by Defence (Amendment) Act 2007 (24/2007), s. 33, commenced as per s. 1(3).
Section 184F
F220[
Prosecuting officers.
184F.— (1) The Director may appoint officers to be prosecuting officers.
(2) An officer shall not be appointed as a prosecuting officer unless, at the date of appointment under subsection (1) of this section, the officer is a barrister or solicitor.
(3) A prosecuting officer shall hold and vacate office in accordance with the terms of his appointment.
(4) A prosecuting officer may, unless the Director otherwise directs, exercise any function of the Director.]
Annotations
Amendments:
F220
Inserted (21.04.2007) by Defence (Amendment) Act 2007 (24/2007), s. 33, commenced as per s. 1(3).
Section 184G
F221[
Prosecution of offences.
184G.— (1) This section applies where a charge has been referred to the Director under any of the provisions of this Act.
(2) When a charge for an offence under this Act is referred to the Director he may exercise any of the powers conferred on him by any of the provisions of this Act.
(3) Where the Director directs that a specified offence or offences be tried by court-martial, he shall also decide the class of court-martial that is to try the offence or offences concerned and shall direct the Court-Martial Administrator accordingly.
(4) Where a direction has been given by the Director for the trial by court-martial of a person accused of an offence against military law, the offence shall be taken to be prosecuted at the suit of the Director who shall be responsible for the conduct of all prosecutions at court-martial, and accordingly the Director shall have, in respect of that offence, in addition to any other powers conferred on him by or under this Act, powers similar to those conferred by law on the Director of Public Prosecutions in respect of offences triable on indictment before a civil court.]
Annotations
Amendments:
F221
Inserted (21.04.2007) by Defence (Amendment) Act 2007 (24/2007), s. 33, commenced as per s. 1(3).
Section 184H
F222[
Removal of Director from office.
184H.— (1) Subject to section 184I, the Director may be removed from office by the Government but only for stated reasons, including because—
(a) he has become incapable, through ill-health, either physical or mental, of effectively performing the functions of the office,
(b) he has failed to perform the functions of the office with due diligence and effectiveness,
(c) he has engaged in conduct that brings discredit on the office or that may prejudice the proper performance of the functions of the office, or
(d) his removal from office would, in the Government’s opinion, be in the best interests of the Defence Forces.
(2) On notifying the Director under section 184I(1) that the Government intends to consider removing him from office, the Government may immediately suspend the Director from duty.
(3) The suspension from duty continues until the Government makes a decision in relation to the matter under consideration, but only if there is no undue delay in taking steps under section 184I or in making that decision.]
Annotations
Amendments:
F222
Inserted (21.04.2007) by Defence (Amendment) Act 2007 (24/2007), s. 33, commenced as per s. 1(3).
Section 184I
F223[
Steps to be taken before removal of Director.
184I.— (1) Before considering the Director’s removal from office under section 184H the Government shall—
(a) notify the Director that the Government intends to consider the matter and include in the notice a statement of their reasons for doing so, and
(b) give the Director an opportunity to make representations as to why he ought not to be removed from office.
(2) The Government may, if they consider it necessary or appropriate to do so, appoint a Judge of the High Court nominated by the President of the High Court to—
(a) hold an inquiry into any matter giving rise to a notification under subsection (1) of this section, and
(b) report to the Government on the findings of the inquiry.
(3) A Judge of the High Court appointed under this section to hold an inquiry may do one or more of the following:
(a) direct a person, by notice delivered to the person, to provide any information that is specified in the notice and is required for the purposes of the inquiry;
(b) direct any person, by notice delivered to the person, to produce at the time and place specified in the notice a document specified in the notice that is relevant to the inquiry and is in the person’s power or control;
(c) summon witnesses to attend the inquiry;
(d) direct a witness to answer a question put to the witness at the inquiry;
(e) give any other direction that appears to the Judge appointed under this section to be necessary, just and reasonable for the purposes of the inquiry;
(f) administer oaths and affirmations to witnesses and examine witnesses attending the inquiry.
(4) A person whose evidence has been, is being, or is to be given before an inquiry under this section, or who produces or sends a document to the inquiry pursuant to a summons or direction, as the case may be, under subsection (3) of this section or who is required by such a summons or direction to give evidence or produce a document to the inquiry or to attend before the inquiry and there to give evidence or produce a document, shall be entitled to the same privileges and immunities as if the person were a witness before the High Court.
(5) If a person fails or refuses to comply with or disobeys a summons or direction under subsection (3) of this section, the High Court may, on application by the Judge appointed under this section—
(a) order the person in relation to whom the application was made to comply with the direction or, in the case of a summons, to attend the inquiry, and
(b) make such other (if any) order as it considers necessary and just to enable the direction to have full effect or, in the case of a summons, to ensure the attendance at the inquiry.
(6) A person who—
(a) is notified under subsection (3) of this section and who, without lawful excuse, refuses or fails to comply with a direction under paragraph (a) or (b) of that subsection,
(b) fails, without lawful excuse, to attend an inquiry in response to a summons under subsection (3)(c) of this section,
(c) refuses to answer a question that the Judge of the High Court conducting the inquiry may legally direct the person to answer, or
(d) does or omits to do in relation to the inquiry any other thing the doing or omission of which would, if the inquiry had been a proceeding in the High Court, have been contempt of that Court,
is guilty of an offence and is liable on summary conviction to a fine not exceeding €3,000 or to imprisonment for a term not exceeding 6 months or both.
(7) If an inquiry is held, the Government shall—
(a) consider the report on the findings of the inquiry,
(b) make a copy of the report available to the Director whose removal from office is the subject of the report, and
(c) give the Director an opportunity to make representations relating to the report.
(8) As soon as practicable after the Director is removed from office under section 184H, the Minister shall cause a statement of the reasons for the removal to be laid before each House of the Oireachtas.]
Annotations
Amendments:
F223
Inserted (21.04.2007) by Defence (Amendment) Act 2007(24/2007), s. 33, commenced as per s. 1(3). A fine of €3,000 translates into a class B fine, not greater than €4,000, as provided (4.01.2011) by Fines Act 2010 (8/2010), ss. 3, 5(3) and table ref. no. 1, S.I. No. 662 of 2010.
Chapter IVC
Military Judge
Section 184J
Military judge.
184J.— (1) The President may appoint, on the advice of the Government, one, or more than one, qualified officer of the Permanent Defence Force, F225[or a qualified person other than an officer of the Permanent Defence Force,] to be a military judge.
(2) An officer, F226[or a person other than an officer of the Permanent Defence Force,] who is a practising barrister or a practising solicitor of not less than 10 years standing shall be qualified for appointment as a military judge.
(3) For the purposes of this section service for any period in a position in the full-time service of the State (including as a member of the Permanent Defence Force and as a civil servant within the meaning of the Civil Service Regulation Act 1956) for which qualification as a barrister or solicitor was a requirement shall be deemed to be practise as a barrister or a solicitor, as the case may be, for that period and an officer, while holding that position, shall be deemed to be a practising barrister or a practising solicitor, as the case may be.
F227[(3A) For the purposes of this section—
(a) service, in respect of which a determination has been made in accordance with section 184K(2A), shall be deemed to be practice as a barrister or a solicitor as the case may be, for the period to which that service relates, and
(b) the officer in respect of whom that service relates shall be deemed to be a practising barrister or a practising solicitor, as the case may be, while holding the position to which that service relates.]
F228[(3B) For the purposes of this section, having regard to the appointment of a person other than an officer of the Permanent Defence Force—
(a) service for any period in a position in the full-time service of the State (including as a member of the Permanent Defence Force and as a civil servant within the meaning of the Civil Service Regulation Act 1956) for which qualification as a barrister or solicitor was a requirement shall be deemed to be practice as a barrister or a solicitor, as the case may be, for that period, and
(b) a person other than an officer of the Permanent Defence Force, while holding that position, shall be deemed to be a practising barrister or a practising solicitor, as the case may be.]
(4) The military judge, or where there is more than one military judge, the Chief Military Judge, shall not be below the army rank of colonel or the equivalent naval rank.]
F229[(5) Where a qualified person, referred to in subsection (1), is to be appointed under subsection (1) to be a military judge that person shall, for the purposes of subsection (4), be nominated for appointment as a commissioned officer under section 42 at the rank specified in subsection (4).]
Annotations
Amendments:
F224
Inserted (21.04.2007) by Defence (Amendment) Act 2007 (24/2007), s. 34, commenced as per s. 1(3).
F225
Inserted (9.11.2011) by Defence Amendment Act 2011(17/2011), s. 5(1), S.I. No. 568 of 2011.
F226
Inserted (9.11.2011) by Defence (Amendment) Act 2011(17/2011, s. 5(2), S.I. No. 568 of 2011.
F227
Inserted (9.11.2011) by Defence (Amendment) Act 2011(17/2011), s. 5(3), S.I. No. 568 of 2011.
F228
Inserted (9.11.2011) by Defence (Amendment) Act 2011 (17/2011), s. 5(4), S.I. No. 568 of 2011.
F229
Inserted (9.11.2011) by Defence (Amendment) Act 2011 (17/2011) s. 5(5), S.I. No. 568 of 2011.
Section 184K
F230[
Committee.
184K.— (1) For the purpose of identifying officers F231[, and persons other than officers,] and informing the Government of the suitability of those officers F232[, and such persons,] for appointment to judicial office, there shall be established a committee consisting of—
(a) the Chief of Staff,
(b) the Judge Advocate-General, and
(c) a Judge of the High Court, nominated by the President of the High Court.
(2) The committee may adopt such procedures as it considers appropriate to carry out its functions under this section.
F233[(2A) A committee established under this section, having considered—
(a) the service of an officer, other than an officer referred to in section 184J(3), who is a qualified barrister or solicitor in a position in the full-time service of the State (including as a member of the Permanent Defence Force and as a civil servant within the meaning of the Civil Service Regulation Act 1956) for any period following that qualification, and
(b) the duties and role discharged by the officer in relation to the service, during that period,
may determine that it is satisfied that—
(i) such duties and role are substantially similar in substance and effect to those discharged by an officer referred to in section 184J(3), and
(ii) such duties and role were carried out by the officer on a day to day basis throughout that period.]
(3) The committee shall, whenever so requested by the Minister, select an officer or officers F234[, or, as the case may be, one, or more than one, person other than an officer,] for appointment under this section and shall inform the Minister of the selection made and of his or their suitability for the appointment and the Government shall consider for appointment F235[the officer or officers, or such person or persons, so selected.]
(4) The committee shall not submit or recommend the name of an officer F236[, or a person other than an officer,] to the Minister under this section unless F237[the officer or person concerned] satisfies the requirements of section 184J(2) as regards the proposed appointment, and the committee shall not recommend the name of the officer F238[, or a person other than an officer,] to the Minister unless, in the opinion of the committee F239[or person], the officer—
(a) has displayed in his or her practice as a barrister or solicitor, as the case may be, a degree of competence and a degree of probity appropriate to and consistent with the appointment as a military judge,
(b) is suitable on grounds of character and temperament,
(c) is otherwise suitable, and
(d) complies with the requirements of subsection (5) of this section.
(5) An officer F240[or a person other than an officer] who wishes to be considered for appointment under section 184J shall undertake in writing to the committee, if appointed as a military judge, to take such courses of training or education, or both, as may be required by the Judge Advocate-General.
(6) All proceedings of the committee and all communications to the committee shall be confidential and shall not be disclosed except for the purposes of this Chapter.]
Annotations
Amendments:
F230
Inserted (21.04.2007) by Defence (Amendment) Act 2007 (24/2007), s. 34, commenced as per s. 1(3).
F231
Inserted (9.11.2011) by Defence (Amendment) Act 2011 (17/2011), s. 6(1)(a), S.I. No. 568 of 2011.
F232
Inserted (9.11.2011) by Defence (Amendment) Act 2011 (17/2011), ss. 6(1)(b), 12(3), S.I. No. 568 of 2011
F233
Inserted (9.11.2011) by Defence (Amendment) Act 2011 (17/2011), s. 6(2), S.I. No. 568 of 2011.
F234
Inserted (9.11.2011) Defence (Amendment) Act 2011 (17/2011), s. 6(3)(a), S.I. No. 568 of 2011.
F235
Substituted (9.11.2011) by Defence (Amendment) Act 2011 (17/2011), s. 6(3)(b), S.I. No. 568 of 2011.
F236
Inserted (9.11.2011) by Defence (Amendment) Act 2011 (17/2011), s. 6(4)(a), S.I. No. 568 of 2011.
F237
Substituted (9.11.2011) by Defence (Amendment) Act 2011 (17/2011), s. 6(4)(b), S.I. No. 568 of 2011.
F238
Inserted (9.11.2011) by Defence (Amendment) Act 2011 (17/2011), s. 6(4)(a), S.I. No. 568 of 2011.
F239
Inserted (9.11.2011) by Defence (Amendment) Act 2011 (17/2011), s. 6(4)(c), S.I. No. 568 of 2011.
F240
Inserted (9.11.2011) by Defence (Amendment) Act 2011 (17/2011), s. 6(5), S.I. No. 568 of 2011.
Section 184L
F241[
Terms and conditions of appointment.
184L.— (1) Subject to this Chapter, a military judge shall hold and vacate office on and subject to the terms and conditions (including terms and conditions relating to remuneration and superannuation) determined by the Minister with the consent of the Minister for Finance.
(2) A military judge shall be independent in the performance of his judicial functions under this Act.
(3) A military judge shall not hold any other office or employment in respect of which remuneration is payable.
(4) The remuneration of a military judge shall not be reduced during his continuance in office.
(5) A military judge may at his own request be relieved of office by the President.
