Military Discipline
DEFENCE ACT
Chapter III.
Arrest and Courts of Inquiry on Absent Men.
Section 170
Provost Marshal.
170.—For the prompt suppression of all offences a provost marshal of commissioned rank may from time to time be appointed.
Annotations
Modifications (not altering text):
C47
Section exempted from application of Freedom of Information Act 2014 (14.10.2014) by Freedom of Information Act 2014 (30/2014), s. 42(c)(ii)(II), commenced on enactment.
Restriction of Act
42. This Act does not apply to— …
(c) a record held by— …
(ii) the Defence Forces relating to— …
(II) section 170 of the Defence Act 1954,
…
Section 171
Arrest.
171.—(1) Any person subject to military law, who has committed, is found committing, is suspected of being about to commit, or is suspected of or charged under this Act with having committed an offence against military law, may be placed under arrest.
(2) In the circumstances mentioned in subsection (1) of this section—
(a) a provost marshal or an officer legally exercising authority under a provost marshal or on his behalf may arrest or order the arrest of any officer;
(b) a provost marshal or an officer or non-commissioned officer legally exercising authority under a provost marshal or on his behalf may arrest or order the arrest of any man;
(c) an officer may arrest or order the arrest of—
(i) any man,
(ii) any officer of lower rank,
(iii) any officer of equal or higher rank who is engaged in any quarrel, affray or disorder;
(d) a non-commissioned officer may arrest or order the arrest of any man;
(e) any person subject to military law who is so authorised by any commanding officer may arrest or order the arrest of a person subject to military law other than an officer or a man.
(3) Every person authorised by subsection (2) of this section to effect arrest may use such force as is reasonably necessary for that purpose.
(4) An order given under subsection (2) of this section shall be obeyed although the person giving the order and the person to whom and the person in respect of whom the order is given do not belong to the same service corps or unit.
Section 172
Placing of person arrested in service custody.
172.—Where a person has been arrested under section 171, he may forthwith on his being arrested be placed in service custody by or on the order of an officer, man or other person having authority to arrest him, and for this purpose such force as is reasonably necessary may be used.
Annotations
Modifications (not altering text):
C48
Prospective affecting provision: powers of Military Police in relation to person in service custody specified by Defence Forces (Evidence) Act 2022 (16/2022), s. 34, not commenced as of date of revision.
F1[Other powers of members of Military Police in relation to person placed in service custody
34. (1) Where a person is placed in service custody pursuant to section 172 of the Act of 1954, a member of the Military Police may do one or more of the following:
(a) demand of him or her, his or her name, service number, rank and unit;
(b) search him or her or cause him or her to be searched;
(c) photograph him or her or cause him or her to be photographed;
(d) take, or cause to be taken, his or her fingerprints and palm prints;
(e) take, or cause to be taken, from the person a sample of a footprint or similar impression of any part of the person’s body other than a part of the hand or mouth;
(f) carry out, or cause to be carried out, any test designed for the purpose of ascertaining whether he or she has been in contact with any firearm (within the meaning of the Firearms Acts 1925 to 2009) or with any explosive and for that purpose take swabs from the person’s skin or samples of the person’s hair;
(g) require the person to permit a registered medical practitioner or a registered nurse to take a specimen of blood from him or her for analysis as to the concentration of alcohol or other drug in the blood;
(h) with the prior consent in writing of the person placed in service custody, cause to be taken by a registered dentist or a registered medical practitioner, a dental impression;
(i) seize and retain for testing anything that he or she has in his or her possession.
(2) A power conferred by subsection (1)(c) to (h) shall not be exercised unless a member of the Military Police not below the rank of captain authorises it.
(3) Subsection (1)(b) does not empower a member of the Military Police to require a person to remove his or her underclothing, except where such member, with reasonable cause, suspects that he or she has concealed on his or her person a controlled drug (within the meaning of section 2 of the Misuse of Drugs Act 1977 ) or an explosive and a member of the Military Police not below the rank of captain so authorises.
(4) In this section, “explosive” means an explosive within the meaning of the Explosives Act 1875 and any other substance or thing that is an explosive substance within the meaning of the Explosive Substances Act 1883.]
Section 173
Guard report.
173.—(1) Any person who under section 172 places any other person in service custody shall, at the time he does so or as soon as practicable thereafter, and in any case not later than twenty-four hours thereafter, deliver to the officer or man into whose custody the person is committed, an account in writing signed by himself of the offence with which the person so committed is charged.
(2) Any officer or man commanding a guard or a provost marshal or any of his assistants or any officer or man shall not refuse to receive or keep any person who is placed in service custody under section 172.
(3) It shall be the duty of an officer or a man who takes or receives any person (in this subsection referred to as the prisoner) into custody, as soon as he is relieved from guard or duty or, if he is not sooner relieved, within twenty-four hours after he took the prisoner into custody,—
(a) to give in writing to his commanding officer—
(i) the name and, as far as is known to him, the offence with which the prisoner is charged, and
(ii) the name and rank (if any) of the person by whom the prisoner was committed, and
(b) if he has received the account in writing referred to in subsection (1) of this section, to deliver it to his commanding officer.
Section 174
Court of inquiry on absent man.
174.—(1) When a man of the Permanent Defence Force has been absent without leave from his duty for a period of twenty-one days, a court of inquiry in relation to such man may as soon as practicable be assembled.
(2) When any man of the Reserve Defence Force is subject to military law F173[by reason of his being called out on permanent service or in aid of the civil power or for annual training or being deployed on military service under section 91A] and is illegally absent from duty, a court of inquiry in relation to such man may be assembled after the expiration of twenty-one days from the date of such absence, whether the period during which such man was subject to military law is or is not less than twenty-one days or has or has not expired before the expiration of twenty-one days from the date of such absence.
(3) Where a court of inquiry in relation to a man is assembled under subsection (1) or (2) of this section, the following provisions shall have effect—
(a) the court shall inquire in the prescribed manner on oath or solemn declaration (which any member of such court is hereby authorised to administer) respecting the absence of such man and the deficiency (if any) in his arms, ammunition, equipment, instruments, service necessaries and clothing,
(b) if the court is satisfied that such man has absented himself without leave or other sufficient cause, the following provisions shall have effect, that is to say:—
(i) the court shall declare such absence and the period thereof, and the said deficiency (if any);
(ii) a record of such declaration shall be entered by his commanding officer in the service books;
(iii) in case such man is a man of the Permanent Defence Force or a man of the Reserve Defence Force called out on permanent service, such record shall, if such man does not afterwards surrender or is not apprehended, have the legal effect of a conviction by court-martial for desertion.
Annotations
Amendments:
F173
Substituted (4.04.2022) by Defence (Amendment) Act 2021 (33/2021), s. 10, S.I. No. 179 of 2022.
Chapter IV.
Investigation and Summary Disposition of Charges, Remands for Court-martial and Dispensation with Trial by Court-martial.
Annotations
Modifications (not altering text):
C49
Certain investigations under Chap. IV (ss. 175-184) excluded by Ombudsman (Defence Forces) Act (36/2004), s. 5(1)(b) and (e)(i), as amended (1.09.2008) by Defence (Amendment) Act 2007 (24/2007), s. 11 and sch. 4 pt. 4, S.I. No. 254 of 2008.
Exclusions.
5.—(1) The Ombudsman shall not investigate any complaint concerning an action referred to in section 6 (1) or 6(2)— …
(b) if the action has been or is the subject of an investigation under [Chapter IV of Part V of the Act of 1954] of the Act of 1954 or by a service tribunal and is not an action concerning delay or any other matter concerning the administration of such investigations,
…
(e) if the action is one—
[(i) involving the exercise of the right or power referred to in Article 13.6 of the Constitution or the remission of any forfeiture or punishment awarded under Chapter IV of Part V of the Act of 1954, by a court-martial or by the Courts-Martial Appeal Court, or]
…
Section 175
Acquittal or conviction to be a bar to summary proceedings.
175.—(1) Where—
(a) a person has been charged with an offence against military law, and
(b) (i) he has been acquitted or convicted of the offence by a civil court, or
(ii) he has been acquitted of the offence by a court-martial, or
(iii) he has been found guilty of the offence by a court-martial F174[…],
he shall not be liable to be dealt with summarily for the offence under this Chapter.
(2) Where—
(a) a person subject to military law is charged with an offence against military law, and
(b) the offence was dealt with under this Chapter either by being dismissed or being dealt with summarily,
he shall not be liable to be dealt with summarily again under this Chapter in respect of that offence.
Annotations
Amendments:
F174
Deleted (1.09.2008) by Defence (Amendment) Act 2007 (24/2007), s. 4(2) and sch. 2, S.I. No. 254 of 2008.
Section 176
Charge to be investigated without delay.
176.—The charge against every person taken into service custody shall, without unnecessary delay, be investigated by the proper military authority, and as soon as possible either proceedings shall be taken for punishing him or such person shall be discharged from custody.
Section 176A
F175[
Scheduled offences.
176A.— An offence of a disciplinary nature under any of the provisions of this Act specified in the Eleventh Schedule to this Act shall be a scheduled offence for the purposes of this Part of this Act.]
Annotations
Amendments:
F175
Inserted (1.09.2008) by Defence (Amendment) Act 2007 (24/2007), s. 20(1), S.I. No. 254 of 2008.
Section 177
F176[
Charges against officers and other specified persons.
177.— (1) A charge against a person subject to military law—
(a) as an officer, or
(b) as a non-commissioned officer in the rank of sergeant major or battalion quarter-master sergeant or their equivalent naval ranks,
shall, subject to the giving of a notice under section 177A, in accordance with regulations made under section 184, be investigated by the person’s commanding officer or, if the Deputy Chief of Staff (Support) so directs, by such officer as the Deputy Chief of Staff (Support) may appoint for the purpose.
(2) (a) Where a person is charged with a scheduled offence, the officer investigating the charge under subsection (1) of this section shall—
(i) where the person charged holds the rank of lieutenant colonel or commander or any higher commissioned rank—
(I) subject to paragraph (b) of this subsection, dismiss the charge if, in his discretion, he considers that it should not be proceeded with, or
(II) remand the person charged for trial by court-martial if he considers that the charge should be proceeded with,
(ii) in any other case—
(I) subject to paragraph (b) of this subsection, dismiss the charge if, in his discretion, he considers that it should not be proceeded with, or
(II) remand the person charged for trial by court-martial if he considers that the charge should be proceeded with, or
(III) subject to this section and to regulations made under section 184, refer the charge for summary investigation by an authorised officer.
(b) In the case of a charge against a person for a scheduled offence specified in Part II of the Eleventh Schedule to this Act, dismissal of the charge under subparagraph (i)(I) or (ii)(I) of paragraph (a) of this subsection or referral of the charge for summary investigation by an authorised officer under subparagraph (ii)(III) of the said paragraph (a) shall be subject to the prior consent of the Director and where the Director refuses consent in any such case the person charged shall be remanded for trial by court-martial.
(3) (a) Where a person is charged with an offence other than a scheduled offence, the officer investigating the charge under subsection (1) of this section shall—
(i) subject to the prior consent of the Director, dismiss the charge if the officer considers that it should not be proceeded with, or
(ii) remand the person for trial by court-martial.
(b) Where the Director refuses consent to the dismissal of the charge concerned, the person charged shall be remanded for trial by court-martial.
(4) Where a person is remanded under this section for trial by court-martial, the matter shall be referred to the Director for his directions.
(5) Where a person is charged with an offence for which the person would be required on conviction to be sentenced to imprisonment for life and the charge is investigated under this section, the person may, if he so wishes, be represented by counsel (within the meaning of section 196) or by an officer subject to military law.]
Annotations
Amendments:
F176
Substituted (1.09.2008) by Defence (Amendment) Act 2007 (24/2007), s. 22, S.I. No. 254 of 2008, subject to transitional provisions in s. 3 and sch. 1, para. 3 .
Editorial Notes:
E36
Previous affecting provision: section amended (24.06.1987) by Defence (Amendment) Act 1987 (8/1987), s. 3(1), commenced on enactment, subject to transitional provision in s. 16; substituted as per F-note above.
Section 177A
F177[
Notice.
177A.— Where a charge against a person subject to military law is—
(a) to be investigated under section 177 by the person’s commanding officer or an officer appointed for that purpose by the Deputy Chief of Staff (Support), or
(b) referred to an authorised officer for summary investigation under section 177(2)(a)(ii)(III),
the person charged shall be entitled to receive, in the prescribed manner, at least 24 hours before the charge is to be so investigated—
(i) 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
(ii) 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, where available, an abstract of the evidence to be given against the person and a copy of any witness statements.]
Annotations
Amendments:
F177
Inserted (1.09.2008) by Defence (Amendment) Act 2007 (24/2007), s. 23, S.I. No. 254 of 2008.
Section 177B
F178[
Right to elect for trial by court-martial.
177B.— (1) Before disposing of a charge summarily under section 177C, the authorised officer shall, in the prescribed manner—
(a) ask the person charged whether he elects to have the charge disposed of summarily by the authorised officer or to be tried by court-martial, and
(b) inform the person charged that he may obtain legal advice regarding the matter of the election and, where the person wishes to obtain such legal advice, that the hearing shall be adjourned for such period as the authorised officer considers reasonable (which period shall not in any case be less than 48 hours).
