Military Discipline

Courts of Inquiry

Courts of Inquiry are constituted by officers for the purpose of enquiring into matters referred to them to make a finding or declaration.  The Court of Inquiry may examine into matters relevant to conduct and service.

They may inquire into accidents involving weapons, where persons or animals are injured or property is damaged, outbreaks of fire, explosions, damage to property, accidents in which a person subject to military law are involved and the maiming or injury of a person, who is subject to military law, whether on or off duty. There are exemptions and cases where it is only held if directed.

The court comprising officers is made up of the president and members or assessors unless otherwise required by regulation. The authority may order the attendance of persons subject to military law. Documents in military custody may be produced.  An inquest may take place into the death of a person.

There are normally three members in the Court of Inquiry.  Membership will depend on the subject matter.  A civilian with the necessary technical qualifications may advise the court on technical questions. The court acts by majority.  Dissenting members may make a dissenting finding.

The purpose of a Court of Inquiry is to determine the truth of the matter under investigation.  The court does not express an opinion on the conduct of a person subject to military law unless required to do so by the authority which convened it.

Courts of Inquiry Proceedings

Evidence is unsworn unless otherwise directed.  It should be recorded in writing. Persons not subject to military law may be the subject of an order for attendance by the convening authority.

The principles of constitutional justice apply to the proceedings of a Court of Inquiry, subject to qualifications and limitations.

The convening authority reviews the proceedings and signifies its agreement or otherwise with the finding.  The convening authority may direct the court to reassemble and take further evidence, review its decision or make new or further findings.

The proceedings of courts of inquiry, including confessions and admissions made, are not admissible in evidence against a person subject to military law other than on a trial for perjury.  The findings of the court are not admissible as evidence.  They are treated as confidential.

2007 Act Updates

The Defence Amendment Act 2007 updated the disciplinary provisions in part V of the Defence Act so that they accord with modern human rights standards.  It provides for the summary disposal of  charges, the  establishment of jurisdiction in summary court martial, appointment of court martial administrator, a Director of Military Prosecutions and a military judge.

If it provides for the constitution of courts martial, membership of the court martial board and  procedures. It provides a court martial rules committee and for the making of court martial rules. A military judge is provided in lieu of the judge advocate.

The legislation provides greater flexibility for transfer from one service to another by  enlisted personnel.  Prior to that, persons who had served 10 years in one service corps could only be transferred to another service crop in relatively limited circumstances.

The redress of wrongs provisions are amended.  Charges disposed of summarily are outside the scope of the scheme.

Disciplinary Offences- Military Law

The time limit for the prosecution of offences under military law is now six months after cessation of being subject to military law.  In addition to desertion, mutiny and fraudulent enlistment, the time limit does not limit to civil offences committed while a person is serving outside the State.

The existing law is changed so that a person serving a court martial sentence in  a civil prison is no longer, who is no longer a member of the Defence Forces, is not subject to the Defence Act.  This does not apply to a person serving a sentence in a military detention facility.

Civilians subject to military law may by consent be dealt with summarily, with a right of appeal to a summary court martial.

The time limit for trial and punishment by court martial of a person subject to military law is six years after the date of commission of the offence.  The charge must be laid in this period. The time limit does not apply where the person is serving outside the State.

Summary  Offences

Scheduled disciplinary type offences for  summary disposal must be commenced within 12 months of either the date of the commission or the date of evidence to justify proceedings coming to the knowledge of the person initiating it.  In any case, the overriding time limit for the initiation of summary proceedings is three years from the commission of the offence.

There are provision for the time limits stopping while the person is absent without leave or on active service. The exclusion must be certified by the person’s commanding officer.

Certain offences against military law are revised.  Important service for the purpose of desertion is specifically amended to include circumstances relating to active service and service outside the state.

An offence of being under the influence of intoxicants by drugs or alcohol is modernized.  The maximum punishment while not on duty or active service is 90 days’ detention.

A summary investigation by an authorized or commanding officer is generally no longer possible.  There is new less formal summary process, where no custodial sentence can be imposed.

Since 1983, legal representation is allowed in all stages where a person is charged with an offence which carries the risk of imprisonment for life.  By way of exception to this principle, preliminary investigation by an authorized or commanding officer of a charge subject to such punishment is retained.

New offences are created of

• improper communication with the Director of Military Prosecutions, a member of a staff, military judge, witness or the  court martial appeal board
• failing, neglecting or refusing to comply with directions of the military judge
• hindering by act or omission service personnel in the performance of their duty.

New provisions are made for specific offences of a disciplinary nature, that may be disposed of summarily by an authorized commanding or subordinate officer as appropriate.  Offences listed in Part 2 require the consent of the Director of Military Prosecutions before they may be dismissed or disposed of summarily.