(6) It shall be a condition of his appointment that a military judge—
(a) who is relieved of office by the President under subsection (5) of this section shall cease to be an officer,
(b) who ceases to be an officer under any of the provisions of this Act shall cease to be a military judge,
(c) who retires in accordance with the terms and conditions of his appointment under this Chapter shall cease to be an officer,
(d) who is removed from office under section 184O, shall cease to be an officer.
(7) Every officer appointed as a military judge under this Chapter shall, before entering upon his duties under this Act and in any case not later than 10 days after the date of his appointment, swear an oath or make a solemn declaration in the prescribed form which shall be administered by the Judge Advocate-General and a military judge who declines or neglects to swear an oath or make such a declaration shall be deemed to have vacated his office.
(8) A military judge shall neither report on, nor be the subject of any report in respect of, the performance of his functions under this Act.]
Annotations
Amendments:
F241
Inserted (21.04.2007) by Defence (Amendment) Act 2007(24/2007), s. 34, commenced as per s. 1(3).
Modifications (not altering text):
C51
Application of subs. (4) restricted (1.01.2012) by Financial Emergency Measures in the Public Interest (Amendment) Act 2011 (39/2011), s. 4(2), S.I. No. 683 of 2011.
Amendment of section 2 of Financial Emergency Measures in the Public Interest Act 2009.
4.— …
(2) The amendments effected by subsection (1) shall apply to a military judge appointed under Chapter IVC of Part V of the Defence Act 1954 notwithstanding section 184L(4) of that Act.
Editorial Notes:
E44
Previous affecting provision: power pursuant to section exercised (11.09.2012) by Defence Act 1954 (Military Judge) (Form of Oath and Solemn Declaration) Rules 2012 (S.I. No. 345 of 2012); revoked (2.12.2019) by Rules of Procedure (Defence Forces) 2019 (S.I. No. 555 of 2019), reg. 73(1) and sch., in effect as per reg. 1(2), subject to transitional provision in reg. 73(2).
Section 184LA 184LA
F242[
Circuit Judge to perform functions of military judge in certain circumstances.
184LA.— (1) The Minister may, having consulted with the Minister for Justice and Equality, request the President of the Circuit Court to temporarily designate, under section 11A of the Act of 1947, one, or more than one, Circuit Judge to perform the functions of a military judge in all or any of the following circumstances:
(a) where there is a vacancy for the position of military judge and no person has been appointed, under section 184J(1), as military judge;
(b) where a military judge, appointed under section 184J(1), is ill, absent or otherwise unable to carry out his or her functions;
(c) where a military judge appointed under section 184J cannot properly deal with any matter before him or her by reason of the fact that he or she has a personal interest in the matter or personal knowledge of the facts or the parties as might prejudice the hearing and determination of the matter;
(d) without prejudice to paragraphs (a) to (c), any other circumstance in respect of which the Minister is satisfied that such temporary designation is necessary or appropriate.
(2) Where a Circuit Judge has been temporarily designated under section 11A of the Act of 1947 pursuant to a request under this section, sections 184J, 184K, 184L, 184N, 184O and 184P shall not apply to such Circuit Judge.
(3) Where a Circuit Judge has been temporarily designated under section 11A of the Act of 1947 pursuant to a request under this section, notwithstanding the definition of military judge in section 2, references in this Act, or any instrument made under it, to a military judge in relation to the carrying out of the functions of a military judge shall be construed in accordance with such temporary designation of such Circuit Judge and nothing in this Act, or any statutory instrument made under it, shall be construed as preventing such Circuit Judge from carrying out such functions of a military judge.
(4) For the purposes of this Act, without prejudice to the generality of subsection (1), references to functions of a military judge includes the judicial functions referred to in section 240(1)(r), if any, as may be provided for in rules of procedure made under that section.
(5) In this section, “functions of a military judge” means—
(a) the functions of a military judge under this Act and any instrument made under it, and under section 8 of the Defence (Amendment) Act 1987, and
(b) the functions of a military judge under the Courts-Martial Appeals Act 1983 and any instrument made under that Act;
(6) In this Act—
“Circuit Judge” has the meaning assigned to it by the Act of 1947;
“President of the Circuit Court” shall be construed in accordance with section 9 of the Act of 1947.]
Annotations
Amendments:
F242
Inserted (9.11.2011) by Defence (Amendment) Act 2011 (17/2011), s. 7, S.I. No. 568 of 2011.
Modifications (not altering text):
C52
Minister’s functions under section transferred (13.03.2012) by Military Judge (Temporary Designation) (Transfer of Departmental Administration and Ministerial Functions) Order 2012 (S.I. No. 82 of 2012).
3. (1) The function vested in the Minister for Justice and Equality under section 184LA (inserted by section 7 of the Defence (Amendment) Act 2011 (No. 17 of 2011)) of the Defence Act 1954 is transferred to the Minister for Communications, Energy and Natural Resources.
Editorial Notes:
E45
Temporary designation of military judge provided for by Courts of Justice Act 1947 (20/1947), s. 11A as inserted (9.11.2011) by Defence (Amendment) Act 2011 (17/2011), s. 8, S.I. No. 568 of 2011.
Section 184M
F243[
Functions of military judge.
184M.— A military judge shall preside at courts-martial and shall perform any other judicial functions that may be prescribed.]
Annotations
Amendments:
F243
Inserted (21.04.2007) by Defence (Amendment) Act 2007 (24/2007), s. 34, commenced as per s. 1(3).
Section 184N
F244[
Chief Military Judge.
184N.— (1) The President may appoint, on the advice of the Government, a military judge to be the Chief Military Judge.
(2) The Chief Military Judge shall have such functions as are prescribed including assignment of military judges to preside at courts-martial and to perform other judicial duties under this Act.
(3) The Chief Military Judge may delegate any of the Chief Military Judge’s functions to a military judge.]
Annotations
Amendments:
F244
Inserted (21.04.2007) by Defence (Amendment) Act 2007 (24/2007), s. 34, commenced as per s. 1(3).
Section 184O
F245[
Removal of military judge from office.
184O.— (1) Subject to section 184P, a military judge may be removed from office by the President on the advice of the Government but only for stated reasons including because—
(a) he has become incapable, through ill-health, either physical or mental, of effectively performing the functions of the office,
(b) he has failed to perform the functions of the office with due diligence and effectiveness,
(c) he has engaged in conduct that brings discredit on the office or that may prejudice the proper performance of the functions of the office, or
(d) his removal from office would, in the Government’s opinion, be in the best interests of the Defence Forces.
(2) On notifying a military judge under section 184P(1) that the Government intends to consider his removal from office, the Government may immediately suspend the military judge from duty.
(3) The suspension from duty continues until the Government makes a decision in relation to the matter under consideration, but only if there is no undue delay in taking steps under section 184P or in making that decision.]
Annotations
Amendments:
F245
Inserted (21.04.2007) by Defence (Amendment) Act 2007 (24/2007), s. 34, commenced as per s. 1(3).
Section 184P
F246[
Steps to be taken before removal of military judge.
184P.— (1) Before considering removal of a military judge from office under section 184O the Government shall—
(a) notify the military judge that the Government intends to consider the matter and include in the notice a statement of their reasons for doing so, and
(b) give the military judge an opportunity to make representations as to why he ought not to be removed from office.
(2) The Government may, if they consider it necessary or appropriate to do so, appoint a Judge of the High Court nominated by the President of the High Court to—
(a) hold an inquiry into any matter giving rise to a notification under subsection (1) of this section, and
(b) report to the Government on the findings of the inquiry.
(3) A Judge of the High Court appointed under this section to hold an inquiry may do one or more of the following:
(a) direct a person, by notice delivered to the person, to provide any information that is specified in the notice and is required for the purposes of the inquiry;
(b) direct any person, by notice delivered to the person, to produce at the time and place specified in the notice a document specified in the notice that is relevant to the inquiry and is in the person’s power or control;
(c) summon witnesses to attend the inquiry;
(d) direct a witness to answer a question put to the witness at the inquiry;
(e) give any other direction that appears to the Judge appointed under this section to be necessary, just and reasonable for the purposes of the inquiry;
(f) administer oaths and affirmations to witnesses and examine witnesses attending the inquiry.
(4) A person whose evidence has been, is being, or is to be given before an inquiry under this section, or who produces or sends a document to the inquiry pursuant to a summons or direction, as the case may be, under subsection (3) of this section or who is required by such a summons or direction to give evidence or produce a document to the inquiry or to attend before the inquiry and there to give evidence or produce a document, shall be entitled to the same privileges and immunities as if the person were a witness before the High Court.
(5) If a person fails or refuses to comply with or disobeys a direction or summons under subsection (3) of this section, the High Court may, on application by the Judge appointed under this section—
(a) order the person in relation to whom the application was made to comply with the direction or, in the case of a summons, to attend the inquiry, and
(b) make such other (if any) order as it considers necessary and just to enable the direction to have full effect or, in the case of a summons, to ensure the attendance at the inquiry.
(6) A person who—
(a) is notified under subsection (3) of this section and who, without lawful excuse, refuses or fails to comply with a direction under paragraph (a) or (b) of that subsection,
(b) fails, without lawful excuse, to attend an inquiry in response to a summons under subsection (3)(c) of this section,
(c) refuses to answer a question that the Judge of the High Court conducting the inquiry may legally direct the person to answer, or
(d) does or omits to do in relation to the inquiry any other thing the doing or omission of which would, if the inquiry had been a proceeding in the High Court, have been contempt of that Court,
is guilty of an offence and is liable on summary conviction to a fine not exceeding €3,000 or to imprisonment for a term not exceeding 6 months or both.
(7) If an inquiry is held, the Government shall—
(a) consider the report on the findings of the inquiry,
(b) make a copy of the report available to the military judge whose removal from office is the subject of the report, and
(c) give the military judge an opportunity to make representations relating to the report.
(8) As soon as practicable after the military judge is removed from office under section 184O, the Minister shall cause a statement of the reasons for the removal to be laid before each House of the Oireachtas.]
Annotations
Amendments:
F246
Inserted (21.04.2007) by Defence (Amendment) Act 2007 (24/2007), s. 34, commenced as per s. 1(3). A fine of €3,000 translates into a class B fine, not greater than €4,000, as provided (4.01.2011) by Fines Act 2010 (8/2010), ss. 3, 5(3) and table ref. no. 1, S.I. No. 662 of 2010.
Chapter V.
Courts-martial.
Section 185
Acquittal or conviction to bar subsequent trial by court-martial.
185.—F247[(1) Where a person subject to military law has been acquitted of an offence by a court-martial, he shall not be liable to be tried again by a court-martial in respect of that offence.]
F248[(1A) Where a person subject to military law has been convicted of an offence by a court-martial, he shall not be liable to be tried again by a court-martial in respect of that offence unless the conviction has been quashed and a re-trial ordered by the Courts-Martial Appeal Court pursuant to the Criminal Procedure Act 1993.]
(2) Where a person subject to military law has been acquitted or convicted of an offence by a competent civil court, he shall not be liable to be tried again by a court-martial in respect of that offence.
(3) Where—
(a) a person subject to military law is charged with an offence against military law, and
(b) the charge is dealt with under Chapter IV of this Part either by being dismissed or being summarily dealt with,
such person shall not be liable to be tried by court-martial in respect of that offence.
Annotations
Amendments:
F247
Substituted (1.09.2008) by Defence (Amendment) Act 2007 (24/2007), s. 35(a), S.I. No. 254 of 2008.
F248
Inserted (1.09.2008) by Defence (Amendment) Act 2007 (24/2007), s. 35(b), S.I. No. 254 of 2008.
Section 186
F249[
Classes of courts-martial.
186.— There shall be three classes of courts-martial, namely, general courts-martial, limited courts-martial and the summary court-martial.]
Annotations
Amendments:
F249
Substituted (1.09.2008) by Defence (Amendment) Act 2007 (24/2007), s. 36, S.I. No. 254 of 2008.
Section 187
F250[
Convening of courts-martial.
187.— (1) Where the Director directs that a specified offence or offences be tried by court-martial, the Court-Martial Administrator shall, subject to the directions of the Director, convene a general court-martial or limited court-martial, or refer the matter for trial by summary court-martial.
(2) A court-martial may sit in any place whether within or outside the State.]
Annotations
Amendments:
F250
Substituted (1.09.2008) by Defence (Amendment) Act 2007 (24/2007), s. 37, S.I. No. 254 of 2008.
Section 187A
F251[
Summary court-martial.
187A.— (1) There shall be a court-martial to be known as the summary court-martial.
(2) Every military judge is authorised to preside at a summary court-martial and a military judge who does so constitutes the summary court-martial.
(3) The summary court-martial shall, subject to section 192, have jurisdiction to hear—
(a) charges or other matters referred to it by the Court-Martial Administrator as directed by the Director,
(b) appeals under section 178E from determinations made, punishments awarded or compensation orders made under section 177C or 178C, and
(c) applications for legal aid.]
Annotations
Amendments:
F251
Inserted (1.09.2008) by Defence (Amendment) Act 2007 (24/2007), s. 38, S.I. No. 254 of 2008.
F252
Substituted by Defence Forces (Evidence) Act 2022 (16/2022), s. 93(a)(i), (ii), not commenced as of date of revision.
F253
Inserted by Defence Forces (Evidence) Act 2022 (16/2022), s. 93(a)(iii), (b), not commenced of date of revision.
Modifications (not altering text):
C53
Prospective affecting provision: subss. 3(b), (c) amended and subss. (3)(d)-(i), (4) inserted by Defence Forces (Evidence) Act 2022 (16/2022), s. 93, not commenced as of date of revision.