(2) Where the person charged elects to be tried by court-martial, whether or not the person obtains legal advice, the authorised officer shall remand the person charged for trial by court-martial and shall refer the charge to the Director for his directions but otherwise shall proceed to dispose of the charge summarily under section 177C and may do so then and there.
(3) Where two or more charges are brought against the person concerned, an election for trial by court-martial in respect of any of the charges shall take effect as an election in respect of all of them.]
Annotations
Amendments:
F178
Inserted (1.09.2008) by Defence (Amendment) Act 2007 (24/2007), s. 23, S.I. No. 254 of 2008, subject to transitional provisions in s. 3 and sch. 1, para. 3.
Section 177C
F179[
Summary disposal by authorised officer.
177C.— (1) This section applies where the person charged elects under section 177B to have the charge disposed of summarily by the authorised officer.
(2) The authorised officer may, subject to subsection (5) of this section, dismiss the charge at any stage of the hearing.
(3) If the authorised officer determines that the charge has not been proved he shall dismiss the charge.
(4) The authorised officer may, after hearing the evidence or without hearing the evidence, remand the person charged for trial by court-martial and, in that case, shall refer the matter to the Director for his directions.
(5) After hearing the evidence or, if the person charged consents to the attendance of witnesses being dispensed with and admits the offence charged, after reading a summary or abstract of the evidence, where the authorised officer makes a determination that the charge has been proved, he shall—
(a) record the determination, and
(b) subject to subsection (6) of this section—
(i) in the case of a person subject to military law as an officer pursuant to section 118(a), (b) or (c) or as a non-commissioned officer in the rank of sergeant major or battalion quarter-master sergeant or their equivalent naval ranks, award one of the following punishments:
(I) reduction on the applicable scale of pay of the person by one increment from a specified date for a specified period not exceeding one year;
(II) deferral for a specified period not exceeding one year of the next increment due to the person on the applicable scale of pay of that person;
(III) a fine not exceeding an amount equal to seven days’ pay of the person at the most recent applicable rate;
(IV) severe reprimand;
(V) reprimand,
(ii) in the case of a person subject to military law as an officer pursuant to section 118(d) or (e), award one of the following punishments:
(I) a fine not exceeding an amount equal to seven days’ pay of the person at the most recent applicable rate;
(II) severe reprimand;
(III) reprimand.
(6) Where the authorised officer records a determination that two or more charges against the person have been proved, he shall award a single punishment in accordance with subsection (5) of this section in respect of the charges taken together.
(7) The person charged may have an assisting person present at but not participating in the hearing before the authorised officer.
(8) The evidence against the person charged taken before the authorised officer shall, if the person charged 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 authorised officer may administer oaths or solemn declarations.
(9) Where the authorised 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 authorised 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 person charged, 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 authorised 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) subject to subsection (10) of this section, an amount equal to twenty-eight days’ pay of the person charged.
(10) A compensation order under subsection (9) of this section may provide for payment of the compensation by such instalments and at such times as the authorised officer shall in all the circumstances consider reasonable subject to a maximum deduction of seven days’ pay in any one calendar month.]
Annotations
Amendments:
F179
Inserted (1.09.2008) by Defence (Amendment) Act 2007 (24/2007), s. 23, S.I. No. 254 of 2008.
Section 177D
F180[
Remand for trial by court-martial.
177D.— (1) Where the person charged is remanded for trial by court-martial under section 177(2)(a)(ii)(II) or 177C and the matter is referred to the Director for his directions, the Director may direct that the charge (with such alterations, amendments, additions, substitutions and additional charges as he thinks fit) be referred back to an authorised officer and the authorised officer shall either dismiss or, subject to the right to elect to be tried by court-martial pursuant to section 177B, dispose of the charge or charges so referred back summarily in accordance with section 177C.
(2) Where the person charged—
(a) is remanded for trial by court-martial under section 177(2)(a)(ii)(II) or 177C and no direction is given under subsection (1) of this section, or
(b) is remanded for trial by court-martial under section 177 (other than under section 177(2)(a)(ii)(II)) or 177B,
the Director may—
(i) subject to section 192, in respect of the charge concerned (with such alterations, amendments, additions, substitutions and additional charges as he thinks fit)—
(I) direct that the matter be referred for trial by summary court-martial, or
(II) direct that the Court-Martial Administrator convene a general court-martial or limited court-martial, as specified in his direction, to try the person charged,
or
(ii) withdraw the charge.]
Annotations
Amendments:
F180
Inserted (1.09.2008) by Defence (Amendment) Act 2007 (24/2007), s. 23, S.I. No. 254 of 2008.
Section 178
F181[Charges against men.
178.— (1) This section and sections 178A to 178D apply to the summary disposal by a commanding officer of a charge against a person subject to military law as a man other than a sergeant major or battalion quarter-master sergeant or their equivalent naval ranks.
(2) (a) Where a person referred to in subsection (1) of this section is charged with a scheduled offence, the commanding officer investigating the charge (including a charge referred to the commanding officer under section 179(2)(b) or 179B) shall—
(i) subject to paragraph (b) of this subsection, dismiss the charge if, in his discretion, he considers that it should not be proceeded with, or
(ii) remand the person for trial by court-martial if he considers that the charge should be proceeded with, or
(iii) subject to this section and to regulations made under section 184, deal with the charge summarily.
(b) In the case of a charge against a person referred to in subsection (1) of this section for a scheduled offence specified in Part II of the Eleventh Schedule to this Act, dismissal of the charge under subparagraph (i) of paragraph (a) of this subsection or the decision to dispose of the charge summarily under subparagraph (iii) of the said paragraph (a) shall be subject to the prior consent of the Director and where the Director refuses consent in any such case the person shall be remanded for trial by court-martial.
(3) (a) Where a person is charged with an offence other than a scheduled offence, the commanding officer investigating the charge shall—
(i) subject to the prior consent of the Director, dismiss the charge if he considers that it should not be proceeded with, or
(ii) remand the person for trial by court-martial.
(b) Where the Director refuses consent to the dismissal of the charge concerned, the person charged shall be remanded for trial by court-martial.
(4) Where a person is remanded under this section for trial by court-martial, the matter shall be referred to the Director for his directions.
(5) Where a person referred to in subsection (1) of this section is charged with an offence for which the person would be required on conviction to be sentenced to imprisonment for life and the charge is investigated under this section, the person may, if he so wishes, be represented by counsel (within the meaning of section 196) or by an officer subject to military law.]
Annotations
Amendments:
F181
Substituted (1.09.2008) by Defence (Amendment) Act 2007 (24/2007), s. 24, S.I. No. 254 of 2008, subject to transitional provisions in s. 3 and sch. 1, para. 3 .
Editorial Notes:
E37
Previous affecting provision: section amended (24.06.1987) by Defence (Amendment) Act 1987 (8/1987), s. 3(2), commenced on enactment, subject to transitional provision in s. 16; substituted as per F-note above.
Section 178A
F182[Notice.
178A.— Where a charge against a person referred to in section 178(1) is to be investigated by a commanding officer, the person charged 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:
F182
Inserted (1.09.2008) by Defence (Amendment) Act 2007 (24/2007), s. 25, S.I. No. 254 of 2008.
Section 178B
F183[Right to elect for trial by court-martial.
178B.— (1) Before disposing of a charge summarily under section 178C, the commanding officer shall, in the prescribed manner—
(a) ask the person charged whether he elects to have the charge disposed of summarily by the commanding officer or to be tried by court-martial, and
(b) inform the person charged that he may obtain legal advice regarding the matter of the election and, where the person wishes to obtain such legal advice, that the hearing shall be adjourned for such period as the commanding officer considers reasonable (which period shall not in any case be less than 48 hours).
(2) Where the person charged elects to be tried by court-martial, whether or not the person obtains legal advice, the commanding officer shall remand the person for trial by court-martial and shall refer the charge to the Director for his directions but otherwise shall proceed to dispose of the charge summarily under section 178C and may do so then and there.
(3) Where two or more charges are brought against the person concerned, an election for trial by court-martial in respect of any of the charges shall take effect as an election in respect of all of them.]
Annotations
Amendments:
F183
Inserted (1.09.2008) by Defence (Amendment) Act 2007 (24/2007), s. 25, S.I. No. 254 of 2008, subject to transitional provisions in s. 3 and sch. 1, para. 3 .
Section 178C
F184[Summary disposal by commanding officer.
178C.— (1) This section applies where the person charged elects under section 178B to have the charge disposed of summarily by the commanding officer and, in the case of a scheduled offence specified in Part II of the Eleventh Schedule to this Act, the Director has consented to the charge being disposed of summarily.
(2) The commanding officer may, subject to subsection (5) of this section, dismiss the charge at any stage of the hearing.
(3) If the commanding officer determines that the charge has not been proved he shall dismiss the charge.
(4) The commanding officer may, after hearing the evidence or without hearing the evidence, remand the person charged for trial by court-martial and, in that case, shall refer the matter to the Director for his directions.
(5) After hearing the evidence or, if the person charged consents to the attendance of witnesses being dispensed with and admits the offence charged, having considered the available evidence, where the commanding officer makes a determination that the charge has been proved, he shall—
(a) record the determination, and
(b) subject to subsection (7) of this section—
(i) in the case of a non-commissioned officer, award one of the following punishments:
(I) reduction on the applicable scale of pay of the person by one increment from a specified date for a specified period not exceeding one year;
(II) deferral for a specified period not exceeding one year of the next increment due to the person on the applicable scale of pay of that person;
(III) a fine not exceeding an amount equal to seven days’ pay of the person at the most recent applicable rate;
(IV) severe reprimand;
(V) reprimand,
(ii) in the case of a private or a seaman, award one or, subject to subsection (6) of this section, a combination of the following punishments:
(I) reduction on the applicable scale of pay of the person by one increment from a specified date for a specified period not exceeding one year;
(II) deferral for a specified period not exceeding one year of the next increment due to the person on the applicable scale of pay of the person;
(III) a fine not exceeding an amount equal to seven days’ pay of the person at the most recent applicable rate;
(IV) stoppage of local leave or shore leave, as the case may be, for a period or periods not exceeding a total of fourteen days, as may be prescribed under section 184;
(V) additional duties as may be prescribed under section 184;
(VI) a warning,
(iii) in the case of a person subject to military law as a man pursuant to section 119(c) or (d), award one of the following punishments:
(I) a fine not exceeding an amount equal to seven days’ pay of the person at the most recent applicable rate;
(II) a warning.
(6) Where the person charged is a private or seaman, save as provided for by subsection (10) of this section, only the following combinations of punishments may be awarded by a commanding officer:
(a) in the case where the commanding officer awards a fine under subparagraph (ii)(III) of paragraph (b) of subsection (5) of this section, he may also award—
(i) stoppage of local leave or shore leave under subparagraph (ii)(IV) of the said paragraph (b), or
(ii) additional duties under subparagraph (ii)(V) of the said paragraph (b);
or
(b) in the case where the commanding officer awards stoppage of local leave or shore leave under subparagraph (ii)(IV) of paragraph (b) of subsection (5) of this section, he may also award additional duties under subparagraph (ii)(V) of the said paragraph (b).
(7) Where the commanding officer records a determination that two or more charges against the person 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 person charged may have an assisting person present at but not participating in the hearing before the commanding officer.
(9) The evidence against the person charged taken before the commanding officer shall, if the person 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 commanding officer may administer oaths or solemn declarations.
(10) Where the commanding 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 commanding 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 person charged, 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 commanding 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) subject to subsection (11) of this section, an amount equal to twenty-eight days’ pay of the person charged.
(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 commanding officer shall in all the circumstances consider reasonable subject to a maximum deduction of seven days’ pay in any one calendar month.]
Annotations
Amendments:
F184
Inserted (1.09.2008) by Defence (Amendment) Act 2007 (24/2007), s. 25, S.I. No. 254 of 2008.
Section 178D
F185[Remand for trial by court-martial.
178D.— (1) Where the person charged is remanded for trial by court-martial under section 178(2)(a)(ii) or 178C and the matter is referred to the Director for his directions, the Director may direct that the charge (with such alterations, amendments, additions, substitutions and additional charges as he thinks fit) be referred back to the commanding officer and the commanding officer shall either dismiss or, subject to the right to elect to be tried by court-martial pursuant to section 178B, dispose of the charge or charges so referred back summarily in accordance with section 178C.
(2) Where the person charged—
(a) is remanded for trial by court-martial under section 178(2)(a)(ii) or 178C and no direction is given under subsection (1) of this section, or
(b) is remanded for trial by court-martial under section 178 (other than under section 178(2)(a)(ii)) or 178B,
the Director may—
(i) subject to section 192, in respect of the charge concerned (with such alterations, amendments, additions, substitutions and additional charges as he thinks fit)—
(I) direct that the matter be referred for trial by summary court-martial, or
(II) direct that the Court-Martial Administrator convene a general court-martial or limited court-martial, as specified in his direction, to try the person charged,
or
(ii) withdraw the charge.]
Annotations
Amendments:
F185
Inserted (1.09.2008) by Defence (Amendment) Act 2007 (24/2007), s. 25, S.I. No. 254 of 2008.
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.
Section 205
Conviction for offence other than that charged.
205.—(1) An accused charged before a court-martial with desertion may be found guilty of attempting to desert or of being absent without leave.
(2) An accused charged before a court-martial with attempting to desert may be found guilty of being absent without leave.