There is new provision is made for preliminary investigation of charges against officers and most senior non-commissioned ranks. Summary disposal by an authorized officer of certain charges up to and including the rank of commandant or equivalent. are provided for.  Prior to the 2006 Act, charges against person of that rank could only be dealt with by a general court martial.

There is provision for summary disposal by an authorized officer of certain charges against the most senior non-commissioned ranks.  Prior to that, such charges could be dealt with by commanding officers only.  The summary disposal of charges is limited to offences which are disciplinary rather than criminal, i.e. scheduled offences.

The director of military prosecution must consent to potentially more serious disciplinary offences, i.e. Part 2 offences, either being dismissed or dealt with summarily.  Where a person is remanded for trial by a court martial, the matter is referred to the Director of Military Prosecutions for a direction.  There is a statutory right where a person charged with an offence for which the only sentence allowed is life imprisonment to legal representation at the preliminary investigation stage.

A person is entitled to receive adequate note of the time, date and place on which the charge is to be investigated. A copy of the charge sheet with details of the witnesses and evidence against him are to be provided.

In every case, dealt with summarily by an authorized officer the person has a right to either consent to the summary disposal or elect for trial by court martial.

The provisions dealing with summary hearings by authorized officers were amended in 2006.  The person charged may agree to dispense with a  hearing only if he admits the charge.  Where an authorized officer remands a person for trial, the matter must be referred to the DMP for directions.

Where the authorized officer makes a determination, that the charge has been improved, the range of punishments provided is expanded by the 2006 Act to include deductions in pay scale by one increment, deferrals of increments and fines of up to seven day pay.

Provision is made for assisting persons would be present but not participate in the hearing.

The provision for compensation orders is to increase to cover personal injury as well as personal loss and expense caused. The  maximum amount of such order has been increased to 28 days’ pays.  Payment of compensation by instalment is provided for.

There is provision for summary disposal by a commanding officer of certain charges against enlisted persons up to the rank of company sergeant or equivalent rank.  It does not apply to most senior non-commissioned ranks,  who comes under a different procedure.  It provides for summary disposal of charges but only in respect of disciplinary rather than criminal offences.  The DMP must consent to potentially more serious disciplinary offences being tried summarily or being dismissed.

Appeal to Summary Court Martial

There is a provision for a right of appeal to the new summary court martial against findings or punishments awarded where the charges are disposed of summarily by an authorized or commanding officer.  In order to expedite administration of  military justice and in the interests of discipline, any such appeal must be submitted within seven days of the award or such longer period as may be permitted by the summary court martial.

The hearing of an appeal by a new summary court martial is by way of rehearing of the charge and/or punishment of the person.  The person charged may have legal representation or be represented by an officer subject to military law.

The summary court martial may confirm or satisfy the original determination, confirm, quash or substitute new punishment.  It may not acting  as an appeal court award any punishment which the commanding officer could not have awarded.

The decision of the summary court martial is final in respect of summary awards.  The judge may refer if requested or in his own initiative, any important question of law to the courts martial appeals court.

Summary by Subordinate Officers

There is provision for summary disposal by subordinate officers of certain charges against privates and seaman.  The existing law is amended so that a subordinate officer does not necessarily have to be in a position of command and authority over the private or seaman charge.  It provides summary disposal of charges by subordinate officers, is limited to disciplinary rather than criminal type offences.

There is new provision by which where a subordinate officer proposes to investigate a charge. The person charged is entitled to receive adequate notice of the date, time and place,  a copy of charge sheet and details of witnesses and evidence against them.

In every case before which a charge is dealt with summarily by a subordinate officer, the person has the right to consent to the  summary disposal or elect to have the charge referred to a commanding officer rather than a subordinate officer.

There is provision for summary hearings before subordinate officers.  A person charged may dispense with  the hearing if he admits  charge, but not otherwise.

There is provision for assisting a person to be present but not participating in the hearing. There is an  increase of the maximum fine to three days\’ pay. There is provision of compensation orders are extended to cover personal injury as well as personal loss, expense, damage and destruction caused, and the maximum amount of such order is increased to seven days’ pay.

Appeal to Commanding Officer

There is a right of appeal to a commanding officer against determination and / or  punishment awarded where the charge has been disposed of summarily by a subordinate officer.  The appeal must be submitted within two days of the award or such longer period not exceeding five days as may be allowed.

The appeal is heard by a commanding officer. It  consists of a full rehearing and the person charged may have an assisting person present at, but not participating in the hearing.

There is provision for suspension of the operation of certain punishments and compensation orders awarded summarily by authorized commanding or subordinate officers pending an appeal.

Regulations

Generally, the minister may make regulations in respect of matters provided for in the legislation in relation to the investigation and summary disposal of charges and amounts for court martial.

Court Martial

New provisions are made for court martial.

A new independent court martial administrator partally replaces the existing convening authority.  There is provision for the appointment of a judge, advocate general or an officer of the PDF not below colonel to the office of court martial administrator.  The court martial administrator is independent of the performance of his functions.