187A.— …
(3) The summary court-martial shall, subject to section 192, have jurisdiction to hear— …
(b) appeals under section 178E from determinations made, punishments awarded or compensation orders made under section 177C or F252[or 178C,]
(c) applications F252[for legal aid, and]
F253[(d) applications under section 35 (1) of the Act of 2022,
(e) appeals under section 37 (6) of the Act of 2022,
(f) applications under section 45 (1) of the Act of 2022,
(g) appeals under section 48 (6) of the Act of 2022,
(h) appeals under section 52(11) of the Act of 2022, and
(i) applications under section 60 of the Act of 2022.]
F253[(4) In this section, “Act of 2022” means the Defence Forces (Evidence) Act 2022.]
Section 188
Special powers of convening authorities.
188.—F254[…]
Annotations
Amendments:
F254
Repealed (1.09.2008) by Defence (Amendment) Act 2007 (24/2007), s. 4(1), S.I. No. 254 of 2008.
Section 189
F255[
General court-martial.
189.— (1) A general court-martial shall consist of—
(a) a military judge, and
(b) save in the case of a general court-martial convened pursuant to subsection (8) or (11) of section 212A, a court-martial board of not less than five members specified by or on behalf of the Court-Martial Administrator.
(2) Where the accused is an officer, the court-martial board shall include—
(a) an officer of the Permanent Defence Force not below the army rank of colonel or the equivalent naval rank and in any case not of a lower rank than the accused, and
(b) not less than four other officers, none of whom shall be below the army rank of captain or the equivalent naval rank.
(3) Where the accused is not an officer, the court-martial board—
(a) shall include—
(i) an officer of the Permanent Defence Force not below the army rank of colonel or the equivalent naval rank, and
(ii) not less than three other officers, none of whom shall be below the army rank of captain or the equivalent naval rank,
and
(b) may include not more than one non-commissioned officer who shall not be below the army rank of battalion quarter-master sergeant or the equivalent naval rank and in any case not of a lower rank than the accused.]
Annotations
Amendments:
F255
Substituted (1.09.2008) by Defence (Amendment) Act 2007 (24/2007), s. 39, S.I. No. 254 of 2008.
Section 190
F256[
Limited court-martial.
190.— (1) A limited court-martial shall consist of—
(a) a military judge, and
(b) save in the case of a limited court-martial convened pursuant to subsection (8) or (11) of section 212A, a court-martial board of not less than three members specified by or on behalf of the Court-Martial Administrator.
(2) The court-martial board—
(a) shall include—
(i) an officer of the Permanent Defence Force not below the army rank of commandant or the equivalent naval rank, and
(ii) at least one other officer who shall not be below the army rank of lieutenant or the equivalent naval rank,
and
(b) may include not more than one non-commissioned officer who shall not be below the army rank of battalion quarter-master sergeant or the equivalent naval rank and in any case not of a lower rank than the accused.]
Annotations
Amendments:
F256
Substituted (1.09.2008) by Defence (Amendment) Act 2007 (24/2007), s. 40, S.I. No. 254 of 2008.
Section 191
F257[
Membership of court-martial board.
191.— (1) None of the following persons may serve as a member of a court-martial board:
(a) the Court-Martial Administrator or a member of his staff;
(b) the Director or a member of his staff;
(c) a member of the Defence Forces who has examined into or advised on the matters on which any charge against the accused is based;
(d) a person who has been or may be summoned as a witness for the prosecution or the accused before the court-martial concerned;
(e) a member of the Defence Forces who investigated the charge against the accused or took down any summary or abstract of evidence against the accused or who was a member of a court of inquiry inquiring into the matters on which the charge against the accused is based;
(f) a member of the military police corps;
(g) any member of the Defence Forces who is a barrister or solicitor;
(h) any member of the Defence Forces who has a personal interest in the case;
(i) any member of the Defence Forces who is not for the time being subject to military law;
(j) an officer or non-commissioned officer who is serving in the same military chain of command as the accused.
(2) A member of a court-martial board shall neither report on, nor be the subject of any report in respect of, the performance of his functions as such member under this Act.]
Annotations
Amendments:
F257
Substituted (1.09.2008) by Defence (Amendment) Act 2007 (24/2007), s. 41, S.I. No. 254 of 2008.
Section 192
Jurisdiction of courts-martial.
192.—F258[(1) Subject to and in accordance with the provisions of this Act, a general court-martial, limited court-martial or summary court-martial shall, in addition to any other powers conferred on it by this Act, have jurisdiction to try and punish any person for an offence against military law committed by the person while subject to military law as an officer or as a man.]
F259[(1A) In this section “relevant offence” means—
(a) the offence of treason or murder, or
(b) an offence under section 3, as amended, of the Geneva Conventions Act 1962 or an offence under section 7 (genocide, crimes against humanity and war crimes) or 8 (ancillary offences) of the International Criminal Court Act 2006, or
(c) manslaughter, rape, rape under section 4 (within the meaning of the Criminal Law (Rape) (Amendment) Act 1990) or aggravated sexual assault (within the meaning of the Criminal Law (Rape) (Amendment) Act 1990), or
(d) an offence under the Criminal Justice (United Nations Convention against Torture) Act 2000, or
(e) an offence under the Criminal Justice (Safety of United Nations Workers) Act 2000, or
(f) an offence under the Criminal Justice (Terrorist Offences) Act 2005.
(1B) A summary court-martial shall not have jurisdiction—
(a) 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,
(b) to try any person for a relevant offence,
(c) to award to any person any sentence greater than imprisonment for a term of six months, or
(d) in the case of an appeal under section 178E, to award any punishment greater than that awardable on summary disposal of the matter under section 177C or 178C, as appropriate.]
F260[(2) A limited court-martial shall not have jurisdiction—
(a) to try any person for any offence against military law committed by the person while subject to military law as an officer,
(b) 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,
(c) to try any person for a relevant offence, or
(d) to award to any person any sentence greater than imprisonment for a term of two years.]
F261[(3) Subject to subsection (3A) of this section, a general court-martial shall not have jurisdiction to try any person subject to military law for a relevant offence unless the offence was committed while the person was on active service or while the person was despatched for service outside the State for any purpose specified in section 3 of the Defence (Amendment) Act 2006.]
F262[(3A) In the case of rape, rape under section 4 (within the meaning of the Criminal Law (Rape) (Amendment) Act 1990) or aggravated sexual assault (within the meaning of the Criminal Law (Rape) (Amendment) Act 1990), 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 for any purpose specified in section 3 of the Defence (Amendment) Act 2006 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—
(a) 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
(b) the Director of Public Prosecutions has given his prior consent.]
(4) (a) The Minister, with the concurrence of the Minister for Justice, may make regulations with regard to the exercise of the jurisdiction conferred on courts-martial by section 169 and may in particular by the regulations provide that the exercise of such jurisdiction shall depend on the consent of such civil authority as may be specified in the regulations.
(b) A certificate under the hand of F263[the Director certifying that as respects the trial of a civil offence] the consent referred to in paragraph (a) of this subsection has been obtained shall be prima facie evidence of that fact.
Annotations
Amendments:
F258
Substituted (1.09.2008) by Defence (Amendment) Act 2007 (24/2007), s. 42(a), S.I. No. 254 of 2008.
F259
Inserted (1.09.2008) by Defence (Amendment) Act 2007 (24/2007), s. 42(b), S.I. No. 254 of 2008.
F260
Substituted (1.09.2008) by Defence (Amendment) Act 2007 (24/2007), s. 42(c), S.I. No. 254 of 2008.
F261
Substituted (1.09.2008) by Defence (Amendment) Act 2007 (24/2007), s. 42(d), S.I. No. 254 of 2008.
F262
Inserted (1.09.2008) by Defence (Amendment) Act 2007 (24/2007), s. 42(e), S.I. No. 254 of 2008.
F263
Substituted (1.09.2008) by Defence (Amendment) Act 2007 (24/2007), s. 42(f), S.I. No. 254 of 2008.
Modifications (not altering text):
C54
Application of subs. (4) restricted (21.12.1960) by Defence (Amendment) (No. 2) Act 1960 (44/1960), s. 4(5), commenced on enactment, as amended (12.07.2006) by Defence (Amendment) Act 2006 (20/2006) ss. 2 (non-textual amendment) and 9(c) (textual amendment), commenced on enactment.
Amendments of the Principal Act.
4.— …
(5) Regulations made under subsection (4) of section 192 of the Principal Act and providing that the exercise of the jurisdiction conferred on courts-martial by section 169 of the Principal Act shall depend on the consent of a civil authority specified in the regulations shall not apply in relation to the exercise of that jurisdiction by a court-martial for the trial of a member of the Permanent Defence Force for an offence committed by him while serving outside the State with an International United Nations Force [or for any purpose specified in section 3 of the Defence (Amendment) Act 2006].
…
Defence (Amendment) Act 2006 (20/2006):
Application of certain provisions of Act of 1960 and Principal Act.
2.— (1) Sections 2, 4 and 6 of the Act of 1960 shall apply and have effect as if each reference in any of those sections to an International United Nations Force were a reference to an International United Nations Force as defined in section 1 of this Act.
(2) The provisions of the Principal Act specified in section 4 of the Act of 1960 as amended by this Act shall apply and have effect as if each reference in those provisions to an International United Nations Force were a reference to an International United Nations Force as defined in section 1 of this Act.
Editorial Notes:
E46
Power pursuant to section exercised (1.01.1955) by Defence (Civil Authority with respect to Courts-Martial) Regulations 1954 (S.I. No. 250 of 1954).
E47
Previous affecting provision: subss. (2) and (3) amended (31.10.2006) by International Criminal Court Act 2006 (30/2006), s. 66 and sch. 3, para. 1(b), commenced on enactment; subss. (2) and (3) substituted as per F-notes above.
E48
Previous affecting provision: subs. (3) amended (12.07.2006) by Defence (Amendment) Act 2006 (20/2006), s. 7, commenced on enactment; subs. (3) substituted as per F-notes above.
E49
Previous affecting provision: subss. (2) and (3) amended (8.03.2005) by Criminal Justice (Terrorist Offences) Act 2005 (2/2005), s. 56(b) and (c), commenced on enactment; subss. (2) and (3) substituted as per F-notes above.
E50
Previous affecting provision: subss. (2) and (3) amended (28.06.2000) by Criminal Justice (Safety of United Nations Workers) Act 2000 (16/2000), s. 6(b), commenced on enactment; subss. (2) and (3) substituted as per F-notes above.
E51
Previous affecting provision: subss. (2) and (3) amended (14.06.2000) by Criminal Justice (United Nations Convention Against Torture) Act 2000 (11/2000), s. 6(b), commenced on enactment; subss. (2) and (3) substituted as per F-notes above.
E52
Previous affecting provision: subs. (2) amended (22.07.1997) by Criminal Law Act 1997 (14/1997), s. 14 and sch. 2, para. 7, commenced as per s. 1; subs. (2) substituted as per F-note above.
E53
Previous affecting provision: term “International United Nations Force” interpreted (1.07.1993) by Defence (Amendment) Act 1993 (18/1993), s. 3(2), commenced on enactment; repealed (12.07.2006) by Defence (Amendment) Act 2006 (20/2006), s. 12 and sch., commenced on enactment.
E54
Previous affecting provision: subs. (3) amended (18.01.1991) by Criminal (Rape) (Amendment) Act 1990 (32/1990), s. 19(b), commenced as per s. 22(3); subs. (3) substituted as per F-note above.
E55
Previous affecting provision: subs. (2) amended (11.07.1990) by Criminal Justice Act 1990 (16/1990), s. 7 and sch. 1, para. 4(h), commenced on enactment; subs. (2) substituted as per F-note above.
E56
Previous affecting provision: subss. (2) and (3) amended (18.12.1973) by Genocide Act 1973 (28/1973), s. 5, commenced on enactment; subss. (2) and (3) substituted as per F-notes above.
Section 193
F264[
Dissolution of courts-martial.
193.— (1) This section applies to the dissolution of a general court-martial or limited court-martial.
(2) The Court-Martial Administrator may dissolve a court-martial at any time before it has been sworn, where he considers that by reason of the exigencies of the service or for any other reason it is desirable to do so.
(3) The military judge for a trial by court-martial may dissolve the court-martial at any time after it has been sworn where he considers it to be necessary or expedient in the interests of the administration of justice.
(4) Where a court-martial has been sworn and the military judge dies or for any other reason is unavailable, the court-martial may be dissolved by another military judge or by the Court-Martial Administrator, as appropriate.
(5) The military judge shall dissolve the court-martial—
(a) where, on account of the illness of the accused at any time before the finding, it is impossible, in the opinion of the military judge, to continue the trial within a reasonable time, or
(b) where at any time after the court-martial is sworn, and before the finding, the number of members of the court-martial board is reduced below the minimum number of members required for the trial—
(i) by reason of the death of a member or the discharge of a member by the military judge owing to his being incapable through illness or any other cause of continuing to act as a member, or
(ii) because the military judge directs that a member shall not serve or shall not continue to serve as a member where he considers that for any stated reason it is desirable in the interests of justice.
(6) Where a court-martial is dissolved under this section, the accused may, on the directions of the Director, be retried by another court-martial in accordance with this Part.
(7) For the purposes of subsection (5) of this section the minimum number of members of a court-martial board shall be—
(a) in the case of a general court-martial, 5 members (including the officer referred to in section 189(2)(a) or (3)(a)(i), as the case may be), and
(b) in the case of a limited court-martial, 3 members (including the officer referred to in section 190(2)(a)(i)).]
Annotations
Amendments:
F264
Substituted (1.09.2008) by Defence (Amendment) Act 2007 (24/2007), s. 43, S.I. No. 254 of 2008.
Section 194
F265[
Admission to courts-martial.
194.— (1) Subject to this section and to any other enactment, proceedings before a court-martial shall be held in public.