(3) An accused charged before a court-martial with any one of the offences mentioned in section 132 may be found guilty of any other offence mentioned in that section.
(4) An accused charged before a court-martial with any one of the offences mentioned in section 133 may be found guilty of any other offence mentioned in that section.
(5) An accused charged before a court-martial with stealing may be found guilty of embezzlement or fraudulently misapplying property.
(6) An accused charged before a court-martial with embezzlement may be found guilty of stealing or fraudulently misapplying property.
(7) An accused charged before a court-martial with any other offence against military law may, on failure of proof of an offence being committed under circumstances involving a higher degree of punishment, be found guilty of the same offence as being committed under circumstances involving a less degree of punishment.
(8) Where an accused is charged before a court-martial with a civil offence and the charge is one upon which, if he had been tried by a civil court, he might have been found guilty of any other offence, the court-martial shall have power to find him guilty of that other offence.
Section 205A
F295[
Effect of certain offences on persons in respect of whom committed.
205A.— (1) In determining the punishment to be awarded to a person for an offence to which this section applies, the military judge presiding at the court-martial concerned shall take into account, and may, where necessary, receive evidence or submissions concerning, any effect (whether long-term or otherwise) of the offence on the person in respect of whom the offence was committed.
(2) This section applies to—
(a) a sexual offence within the meaning of the Criminal Evidence Act 1992 (as amended by the Criminal Law (Sexual Offences) Act 2006),
(b) an offence involving violence or the threat of violence to a person, and
(c) an offence consisting of attempting or conspiring to commit, or aiding, abetting, counselling, procuring or inciting the commission of, an offence mentioned in paragraph (a) or (b) of this subsection.
(3) Where a military judge is determining the punishment to be awarded to a person for an offence to which this section applies, the military judge shall, upon application by the person in respect of whom the offence was committed, hear the evidence of the person in respect of whom the offence was committed as to the effect of the offence on that person.]
Annotations
Amendments:
F295
Inserted (1.09.2008) by Defence (Amendment) Act 2007 (24/2007), s. 53, S.I. No. 254 of 2008.
Section 206
Effective dates of sentences by courts-martial.
206.—F296[(1) Subject to section 212A, every term of imprisonment or detention to which a person is sentenced by a court-martial, whether the person is already undergoing sentence or not, shall, save as otherwise expressly provided in this Act, be reckoned to commence on the day on which the sentence is signed by the military judge presiding at the court-martial or on such earlier date as the military judge may direct.]
(2) Each of the following sentences—
(a) dismissal with F297[disgrace] from the Defence Forces,
(b) dismissal from the Defence Forces,
F298[(bb) reduction to a lower commissioned army rank, or to a lower commissioned naval rank,]
(c) discharge with F297[disgrace] from the Defence Forces,
(d) discharge from the Defence Forces,
(e) reduction to a lower non-commissioned army rank, or to a lower non-commissioned naval rank,
shall take effect on and from a date to be fixed in the manner prescribed.
Annotations
Amendments:
F296
Substituted (1.09.2008) by Defence (Amendment) Act 2007 (24/2007), s. 54, S.I. No. 254 of 2008.
F297
Substituted (1.09.2008) by Defence (Amendment) Act 2007 (24/2007), s. 4(2) and sch. 2, S.I. No. 254 of 2008.
F298
Inserted (24.06.1987) by Defence (Amendment) Act 1987 (8/1987), s. 11, commenced on enactment.
Modifications (not altering text):
C55
Application of section restricted (29.06.1983) by Courts-Martial Appeals Act 1983 (19/1983), s. 20(2), commenced on enactment.
Convictions and sentences of the Court, etc.
20.— …
(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.
Editorial Notes:
E68
Previous affecting provision: subs. (1) amended (22.07.1997) by Criminal Law Act 1997 (14/1997), s. 14 and sch. 2, para. 4, commenced as per s. 1; substituted as per F-note above.
Section 207
Summoning and privilege of witnesses at courts-martial.
207.—(1) Every person required to give evidence before a court-martial may be summoned or ordered to attend in the prescribed manner.
(2) Every person attending in pursuance of such summons or order as a witness before any court-martial shall during his necessary attendance in or on such court-martial and in going to and returning from the same have the same privilege from arrest as if he were a witness before the High Court.
F299[(3) For the purposes of this section and section 208 (except subsection (2) of section 208), references to a court-martial shall be deemed to include an officer taking a written summary of evidence in accordance with rules of procedure.]
Annotations
Amendments:
F299
Substituted (1.09.2008) by Defence (Amendment) Act 2007 (24/2007), s. 55, S.I. No. 254 of 2008.
Modifications (not altering text):
C56
Application of section extended (24.06.1987) by Defence (Amendment) Act 1987 (8/1987) s. 8(1), commenced on enactment, as amended (1.09.2008) by Defence (Amendment) Act 2007 (24/2007), s. 11 and sch. 4, pt. 2, S.I. No. 254 of 2008.
Production of documents in evidence.
8.— (1) A person summoned or ordered under section 207 of the Principal Act to give evidence before a court-martial may by letter signed by the [military judge presiding] at the court-martial be required to produce to such court-martial any document, record or other thing in his power or control being a document, record or other thing which is either specified in such letter or is of a class or description so specified and being in either case a document, record or other thing required as evidence at such court-martial.
…
Section 208
Contempt of court-martial.
208.—F300[(1) If any person not subject to military law—
(a) having been duly summoned as a witness before a court-martial, without just cause or excuse disobeys the summons, or
(b) being in attendance as a witness at a court-martial, without just cause or excuse fails or refuses to take an oath or make a solemn declaration when legally required by the court-martial to do so, or to produce any document, record or other thing in his power or control legally required by the court-martial to be produced by him, or to answer any question to which the court-martial may legally require an answer, or
F301[(ba) fails, neglects or refuses to comply with a direction of the military judge under section 195, or
(bb) wilfully gives evidence to a court-martial which is material to the court-martial and which he knows to be false or does not believe to be true, or
(bc) by act or omission, obstructs or hinders the court-martial in the performance of its functions, or]
F302[(c) does or omits to do any other thing, which, if the court-martial were a civil court having power to commit for contempt, would be contempt of that court,]
the person shall be guilty of an offence and shall be liable on summary conviction to a fine not exceeding F303[€3,000] or, at the discretion of the court, to imprisonment for a term not exceeding twelve months or to both such fine and such imprisonment.]
F304[(1A) A prosecution for an offence under this section may be brought only by or with the consent of the Director of Public Prosecutions. ]
(2) F305[(a) If any person subject to military law is guilty of contempt of a court-martial by using insulting or threatening language or by causing any interruption or disturbance in the proceedings of the court-martial, the military judge presiding at the court-martial, if he considers it expedient, instead of the offender being tried by court-martial, may by order under his hand—
(i) order the offender to be imprisoned, or, in the case of a man, to undergo detention, for a period not exceeding ninety days, or
(ii) where the offender is a person subject to military law as an officer under section 118(1)(a), (b) or (c), award a fine not exceeding fourteen days’ pay at the most recent rate payable, or
(iii) where the offender is a person subject to military law as an officer under section 118(1)(d) or (e), award a fine not exceeding the maximum fine awardable for the time being by a court-martial to an officer holding the rank of second lieutenant who is in receipt of the maximum pay applicable to that rank, or
(iv) where the offender is a person subject to military law as a man under section 119(a) or (b), award a fine of an amount not exceeding fourteen days’ pay at the most recent rate payable, or
(v) where the offender is a person subject to military law as a man under section 119(c) or (d), award a fine not exceeding the maximum fine awardable for the time being by a court-martial to a man holding the rank of private of the highest grade who is in receipt of the maximum pay applicable to that rank. ]
(b) Chapter VII of this Part shall not apply to an order under paragraph (a) of this subsection.
Annotations
Amendments:
F300
Substituted (24.06.1987) by Defence (Amendment) Act 1987 (8/1987), s. 12, commenced on enactment, subject to transitional provision in s. 16.
F301
Inserted (1.09.2008) by Defence (Amendment) Act 2007 (24/2007), s. 56(a), S.I. No. 254 of 2008.
F302
Substituted (1.09.2008) by Defence (Amendment) Act 2007 (24/2007), s. 56(a), S.I. No. 254 of 2008.
F303
Substituted (1.09.2008) by Defence (Amendment) Act 2007 (24/2007), s. 56(a), S.I. No. 254 of 2008. 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.
F304
Inserted (1.09.2008) by Defence (Amendment) Act 2007 (24/2007), s. 56(b), S.I. No. 254 of 2008.
F305
Substituted (1.09.2008) by Defence (Amendment) Act 2007 (24/2007), s. 56(c), S.I. No. 254 of 2008.
Editorial Notes:
E69
Previous affecting provision: subs. (2)(a) amended (22.07.1997) by Criminal Law Act 1997 (14/1997), s. 14 and sch. 2, para. 8, commenced as per s. 1; substituted as per F-note above.
Chapter VI.
Punishments awardable by Courts-martial for Offences against Military Law.
Section 209
Punishments which may be awarded to officers by courts-martial.
209.—F306[(1) Subject to section 192, punishments may be awarded in respect of offences against military law committed by persons subject to military law as officers and convicted by court-martial according to the following scale:
SCALE.
A. Imprisonment for life or any specified period.
B. Dismissal with disgrace from the Defence Forces.
C. Dismissal from the Defence Forces.
D. Where the person convicted is an officer, reduction to any lower commissioned rank.
E. Forfeiture of all seniority of rank or of a specified term of seniority.
F. Reduction to any lower point on the scale of pay for the rank held.
G. (a) In the case of a person subject to military law as an officer under section 118(1)(a), (b) or (c), a fine not exceeding fourteen days’ pay of the person at the most recent rate payable.
(b) In the case of a person subject to military law as an officer under section 118(1)(d) or (e), a fine not exceeding the maximum fine awardable for the time being by a court-martial to an officer holding the rank of second lieutenant who is in receipt of the maximum pay applicable to that rank.
(c) In the case of a person who is not a member of the Defence Forces but who was an officer when the offence was committed, a fine not exceeding an amount equal to fourteen days’ pay at the most recent rate applicable to his former rank.
H. Severe reprimand.
I. Reprimand.]
(2) For the purposes of this Act in its application to a person subject to military law as an officer, any punishment mentioned in the Scale to subsection (1) of this section shall be deemed to be a punishment less than any punishment mentioned before it in the said Scale.
(3) Where—
(a) a person subject to military law as an officer is convicted by court-martial of an offence against military law mentioned in any section contained in Chapter II of this Part, and
(b) such section provides that on such conviction he shall be liable to suffer a specified punishment or any less punishment awardable by a court-martial.
the expression “any less punishment awardable by a court-martial” means in such section any punishment mentioned in the Scale to subsection (1) of this section which is less than the specified punishment.
(4) Save as is otherwise expressly provided in this Act, a person convicted by court-martial of having committed an offence against military law while subject to military law as an officer shall be sentenced to one punishment only.
F307[(5) (a) Where an officer is sentenced to a term of imprisonment of more than six months, the military judge shall, in addition, sentence him to dismissal with disgrace from the Defence Forces or dismissal from the Defence Forces.
(b) Where an officer is sentenced to a term of imprisonment of six months or less (other than under section 208(2)), the military judge may, in addition, sentence him to dismissal with disgrace from the Defence Forces or dismissal from the Defence Forces or reduction to any lower commissioned rank.]
(6) An officer sentenced by a court-martial to a fine may be also sentenced to severe reprimand or reprimand.
F308[(6A) An officer sentenced by a court-martial to reduction in rank may, in addition, be sentenced to—
(a) reduction to any lower point on the scale of pay for that rank and forfeiture of a specified term of seniority or all seniority in respect of the rank to which the officer is sentenced to be reduced, or
(b) to a fine or severe reprimand or reprimand,
or both.]
F309[(7) An officer sentenced by a court-martial to forfeiture of seniority of rank may, in addition, be sentenced to reduction to any lower point on the scale of pay for the rank held, or to a fine or severe reprimand or reprimand.]
F310[(7A) An officer sentenced by a court-martial to reduction to a lower point on the scale of pay for the rank held may, in addition, be sentenced to a fine or severe reprimand or reprimand.]
F311[(8) An officer dismissed with F312[disgrace] from the Defence Forces shall—
(a) be disqualified for ever serving the State again in any military capacity, and
(b) during the period of seven years beginning on the date of his dismissal, subject to subsection (9) of this section, be disqualified for serving the State in any civil capacity.]
F313[(9) Where a person by reason of this section is for the time being disqualified for serving the State in any civil capacity, the Government may, in their absolute discretion, remove the disqualification.]
Annotations
Amendments:
F306
Substituted (1.09.2008) by Defence (Amendment) Act 2007 (24/2007), s. 57(a), S.I. No. 254 of 2008.
F307
Substituted (1.09.2008) by Defence (Amendment) Act 2007 (24/2007), s. 57(b), S.I. No. 254 of 2008.
F308
Substituted (1.09.2008) by Defence (Amendment) Act 2007 (24/2007), s. 57(c), S.I. No. 254 of 2008.
F309
Substituted (1.09.2008) by Defence (Amendment) Act 2007 (24/2007), s. 57(d), S.I. No. 254 of 2008.
F310
Inserted (1.09.2008) by Defence (Amendment) Act 2007 (24/2007), s. 57(e), S.I. No. 254 of 2008.
F311
Substituted (24.06.1987) by Defence (Amendment) Act 1987 (8/1987), s. 4(1)(d), commenced on enactment, subject to transitional provision in s. 16.
F312
Substituted (1.09.2008) by Defence (Amendment) Act 2007 (24/2007), s. 57(f), S.I. No. 254 of 2008.
F313
Inserted (24.06.1987) by Defence (Amendment) Act 1987 (8/1987), s. 4(1)(d), commenced on enactment, subject to transitional provision in s. 16.
Editorial Notes:
E70
Previous affecting provision: subss. (1) and (5) amended (22.07.1997) by Criminal Law Act 1997 (14/1997), s. 14 and sch. 2, paras. 9 and 10, commenced as per s. 1; substituted as per F-note above.
E71
Previous affecting provision: subs. (1) amended (11.07.1990) by Criminal Justice Act 1990 (16/1990), s. 7 and sch. 1, para. 4(j), commenced on enactment; substituted as per F-note above.
E72
Previous affecting provision: subs. (1) amended (24.06.1987) by Defence (Amendment) Act 1987 (8/1987), s. 4(1)(a) – (d) subject to transitional provision in s. 16, commenced on enactment; substituted as per F-note above.
Section 210
Punishments which may be awarded to men by courts-martial.
210.—F314[(1) Subject to section 192, punishments may be awarded in respect of offences against military law committed by persons subject to military law as men and convicted by court-martial according to the following scale:
SCALE.
A. Imprisonment for life or any specified period.
B. Discharge with disgrace from the Defence Forces.
C. Discharge from the Defence Forces.
D. Detention—
(a) in the case of a general court-martial or limited court-martial, for any term not exceeding two years,
(b) in the case of a summary court-martial, for any term not exceeding six months,
with or without forfeiture of all pay or any part thereof.
E. Where the person convicted is a non-commissioned officer, reduction to any lower non-commissioned rank.
F. Forfeiture of all seniority of rank or of a specified term of seniority.
G. Reduction to any lower point on the scale of pay for the rank held.
H. (a) In the case of a person subject to military law as a man under section 119(a) or (b), a fine of an amount not exceeding fourteen days’ pay of the person at the most recent rate payable.
(b) In the case of a person subject to military law as a man under section 119(c) or (d), a fine not exceeding the maximum fine awardable for the time being by a court-martial to a man holding the rank of private of the highest grade who is in receipt of the maximum pay applicable to that rank.
(c) In the case of a person who is not a member of the Defence Forces but who was a non-commissioned officer, private or seaman when the offence was committed, a fine not exceeding an amount equal to fourteen days’ pay at the most recent rate applicable to his former rank.
I. Severe reprimand.
J. Reprimand.]
(2) For the purposes of this Act in its application to a person subject to military law as a man, any punishment mentioned in the Scale to subsection (1) of this section shall be deemed to be a punishment less than any punishment mentioned before it in the said Scale.
(3) Where—
(a) a person subject to military law as a man is convicted by court-martial of an offence against military law mentioned in any section contained in Chapter II of this Part, and
(b) such section provides that on such conviction he shall be liable to suffer a specified punishment or any less punishment awardable by a court-martial,
the expression “any less punishment awardable by a court-martial” means in such section any punishment mentioned in the Scale to subsection (1) of this section which is less than the specified punishment.
(4) Save as is otherwise expressly provided in this Act, a person convicted by court-martial of having committed an offence against military law while subject to military law as a man shall be sentenced to one punishment only.
(5) F315[…]
F316[(6) Where a man is sentenced to a term of imprisonment exceeding six months, the military judge shall, in addition, sentence him to discharge with disgrace from the Defence Forces or discharge from the Defence Forces.]
F317[(7) Where a man is sentenced to a term of imprisonment of six months or less (other than under section 208(2)), the military judge may, in addition, sentence him to discharge with disgrace from the Defence Forces or discharge from the Defence Forces. ]
F318[(8) A non-commissioned officer sentenced by a court-martial to a punishment mentioned at F or G in the Scale to subsection (1) of this section may, in addition, be sentenced to a fine or severe reprimand or reprimand.]
F319[(8A) A non-commissioned officer sentenced by a court-martial to reduction in rank may, in addition, be sentenced to—
(a) reduction to any lower point on the scale of pay for that rank and forfeiture of a specified term of seniority or all seniority in respect of the rank to which he is sentenced to be reduced, or
(b) to a fine or severe reprimand or reprimand,
or both.]
(9) Where a court-martial sentences a man to detention or severe reprimand or reprimand, the court-martial may also sentence him to a fine.
(10) Where a non-commissioned officer is sentenced by a court-martial to imprisonment F320[for any term not exceeding two years] or detention, the court-martial shall also sentence him to reduction to, in case he holds a non-commissioned army rank, the rank of private or, in any other case, the rank of seaman.
F321[(11) A man discharged with F322[disgrace] from the Defence Forces shall—
(a) be disqualified for ever serving the State again in any military capacity, and
(b) during the period of seven years beginning on the date of his discharge, subject to subsection (12) of this section, be disqualified for serving the State in any civil capacity.]
F323[(12) Where a person by reason of this section is for the time being disqualified for serving the State in any civil capacity, the Government may, in their absolute discretion, remove the disqualification.]
Annotations
Amendments:
F314
Substituted (1.09.2008) by Defence (Amendment) Act 2007 (24/2007), s. 58(a), S.I. No. 254 of 2008.
F315
Deleted (1.09.2008) by Defence (Amendment) Act 2007 (24/2007), s. 58(b), S.I. No. 254 of 2008.
F316
Substituted (1.09.2008) by Defence (Amendment) Act 2007 (24/2007), s. 58(c), S.I. No. 254 of 2008.
F317
Substituted (1.09.2008) by Defence (Amendment) Act 2007 (24/2007), s. 58(d), S.I. No. 254 of 2008.
F318
Substituted (1.09.2008) by Defence (Amendment) Act 2007 (24/2007), s. 58(e), S.I. No. 254 of 2008.
F319
Inserted (1.09.2008) by Defence (Amendment) Act 2007 (24/2007), s. 58(f), S.I. No. 254 of 2008.
F320
Inserted (11.07.1990) by Criminal Justice Act 1990 (16/1990), s. 7 and sch. 1, para. 4(l), commenced on enactment.
F321
Substituted (24.06.1987) by Defence (Amendment) Act 1987 (8/1987), s. 4(2)(c), commenced on enactment, subject to transitional provision in s. 16.
F322
Substituted (1.09.2008) by Defence (Amendment) Act 2007 (24/2007), s. 58(g), S.I. No. 254 of 2008.
F323
Inserted (24.06.1987) by Defence (Amendment) Act 1987 (8/1987), s. 4(2)(c), commenced on enactment, subject to transitional provision in s. 16.
Editorial Notes:
E73
Previous affecting provision: subss. (1) and (6) amended (22.07.1997) by Criminal Law Act 1997 (14/1997), s. 14(1) and sch. 2, paras. 11 and 12, commenced as per s. 1; substituted as per F-notes above.
E74
Previous affecting provision: subss. (1), (6), (7) and (10) amended (11.07.1990) by Criminal Justice Act 1990 (16/1990), s. 7 and sch. 1, para. 4(j)-(l), commenced on enactment; substituted as per F-notes above.
Section 211
F324[
Separate sentence for each offence.
211.— (1) Where a person is convicted by a court-martial of two or more offences, a separate sentence shall be awarded in respect of each offence.
(2) Subject to section 212A, where a person is convicted by a court-martial in respect of two or more offences, any custodial sentences awarded in respect of each such offence shall be served concurrently.]
Annotations
Amendments:
F324
Substituted (1.09.2008) by Defence (Amendment) Act 2007 (24/2007), s. 59, S.I. No. 254 of 2008.
Section 211A
F325[
Restriction on sentence of imprisonment or detention on person who is not represented.
211A.— (1) Subject to subsection (2) of this section, a person convicted by a court-martial of an offence against military law shall not be sentenced to imprisonment or dismissal or discharge with disgrace from the Defence Forces or dismissal or discharge from the Defence Forces where the person has not been represented by counsel (within the meaning of section 196) at some time after he is found guilty and before he is sentenced.
(2) Subsection (1) of this section shall not apply where the person—
(a) pursuant to rules of procedure, having been informed of his right to be represented by counsel and having had the opportunity to arrange such representation, refused or failed to do so, or
(b) has previously been sentenced to imprisonment for an offence under this Act or by a civil court in the State.
(3) For the purposes of subsection (2)(b) of this section—
(a) a previous sentence of imprisonment which has been suspended and has not taken effect is to be disregarded,
(b) “sentenced to imprisonment” does not include a committal for contempt of court under section 208.]
Annotations
Amendments:
F325
Inserted (1.09.2008) by Defence (Amendment) Act 2007 (24/2007), s. 60, S.I. No. 254 of 2008.
Editorial Notes:
E75
Procedure for the purposes of section prescribed (1.09.2008) by Court-Martial Rules 2008 (S.I. No. 205 of 2008), rl. 58(2), in effect as per rl. 1(2).
Section 212
Restriction on sentence of imprisonment and detention on person already undergoing imprisonment or detention.
212.—Where—
(a) a person is convicted by a court-martial of an offence against military law, and
(b) the court-martial proposes to sentence such person to imprisonment or detention, and
(c) such person is at the time of sentence undergoing imprisonment or detention under a former sentence,
any sentence of imprisonment or detention awarded by the court-martial shall F326[be served concurrently with the term then unexpired of the former sentence and on completion of either sentence any balance of the other sentence shall be served].
Annotations
Amendments:
F326
Substituted (22.07.1997) by Criminal Law Act 1997 (14/1997), s. 14 and sch. 2, para. 13, commenced as per s. 1.
Modifications (not altering text):
C57
Application of section restricted (11.07.1990) by Criminal Justice Act 1990 (16/1990), s. 7 and sch. 1, para. 4(m), commenced on enactment.
FIRST SCHEDULE
CONSEQUENTIAL AMENDMENTS
4. The Defence Act, 1954, shall be amended as follows: …
(m) section 212 shall not apply to a sentence of imprisonment for life;
…
Section 212A
F327[
Power to suspend sentence.
212A.— (1) In this section—
“governor” includes, in relation to a military prisoner or a person undergoing detention, a person for the time being performing the functions of governor;
“imprisonment” includes—
(a) detention in a military prison or detention barrack or in other service custody or in a public prison, as referred to in section 229 of this Act,
(b) F328[…]
(c) detention in a place provided under section 2 of the Prisons Act 1970, and
(d) detention in a place specified under section 3 of the Prisons Act 1972,
and “sentence of imprisonment” shall be construed accordingly;
“mandatory term of imprisonment” includes, in relation to an offence, a term of imprisonment awarded by a court-martial under this Act or any other enactment where provision is made that a person who is guilty of the offence concerned shall be liable to a term of imprisonment of not less than such term as is specified in this Act or that enactment.
(2) Where a person is sentenced by a court-martial in respect of an offence to a term of imprisonment (other than a mandatory term of imprisonment) or to detention, the military judge presiding at the court-martial may make an order suspending the execution of the sentence in whole or in part, subject to the person entering into a recognisance to comply with the conditions of, or imposed in relation to, the order.
(3) It shall be a condition of an order under subsection (2) of this section that the person in respect of whom the order is made keep the peace and be of good behaviour during—
(a) the period of suspension of the sentence concerned, or
(b) in the case of an order that suspends a sentence in part only, the period of imprisonment or detention and the period of suspension of the sentence concerned,
and that condition shall be specified in the order concerned.
(4) The military judge may, when making an order under subsection (2) of this section, impose such conditions in relation to the order as he considers—
(a) appropriate having regard to the nature of the offence, and
(b) will reduce the likelihood of the person in respect of whom the order is made committing any other offence,
and any condition imposed in accordance with this subsection shall be specified in that order.
(5) In addition to any condition imposed under subsection (4) of this section, the military judge may, when making an order under subsection (2) of this section consisting of the suspension in part of a sentence of imprisonment or detention, impose any one or more of the following conditions in relation to that order:
(a) that the person cooperate with such support services, and to such extent, as may be specified by the military judge;
(b) that the person undergo such—
(i) treatment for addiction,
(ii) course of education, training or therapy,
(iii) psychological counselling or other treatment,
as may be approved by the military judge.
(6) A condition imposed under subsection (5) of this section shall be specified in the order concerned.
(7) Where an order is made under subsection (2) of this section, a copy of the order shall be given by the Court-Martial Administrator—
(a) to the commanding officer of the person to whom the order applies and the Provost Marshal, or
(b) in the case of an order consisting of the suspension of a sentence of imprisonment or detention in part only, to the persons referred to in paragraph (a) of this subsection, to the governor of the prison or detention barrack to which the person is committed and to such other person, authority or support services as the military judge may direct having regard to the conditions (if any) imposed under subsection (5) of this section.
(8) (a) Where a person to whom an order under subsection (2) of this section applies is, during the period of suspension of the sentence concerned, convicted by a court-martial of an offence, the military judge presiding at the court-martial before which proceedings for the offence were brought shall, after imposing sentence for that offence, remand the person in custody or otherwise to appear before a court-martial of the same class as that which made the order.