(2) Where the military judge presiding at a court-martial is satisfied that because of the nature or circumstances of the case or otherwise in the interests of justice or the security of the State or of the Defence Forces that it is desirable to do so, he may do any one or more of the following:
(a) exclude the public or any portion of the public or any particular person or persons from the court during the whole or any part of a trial;
(b) prohibit the publication of information in relation to the proceedings or any particular part of them;
(c) impose restrictions or limitations on publication.
(3) In any proceedings for an offence which is, in the opinion of the military judge, of an indecent or obscene nature (including proceedings for rape, rape under section 4 (within the meaning of the Criminal Law (Rape) (Amendment) Act 1990) or sexual assault or aggravated sexual assault (both within the meaning of the Criminal Law (Rape) (Amendment) Act 1990), attempted aggravated sexual assault or sexual assault or aiding, abetting, counselling or procuring the offence of aggravated sexual assault or sexual assault or attempted aggravated sexual assault or sexual assault or of incitement to the offence of aggravated sexual assault or sexual assault or conspiracy to commit any of the foregoing offences), the military judge shall, subject to subsections (4) and (5) of this section, exclude from the court-martial during the trial all persons except officers of the court, persons directly concerned in the proceedings, bona fide representatives of the press and such other persons (if any) as the military judge may in his discretion permit to remain.
(4) In any proceedings for an offence referred to in subsection (3) of this section—
(a) in the case of the accused person, an assisting person or, where the accused person so requests, a parent, relative or friend of the accused person shall be entitled to remain in court during the whole of the trial, and
(b) in the case of a person in respect of whom the offence is alleged to have been committed, where the person so requests, a parent, relative or friend of the person shall be entitled to remain in court while that person is giving evidence as a witness before the court-martial.
(5) In any proceedings to which subsection (2) or (3) of this section applies the findings and the sentence (if any) shall be announced in public.
(6) Witnesses, other than the accused person, shall not be admitted to a trial, except when under examination or by specific leave of the military judge presiding at the trial concerned.
(7) No persons other than the members of the court-martial board shall be present during any deliberations by the court-martial board as to its findings.]
Annotations
Amendments:
F265
Substituted (1.09.2008) by Defence (Amendment) Act 2007 (24/2007), s. 44, S.I. No. 254 of 2008.
Section 195
F266[
Divers matters of procedure.
195.— (1) A court-martial may adjourn from time to time and from place to place whenever the military judge considers adjournment desirable.
(2) The military judge and, in the case of a general court-martial or a limited court-martial, the court-martial board, after it is sworn and before making its findings, if the military judge considers it appropriate, may view any place, person or thing which in the opinion of the military judge it is expedient for the purposes of the proceedings that he and, as the case may be, the court-martial board should see.
(3) For the purposes of viewing any place, person or thing under subsection (2) of this section, the military judge shall give such directions as appear to him to be expedient for the purpose of preventing undue communication with the court-martial board during the viewing.]
Annotations
Amendments:
F266
Substituted (1.09.2008) by Defence (Amendment) Act 2007 (24/2007), s. 45, S.I. No. 254 of 2008.
Section 196
Counsel at courts-martial.
196.—(1) The prosecutor at a court-martial may be represented by counsel.
(2) Any person being tried by a court-martial may be represented by counsel or, if not represented by counsel, by an officer subject to military law.
(3) Any conduct of counsel which would be liable to censure or would be contempt of court if it took place before the High Court shall be likewise deemed liable to censure or be deemed contempt of court in the case of a court-martial, and rules prescribed for practice of courts-martial and the guidance of counsel shall be binding on counsel appearing before such courts-martial and any wilful disobedience of such rules shall be professional misconduct and if persevered in be deemed contempt of court.
(4) Where a counsel at a court-martial is guilty of conduct liable to censure or is guilty of contempt of court, the F267[military judge] may certify the offence of such counsel under his hand to the High Court, and the High Court may, after such inquiry as it thinks proper to make, punish or take steps for the punishment of such counsel in like manner as if he had been guilty of contempt of the High Court.
(5) A court-martial may, by order under the hand of the F267[military judge], cause a counsel to be removed from the court who is guilty of such an offence as may in the opinion of the court require his removal from court, but in every such case the F267[military judge] shall certify the offence to the High Court under the immediately preceding subsection.
(6) In this section, the word “counsel” means a person who is either a barrister-at-law or a solicitor.
Annotations
Amendments:
F267
Substituted (1.09.2008) by Defence (Amendment) Act 2007 (24/2007), s. 4(2) and sch. 2, S.I. No. 254 of 2008.
Section 197
F268[
Challenges by accused.
197.— (1) When a court-martial is assembled and before the members of the court-martial board are sworn, their names shall be read to the accused who shall then be asked if he objects to any of them and in the event of an objection the decision as to whether to allow the objection shall be made by the military judge in accordance with the procedure prescribed by court-martial rules.
(2) The procedure for the replacement of a member of the court-martial board in respect of whom an objection has been allowed shall be as prescribed, subject to the same right of the accused to object to the member selected to fill the subsequent vacancy in accordance with subsection (1) of this section.]
Annotations
Amendments:
F268
Substituted (1.09.2008) by Defence (Amendment) Act 2007 (24/2007), s. 46, S.I. No. 254 of 2008.
Section 197A
F269[
Rulings and directions.
197A.— (1) Rulings and directions on questions of law, practice or procedure relative to the charge or trial shall be given by the military judge presiding at a court-martial.
(2) Any rulings or directions given under subsection (1) of this section shall be binding on the court-martial concerned.]
Annotations
Amendments:
F269
Inserted (1.09.2008) by Defence (Amendment) Act 2007 (24/2007), s. 47, S.I. No. 254 of 2008.
Section 198
F270[
Courts-martial: findings and sentence.
198.— (1) Subject to the provisions of this section, in the case of a general court-martial or limited court-martial, a finding of guilty on any charge shall be decided by a majority of at least two-thirds of the members of the court-martial board, after the military judge has summed up the law and the evidence.
(2) Where two-thirds of the members of the court-martial board is not a whole number, the next highest whole number shall be taken to be two-thirds for the purposes of subsection (1) of this section.
(3) If the number of members of the court-martial board who vote for a guilty finding on any charge is less than that referred to in subsection (1) of this section the accused shall be acquitted of that charge.
(4) The military judge presiding at a general court-martial or limited court-martial is not entitled to vote on the finding.
(5) The military judge presiding at a court-martial shall determine the sentence.]
Annotations
Amendments:
F270
Substituted (1.09.2008) by Defence (Amendment) Act 2007 (24/2007), s. 48, S.I. No. 254 of 2008.
Editorial Notes:
E57
Previous affecting provision: subs. (2) deleted (11.07.1990) by Criminal Justice Act 1990 (16/1990), s. 7 and sch. 1, para. 4(i), commenced on enactment; new subs. (2) substituted as per F-note above.
Section 199
F271[
Swearing of court-martial.
199.— (1) When a court-martial board is constituted with the required number of persons who are not objected to or the objections to whom have not been allowed, an oath in the form prescribed by court-martial rules shall be administered by the person or persons so prescribed to—
(a) each member of the court-martial board, and
(b) every interpreter and shorthand writer or other note-taker in attendance.
(2) If a person required by this section to take an oath objects to taking an oath or is objected to as incompetent to take an oath, the military judge shall, if satisfied of the sincerity of the objection or, where the competence of a person to take an oath is objected to, of the oath having no binding effect on the conscience of that person, permit the person, instead of being sworn, to make a solemn declaration in the prescribed form, and for the purposes of this Act that declaration is deemed to be an oath.
(3) For the purposes of this section, different forms of oath may be prescribed for members of a court-martial board, interpreters and shorthand writers or other note-takers, and different persons may be prescribed to administer oaths and to take declarations.]
Annotations
Amendments:
F271
Substituted (1.09.2008) by Defence (Amendment) Act 2007 (24/2007), s. 49, S.I. No. 254 of 2008.
Editorial Notes:
E58
Person prescribed for the purposes of section (2.12.2019) by Rules of Procedure (Defence Forces) 2019 (S.I. No. 555 of 2019), rule 71, in effect as per rule 1(2), subject to transitional provision in para. (2).
E59
Previous affecting provision: person prescribed for purposes of section (1.09.2008) by Rules of Procedure (Defence Forces) 2008 (S.I. No. 204 of 2008), rule 73, in effect as per rule 1(2); revoked (2.12.2019) by Rules of Procedure (Defence Forces) 2019 (S.I. No. 555 of 2019), rule 73(1), in effect as per rule 1(2), subject to transitional provision in para. (2).
Section 200
Evidence to be on oath.
200.—(1) Every witness before a court-martial shall be examined on oath which the F272[…] prescribed person shall administer in the prescribed form.
(2) If a person by this Act required as witness before a court-martial, or otherwise in respect of a court-martial, to take an oath, objects to take an oath or is objected to as incompetent to take an oath, the court-martial shall, if satisfied of the sincerity of the objection or, where the competence of the person to take an oath is objected to, of the oath having no binding effect on the conscience of such person, permit such person, instead of being sworn, to make a solemn declaration in the prescribed form, and for the purposes of this Act such solemn declaration shall be deemed to be an oath.
Annotations
Amendments:
F272
Deleted (1.09.2008) by Defence (Amendment) Act 2007 (24/2007), s. 4(2) and sch. 2, S.I. No. 254 of 2008.
Editorial Notes:
E60
Person prescribed for the purposes of section (2.12.2019) by Rules of Procedure (Defence Forces) 2019 (S.I. No. 555 of 2019), rule 71, in effect as per rule 1(2), subject to transitional provision in para. (2).
E61
Previous affecting provision: person prescribed for purposes of section (1.09.2008) by Rules of Procedure (Defence Forces) 2008 (S.I. No. 204 of 2008), rule 73, in effect as per rule 1(2); revoked (2.12.2019) by Rules of Procedure (Defence Forces) 2019 (S.I. No. 555 of 2019), rule 73(1), in effect as per rule 1(2), subject to transitional provision in para. (2).
Section 201
Evidence at courts-martial.
201.—(1) The rules of evidence to be adopted in proceedings before courts-martial shall be the same as those which are for the time being followed in civil courts.
(2) (a) In this subsection, the expression “summary of evidence” means evidence in relation to a charge against an accused taken down in writing in accordance with rules of procedure in that behalf.
(b) Where a statement of evidence given on oath by a witness against an accused is contained in a summary of evidence—
(i) subject to subparagraph (ii) of this paragraph, the statement may be read as evidence at the trial of the accused by court-martial, if it is proved that—
(I) the witness is dead or insane or so ill as to be unable to attend the trial, and
(II) the statement was made in the presence of the accused, and
(III) the accused or his counsel or representative had an opportunity of cross-examining the witness,
(ii) if the witness is insane or so ill as to be unable to attend the trial, the statement shall not be read without the accused’s consent.
(3) No person shall at any proceedings before a court-martial be required to answer any question or to produce any document which he could not be required to answer or produce in similar proceedings before a civil court.
Section 202
F273[
Mental disorder at time of trial.
202.— (1) Where at the trial by court-martial of a person charged with an offence it appears that such person is by reason of mental disorder unfit to take his trial the following provisions, subject to subsection (4), shall have effect, that is to say:
(a) F274[the military judge presiding at the court-martial] shall find specially that fact,
(b) F275[the military judge, if he is] satisfied having heard evidence relating to the mental condition of the person given by a consultant psychiatrist that such person is suffering from a mental disorder (within the meaning of F276[the Mental Health Act 2001]) and is in need of in-patient care or treatment in a designated centre, shall commit him to a specified designated centre until an order is made under section 13 F277[or 13A] of the Criminal Law (Insanity) Act 2006.
F278[(1A) In the case of a general court-martial or limited court-martial, the question of whether a person charged with an offence is fit to be tried shall be determined, and the finding shall be made, by the military judge sitting alone.]
(2) F279[…]
(3) A person charged with an offence shall not be fit to take his trial if he is unable by reason of mental disorder to understand the nature or course of the proceedings so as to—
(a) plead to the charge,
(b) instruct a legal representative,
F280[(bb) in the case of a general court-martial or limited court-martial, object to a member of the court-martial board to whom he might wish to object,]
(c) make a proper defence, or
(d) understand the evidence.
F281[(4) After the military judge presiding at a court-martial has found that a person charged with an offence is unfit to take his trial, the military judge may on application to him and without prejudice to any further proceedings allow evidence to be adduced before the court-martial as to whether or not that person did the act or made the omission alleged against him and if the summary court-martial or, in the case of a general court-martial or limited court-martial, the court-martial board, is satisfied that there is a reasonable doubt that the person committed that act or made the omission, the summary court-martial or the court-martial board, as the case may be, shall acquit him.]
(5) In this section and in section 203 of this Act “mental disorder” and “designated centre” shall have the meanings respectively assigned to them by section 1 of the Criminal Law (Insanity) Act 2006, unless the context otherwise requires.]
F282[(5) In this section and in section 203 “consultant psychiatrist” has the same meaning as in the Mental Health Act 2001.]
Annotations
Amendments:
F273
Substituted (1.06.2006) by Criminal Law (Insanity) Act 2006 (11/2006), s. 21, S.I. No. 273 of 2006.
F274
Substituted (1.09.2008) by Defence (Amendment) Act 2007 (24/2007), s. 50(a), S.I. No. 254 of 2008.
F275
Substituted (1.09.2008) by Defence (Amendment) Act 2007 (24/2007), s. 50(a), S.I. No. 254 of 2008.
F276
Substituted (1.09.2008) by Defence (Amendment) Act 2007 (24/2007), s. 50(a), S.I. No. 254 of 2008.
F277
Inserted (8.02.2011) by Criminal Law (Insanity) Act 2010 (40/2010), s. 10(a), S.I. No. 50 of 2011.
F278
Inserted (1.09.2008) by Defence (Amendment) Act 2007 (24/2007), s. 50(b), S.I. No. 254 of 2008.