(b) Where a person is remanded pursuant to paragraph (a) of this subsection, the Court-Martial Administrator shall, subject to the directions of the Director—
(i) refer the matter to the summary court-martial, or
(ii) convene a general court-martial or limited court-martial, as specified in the direction, but without a court-martial board,
to deal with the matter.
(9) (a) A summary court-martial or the military judge presiding at a general court-martial or limited court-martial, as the case may be, to which a person is remanded under subsection (8) of this section shall revoke the order unless the military judge considers that revocation of that order would be unjust in all the circumstances of the case.
(b) Where the military judge revokes that order, the person shall be required to serve the entire of the sentence of imprisonment or detention originally awarded, or such part of the sentence as the military judge considers just having regard to all the circumstances of the case, less any period of that sentence already served and any period spent in custody (other than a period during which the person was serving a sentence of imprisonment or detention in respect of an offence referred to in subsection (8) of this section) pending revocation of the said order.
(10) Notwithstanding the provisions of section 211 or of any other section of this Act, a sentence (other than a sentence consisting of imprisonment for life) awarded—
(a) in respect of an offence committed by a person to whom an order under subsection (2) of this section applies, and
(b) during the period of suspension of sentence to which that order applies,
shall not commence until the expiration of any period of imprisonment or detention that the person is required to serve of the sentence referred to in paragraph (b) of this subsection either by virtue of the order under subsection (2) or a revocation under subsection (9) of this section.
(11) Where the Provost Marshal or, as the case may be, the governor of the prison or detention barrack to which a person was committed has reasonable grounds for believing that a person to whom an order under this section applies has contravened a condition referred to in the order he shall refer the matter to the Director who may—
(a) subject to the court-martial being of the same class as that which made the order, direct the Court-Martial Administrator to—
(i) refer the matter to the summary court-martial, or
(ii) convene a general court-martial or limited court-martial, as specified in his direction, but without a court-martial board,
and
(b) apply in the prescribed manner to that court-martial to fix a date for the hearing of an application for an order revoking the order under subsection (2) of this section.
(12) Where a date for the hearing of an application referred to in subsection (11) of this section is fixed, the person in respect of whom the application will be made, or where that person is in prison or a detention barrack, the governor of the prison or detention barrack, shall be notified in writing in the prescribed manner, and the notice shall require the person to attend at the hearing, or require the said governor to produce the person before the court-martial, on the date and at the time specified in the notice.
(13) A notice under subsection (12) of this section shall be addressed to the person concerned by name, and may be given to the person in the prescribed manner.
(14) If a person who is not in prison or a detention barrack fails to appear before the court-martial in accordance with a requirement contained in a notice under subsection (12) of this section, the military judge presiding at the court-martial concerned may make an order for the arrest of the person.
(15) The military judge presiding at the court-martial shall, where he is satisfied that a person to whom an order under subsection (1) of this section applies has contravened a condition of the order, revoke the order unless he considers that revocation of that order would be unjust in all of the circumstances of the case, and where the military judge revokes that order, the person shall be required to serve the entire of the sentence originally awarded, or such part of the sentence as the military judge considers just having regard to all of the circumstances of the case, less any period of that sentence already served in prison or in a detention barrack and any period spent in custody pending the revocation of the order.
(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.]
Annotations
Amendments:
F327
Inserted (1.09.2008) by Defence (Amendment) Act 2007 (24/2007), s. 61, S.I. No. 254 of 2008.
F328
Deleted (7.04.2017) by Prisons Act 2015 (57/2015), s. 7, S.I. No. 134 of 2017.
Section
212B
F329[
Review of certain sentences.
212B.— (1) If it appears to the Director that a sentence awarded by a court-martial, on conviction of a person for an offence in respect of which punishment for a term of imprisonment of two years or for any longer period is awardable by the court-martial, is unduly lenient, the Director may apply to the Courts-Martial Appeal Court to review the sentence in accordance with section 22B (inserted by the Defence (Amendment) Act 2007) of the Courts-Martial Appeals Act 1983 and rules of court made under that Act.
(2) Section 161(2)(ea) (which prohibits certain communications in relation to proceedings before a service tribunal) shall apply, with any necessary modifications, to communications made to the persons mentioned in that section for the purpose of influencing the making of a decision in relation to an application under this section as it applies to those communications made for the purposes specified in that provision.]
Annotations
Amendments:
F329
Inserted (1.09.2008) by Defence (Amendment) Act 2007 (24/2007), s. 62, S.I. No. 254 of 2008.
Section 213
F330[
Order for payment of compensation.
213.— (1) Where—
(a) a person subject to military law is convicted by a court-martial of an offence against military law, and
(b) the offence occasioned any personal injury, expense or loss or destruction of, or damage to, any property,
the military judge presiding at the court-martial may, instead of or in addition to any other punishment which he is authorised by this Act to award in respect of the offence, order that there shall be paid by the person convicted compensation for the personal injury, expense, loss, damage or destruction so occasioned to any person (in this Act referred to as the “injured party”) who has suffered such personal injury, expense, loss, damage or destruction.
(2) The compensation payable under this section shall be of such amount as the military judge considers appropriate, having regard to any evidence and to any representations that are made by or on behalf of the convicted person, the injured party or the Director and, subject to the relevant maximum amounts specified in subsection (3) of this section, shall not exceed the amount of the damages that, in the opinion of the military judge, the injured party would be entitled to recover in a civil action against the convicted person in respect of the injury, expense, loss, damage or destruction concerned.
(3) In this section “relevant maximum amount” means—
(a) in the case of a compensation order made by a summary court-martial, €10,000,
(b) in the case of a compensation order made by the military judge presiding at a limited court-martial, €20,000,
(c) in the case of a compensation order made by the military judge presiding at a general court-martial, €100,000.
(4) Where the commission of the offence by the convicted person involved the taking of property out of the possession of the injured party and the property has been recovered, any loss occurring to the injured party by reason of the property being damaged while out of his possession shall be treated for the purposes of subsection (1) of this section as having resulted from the offence, irrespective of how the damage was caused or who caused it.
(5) In determining whether to make an order under this section against a person, and in determining the amount of the compensation, the military judge shall have regard to the person’s means so far as they appear or are known to the military judge and for that purpose the military judge may require the convicted person to give evidence as to his means and financial commitments.
(6) An order under this section may provide for payment of the compensation by such instalments and at such times as the military judge considers reasonable in all the circumstances.
(7) Where the military judge considers that—
(a) it would be appropriate both to award a fine under section 209 or 210, as the case may be, and to make an order under this section, but
(b) the convicted person has insufficient means to pay both an appropriate fine and appropriate compensation,
the military judge may, if he is satisfied that the means are sufficient to justify doing so, make an order under this section and if he is satisfied that it is appropriate to do so having regard to the means that would remain after compliance with the order, award a fine.
(8) This section is without prejudice to any other enactment which provides for the payment of compensation by a person convicted of an offence or otherwise proved to have committed an offence.
(9) For the purposes of this section—
(a) in a case where death has resulted from an offence specified in subsection (1) of this section—
“loss” means any matter (including mental distress resulting from the death and funeral expenses) for which damages could be awarded in respect of the death by virtue of Part V of the Civil Liability Act 1961;
“injured party” includes a dependant (within the meaning of the said Part V) of the deceased person concerned,
(b) in a case where service property is the subject of an order under this section, “injured party” includes the Minister.
(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.]
Annotations
Amendments:
F330
Substituted (1.09.2008) by Defence (Amendment) Act 2007 (24/2007), s. 63, S.I. No. 254 of 2008.
Section 213A
F331[
Payment of fine.
213A.— (1) Where a person subject to military law is convicted by a court-martial and is sentenced to a fine, the fine shall be a stated amount.
(2) The terms of payment of a fine referred to in subsection (1) of this section are, subject to the provisions of this Act, at the discretion of the military judge who awards the fine.]
Annotations
Amendments:
F331
Inserted (1.09.2008) by Defence (Amendment) Act 2007 (24/2007), s. 64, S.I. No. 254 of 2008.
Section 214
Restoration of seniority lost and service forfeited by sentence of a court-martial.
214.—The Minister may restore the whole or any part of any seniority of rank or service forfeited by sentence of a court-martial in the case of an officer or man who may perform good and faithful service or who may otherwise be deemed by the Minister to merit such restoration.
Chapter VII.
Action on Findings and Sentences of Courts-martial.
Section 215
Findings and sentences not to be valid unless confirmed.
215.—F332[…]
Annotations
Amendments:
F332
Repealed (1.09.2008) by Defence (Amendment) Act 2007 (24/2007), s. 4(1), S.I. No. 254 of 2008.
Editorial Notes:
E76
Previous affecting provision: section amended (29.06.1983) by Courts-Martial Appeals Act 1983 (19/1983), s. 7, commenced on enactment; repealed as per F-note above.
Section 216
Confirming authorities.
216.—F333[…]
Annotations
Amendments:
F333
Repealed (1.09.2008) by Defence (Amendment) Act 2007 (24/2007), s. 4(1), S.I. No. 254 of 2008.
Section 217
Reference of finding and sentence by confirming authority to superior confirming authority.
217.—F334[…]
Annotations
Amendments:
F334
Repealed (1.09.2008) by Defence (Amendment) Act 2007 (24/2007), s. 4(1), S.I. No. 254 of 2008.
Section 218
Revision by courts-martial of findings and sentences.
218.—F335[…]
Annotations
Amendments:
F335
Repealed (1.09.2008) by Defence (Amendment) Act 2007 (24/2007), s. 4(1), S.I. No. 254 of 2008.
Section 219
Powers of confirming authority as to confirmation.
219.—F336[…]
Annotations
Amendments:
F336
Repealed (1.09.2008) by Defence (Amendment) Act 2007 (24/2007), s. 4(1), S.I. No. 254 of 2008.
Section 220
Additional powers of confirming authority in relation to sentences passed by courts-martial.
220.—F337[…]
Annotations
Amendments:
F337
Repealed (1.09.2008) by Defence (Amendment) Act 2007 (24/2007), s. 4(1), S.I. No. 254 of 2008.
Editorial Notes:
E77
Previous affecting provision: subs. (2) deleted and subs. (3) amended (11.07.1990) by Criminal Justice Act 1990 (16/1990), s. 7 and sch. 1, para. 4(n), commenced on enactment; repealed as per F-note above.
Section 221
Mitigation, remission, etc., of sentences (other than death sentences) after confirmation.
221.—F338[…]
Annotations
Amendments:
F338
Repealed (1.09.2008) by Defence (Amendment) Act 2007 (24/2007), s. 4(1), S.I. No. 254 of 2008.
Editorial Notes:
E78
Previous affecting provision: subs. (1) amended (11.07.1990) by Criminal Justice Act 1990 (16/1990), s. 7 and sch. 1, para. 4(o), commenced on enactment; repealed as per F-note above.
Section 222
Date of commencement of sentences of penal servitude, imprisonment or detention imposed by way of substitution.
222.—F339[…]
Annotations
Amendments:
F339
Repealed (1.09.2008) by Defence (Amendment) Act 2007 (24/2007), s. 4(1), S.I. No. 254 of 2008.
Editorial Notes:
E79
Previous affecting provision: subs.(3) amended (22.07.1997) by Criminal Law Act 1997 (14/1997), s. 14 and sch. 2, para. 4, commenced as per s. 1; repealed as per F-note above.
E80
Previous affecting provision: section amended (11.07.1990) by Criminal Justice Act 1990 (16/1990), s. 7 and sch. 1, para. 4(p), commenced on enactment; repealed as per F-note above.
Section 223
Suspension of sentences of penal servitude, imprisonment or detention passed on men.
223.—F340[…]
Annotations
Amendments:
F340
Repealed (1.09.2008) by Defence (Amendment) Act 2007 (24/2007), s. 4(1), S.I. No. 254 of 2008.
Editorial Notes:
E81
Previous affecting provision: subss.(1)-(4) and (7) amended (22.07.1997) by Criminal Law Act 1997 (14/1997), s. 14 and sch. 2, paras. 4 and 14, commenced as per s. 1; repealed as per F-note above.
E82
Previous affecting provision: subs. (10) inserted (11.07.1990) by Criminal Justice Act 1990 (16/1990), s. 7 and sch. 1, para. 4(q), commenced on enactment; repealed as per F-note above.
Section 224
Quashing of finding of court-martial.
224.—F341[…]
Annotations
Amendments:
F341
Repealed (1.09.2008) by Defence (Amendment) Act 2007(24/2007), s. 4(1), S.I. No. 254 of 2008.
Editorial Notes:
E83
Previous affecting provision: subs. (2)(c)(iii) deleted (22.07.1997) by Criminal Law Act 1997 (14/1997), s. 14 and sch. 2, para. 15, commenced as per s. 1; repealed as per F-note above.
E84
Previous affecting provision: application of section restricted (29.06.1983) by Courts-Martial Appeals Act 1983 (19/1983), s. 8, commenced on enactment; repealed as per F-note above.
Section 225
F342[
Orders for restitution.
225.— (1) Where a person is convicted by a court-martial of an offence under section 155 or 156, the military judge may on the conviction (whether or not the passing of sentence is in other respects deferred)—
(a) order anyone having possession or control of the property which is the subject of the offence to restore it to any person entitled to recover it from the convicted person,
(b) on the application of a person entitled to recover from the convicted person any other property directly or indirectly representing the property referred to in paragraph (a) of this subsection (as being the proceeds of any disposal or realisation of the whole or part of it or of property so representing it), order that other property to be delivered or transferred to the applicant, or
(c) order that a sum not exceeding the value of the property referred to in paragraph (a) of this subsection shall be paid, out of any money of the convicted person which was taken out of his possession when arrested, to any person who, if the property were in the possession of the convicted person, would be entitled to recover that property from him.