F279
Deleted (1.09.2008) by Defence (Amendment) Act 2007 (24/2007), s. 50(c), S.I. No. 254 of 2008.
F280
Inserted (1.09.2008) by Defence (Amendment) Act 2007 (24/2007), s. 50(d), S.I. No. 254 of 2008.
F281
Substituted (1.09.2008) by Defence (Amendment) Act 2007 (24/2007), s. 50(e), S.I. No. 254 of 2008.
F282
Inserted (1.09.2008) by Defence (Amendment) Act 2007 (24/2007), s. 50(f), S.I. No. 254 of 2008.
Editorial Notes:
E62
Defence (Amendment) Act 2007 (24/2007), s. 50(f) (1.09.2008) inserts a second subs. (5), see F-note above.
E63
Provision for review of detention under section made (1.06.2006) by Criminal Law Insanity Act 2006 (11/2006), s. 13, S.I. No. 273 of 2006, as amended.
E64
Previous affecting provision: section amended (29.06.1983) by Courts-Martial Appeals Act 1983 (19/1983), s. 5, commenced on enactment; substituted as per F-note above.
Section 203
F283[
Mental disorder at time of commission of offence.
203.— (1) Where at the trial by court-martial of a person charged with an offence, F284[the summary court-martial, or in the case of a general court-martial or limited court-martial, the court-martial board, finds] that the person did the act or made the omission charged but, having heard evidence relating to his mental condition given by a consultant psychiatrist, finds that he was at the time when he did the act or made the omission suffering from a mental disorder and that the mental disorder was such that he should not be held responsible for the act or omission alleged by reason of the fact that—
(a) he did not know the nature and quality of the act he was doing, or
(b) he did not know what he was doing was wrong, or
(c) he was unable to refrain from committing the act or making the omission,
F285[the summary court-martial, or in the case of a general court-martial or limited court-martial, the court-martial board, shall specially find] that the person is not guilty by reason of insanity.
F286[(2) If the military judge presiding at the court-martial having considered any evidence adduced before the court-martial is satisfied that the person found not guilty by reason of insanity is suffering from a mental disorder (within the meaning of the Mental Health Act 2001) and is in need of in-patient care or treatment in a designated centre the military judge shall, after consultation with the clinical director of the designated centre concerned, commit him to a specified designated centre until an order is made under section 13 F287[or 13A] of the Criminal Law (Insanity) Act 2006.]
F288[(2A) In this section “clinical director” shall have the same meaning as in section 1 of the Criminal Law (Insanity) Act 2006.]
(3) F289[…]]
Annotations
Amendments:
F283
Substituted (1.06.2006) by Criminal Law (Insanity) Act 2006 (11/2006), s. 21, S.I. No. 273 of 2006.
F284
Substituted (1.09.2008) by Defence (Amendment) Act 2007 (24/2007), s. 51(a)(i), S.I. No. 254 of 2008.
F285
Substituted (1.09.2008) by Defence (Amendment) Act 2007 (24/2007), s. 51(a)(ii), S.I. No. 254 of 2008.
F286
Substituted (1.09.2008) by Defence (Amendment) Act 2007 (24/2007), s. 51(b), S.I. No. 254 of 2008.
F287
Inserted (8.02.2011) by Criminal Law (Insanity) Act 2010 (40/2010), s. 10(b), S.I. No. 50 of 2011.
F288
Inserted (1.09.2008) by Defence (Amendment) Act 2007 (24/2007), s. 51(c), S.I. No. 254 of 2008.
F289
Deleted (1.09.2008) by Defence (Amendment) Act 2007 (24/2007), s. 51(d), S.I. No. 254 of 2008.
Editorial Notes:
E65
Provision for appeal made by Courts-Martial Appeals Act 1983 (19/1983), s. 19B(1)(b) and (3), as inserted (1.09.2008) by Defence (Amendment) Act 2007 (24/2007), s. 11 and sch. 4, pt. 1, S.I. No. 254 of 2008.
E66
Provision for review of detention under section made (1.06.2006) by Criminal Law Insanity Act 2006 (11/2006), s. 13, S.I. No. 273 of 2006, as amended.
E67
Previous affecting provision: section amended (29.06.1983) by Courts-Martial Appeals Act 1983 (19/1983), s. 6, commenced on enactment; substituted as per F-note above.
Section 203A
F290[Diminished responsibility.
203A.— Section 6 of the Criminal Law (Insanity) Act 2006, shall apply with any necessary modifications to a person subject to military law who is tried by court-martial for murder as it applies to a person who is tried for murder.]
Annotations
Amendments:
F290
Inserted (1.06.2006) by Criminal Law (Insanity) Act 2006 (11/2006), s. 21, S.I. No. 273 of 2006.
Section 203B
F291[
Appeals (mental disorder at time of trial).
203B.— (1) An appeal shall lie to the Courts-Martial Appeal Court (in this section and in sections 203C and 203D referred to as “the Court”) from a finding by a court-martial pursuant to section 202 that a person charged with an offence is unfit to take his trial.
(2) Where the Court makes an order pursuant to section 19A (inserted by the Defence (Amendment) Act 2007) of the Courts-Martial Appeals Act 1983 that the appellant be tried or retried, as the case may be, by court-martial for the offence alleged, the appellant may, subject to the directions of the Director, be tried or retried for an offence other than the offence alleged in respect of which he was found unfit to take his trial being an offence of which he might be found guilty on a charge for the offence alleged.]
Annotations
Amendments:
F291
Inserted (1.09.2008) by Defence (Amendment) Act 2007 (24/2007), s. 52, S.I. No. 254 of 2008.
Section 203C
F292[
Appeals (not guilty by reason of insanity).
203C.— A person tried for an offence by court-martial and found not guilty by reason of insanity may appeal against the finding to the Court pursuant to section 19B (inserted by the Defence (Amendment) Act 2007) of the Courts-Martial Appeals Act 1983.]
Annotations
Amendments:
F292
Inserted (1.09.2008) by Defence (Amendment) Act 2007 (24/2007), s. 52, S.I. No. 254 of 2008.
Section 203D
F293[
Appeals (order of committal under section 202 or 203).
203D.— An appeal against a decision by a court-martial to make or not to make an order of committal under section 202(1)(b) or 203(2) shall lie at the instance of the person charged with the offence concerned or the Director to the Court pursuant to section 19C (inserted by the Defence (Amendment) Act 2007) of the Courts-Martial Appeals Act 1983.]
Annotations
Amendments:
F293
Inserted (1.09.2008) by Defence (Amendment) Act 2007 (24/2007), s. 52, S.I. No. 254 of 2008.
Section 204
Finding of acquittal.
204.—A finding of acquittal by a court-martial, whether on all or any one or more of the charges with which the accused is charged, F294[…] shall be pronounced at once in open court, and, if it relates to all the charges with which the accused is charged before the court-martial, the accused shall be released.
Annotations
Amendments:
F294
Deleted (1.09.2008) by Defence (Amendment) Act 2007 (24/2007), s. 4(2) and sch. 2, S.I. No. 254 of 2008.
COURTS-MARTIAL APPEALS ACT 1983
REVISED
Updated to 6 July 2022
AN ACT TO ESTABLISH A COURTS-MARTIAL APPEAL COURT, TO MAKE PROVISION FOR THE GRANT BY THE STATE OF FREE LEGAL AID IN CERTAIN COURTS-MARTIAL CASES AND TO PROVIDE FOR MATTERS CONNECTED THEREWITH. [29th June, 1983]
BE IT ENACTED BY THE OIREACHTAS AS FOLLOWS:
Annotations
Modifications (not altering text):
C1
Revocation of order under subs. (9) or (15) deemed to be sentence of court martial by Defence Act 1954 (18/1954), s. 212A(16) as inserted (1.09.2008) by Defence (Amendment) Act 2007 (24/2007), s. 61, S.I. No. 254 of 2008.
Power to suspend sentence.
212A.— …
(16) The revocation of an order under subsection (9) or (15) of this section shall for the purposes of this Act and the Courts-Martial Appeals Act 1983 be deemed to be a sentence of a court-martial.
C2
Order deemed to be sentence of court martial by Defence Act 1954 (18/1954), s. 213(10) as substituted (1.09.2008) by Defence (Amendment) Act 2007 (24/2007), s. 63, S.I. No. 254 of 2008.
Order for payment of compensation.
213.— …
(10) An order under this section shall, for the purposes of this Act and the Courts-Martial Appeals Act 1983, be deemed to be a sentence of a court-martial.
Editorial Notes:
E1
Proceedings prior to 20.07.2009 not affected (20.07.2009) by Rules of the Superior Courts (Courts-Martial Appeal Court) 2009 (S.I. No. 270 of 2009), rule 2.
E2
Legal aid restricted under certain conditions (2.07.2008) by Courts-Martial (Legal Aid) Regulations 2008 (S.I. No. 206 of 2008), reg. 18.
E3
Witness expenses prescribed (2.07.2008) by Courts-Martial (Legal Aid) Regulations 2008 (S.I. No. 206 of 2008), reg. 17, as amended (30.06.2010) by Courts-Martial (Legal Aid) (Amendment) Regulations 2010 (S.I. No. 327 of 2010).
E4
Fees and expenses prescribed (2.07.2008) by Courts-Martial (Legal Aid) Regulations 2008 (S.I. No. 206 of 2008), regs. 11-16, schs. 3 and 4, as amended (30.06.2010) by Courts-Martial (Legal Aid) (Amendment) Regulations 2010 (S.I. No. 327 of 2010).
PART I
Preliminary and General
Section 1
Short title.
1.—This Act may be cited as the Courts-Martial Appeals Act, 1983.
Section 2
Commencement of Part III.
2.—Part III of this Act shall come into operation on such day as may be fixed therefor by order of the Minister.
Annotations
Editorial Notes:
E5
Power pursuant to section exercised (16.12.1986) by Courts-Martial Appeals Act, 1983 (Commencement of Part III) Order 1986 (S.I. No. 426 of 1986).
2. The 16th day of December, 1986, is hereby fixed as the day on which Part III of the Courts-Martial Appeals Act 1983 (19/1983), shall come into operation.
Section 3
Definitions.
3.—In this Act—
F1[”Act of 1947” means the Courts of Justice Act 1947; ]
“the Act of 1954” means the Defence Act, 1954;
“the Court” means the Courts-Martial Appeal Court established by section 9;
“the Minister” means the Minister for Defence.
F1[”military judge”—
(a) means a military judge appointed under Chapter IVC of Part V of the Act of 1954, and
(b) in relation to the performance of the functions of a military judge under this Act or any instrument made under it, where a temporary designation of a Circuit Judge to carry out the functions of a military judge has been made under section 11A of the Act of 1947, references to the performance of such functions shall be construed in accordance with section 3A.]
Annotations
Amendments:
F1
Inserted (9.11.2011) by Defence (Amendment) Act 2011 (17/2011), s. 11(a), S.I. No. 568 of 2011.
Modifications (not altering text):
C3
Prospective affecting provision: definition amended by Courts and Court Officers Act 1995 (31/1995), s. 3 and sch. 1 pt. 2, not commenced as of date of revision.
3.— …
“the Court” means the Courts-Martial Appeal Court F1[…];
…
Section 3A 3A
F2[
Performance of functions of military judge by Circuit Judge.
3A.—(1) Where a Circuit Judge has been temporarily designated under section 11A of the Courts of Justice Act 1947 pursuant to a request under section 184LA of the Act of 1954, notwithstanding the definition of military judge in section 3, references in this Act, or any instrument made under it, to a military judge in relation to the carrying out of the functions of a military judge under this Act, or any instrument made under it, shall be construed in accordance with such temporary designation of such Circuit Judge and nothing in this Act, or any statutory instrument made under it, shall be construed as preventing such Circuit Judge from carrying out such functions of a military judge.
(2) In this section “Circuit Judge” has the meaning assigned to it by the Act of 1947.]
Annotations
Amendments:
F2
Inserted (9.11.2012) by Defence (Amendment) Act 2011 (17/2011), s. 11(b), S.I. No. 568 of 2012.
Section 4
Expenses.
4.—The expenses incurred by a Minister of the Government in the administration of this Act shall, to such extent as may be sanctioned by the Minister for Finance, be paid out of moneys provided by the Oireachtas.
Section 5
Amendment of section 202 of Act of 1954.
5.—Section 202 of the Act of 1954 is hereby amended—
(a) by the substitution of the following paragraph for paragraphs (b) and (c) of subsection (1):
“(b) the court-martial shall order that such person be kept in custody in an institution suitable for the detention of such person until such time as he is fit to take his trial or until his release is sooner ordered by the Minister or the High Court, which court shall for that purpose have all the powers which a judge of the Central Criminal Court would have had if the case had been tried before him.”, and
(b) by the substitution of the following subsection for subsection (2):
“(2) A finding under this section shall not require confirmation or be subject to revision.”,
and that section, as so amended, is set out in the Table to this section.
TABLE
202.—(1) Where at the trial by court-martial of a person charged with an offence it appears that such person is by reason of insanity unfit to take his trial, the following provisions shall have effect, that is to say:—
(a) the court-martial shall find specially that fact;
(b) the court-martial shall order that such person be kept in custody in an institution suitable for the detention of such person until such time as he is fit to take his trial or until his release is sooner ordered by the Minister or the High Court, which court shall for that purpose have all the powers which a judge of the Central Criminal Court would have had if the case had been tried before him.
(2) A finding under this section shall not require confirmation or be subject to revision.
Section 6
Amendment of section 203 of Act of 1954.
6.—Section 203 of the Act of 1954 is hereby amended—
(a) by the substitution of the following paragraph for paragraphs (b) and (c) of subsection (1):
“(b) the court-martial shall order that such person be kept in custody in an institution suitable for the detention of such person until further order of the High Court, which court shall for that purpose have all the powers which a judge of the Central Criminal Court would have had if such person had been tried before him.”, and
(b) by the substitution of the following subsection for subsection (2):
“(2) A finding under this section shall not require confirmation or be subject to revision.”,
and that section, as so amended, is set out in the Table to this section.
TABLE
203.—(1) Where at the trial by court-martial of a person charged with an offence it appears that such person did the act or made the omission charged, but was insane at the time when he did the said act or made the said omission, the following provisions shall have effect, that is to say:—
(a) the court-martial shall find specially that the accused was guilty of the act or omission charged but was insane at the time he did the act or made the omission;
(b) the court-martial shall order that such person be kept in custody in an institution suitable for the detention of such person until further order of the High Court, which court shall for that purpose have all the powers which a judge of the Central Criminal Court would have had if such person had been tried before him.
(2) A finding under this section shall not require confirmation or be subject to revision.
Section 7
Amendment of section 215 of Act of 1954.
7.—Section 215 of the Act of 1954 is hereby amended by the substitution for “Subject to section 204,” of “Subject to sections 202 to 204,” and that section, as so amended, is set out in the Table to this section.
TABLE
215.—Subject to sections 202 to 204, the finding and sentence of a court-martial shall not be valid except in so far as the same may be confirmed by a confirming authority under this Chapter.
Section 8
Restriction of section 224 of Act of 1954.
8.—Section 224 of the Act of 1954 (quashing of finding of court-martial) shall not have effect in relation to the finding or sentence of a court-martial against which the person convicted may, by virtue of an order under section 24 of this Act, appeal to the Court.
PART II
Courts-Martial Appeal Court
Section 9
Establishment and constitution of the Courts-Martial Appeal Court.
9.—F3[…]
Annotations
Amendments:
F3
Repealed (28.10.2014) by Court of Appeal Act 2014 (18/2014), s. 73 and sch. 1 item 6, S.I. No. 479 of 2014.
Modifications (not altering text):
Editorial Notes:
E6
Previous affecting provision: section repealed by Courts and Court Officers Act 1995 (31/1995), s. 3 and sch. 1 part 2, not commenced; superseded as per F-note above.
Section 10
Court to be a superior court of record, etc.
10.—F4[…]
Annotations
Amendments:
F4
Repealed (28.10.2014) by Court of Appeal Act 2014 (18/2014), s. 73 and sch. 1 item 6, S.I. No. 479 of 2014.
Modifications (not altering text):
Editorial Notes:
E7
Previous affecting provision: section repealed by Courts and Court Officers Act 1995 (31/1995), s. 3 and sch. 1 part 2, not commenced; superseded as per F-note above.
Section 11
Registrar of the Court.
11.—F5[…]
Annotations
Amendments:
F5
Repealed (28.10.2014) by Court of Appeal Act 2014 (18/2014), s. 73 and sch. 1 item 6, S.I. No. 479 of 2014.
Modifications (not altering text):
Editorial Notes:
E8
Previous affecting provision: section repealed by Courts and Court Officers Act 1995 (31/1995), s. 3 and sch. 1 part 2, not commenced; superseded as per F-note above.
Section 12
Sittings and procedure of the Court.
12.—F6[…]
Annotations
Amendments:
F6
Repealed (28.10.2014) by Court of Appeal Act 2014 (18/2014), s. 73 and sch. 1 item 6, S.I. No. 479 of 2014.
Modifications (not altering text):
Editorial Notes:
E9
Previous affecting provision: section repealed by Courts and Court Officers Act 1995 (31/1995), s. 3 and sch. 1 part 2, not commenced; superseded as per F-note above.
Section 13
Right of appeal to the Court.
13.—F7[(1)]A person convicted by a court-martial may appeal to the Court against the finding or sentence change F8[…] of the court-martial or against both such finding and such sentence.
F9[(2) A person in respect of whom a finding or order of committal is made under section 202 or 203 of the Act of 1954 may appeal that finding or order of committal to the Court.]
Annotations
Amendments:
F7
Inserted (1.09.2008) by Defence (Amendment) Act 2007 (24/2007), s. 11 and sch. 4, S.I. No. 254 of 2008.
F8
Deleted (1.09.2008) by Defence (Amendment) Act 2007 (24/2007), s. 11 and sch. 4, S.I. No. 254 of 2008.
F9
Inserted (1.09.2008) by Defence (Amendment) Act 2007 (24/2007), s. 11 and sch. 4, S.I. No. 254 of 2008.
Section 14
Appeal to the Supreme Court.
14.—F10[…]
Annotations
Amendments:
F10
Repealed (28.10.2014) by Court of Appeal Act 2014 (18/2014), s. 73 and sch. 1 item 6, S.I. No. 479 of 2014, subject to transitional provisions as per s. 78(3).
Editorial Notes:
E10
Previous affecting provision: section repealed by Courts and Court Officers Act 1995 (31/1995), s. 3 and sch. 1 part 2, not commenced; superseded as per F-note above.
Section 15
Interlocutory applications.
15.—F11[…]
Annotations
Amendments:
F11
Repealed (28.10.2014) by Court of Appeal Act 2014 (18/2014), s. 73, sch. 1 item 6, S.I. No. 479 of 2014.
Section 16
Consequential orders of the Court.
16.—Where a person convicted by a court-martial gives notice of appeal to the Court, the Court shall have power to make all consequential orders it may think fit, including—
(a) in the case of an appellant who is a member of the Defence Forces, an order suspending the operation of a sentence of F12[…] imprisonment or detention pending the determination of the appeal, and
(b) in the case of an appellant who is not a member of the Defence Forces, an order admitting the appellant to bail on such terms as the Court thinks proper pending the determination of the appeal.
Annotations
Amendments:
F12
Deleted (22.07.1997) by Criminal Law Act 1997 (14/1997), ss. 1, 16 and sch. 3.
Section 17
Hearing of appeal by the Court.
17.—(1) An appeal to the Court shall be heard and determined by the Court on the proceedings of the trial of the appellant, with power to the Court to hear new or additional evidence and to refer any matter for report by the F13[military judge presiding at the court-martial] by which the appellant was tried.
(2) F14[…]
Annotations
Amendments:
F13
Substituted (1.09.2008) by Defence (Amendment) Act 2007 (24/2007), s. 11 and sch. 4, S.I. No. 254 of 2008.
F14
Deleted (1.09.2008) by Defence (Amendment) Act 2007 (24/2007), s. 11 and sch. 4, S.I. No. 254 of 2008.
Section 18
Jurisdiction of the Court.
18.—F15[…]
Annotations
Amendments:
F15
Repealed (29.12.1993) by Criminal Procedure Act 1993 (40/1993), s. 13 and sch., commenced on enactment.
Section 19
Finding of guilty but insane.
19.—If on any appeal F16[(other than an appeal under sections 203B to 203D (inserted by the Defence (Amendment) Act 2007) of the Act of 1954)] it appears to the Court that, although the appellant did the act or made the omission charged against him, he was insane at the time when the act was done or the omission was made so as not to be responsible according to law for the act or omission, the Court may quash the sentence passed at the trial and order the appellant to be kept in custody in like manner as if the case had been determined by the Court of Criminal Appeal on appeal from a conviction on indictment.
Annotations
Amendments:
F16
Inserted (1.09.2008) by Defence (Amendment) Act 2007 (24/2007), s. 11, sch. 4, S.I. No. 254 of 2008.
Section 19A
F17[Appeals (mental disorder at time of trial).
19A.—Where an appeal is made to the Court under section 203B (inserted by the Defence (Amendment) Act 2007) of the Act of 1954 from a finding by a court-martial pursuant to section 202 of that Act, the Court shall, if it allows the appeal, order that the appellant be tried or retried, as the case may be, by court-martial for the offence alleged.]
Annotations
Amendments:
F17
Inserted (1.09.2008) by Defence (Amendment) Act 2007 (24/2007), s. 11, sch. 4, S.I. No. 254 of 2008.
Section 19B
F18[
Appeals (mental disorder at time of commission of offence).
19B.—(1) A person tried for an offence by court-martial and found not guilty by reason of insanity may appeal to the Court against the finding on all or any of the following grounds:
(a) that it was not proved that the person did the act or made the omission in question;
(b) that the person was not, at the time when he did the act or made the omission, suffering from a mental disorder of the nature referred to in section 203(1) of the Act of 1954;
(c) that the military judge ought to have made a finding in respect of the person that he was unfit to take his trial.
(2) If on an appeal to the Court on the ground referred to in subsection (1)(a) of this section, the Court is satisfied that it was not established that the appellant did the act or made the omission in question it shall order that the appellant be acquitted.
(3) If, on an appeal to the Court on the ground referred to in subsection (1)(b) of this section, the Court is satisfied that the appellant did the act or made the omission alleged but having considered the evidence or any new evidence relating to the mental condition of the appellant given by a consultant psychiatrist is satisfied that he was not suffering from a mental disorder of the nature referred to in section 203(1) of the Act of 1954, the Court shall substitute a verdict of guilty of the offence charged or of any other offence of which it is satisfied that the person could (by virtue of the charge) and ought to have been convicted, and shall have the like powers of punishing or otherwise dealing with the person as the court-martial concerned would have had if the person had been convicted of the offence in respect of which the verdict of guilty has been so substituted.
(4) If, on appeal to the Court on the ground set out at subsection (1)(c) of this section, the Court is satisfied that the appellant ought to have been found unfit to take his trial it shall make a finding to that effect and, in that case the provisions of section 202(1)(b) of the Act of 1954 shall apply.
(5) If on appeal to the Court, the Court is satisfied, having considered the evidence or any new evidence relating to the mental condition of the appellant, that he was at the time that the offence alleged was committed suffering from a mental disorder of the nature referred to in section 203(1) of the Act of 1954 and that but for that disorder the appellant would have been found guilty of the offence charged or of another offence of which the person could have been found guilty by virtue of the charge, the Court shall dismiss the appeal.
(6) In this section and in section 19C of this Act “consultant psychiatrist” has the same meaning as in the Mental Health Act 2001.]
Annotations
Amendments:
F18
Inserted (1.09.2008) by Defence (Amendment) Act 2007 (24/2007), s. 11 and sch. 4, S.I. No. 254 of 2008.
Section 19C
F19[
Appeals (supplementary provisions).
19C.—(1) Where an appeal is made to the Court against a decision by a court-martial to make or not to make an order of committal under section 202(1)(b) or 203(2) of the Act of 1954, the Court may, having considered the evidence or any new evidence relating to the mental condition of the person charged given by a consultant psychiatrist, make such order, being an order that it was open to the court-martial to make, as it considers appropriate and, without prejudice to the provisions of section 13 of the Criminal Law (Insanity) Act 2006 relating to the review of orders of committal, no further appeal shall lie from an order made on an appeal under this section.
(2) Where the Court allows an appeal against a conviction or against a verdict of not guilty by reason of insanity on the ground that the appellant ought to have been found unfit to take his trial, or allows an appeal against a conviction on the ground that the appellant ought to have been found not guilty by reason of insanity, it shall have the same powers to deal with the appellant as the court-martial concerned would have had under section 202 or 203 of the Act of 1954 if it had come to the same conclusion.
(3) All ancillary and procedural provisions contained in a statute or an instrument made under statute relating to appeals against convictions, including provisions relating to leave to appeal, shall apply with the necessary modifications to appeals under sections 19A and 19B of this Act and subsection (1) of this section.
(4) The powers of the Court in an appeal under section 19A or 19B of this Act or subsection (1) of this section shall include the power to make any such order as may be necessary for the purpose of doing justice in accordance with the provisions of this Act and the Criminal Law (Insanity) Act 2006.]
Annotations
Amendments:
F19
Inserted (1.09.2008) by Defence (Amendment) Act 2007 (24/2007), s. 11 and sch. 4, S.I. No. 254 of 2008.
Section 20
Convictions and sentences of the Court, etc.
20.—(1) Where on any appeal the Court substitutes a conviction of a different offence or substitutes a different sentence, that conviction or sentence shall, for the purposes of the Defence Acts, 1954 to 1979, and any instrument made thereunder, be deemed to be a duly confirmed finding or sentence of a court-martial.
(2) Notwithstanding section 206 of the Act of 1954, the Court may by order provide for the date on which a sentence substituted by it, or passed by a court-martial and not varied by the Court, shall commence or take effect.
Annotations
Editorial Notes:
E11
Application of section not restricted (1.09.2008) by Rules of Procedure (Defence forces) 2008 (S.I. No. 204 of 2008), rl. 34. Rule 34 provides for setting of effective date for application of certain sentences.
Section 21
Postponement of execution of sentence of death.
21.—F20[…]
Annotations
Amendments:
F20
Repealed (11.07.1990) by Criminal Justice Act 1990 (16/1990), s. 9 and sch. 2, commenced on enactment.
Section 22
Defence of appeal.
22.—The defence of an appeal under this Part of this Act shall be undertaken by F21[the Director of Military Prosecutions].
Annotations
Amendments:
F21
Substituted (1.09.2008) by Defence (Amendment) Act 2007 (24/2007), s. 11, sch. 4, S.I. No. 254 of 2008.
Section 22A
F22[
Case stated for the Court on question of law.
22A.—Where an appeal is made to the summary court-martial under section 178E (inserted by the Defence (Amendment) Act 2007) of the Act of 1954, the military judge—
(a) shall, if requested by the appellant or the respondent, unless the military judge considers the request frivolous, and
(b) may, without request,
refer any question of law arising in that appeal to the Court for determination in accordance with this Act.]
Annotations
Amendments:
F22
Inserted (1.09.2008) by Defence (Amendment) Act 2007 (24/2007), s. 11, sch. 4, S.I. No. 254 of 2008.
Section 22B
F23[
Review of certain sentences.