(2) Where the military judge has power on a person’s conviction to make an order against the person under both paragraphs (b) and (c) of subsection (1) of this section, the military judge may make orders under both paragraphs, if the person in whose favour the orders are made does not thereby recover more than the value of the property which is the subject of the offence concerned.
(3) Where—
(a) an order is made under subsection (1)(a) of this section for the restoration of any property, and
(b) it appears to the military judge that the convicted person has sold the property to a person acting in good faith or has borrowed money on the security of it from a person so acting,
then, on the application of the purchaser or lender, the military judge may order that there shall be paid to the applicant, out of any money of the convicted person which was taken out of his possession when arrested, a sum not exceeding the amount paid for the purchase by the applicant or, as the case may be, the amount owed to the applicant in respect of the loan.
(4) (a) The military judge shall not exercise the powers conferred by this section unless in his opinion the relevant facts sufficiently appear from evidence given at the trial or the available documents, together with admissions made by or on behalf of any person in connection with any proposed exercise of the powers.
(b) In paragraph (a) of this subsection “available documents” means—
(i) any written statements or admissions which were made for use, and would have been admissible in evidence, at the trial, and
(ii) any written statements or admissions used as evidence at the trial or in any such proceedings.
(5) This section shall have effect only in relation to offences wholly or partly committed on or after the commencement of this section.
(6) This section is without prejudice to the Police (Property) Act 1897 (disposal of property in the possession of the Garda Síochána).]
Annotations
Amendments:
F342
Substituted (21.04.2007) by Defence (Amendment) Act 2007 (24/2007), s. 65, commenced as per s. 1(3).
Section 226
F343[
Proceedings of court-martial.
226.— (1) The proceedings of a court-martial shall be preserved in the prescribed manner.
(2) For the purposes of this section, the proceedings of a court-martial include exhibits.]
Annotations
Amendments:
F343
Substituted (1.09.2008) by Defence (Amendment) Act 2007 (24/2007), s. 66, S.I. No. 254 of 2008.
Chapter VIII.
Execution of Sentences.
Section 227
Sentence of death.
227.—F344[…]
Annotations
Amendments:
F344
Deleted (11.07.1990) by Criminal Justice Act 1990 (16/1990), s. 7 and sch. 1, para. 4(r), commenced on enactment.
Section 228
Execution of sentence of penal servitude.
228.—F345[…]
Annotations
Amendments:
F345
Deleted (22.07.1997) by Criminal Law Act 1997 (14/1997), s. 14 and sch. 2, para. 15, commenced as per s. 1.
Editorial Notes:
E85
Previous affecting provision: subs. (1A) inserted (11.07.1990) by Criminal Justice Act 1990 (16/1990), s. 7 and sch. 1, para 4(s), commenced on enactment; deleted as per F-note above.
Section 229
Execution of sentence of imprisonment or detention.
229.—F346[(1) F347[Subject to section 212A, where a sentence of imprisonment is passed by a court-martial,] the military prisoner shall undergo sentence as follows:
(a) if the sentence is for a term exceeding two years, he or she shall, as soon as practicable, be committed to a public prison to undergo sentence;
(b) if the sentence is for a term not exceeding two years, he or she shall undergo sentence either in a military prison or detention barrack or in other service custody or in a public prison, or partly in one way and partly in another.]
(2) F348[Subject to section 212A, where a sentence of detention is passed by a court-martial,] the person on whom the sentence has been passed shall undergo the term of his detention either in a detention barrack or in service custody, or partly in one way and partly in another, but not in a public prison.
(3) F349[Subject to section 212A, a military prisoner] or a man under sentence of detention may, until he reaches the prison or detention barrack in which he is to undergo his sentence, be kept in service custody or in civil custody or partly in service custody and partly in civil custody, and may by order of a competent authority be transferred from service custody to civil custody and from civil custody to service custody as occasion may require.
(4) An order of a competent authority shall be a sufficient warrant for the committal of a military prisoner to prison or a detention barrack, or a man under sentence of detention to a detention barrack.
(5) An order of a competent authority shall be a sufficient authority for the transfer of a military prisoner from prison to a detention barrack, or from a detention barrack to prison, or from one prison or detention barrack to another prison or detention barrack, or for the transfer of a man undergoing detention from one detention barrack to another, or for the delivery into service custody of a military prisoner or a man undergoing detention.
(6) A military prisoner or a man undergoing detention may at any time, if his sentence is remitted, be released by order of a competent authority.
(7) A military prisoner or a man undergoing detention may, during his conveyance from place to place, be subjected to such restraint as is necessary for his safe conduct and removal.
(8) A military prisoner while in a public prison shall be confined F350[…] and otherwise dealt with in the same manner as an ordinary prisoner under a like sentence of imprisonment.
(9) Where the hospital or place for reception of sick persons in a prison or a detention barrack is detached from the prison or detention barrack, a military prisoner or a man undergoing detention may be detained in that hospital or place, and conveyed to or from the same as circumstances require.
(10) For the purposes of this section—
(a) the expression “detention barrack” includes a barrack detention room;
(b) each of the following shall be a competent authority, namely, the Minister and every prescribed officer, and different officers may be so prescribed for different such purposes.
Annotations
Amendments:
F346
Substituted (22.07.1997) by Criminal Law Act 1997 (14/1997), s. 14 and sch. 2, para. 16, commenced as per s. 1.
F347
Substituted (1.09.2008) by Defence (Amendment) Act 2007 (24/2007), s. 67(a), S.I. No. 254 of 2008.
F348
Substituted (1.09.2008) by Defence (Amendment) Act 2007 (24/2007), s. 67(b), S.I. No. 254 of 2008.
F349
Substituted (1.09.2008) by Defence (Amendment) Act 2007 (24/2007), s. 67(c), S.I. No. 254 of 2008.
F350
Deleted (22.07.1997) by Criminal Law Act 1997 (14/1997), s. 14 and sch. 2, para. 17, commenced as per s. 1.
Modifications (not altering text):
C58
Application of section restricted (11.07.1990) by Criminal Justice Act 1990 (16/1990), s. 7 and sch. 1, para. 4(t), commenced on enactment.
4. The Defence Act, 1954, shall be amended as follows: …
(t) section 229 shall not apply to a military prisoner sentenced to imprisonment for life; and
…
Section 230
Suspension of currency of sentence where a person escapes or is released without proper authority.
230.—Notwithstanding anything contained in this Act, where a person sentenced to F351[…] imprisonment or detention escapes or is released without proper authority whilst serving such sentence, the currency of such sentence shall be deemed to be suspended from the date on which he escaped or was released without proper authority until he surrenders or is again apprehended, and on such surrender or apprehension he may be recommitted by the prescribed authority to serve the unexpired term of his sentence.
Annotations
Amendments:
F351
Deleted (22.07.1997) by Criminal Law Act 1997 (14/1997), s. 14 and sch. 2, para. 4, commenced as per s. 1.
Section 231
Duty of governor of prison to receive prisoners.
231.—(1) The governor of every prison shall receive and confine, until discharged or delivered over in due course of law, all F352[military prisoners] sent to such prison in pursuance of this Act.
F353[(2) The governor of every prison shall also receive into his custody any person subject to military law in service custody upon delivery to the governor of a written order, purporting to be signed by the commanding officer of that person, for any period not exceeding 8 days (which shall not include the day on which the order is made), or any further such order or orders so made for any further such period or periods.]
Annotations
Amendments:
F352
Substituted (1.09.2008) by Defence (Amendment) Act 2007 (24/2007), s. 68(a), S.I. No. 254 of 2008.
F353
Substituted (1.09.2008) by Defence (Amendment) Act 2007 (24/2007), s. 68(b), S.I. No. 254 of 2008.
Section 232
Establishment of military prisons and detention barracks.
232.—(1) It shall be lawful for the Minister to set apart any building or part of a building under the control of the Minister as a military prison or detention barrack and to declare that any such building or part of a building shall be a military prison or a detention barrack, as the case may be.
(2) The powers of the Minister under this section may, during a period of emergency, be exercised by a prescribed officer.
Section 233
Regulation of military prisons and detention barracks.
233.—(1) The Minister may make rules (in this Act referred to as rules for military prisons and detention barracks) for all or any of the following purposes, that is to say:—
(a) the government, management and regulation of military prisons and detention barracks;
(b) the appointment and removal and power of inspectors, visitors, governors and officers thereof;
(c) the labour of military prisoners and men undergoing detention therein;
(d) enabling such prisoners or men to earn, by special industry and good conduct, a remission of portion of their sentence;
(e) the classification of military prisoners and men undergoing detention;
(f) the safe custody of such prisoners or men, and the maintenance of discipline among them, and the punishment by personal correction, restraint or otherwise of offences committed by such prisoners or men;
(g) the temporary release, in such cases, for such periods and subject to such conditions as may be prescribed by the rules, of such prisoners or men.
(2) Rules under this section shall not authorise corporal punishment to be inflicted for any offence nor render the imprisonment or detention more severe than it is, under the law in force for the time being, in any public prison.
F354[(2A) Any power conferred by rules under this section to release a person temporarily shall not, in the case of a person serving a sentence passed on him on conviction of treason or of murder, or attempted murder, to which section 3 of the Criminal Justice Act 1990 applies, be exercisable before the expiration of the minimum period specified by the court-martial under section 4 of that Act, as applied by section 169A of this Act, less any reduction of that period by the amount of remission earned by the person according to the rules of practice whereby prisoners generally earn remission of sentence by industry and good conduct, unless for grave reasons of a humanitarian nature, and any such release shall only be of such limited duration as is justified by those reasons.]
(3) Where any person has been temporarily released from a military prison or detention barrack in accordance with rules made under this section the currency of any sentence which he may be serving shall be suspended for the period commencing on the day after the day on which he was released and ending on the day on which he returns to the prison or detention barrack or is otherwise taken into custody under subsection (4) of this section.
(4) If any person who has been temporarily released from a military prison or detention barrack in accordance with rules made under this section fails to comply with any of the conditions subject to which he was released or to return at the expiration of the period for which he was released—
(a) he may be arrested without warrant by any member of the Garda Síochána or taken into service custody, and may be kept in custody, whether civil or service, until he is taken back to the military prison or detention barrack,
(b) unless proceedings are taken against him under section 135 or 137, he shall be liable to such punishment as may be prescribed by the rules.
(5) Rules under this section shall provide for applying, with such modifications and adaptations as the Minister thinks proper, in respect of military prisons and detention barracks, the provisions relating to the duties of medical officers contained in section 74 of the Prisons (Ireland) Act, 1826, and sections 52 and 53 of the General Prisons (Ireland) Act, 1877, and the provisions relating to the duties of gaolers contained in section 54 of the said General Prisons (Ireland) Act, 1877.
(6) Every rule made under this section shall be laid before each House of the Oireachtas as soon as may be after such rule is made and, if a resolution annulling such rule is passed by either House of the Oireachtas within the next subsequent twenty-one days on which that House has sat after such rule is so laid before it, such rule shall be annulled accordingly, but without prejudice to the validity of anything previously done under such rule.
Annotations
Amendments:
F354
Substituted (1.09.2008) by Defence (Amendment) Act 2007 (24/2007), s. 69, S.I. No. 254 of 2008.
Editorial Notes:
E86
Power pursuant to section exercised (15.07.1983) by Rules for Military Prisons and Detention Barracks 1983 (S.I. No. 203 of 1983).
E87
Power pursuant to section exercised (1.01.1955) by Rules for Military Prisons and Detention Barracks 1954 (S.I. No. 291 of 1954).
E88
Previous affecting provision: subs. (2A) inserted (11.07.1990) by Criminal Justice Act 1990 (16/1990), s. 7 and sch. 1, para. 4(u), commenced on enactment; substituted as per F-note above.
Section 234
Assisting prisoners in military prisons and detention barracks to escape.
234.—Every person who aids any prisoner in escaping or attempting to escape from any military prison or detention barrack, or who, with intent to facilitate the escape of any such prisoner, conveys or causes to be conveyed into any military prison or detention barrack any mask, dress or other disguise or any letter or other article or thing of whatsoever kind shall be guilty of F355[an offence] and on conviction thereof shall be liable to imprisonment, F356[…] for any term not exceeding two years.
Annotations
Amendments:
F355
Substituted (22.07.1997) by Criminal Law Act 1997 (14/1997), s. 14 and sch. 2, para. 18, commenced as per s. 1.
F356
Deleted (22.07.1997) by Criminal Law Act 1997 (14/1997), s. 14 and sch. 2, para. 18, commenced as per s. 1.
Section 235
Penalty for carrying spirituous liquor, drugs or tobacco into military prisons or detention barracks.
235.—Every person who, contrary to the rules for military prisons and detention barracks, brings or attempts by any means whatever to introduce into any military prison or detention barrack any spirituous or fermented liquor or drug or tobacco and every person employed on the staff of any such prison or barrack who suffers any spirituous or fermented liquor or drug or tobacco to be sold or used therein contrary to such rules shall be guilty of an offence under this section and shall be liable on summary conviction thereof to a fine not exceeding F357[500] pounds or, at the discretion of the court, to imprisonment for any term not exceeding six months or to both such fine and imprisonment.