22B.—(1) An application by the Director of Military Prosecutions under section 212B (inserted by the Defence (Amendment) Act 2007) of the Defence Act 1954 to review a sentence awarded by a court-martial shall be made, on notice given to the convicted person, within 28 days or such longer period not exceeding 56 days as the Court may, on application to it in that behalf, determine, from the day on which the sentence was awarded.
(2) On such an application, the Court may either—
(a) quash the sentence and in its place award to the convicted person the sentence it considers appropriate, being a sentence which could have been awarded to him by the court-martial concerned, or
(b) refuse the application.]
Annotations
Amendments:
F23
Inserted (1.09.2008) by Defence (Amendment) Act 2007 (24/2007), s. 11 and sch. 4, S.I. No. 254 of 2008.
Section 23
Rules of court.
23.—The Superior Courts Rules Committee shall, with the concurrence of the Minister for Justice, make rules of court for the purposes of this Part of this Act.
Annotations
Editorial Notes:
E12
Power pursuant to section exercised (20.12.2011) by Rules of the Superior Courts (Courts-Martial Appeal Court) 2011 (S.I. No. 693 of 2011).
E13
Power pursuant to section exercised (20.07.2009) by Rules of the Superior Courts (Courts-Martial Appeal Court) 2009 (S.I. No. 270 of 2009).
E14
Power pursuant to section exercised (28.04.2000) by Rules of the Superior Courts (No. 2) (Courts-Martial Appeal Court Rules (Amendment)) 2000 (S.I. No. 105 of 2000).
E15
Power pursuant to section exercised (18.07.1983) by The Courts-Martial Appeal Court Rules (S.I. No. 206 of 1983).
Section 23A 23A
F24[
Section 23: supplemental provisions.
23A.— Without prejudice to the generality of section 23, rules of court made under that section may, in relation to the functions of a military judge provided for in those rules, include provisions required for the performance of the functions of a military judge by a Circuit Judge who, pursuant to section 184LA of the Act of 1954 is temporarily designated to perform such functions under section 11A of the Act of 1947.]
Annotations
Amendments:
F24
Inserted (9.11.2011) by Defence (Amendment) Act 2011 (17/2011), s. 11(c), S.I. No. 568 of 2011.
Section 24
Application of Part II.
24.—The provisions of this Part of this Act shall have effect in relation to convictions by courts-martial of which the findings are or were promulgated on or after such day (whether before or after the passing of this Act) as the Minister may fix by order under this section.
Annotations
Editorial Notes:
E16
Power pursuant to section exercised (15.07.1983) by Courts-Martial Appeals Act, 1983 (Application of Part II) Order 1983 (S.I. No. 201 of 1983).
PART III
Legal Aid
Section 25
Definitions for Part III.
25.—In this Part of this Act—
“legal aid certificate” means a legal aid (preliminary proceedings) certificate, a legal aid (court-martial) certificate, F25[a legal aid (court-martial appeal) certificate] or a legal aid (Supreme Court) certificate;
“the prescribed authority” means the person prescribed by regulations under section 33 of this Act to be the prescribed authority for the purposes of this Part of this Act.
Annotations
Amendments:
F25
Substituted (28.10.2014) by Court of Appeal Act 2014 (18/2014), s. 49(a), S.I. No. 479 of 2014.
F26
Inserted by Defence Forces (Evidence) Act 2022 (16/2022), s. 94(a)(i), not commenced as of date of revision.
F27
Substituted by Defence Forces (Evidence) Act 2022 (16/2022), s. 94(a)(ii), not commenced as of date of revision.
Modifications (not altering text):
C4
Prospective affecting provision: definition of “Act of 2022” inserted and definition of “legal aid certificate” substituted by Defence Forces (Evidence) Act 2022 (16/2022), s. 94(a)(i), (ii), not commenced as of date of revision.
F26[“Act of 2022” means the Defence Forces (Evidence) Act 2022;]
F27[“legal aid certificate” means a legal aid (preliminary proceedings) certificate, a legal aid (court-martial) certificate, a legal aid (case stated) certificate, a legal aid (application concerning forensic evidence retention period) certificate, a legal aid (court-martial appeal) certificate or a legal aid (Supreme Court) certificate;]
Editorial Notes:
E17
Previous affecting provision: definition of “legal aid certificate” amended by Courts and Court Officers Act 1995 (31/1995), s. 3 and sch. 1 part 2, not commenced; substituted (28.10.2014) as per F-note above.
Section 26
Legal aid (preliminary proceedings) certificate.
26.—Where—
(a) a person (in this section referred to as “the accused”) is charged with an offence against military law, and
F28[(b) any of the provisions of the Act of 1954 or any instrument made under that Act permit the accused to be represented by counsel or by a solicitor at the investigation of the charge or the taking down of the evidence pursuant to any such provisions or instrument (or at both such investigation and such taking down of evidence),]
then, if it appears to the prescribed authority—
(i) that the means of the accused are insufficient to enable him to obtain legal aid, and
(ii) that by reason of the gravity of the charge or of exceptional circumstances it is essential in the interests of justice that he should have legal aid at the investigation of the charge or the taking down of the evidence (or at both such investigation and such taking down of evidence),
the prescribed authority shall, on application being made to him in that behalf, grant in respect of the accused a certificate for free legal aid (in this Part of this Act referred to as “a legal aid (preliminary proceedings) certificate”) and thereupon the accused shall be entitled to such aid and to have a solicitor and (where he is charged with F30[an offence for which a person would be required on conviction to be sentenced to imprisonment for life] and the prescribed authority thinks fit) counsel assigned to him for such investigation or such taking down of evidence (or both such investigation and such taking down of evidence) in such manner as may be prescribed by regulations under section 33 of this Act.
Annotations
Amendments:
F28
Substituted (1.09.2008) by Defence (Amendment) Act 2007 (24/2007), s. 11 and sch. 4, S.I. No. 254 of 2008.
F29
Substituted by Defence Forces (Evidence) Act 2022 (16/2022), s. 94(b), not commenced as of date of revision.
F30
Substituted (11.07.1990) by Criminal Justice Act 1990 (16/1990), s. 7 and sch. 1 para. 5(a), commenced on enactment.
Modifications (not altering text):
C5
Prospective affecting provision: para. (b) amended by Defence Forces (Evidence) Act 2022 (16/2022), s. 94(b), not commenced as of date of revision.
F28[(b) F29[any of the provisions of the Act of 1954 or the Act of 2022 or any instrument made under either of those Acts] or any instrument made under that Act permit the accused to be represented by counsel or by a solicitor at the investigation of the charge or the taking down of the evidence pursuant to any such provisions or instrument (or at both such investigation and such taking down of evidence),]
Section 27
Legal aid (court-martial) certificate.
27.—(1) Where—
F31[ (a) a person (in this section referred to as “the accused”)—
(i) is, at the direction of the Director of Military Prosecutions, to be tried by court-martial, or
(ii) appeals to the summary court-martial pursuant to section 178E (inserted by the Defence (Amendment) Act 2007) of the Act of 1954,
and]
(b) a certificate for free legal aid (in this Part of this Act referred to as “a legal aid (court-martial) certificate”) is granted in respect of the accused by the prescribed authority,
the accused shall be entitled to free legal aid in the preparation and conduct of his defence at the trial F32[or of his appeal, as the case may be,] and to have a solicitor and (where the prescribed authority thinks fit) counsel assigned to him for that purpose in such manner as may be prescribed by regulations under section 33 of this Act.
(2) A legal aid (court-martial) certificate shall be granted in respect of the accused if (but only if)—
(a) application is made therefor,
(b) it appears to the prescribed authority that the means of the accused are insufficient to enable him to obtain legal aid, and
(c) either—
(i) the trial is on F33[a charge of an offence for which a person would be required on conviction to be sentenced to imprisonment for life], or
(ii) it appears to the prescribed authority that, having regard to all the circumstances of the case (including the nature of such defence, if any, as may have been set up F34[or appeal, as the case may be]), it is essential in the interests of justice that the accused should have legal aid in the preparation and conduct of his defence at the trial F35[or of his appeal, as the case may be].
Annotations
Amendments:
F31
Substituted (01.09.2008) by Defence (Amendment) Act 2007 (24/2007), s. 11 and sch. 4, S.I. No. 254 of 2008.
F32
Inserted (01.09.2008) by Defence (Amendment) Act 2007 (24/2007), s. 11 and sch. 4, S.I. No. 254 of 2008.
F33
Substituted (11.07.1990) by Criminal Justice Act 1990 (16/1990), s. 7 and sch. 1 para. 5(b), commenced on enactment.
F34
Inserted (01.09.2008) by Defence (Amendment) Act 2007 (24/2007), s. 11 and sch. 4, S.I. No. 254 of 2008.
F35
Inserted (01.09.2008) by Defence (Amendment) Act 2007 (24/2007), s. 11 and sch. 4, S.I. No. 254 of 2008.
Section 27A
F36[
Legal aid (case stated) certificate.
27A.—(1) Where—
(a) a person appeals to the summary court-martial under section 178E (inserted by the Defence (Amendment) Act 2007) of the Act of 1954 and the military judge before whom the appeal is heard refers a question of law arising in the proceedings to the Court pursuant to section 22A of this Act, and
(b) a certificate for free legal aid (in this Part of this Act referred to as “a legal aid (case stated) certificate”) is granted in respect of the person by the prescribed authority or under subsection (3) of this section,
the person shall be entitled to free legal aid in the preparation and conduct of his case in relation to the case stated and to have a solicitor and counsel assigned to him for that purpose in such manner as may be prescribed by regulations under section 33 of this Act.
(2) A legal aid (case stated) certificate shall be granted in respect of the person concerned if (but only if)—
(a) application is made therefor,
(b) it appears to the prescribed authority that the means of the person are insufficient to enable him to obtain legal aid, and
(c) it appears to the prescribed authority that, by reason of the serious nature of the offence with which the person is charged or of exceptional circumstances, it is essential in the interests of justice that a legal aid (case stated) certificate should be granted in respect of the person.
(3) Where, in relation to a case stated, a person is refused a legal aid (case stated) certificate by the prescribed authority, he may apply for the certificate to the Court either—
(a) by letter addressed to the registrar of the Court setting out the facts of the case and the grounds of the application, or
(b) to the Court itself,
and the Court shall grant the certificate if (but only if)—
(i) it appears to the Court that the means of the person are insufficient to enable him to obtain legal aid, and
(ii) it appears to the Court that, by reason of the serious nature of the offence with which the person is charged or of exceptional circumstances, it is essential in the interests of justice that a legal aid (case stated) certificate should be granted in respect of the person.]
Annotations
Amendments:
F36
Inserted (1.09.2008) by Defence (Amendment) Act 2007 (24/2007), s. 11 and sch. 4, S.I. No. 254 of 2008.
Section
F37[Legal aid (application concerning forensic evidence retention period) certificate.
27B.— …]
Annotations
Amendments:
F37
Inserted by Defence Forces (Evidence) Act 2022 (16/2022), s. 94(c), not commenced as of date of revision.
Modifications (not altering text):
C6
Prospective affecting provision: section inserted by Defence Forces (Evidence) Act 2022 (16/2022), s. 94(c), not commenced as of date of revision.
F37[27B. (1) Where—
(a) a person appeals to the summary court-martial under section 37(6), 48(6) or 52(11) of the Act of 2022 or makes an application to the summary court-martial under section 45(1) or 60(6) of the Act of 2022, and
(b) a certificate for free legal aid (in this Part referred to as a “legal aid (application concerning forensic evidence retention period) certificate”) is granted in respect of the person concerned by the prescribed authority,
the person shall be entitled to free legal aid in the preparation and conduct of his or her appeal or the application, as the case may be, and to have a solicitor and counsel assigned to him or her for that purpose in such manner as may be prescribed by regulations under section 33 of this Act.
(2) A legal aid (application concerning forensic evidence retention period) certificate shall be granted in respect of a person concerned if (but only if)—
(a) application is made therefor, and
(b) it appears to the prescribed authority that the means of the person concerned are insufficient to enable him or her to obtain legal aid.]
Section 28
Legal aid (Courts-Martial Appeal Court) certificate.
28.—(1) Where—
F38[ (a) a person (in this section referred to as “the accused”)—
(i) is convicted by a court-martial, or
(ii) is found to be unfit to take his trial pursuant to section 202 of the Act of 1954, or
(iii) is found not guilty by reason of insanity pursuant to section 203 of the Act of 1954,
and]
(b) a certificate for free legal aid (in this Part of this Act referred to as “F39[a legal aid (court-martial appeal) certificate]”) is granted in respect of the accused by the prescribed authority or under subsection (3) of this section,
the accused shall be entitled to free legal aid in the preparation and conduct of an appeal against the finding or sentence of the court-martial or against both such finding and such sentence F40[or against a decision by a court-martial to make or not to make an order of committal under section 202(1)(b) or section 203(2) of the Act of 1954] and to have a solicitor and counsel assigned to him for that purpose in such manner as may be prescribed by regulations under section 33 of this Act.
(2) F39[A legal aid (court-martial appeal) certificate] shall be granted in respect of the accused if (but only if)—
(a) application is made therefor,
(b) it appears to the prescribed authority that the means of the accused are insufficient to enable him to obtain legal aid, and
(c) either—
(i) the conviction is F41[an offence for which a person would be required on conviction to be sentenced to imprisonment for life], or
(ii) it appears to the prescribed authority that, by reason of the serious nature of the offence or of exceptional circumstances, it is essential in the interests of justice that the accused should have legal aid in the preparation and conduct of an appeal.
(3) Where the accused is refused F39[a legal aid (court-martial appeal) certificate] by the prescribed authority, he may apply for the certificate to the Court either—
(a) by letter addressed to the registrar of the Court setting out the facts of the case and the grounds of the application, or
(b) to the Court itself,
and the Court shall grant the certificate if (but only if)—
(i) it appears to the Court that the means of the accused are insufficient to enable him to obtain legal aid, and
(ii) either—
(I) the conviction is of F42[an offence for which a person would be required on conviction to be sentenced to imprisonment for life], or
(II) it appears to the Court that, by reason of the serious nature of the offence or of exceptional circumstances, it is essential in the interests of justice that the accused should have legal aid in the preparation and conduct of an appeal.
Annotations
Amendments:
F38
Substituted (1.09.2008) by Defence (Amendment) Act 2007 (24/2007), s. 11 and sch. 4, S.I. No. 254 of 2008.
F39
Substituted (28.10.2014) by Court of Appeal Act 2014 (18/2014), s. 49(b)(i), (ii), (iii), S.I. No. 479 of 2014.
F40
Inserted (1.09.2008) by Defence (Amendment) Act 2007 (24/2007), s. 11 and sch. 4, S.I. No. 254 of 2008.
F41
Substituted (11.07.1990) by Criminal Justice Act 1990 (16/1990), s. 7 and sch. 1 para. 5(a), commenced on enactment.
F42
Substituted (11.07.1990) by Criminal Justice Act 1990 (16/1990), s. 7 and sch. 1 para. 5(a), commenced on enactment.
Section 29
Legal aid (Supreme Court) certificate.
29.—(1) Where—
(a) a person (in this section referred to as “the accused”) is charged with an offence against military law,
(b) an appeal is brought to the Supreme Court from a determination of the Court in relation to the offence or the punishment (if any) imposed in respect thereof, and
(c) a certificate for free legal aid (in this Part of this Act referred to as “a legal aid (Supreme Court) certificate”) is granted in respect of the accused by the Court or under subsection (3) of this section,
the accused shall be entitled to free legal aid in the preparation and conduct of his case in relation to the appeal and to have a solicitor and counsel assigned to him for that purpose in such manner as may be prescribed by regulations under section 33 of this Act.
(2) A legal aid (Supreme Court) certificate shall be granted if (but only if)—
(a) application is made therefor, and
(b) it appears to the Court that the means of the accused are insufficient to enable him to obtain legal aid.
(3) Where the accused is refused a legal aid (Supreme Court) certificate by the Court, he may apply for the certificate to the Supreme Court either—
(a) by letter addressed to the registrar of the Supreme Court setting out the facts of the case and the grounds of the application, or
(b) to the Supreme Court itself,
and the Supreme Court shall grant the certificate if (but only if) it appears to that court that the means of the accused are insufficient to enable him to obtain legal aid.
Annotations
Amendments:
Modifications (not altering text):
C7
Prospective affecting provision: section repealed by Courts and Court Officers Act 1995 (31/1995), s. 3 and sch. 1 part 2, not commenced as of date of revision.
29.—F1[…]
Section 30
Payment of expenses of legal aid.
30.—(1) Where a legal aid (preliminary proceedings) certificate has been granted in respect of a person, any fees, costs or other expenses properly incurred in preparing and conducting the person’s case in relation to the proceedings to which the certificate relates shall, subject to regulations under section 33 of this Act, be paid out of moneys provided by the Oireachtas.
(2) Where a legal aid (court-martial) certificate has been granted in respect of a person, any fees, costs or other expenses properly incurred in preparing and conducting the defence to which the certificate relates shall, subject to regulations under section 33 of this Act, be paid out of moneys provided by the Oireachtas.
(3) Where F43[a legal aid (court-martial appeal) certificate] or a legal aid (Supreme Court) certificate has been granted in respect of a person, any fees, costs or other expenses properly incurred in preparing and conducting the person’s case in relation to the appeal to which the certificate relates shall, subject to regulations under section 33 of this Act, be paid out of moneys provided by the Oireachtas.
Annotations
Amendments:
F43
Substituted (28.10.2014) by Court of Appeal Act 2014 (18/2014), s. 49(c), S.I. No. 479 of 2014.
Modifications (not altering text):
C8
Prospective affecting provision: words “or a legal aid (Supreme Court) certificate”, repealed by Courts and Court Officers Act 1995 (31/1995), s. 3 and sch. 1 part 2, not commenced as of date of revision.
30.— …
(3) Where a legal aid (Courts-Martial Appeal Court) certificate F1[…] has been granted in respect of a person, any fees, costs or other expenses properly incurred in preparing and conducting the person’s case in relation to the appeal to which the certificate relates shall, subject to regulations under section 33 of this Act, be paid out of moneys provided by the Oireachtas.
Section 31
Restriction of section 18.
31.—(1) Where a legal aid (preliminary proceedings) certificate or a legal aid (court-martial) certificate has been granted in respect of a person, the Court shall not have jurisdiction under section 18 of this Act to award costs to the person in respect of proceedings in relation to which the certificate applies.
(2) Where F44[a legal aid (court-martial appeal) certificate] has been granted in respect of a person, the Court shall not have jurisdiction under section 18 of this Act to award costs to the person in respect of court proceedings in relation to which the certificate applies.
Annotations
Amendments:
F44
Substituted (28.10.2014) by Court of Appeal Act 2014 (18/2014), s. 49(d), S.I. No. 479 of 2014.
Section 32
Statement as to means.
32.—Before a person is granted a legal aid certificate he may be required by the prescribed authority, the court or the judge, as the case may be, granting the certificate to furnish a written statement in such form as may be prescribed by the Minister by regulations under section 33 of this Act about matters relevant for determining whether his means are insufficient to enable him to obtain legal aid.
Section 33
Regulations.
33.—(1) The Minister may make regulations for carrying this Part of this Act into effect and the regulations may, in particular, prescribe—
(a) the form of legal aid certificates,
(b) the rates or scales of payment of any fees, costs or other expenses payable out of moneys provided by the Oireachtas pursuant to such certificates, and
(c) the manner in which solicitors and counsel are to be assigned pursuant to such certificates.
(2) Regulations under this section in relation to the matters specified in paragraph (b) of subsection (1) of this section shall not be made without the consent of the Minister for Finance.
F45[(2A) Without prejudice to the generality of subsection (1), regulations under this section may, in relation to the functions of a military judge provided for in those regulations, include provisions required for the performance of the functions of a military judge by a Circuit Judge who, pursuant to section 184LA of the Act of 1954 is temporarily designated to perform such functions under section 11A of the Act of 1947.]
(3) Every regulation made by the Minister under this section shall be laid before each House of the Oireachtas as soon as may be after it is made and, if a resolution annulling the regulation is passed by either such House within the next subsequent twenty-one days on which that House has sat after the regulation is laid before it, the regulation shall be annulled accordingly but without prejudice to anything previously done thereunder.
Annotations
Amendments:
F45
Inserted (9.11.2011) by Defence (Amendment) Act 2011 (17/2011), s. 11(d), S.I. No. 568 of 2011.
Modifications (not altering text):
C9
Functions transferred and references to “Department of Finance” and “Minister for Finance” construed (29.07.2011) by Finance (Transfer of Departmental Administration and Ministerial Functions) Order 2011 (S.I. No. 418 of 2011), arts. 2, 3, 5 and sch. 1 part 2, in effect as per art. 1(2), subject to transitional provisions in arts. 6-9.
2. (1) The administration and business in connection with the performance of any functions transferred by this Order are transferred to the Department of Public Expenditure and Reform.
(2) References to the Department of Finance contained in any Act or instrument made thereunder and relating to the administration and business transferred by paragraph (1) shall, on and after the commencement of this Order, be construed as references to the Department of Public Expenditure and Reform.
3. The functions conferred on the Minister for Finance by or under the provisions of —
(a) the enactments specified in Schedule 1, and
(b) the statutory instruments specified in Schedule 2,
are transferred to the Minister for Public Expenditure and Reform.
…
5. References to the Minister for Finance contained in any Act or instrument under an Act and relating to any functions transferred by this Order shall, from the commencement of this Order, be construed as references to the Minister for Public Expenditure and Reform.
…
Schedule 1
Enactments
…
Part 2
1922 to 2011 Enactments
Number and Year
Short Title
Provision
(1)
(2)
(3)
…
…
…
No. 19 of 1983
Courts-Martial Appeals Act 1983
Sections 33(2) and 34(2)
…
…
…
Editorial Notes:
E18
Power pursuant to section exercised (12.11.2011) by Courts-Martial (Legal Aid) (Amendment) Regulations 2011 (S.I. No. 579 of 2011).
E19
Power pursuant to section exercised (30.06.2010) by Courts-Martial (Legal Aid) (Amendment) Regulations 2010 (S.I. No. 327 of 2010).
E20
Power pursuant to section exercised (2.07.2008) by Courts-Martial (Legal Aid) Regulations 2008 (S.I. No. 206 of 2008).
E21
Previous affecting provision: power pursuant to section exercised (27.04.2009) by Courts-Martial (Legal Aid) (Amendment) Regulations 2009 (S.I. No. 153 of 2009); revoked (30.06.2010) by Courts-Martial (Legal Aid) (Amendment) Regulations 2010 (S.I. No. 327 of 2010), reg. 6 .
E22
Previous affecting provision: power pursuant to section exercised (1.01.1993) by Courts-Martial (Legal Aid) Regulations 1993 (S.I. No. 309 of 1993); revoked (2.07.2008) by Courts-Martial (Legal Aid) Regulations 2008 (S.I. No. 206 of 2008), reg. 19.
E23
Previous affecting provision: power pursuant to section exercised (1.01.1991) by Courts-Martial (Legal Aid) Regulations 1991 (S.I. No. 210 of 1991); revoked (2.07.2008) by Courts-Martial (Legal Aid) Regulations 2008 (S.I. No. 206 of 2008), reg. 19.
E24
Previous affecting provision: power pursuant to section exercised (1.01.1990) by Courts-Martial (Legal Aid) Regulations 1990 (S.I. No. 68 of 1990); revoked (2.07.2008) by Courts-Martial (Legal Aid) Regulations 2008 (S.I. No. 206 of 2008), reg. 19.
E25
Previous affecting provision: power pursuant to section exercised (1.01.1989) by Courts-Martial (Legal Aid) Regulations 1989 (S.I. No. 25 of 1989); revoked (2.07.2008) by Courts-Martial (Legal Aid) Regulations 2008 (S.I. No. 206 of 2008), reg. 19.
E26
Previous affecting provision: power pursuant to section exercised (27.04.1988) by Courts-Martial (Legal Aid) Regulations 1988 (S.I. No. 125 of 1988); revoked (2.07.2008) by Courts-Martial (Legal Aid) Regulations 2008 (S.I. No. 206 of 2008), reg. 19.
E27
Previous affecting provision: power pursuant to section exercised (1.01.1987) by Courts-Martial (Legal Aid) Regulations 1987 (S.I. No. 46 of 1987); revoked (2.07.2008) by Courts-Martial (Legal Aid) Regulations 2008 (S.I. No. 206 of 2008), reg. 19.
E28
Previous affecting provision: power pursuant to section exercised (16.12.1986) by Courts-Martial (Legal Aid) Regulations 1986 (S.I. No. 425 of 1986); revoked (2.07.2008) by Courts-Martial (Legal Aid) Regulations 2008 (S.I. No. 206 of 2008), reg. 19.
Section 34
Penalty for false or misleading statements.
34.—(1) A person who, for the purpose of obtaining free legal aid under this Part of this Act, whether for himself or some other person, knowingly makes a false statement or false representation either verbally or in writing or knowingly conceals any material fact shall be guilty of an offence and shall be liable on summary conviction to a fine not exceeding F46[€2,000] or to imprisonment for a term not exceeding six months or to both.
(2) Upon conviction of a person of an offence under this section, the court by which the person is convicted may, if in the circumstances of the case the court so thinks fit, order the person to pay to the Minister the whole or part (as the court considers appropriate) of any sum paid under section 30 of this Act in respect of the free legal aid in relation to which the offence was committed, and any sum paid to the Minister pursuant to this section shall be paid into or disposed of for the benefit of the Exchequer in accordance with the directions of the Minister for Finance.
Annotations
Amendments:
F46
Substituted (1.09.2008) by Defence (Amendment) Act 2007 (24/2007), s. 11 and sch. 4, S.I. No. 254 of 2008. A fine of €2,000 translates into a class C fine not exceeding €2,500 as provided (4.01.2011) by Fines Act 2010 (8/2010), ss. 3, 6(3), S.I. No. 662 of 2010.
Modifications (not altering text):
C10
Functions transferred and references to “Department of Finance” and “Minister for Finance” construed (29.07.2011) by Finance (Transfer of Departmental Administration and Ministerial Functions) Order 2011 (S.I. No. 418 of 2011), arts. 2, 3, 5 and sch. 1 part 2, in effect as per art. 1(2), subject to transitional provisions in arts. 6-9.
2. (1) The administration and business in connection with the performance of any functions transferred by this Order are transferred to the Department of Public Expenditure and Reform.
(2) References to the Department of Finance contained in any Act or instrument made thereunder and relating to the administration and business transferred by paragraph (1) shall, on and after the commencement of this Order, be construed as references to the Department of Public Expenditure and Reform.
3. The functions conferred on the Minister for Finance by or under the provisions of —
(a) the enactments specified in Schedule 1, and
(b) the statutory instruments specified in Schedule 2,
are transferred to the Minister for Public Expenditure and Reform.
…
5. References to the Minister for Finance contained in any Act or instrument under an Act and relating to any functions transferred by this Order shall, from the commencement of this Order, be construed as references to the Minister for Public Expenditure and Reform.
…
Schedule 1
Enactments
…
Part 2
1922 to 2011 Enactments
Number and Year
Short Title
Provision
(1)
(2)
(3)
…
…
…
No. 19 of 1983
Courts-Martial Appeals Act 1983
Sections 33(2) and 34(2)
…
…
…