Annotations
Amendments:
F357
Substituted (24.06.1987) by Defence (Amendment) Act 1987 (8/1987), s. 2, item 8, commenced on enactment, subject to transitional provision in s. 16. A fine of £500 converted (1.01.1999) to €634.86. This 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. 3, S.I. No. 662 of 2010.
Section 236
Penalty for carrying letters, etc., into or out of military prisons or detention barracks.
236.—Every person who, contrary to the rules for military prisons and detention barracks, conveys or attempts to convey any letter or other document, or any article whatever not allowed by such rules, into or out of such prison or barrack shall be guilty of an offence under this section and shall be liable on summary conviction thereof to a fine not exceeding F358[100] pounds.
Annotations
Amendments:
F358
Substituted (24.06.1987) by Defence (Amendment) Act 1987 (8/1987), s. 2, item 9, commenced on enactment, subject to transitional provision in s. 16. A fine of £100 converted (1.01.1999) to €126.97. This translates into a class E fine, not exceeding €500, as provided (4.01.2011) by Fines Act 2010 (8/2010), ss. 3, 8(3) and table ref. no. 3, S.I. No. 662 of 2010.
Section 237
Unsoundness of mind of person imprisoned or undergoing detention.
237.—If a person imprisoned or undergoing detention by virtue of this Act becomes of unsound mind, then, without prejudice to any other enactment, a Minister of State may, upon a certificate signed by two registered medical practitioners certifying that such person is of unsound mind, order the removal of such person to a mental hospital, there to remain for the unexpired term of his sentence of imprisonment or detention but, upon such person being certified by two registered medical practitioners to be again of sound mind, may order his removal to any prison or detention barrack in which he might have been confined if he had not become of unsound mind, there to undergo the remainder of his sentence.
Section 238
Inquests on persons under sentence dying in military prisons or detention barracks.
238.—Whenever a person under sentence dies in a military prison or detention barrack, the following provisions shall have effect, that is to say:—
(a) the coroner having jurisdiction in the place where such prison or barrack is shall hold an inquest on the body of such person;
(b) where it is practicable, one clear day shall intervene between the day of the death and the date of such inquest;
(c) such inquest shall be held on the body with a jury;
(d) notwithstanding section 5 of the Coroners (Amendment) Act, 1927 (No. 1 of 1927), none of the following persons shall be a member of such jury, that is to say:—
(i) members of the staff of such prison or barrack,
(ii) persons undergoing sentence in such prison or barrack,
(iii) persons engaged in any trade or dealing with such prison or barrack.
Section 239
Provisions as to warrants and orders of military authorities under Chapter VIII of Part V.
239.—(1) Where any F359[…] military prisoner or man undergoing detention is for the time being in custody, whether service custody or civil custody, in any place or manner in which he might legally be kept in pursuance of this Act, the custody of such F359[…] prisoner or man shall not be deemed to be illegal by reason only of any informality or error in or as respects the order, warrant or other document, or the authority by or in pursuance whereof such F359[…] prisoner or man was brought into or is detained in such custody, and any such order, warrant or document may be amended accordingly.
(2) Where F359[…] a military prisoner or a man undergoing detention or a person who is subject to military law and charged with an offence is a prisoner or man in service custody and for the purpose of conveyance by sea F360[or air] is delivered on board a ship to the person in command of the ship F361[or aircraft] or to any other person on board the ship acting under the authority of the commander, the order of the military authority which authorises the prisoner or man to be conveyed by sea F360[or air] shall be a sufficient authority to such person, and to the person for the time being in command of the ship F361[or aircraft], to keep the said prisoner or man in custody and convey him in accordance with the order, and the prisoner or man while so kept shall be deemed to be kept in service custody.
Annotations
Amendments:
F359
Deleted (22.07.1997) by Criminal Law Act 1997 (14/1997), s. 14 and sch. 2, para. 19, commenced as per s. 1.
F360
Inserted (1.09.2008) by Defence (Amendment) Act 2007 (24/2007), s. 4(2) and sch. 2, S.I. No. 254 of 2008.
F361
Inserted (1.09.2008) by Defence (Amendment) Act 2007 (24/2007), s. 4(2) and sch. 2, S.I. No. 254 of 2008.
Chapter IX.
Rules of procedure.
Section 240
Rules of procedure.
240.—F362[(1) The Minister may make rules (in this Act referred to as “rules of procedure”) in relation to all or any of the following matters:
(a) the assembly and procedure of courts of inquiry and boards;
(b) the form of oath to be taken by the military judge before entering upon his duties under this Act;
(c) in the case of a person remanded for trial by court-martial, the procedures (other than procedures of a court-martial which are the subject of court-martial rules) to be followed in bringing the person to trial, including the taking of a written summary of evidence in the case;
(d) the functions of the Court-Martial Administrator relating to the management and control generally of the administration and business of courts-martial;
(e) the procedure for convening courts-martial;
(f) the procedure for the dissolution by the Court-Martial Administrator of a general court-martial or limited court-martial;
(g) the procedure for referring matters to the summary court-martial;
(h) the procedure for selecting members of a court-martial board;
(i) the procedure in relation to representation for the purposes of section 211A;
(j) the promulgation of the findings and sentence of a court-martial;
(k) the carrying into effect of sentences of courts-martial;
(l) the carrying into effect of decisions made and punishments awarded by the summary court-martial under section 178G;
(m) the form of notice and the giving of such notice under section 212A(12);
(n) the retention and preservation of records of proceedings of a court-martial;
(o) the supply of copies of such records, including provision in respect of any fee payable for the supply of copies;
(p) the officers who are to be prescribed officers for the purposes of section 121;
(q) the functions of the Chief Military Judge (if any);
(r) the judicial functions, other than those with respect to courts-martial, which may be performed by a military judge;
(s) any other matter or thing referred to in this Part (other than Chapters IV and X and any matter or thing referred to in this Part as prescribed by court-martial rules) as prescribed;
(t) any other matter which the Minister considers necessary or expedient for the proper administration of this Part (other than Chapters IV and X and any matter referred to in this Part as the subject of court-martial rules).]
F363[(1A) Without prejudice to the generality of subsection (1), rules of procedure made under this section may, in relation to the functions of a military judge provided for in those rules, including the judicial functions referred to in subsection (1)(r), include provisions required for the performance of the functions of a military judge by a Circuit Judge who, pursuant to section 184LA, is temporarily designated to perform such functions under section 11A of the Act of 1947.]
(2) Rules of procedure shall not contain anything contrary to or inconsistent with this Part.
(3) Rules of procedure shall be judicially noticed.
(4) Rules of procedure may provide for a written summary of evidence being taken on oath and may empower a commanding officer or any other officer before whom he directs such summary to be taken to administer oaths for that purpose.
(5) Rules of procedure in relation to courts of inquiry may provide for evidence being taken on oath and may empower courts of inquiry to administer oaths for that purpose.
(6) Every rule made under this section shall be laid before each House of the Oireachtas as soon as may be after such rule is made and, if a resolution annulling such rule is passed by either House of the Oireachtas within the next subsequent twenty-one days on which that House has sat after such rule is so laid before it, such rule shall be annulled accordingly, but without prejudice to the validity of anything previously done under such rule.
Annotations
Amendments:
F362
Substituted (1.09.2008) by Defence (Amendment) Act 2007 (24/2007), s. 70, S.I. No. 254 of 2008.
F363
Inserted (9.11.2011) by Defence (Amendment) Act 2011 (17/2011), s. 9, S.I. No. 568 of 2011.
Editorial Notes:
E89
Power pursuant to section exercised (5.10.2023) by Rules of Procedure (Defence Forces) (Amendment) Rules 2023 (S.I. No. 491 of 2023).
E90
Power pursuant to section exercised (2.12.2019) by Rules of Procedure (Defence Forces) 2019 (S.I. No. 555 of 2019), in effect as per art. 1(2).
E91
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), art. 73(1) and sch. 1, in effect as per art. 1(2), subject to transitional provision in art. 73(2).
E92
Previous affecting provision: power pursuant to section exercised (11.09.2012) by Rules of Procedure (Defence Forces) (Amendment) Rules 2012 (S.I. No. 344 of 2012); revoked (2.12.2019) by Rules of Procedure (Defence Forces) 2019 (S.I. No. 555 of 2019), art. 73(1) and sch. 1, in effect as per art. 1(2), subject to transitional provision in art. 73(2).
E93
Previous affecting provision: power pursuant to section exercised (12.11.2011) by Rules of Procedure (Defence Forces) 2011 (S.I. No. 581 of 2011); revoked (2.12.2019) by Rules of Procedure (Defence Forces) 2019 (S.I. No. 555 of 2019), art. 73(1) and sch. 1, in effect as per art. 1(2), subject to transitional provision in art. 73(2).
E94
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), art. 73(1) and sch. 1, in effect as per art. 1(2), subject to transitional provision in art. 73(2).
E95
Previous affecting provision: power pursuant to section exercised (25.09.2007) by Rules of Procedure (Defence Forces) (Form of Oath of Military Judge) 2007 (S.I. No. 661 of 2007); revoked (1.09.2008) by Rules of Procedure (Defence Forces) 2008 (S.I. No. 204 of 2008), art. 75 and sch. 1, in effect as per art. 1(2), subject to transitional provision in art. 75(2).
E96
Previous affecting provision: subs. (1) amended (22.07.1997) by Criminal Law Act 1997 (14/1997), s. 14(1) and sch. 2, para. 4, commenced as per s. 1; substituted as per F-note above.
E97
Previous affecting provision: power pursuant to section exercised (7.02.1991) by Rules of Procedure (Defence Forces) 1991 (S.I. No. 27 of 1991); revoked (1.09.2008) by Rules of Procedure (Defence Forces) 2008 (S.I. No. 204 of 2008), art. 75 and sch. 1, in effect as per art. 1(2), subject to transitional provision in art. 75(2).
E98
Previous affecting provision: power pursuant to section exercised (23.09.1987) by Rules of Procedure (Defence Forces) 1987 (S.I. No. 245 of 1987); revoked (1.09.2008) by Rules of Procedure (Defence Forces) 2008 (S.I. No. 204 of 2008), art. 75 and sch. 1, in effect as per art. 1(2), subject to transitional provision in art. 75(2).
E99
Previous affecting provision: power pursuant to section exercised (15.07.1983) by Rules of Procedure (No. 3) (Defence Forces) 1983 (S.I. No. 202 of 1983); revoked (1.09.2008) by Rules of Procedure (Defence Forces) 2008 (S.I. No. 204 of 2008), art. 75 and sch. 1, in effect as per art. 1(2), subject to transitional provision in art. 75(2).
E100
Previous affecting provision: power pursuant to section exercised (10.03.1983) by Rules of Procedure (No. 2) (Defence Forces) 1983 (S.I. No. 72 of 1983); revoked (1.09.2008) by Rules of Procedure (Defence Forces) 2008 (S.I. No. 204 of 2008), art. 75 and sch. 1, in effect as per art. 1(2), subject to transitional provision in art. 75(2).
E101
Previous affecting provision: power pursuant to section exercised (26.01.1983) by Rules of Procedure (Defence Forces) 1983 (S.I. No. 22 of 1983); revoked (1.09.2008) by Rules of Procedure (Defence Forces) 2008 (S.I. No. 204 of 2008), art. 75 and sch. 1, in effect as per art. 1(2), subject to transitional provision in art. 75(2).
E102
Previous affecting provision: power pursuant to section exercised (31.03.1955) by Rules of Procedure (Defence Forces), 1954 (Amendment) Rules 1955 (S.I. No. 58 of 1955); revoked (1.09.2008) by Rules of Procedure (Defence Forces) 2008 (S.I. No. 204 of 2008), art. 75 and sch. 1, in effect as per art. 1(2), subject to transitional provision in art. 75(2).
E103
Previous affecting provision: power pursuant to section exercised (1.01.1955) by Rules of Procedure (Defence Forces) 1954 (S.I. No. 243 of 1954); revoked (1.09.2008) by Rules of Procedure (Defence Forces) 2008 (S.I. No. 204 of 2008), art. 75 and sch. 1, in effect as per art. 1(2), subject to transitional provision in art. 75(2).
Section 240A
F364[
Courts-Martial Rules Committee.
240A.— (1) There is hereby established a committee to be known as Coiste Rialacha na nArmchúirteanna or in the English language as the Courts-Martial Rules Committee (in this Chapter referred to as the “Committee”).
(2) The functions of the Committee shall be, with the concurrence of the Minister, to make rules of court (in this Act referred to as “court-martial rules”) in accordance with section 240B.
(3) The Committee shall consist of two ex-officio members and six nominated members.
(4) The ex-officio members of the Committee shall be—
(a) the Judge Advocate-General, and
(b) the military judge or, where there is more than one, the Chief Military Judge, who shall be the deputy chairperson of the Committee.
(5) The nominated members of the Committee shall be—
(a) a judge of the Circuit Court nominated by the President of the Circuit Court, who shall be the chairperson of the Committee,
(b) a practising barrister nominated by the General Council of the Bar of Ireland,
(c) a practising solicitor nominated by the Law Society of Ireland,
(d) an officer of the Attorney General, nominated by the Attorney General,
(e) an officer of the Department of Defence, not below the rank of principal officer, nominated by the Minister, and
(f) an officer of the Permanent Defence Force, not below the rank of commandant, nominated by the Chief of Staff, who shall act as secretary to the Committee.
(6) Every nominated member of the Committee shall, unless that member sooner dies, resigns or ceases to be, as the case may be, a judge of the Circuit Court, a practising barrister, a practising solicitor or an officer referred to in subsection (5)(d) to (f) of this section, hold office as such member for five years from the date of nomination.
(7) A nominated member of the Committee whose membership expires with the passage of time shall be eligible for renomination.
(8) Subject to subsection (9) of this section, the Committee may act notwithstanding one or more vacancies in its membership.
(9) The quorum for a meeting of the Committee shall be four.
(10) The chairperson of the Committee shall preside at all meetings of the Committee at which he is present and in the absence of the chairperson the deputy chairperson shall preside at the meeting.
(11) Subject to subsection (12) of this section, the Committee shall hold such and so many meetings as may be necessary for the performance of its functions but in any case shall meet not less frequently than once in each year.
(12) The first meeting of the Committee shall be held within one month after the commencement of this section.
(13) Subject to this Act, the Committee shall regulate the practice and procedure of the Committee.]
Annotations
Amendments:
F364
Inserted (1.09.2008) by Defence (Amendment) Act 2007 (24/2007), s. 71(1), S.I. No. 254 of 2008.
Section 240B
F365[
Court-martial rules.
240B.— (1) The Committee may, with the concurrence of the Minister, make court-martial rules for the purpose of regulating the pleading, practice and procedure generally in all proceedings before courts-martial under this Part of this Act, including rules in relation to all or any of the matters set out in the Twelfth Schedule to this Act.
F366[(1A) Without prejudice to the generality of subsection (1), court-martial rules made under this 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, is temporarily designated to perform such functions under section 11A of the Act of 1947.]
(2) Court-martial rules shall be deemed to be a statutory instrument to which the Statutory Instruments Act 1947 primarily applies.]
Annotations
Amendments:
F365
Inserted (1.09.2008) by Defence (Amendment) Act 2007 (24/2007), s. 71(1), S.I. No. 254 of 2008.
F366
Inserted (9.11.2011) by Defence (Amendment) Act 2011 (17/2011), s. 10, S.I. No. 568 of 2011.
Editorial Notes:
E104
Power pursuant to section exercised (2.10.2023) by Court-Martial Rules 2023 (S.I. No. 492 of 2023), in effect as per art. 3.
E105
Power pursuant to section exercised (12.11.2011) by Court-Martial Rules 2011 (S.I. No. 580 of 2011).
E106
Power pursuant to section exercised (23.07.2009) by Court-Martial Rules 2009 (S.I. No. 273 of 2009).
E107
Power pursuant to section exercised (1.09.2008) by Court-Martial Rules 2008 (S.I. No. 205 of 2008).
Chapter X.
Miscellaneous Offences by Members of the Reserve Defence Force.
Section 241
Penalty for member of Reserve Defence Force joining armed forces of another State.
241.—If, within or without the State, any member of the Reserve Defence Force, while not subject to military law, accepts a commission in, or enters into any engagements to serve in, the armed forces of another State, he shall be guilty of a misdemeanour and shall be liable on conviction thereof to imprisonment for a term not exceeding two years.
Section 242
Punishment of certain offences by reservists.
242.—(1) Where a reservist—
(a) when required by Reserve Defence Force regulations to attend at a particular time and place, fails, without reasonable excuse, to attend at such time and place, or
(b) uses threatening or insulting language or behaves in an insubordinate manner to any officer or non-commissioned officer who, in pursuance of Reserve Defence Force regulations, is acting in the execution of his office and would, if such reservist were subject to military law, be his superior officer, or
(c) in reply to any notice served on him under this Act or Reserve Defence Force regulations sends any communication of an insubordinate kind, or
(d) by any fraudulent means obtains or is accessory to obtaining any pay or other sum contrary to regulations made under section 97, or
(e) fails without reasonable cause to comply with Reserve Defence Force regulations,
such reservist shall be guilty of an offence under this section and shall be liable on summary conviction thereof to a fine not exceeding F367[€2,000].
(2) Where a reservist commits an offence under this section he may be taken into service custody.
(3) Where a reservist commits in the presence of any officer an offence under this section, such officer may, if he thinks fit, order such reservist, in lieu of being taken into service custody, to be taken into custody by any member of the Garda Síochána.
(4) Where a reservist is required in pursuance of Reserve Defence Force regulations to attend at any place, a certificate purporting to be signed by an officer or person who is mentioned in such certificate as appointed to be present at such place for the purpose of inspecting reservists or for any other purpose connected with the Reserve Defence Force and stating that such reservist failed to attend in accordance with the said requirement, shall, without proof of the signature or appointment of such officer or person, be evidence in any proceedings under this section of such failure.
(5) In this section, the expression “Reserve Defence Force regulations” means regulations made under section 92 or 94.
Annotations
Amendments:
F367
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 exceeding €2,500, as provided (4.01.2011) by Fines Act 2010 (8/2010), ss. 3, 6(2) and table ref. no. 1, S.I. No. 662 of 2010.
Editorial Notes:
E108
Previous affecting provision: fine in subs. (1) increased (24.06.1987) by Defence (Amendment) Act 1987 (8/1987), s. 2, item 10, commenced on enactment; further increased as per F-note above.
Section 243
Non-attendance of reservist called out for training or on permanent service, etc.
243.—(1) When a reservist is called out for training or on permanent service or in aid of the civil power, and such reservist, without leave lawfully granted or such sickness or other reasonable excuse as may be allowed in the prescribed manner, fails to appear at any time and place at which he is required upon such calling out to attend, the following provisions shall have effect, that is to say:—
(a) if he is called out on permanent service or in aid of the civil power, such reservist shall be guilty, according to the circumstances, of desertion or absence without leave;
(b) if he is called out for training, such reservist shall be guilty of absence without leave.
(2) Where a reservist commits, by virtue of this section, the offence of desertion or absence without leave, such reservist shall be liable either—
(a) to be tried by court-martial and convicted and punished accordingly, or
(b) to be tried summarily by the District Court and on conviction by such court to be sentenced to a fine not exceeding F368[€2,000].
(3) Any offence committed by a reservist which under this section is punishable on conviction by court-martial shall for all purposes of and incidental to the arrest, trial and punishment of the offender, including the summary dealing with his case by his commanding officer, be deemed to be an offence against military law.
(4) A person charged with an offence which under this section is cognisable both by a court-martial and by the District Court shall not be liable to be tried both by a court-martial and the District Court, but may be tried by either of them as may be directed by the prescribed military authority.
(5) The following provisions shall have effect in relation to proceedings against an offender before a court-martial or his commanding officer or the District Court in respect of an offence punishable under this section, that is to say:—
(a) such proceedings may be instituted whether the term of his service in the Reserve Defence Force has or has not expired;
(b) such proceedings may, notwithstanding anything contained in this or any other Act, be instituted within two months after whichever of the following times is the later, that is to say:—
(i) the time at which the offence becomes known to the prescribed military authority, or
(ii) the time at which the offender is arrested.
Annotations
Amendments:
F368
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 exceeding €2,500, as provided (4.01.2011) by Fines Act 2010 (8/2010), ss. 3, 6(2) and table ref. no. 1, S.I. No. 662 of 2010.
Editorial Notes:
E109
Previous affecting provision: fine in subs. (2) increased (24.06.1987) by Defence (Amendment) Act 1987 (8/1987), s. 2, item 11, commenced on enactment; further increased as per F-note above.
Section 244
Record and evidence of absence of reservists called out.
244.—Where—
(a) a reservist, who is called out for training or on permanent service or in aid of the civil power, fails to appear at the time and place at which he is required upon such calling out to attend, and
(b) his absence continues for not less than fourteen days,
an entry of such absence shall be made by the prescribed officer in the prescribed manner in the prescribed service books, and such entry F369[shall be evidence, until the contrary is shown,] of the fact of such absence.
Annotations
Amendments:
F369
Substituted (1.09.2008) by Defence (Amendment) Act 2007 (24/2007), s. 4(2) and sch. 2, S.I. No. 254 of 2008.
Section 245
Wrongful sale, etc., of equipment by a member of the Reserve Defence Force.
245.—If any person (being a member or former member of the Reserve Defence Force)—
(a) designedly makes away with, or sells, pawns or wrongfully destroys or damages, or negligently loses, any article issued to him as a member of the Reserve Defence Force, or
(b) refuses, on demand made by the Minister or any person acting on behalf of the Minister, to deliver up any such article,
then,—
(i) he shall be guilty of an offence under this section and shall be liable on summary conviction thereof to a fine not exceeding F370[€2,000],
(ii) the Court by which he is tried may, whether it convicts him of the offence or not, order him to pay to the Minister the value of the article.
Annotations
Amendments:
F370
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 exceeding €2,500, as provided (4.01.2011) by Fines Act 2010 (8/2010), ss. 3, 6(2) and table ref. no. 1, S.I. No. 662 of 2010.
Editorial Notes:
E110
Previous affecting provision: fine in para. (b) increased (24.06.1987) by Defence (Amendment) Act 1987 (8/1987), s. 2, item 12, commenced on enactment; further increased as per F-note above.
Section 246
Regulations for purposes of Chapter X of Part V.
246.—The Minister may make regulations in relation to any person, matter or thing referred to in this Chapter as prescribed.
Chapter XI.
Proof of certain matters of Evidence in Proceedings before Civil Courts and Courts-martial.
Section 247
Evidence on subjection to military law of officers of the Reserve Defence Force.
247.—A certificate under the hand of a person authorised by the Minister to make certificates under this section certifying the matters mentioned in any one of the following paragraphs, that is to say:—
(a) that a person named in such certificate was during a specified period an officer of the Reserve Defence Force and was at a specified time ordered on service or duty for which as an officer belonging to the Reserve Defence Force he was liable,
(b) that a person named in such certificate was during a specified period an officer of the Reserve Defence Force and was during a specified period employed on service or duty for which as an officer of the Reserve Defence Force he was liable,
(c) that a person named in such certificate was during a specified period an officer of the Reserve Defence Force and was during a specified period attached to a body of troops for the time being subject to military law,
(d) that a person named in such certificate was during a specified period an officer of the Reserve Defence Force and was during a specified period doing duty with a body of troops for the time being subject to military law,
(e) that a person named in such certificate was during a specified period an officer of the Reserve Defence Force and was at a specified time ordered on duty by the military authorities,
(f) that a person named in such certificate was during a specified period an officer of the Reserve Defence Force and was during a specified period voluntarily attending training,
(g) that a person named in such certificate was during a specified period an officer of the Reserve Defence Force and was during a specified period undergoing treatment in a military hospital,
shall in proceedings under this Act, whether before a civil court or a court-martial, be prima facie evidence of the matters so certified and it shall not be necessary to prove the signature of the person purporting to make such certificate or that he was so authorised.
Section 248
Evidence of certain documents and matters.
248.—The following provisions shall have effect with respect to evidence in proceedings under this Act before a court-martial or a civil court F371[or, where relevant, in proceedings under Chapter IV of this Part]—
(a) a copy of the Iris Oifigiúil purporting to contain a notice under section 52 shall be evidence of the matter contained in the notice;
(b) any attestation paper purporting to be signed by any person upon his being attested as a man in any portion of the Defence Forces shall be evidence of the fact that such person gave, in answer to the questions set forth in such attestation paper, the answers he is therein represented as having given;
(c) the enlistment of a person in the Permanent Defence Force or the Reserve Defence Force may be proved by the production, by a witness on oath, of a copy of such person’s attestation paper purporting to be certified to be a true copy by the officer having the custody of such original attestation paper, without proof of the signature of such officer or of his having custody of such original attestation paper;
(d) a letter, return or other document with respect to a person—
(i) having, or not having, at any specified time or times, served in or been discharged from any portion of the Defence Forces, or
(ii) having, or not having, held any rank or appointment in, or been posted, attached or transferred to, any portion of the Defence Forces, or having, or not having, served in a particular place, or
F372[(iiA) having, or not having, at any specified time or times, served outside the State as a member of the Permanent Defence Force with an armed International United Nations Force, or]
(iii) being, or not being, authorised to wear any decoration, medal, medal ribbon, badge, wound stripe, rank insignia, or emblem, the use or wearing of which by an unauthorised person is an offence under section 267,
if purporting to be signed by or on behalf of the Minister or the commanding officer of any portion of the Defence Forces to which such person appears to have belonged or alleges that he belongs or had belonged, shall be prima facie evidence of the relevant facts stated in such letter, return or other document;
(e) a Defence Force List or Defence Force Gazette F373[(whether printed or made available by electronic means or otherwise in non-legible form which is capable of being reproduced in permanent legible form)] purporting to be issued under the authority of the Minister by F374[the Chief of Staff] shall be evidence of the status and rank of any officer therein mentioned and of any appointment held by him and of the unit to which he belongs or is attached;
(f) a Naval List and Directory F373[(whether printed or made available by electronic means or otherwise in non-legible form which is capable of being reproduced in permanent legible form)] purporting to be issued under the authority of the Minister by F374[the Chief of Staff] shall be evidence of—
(i) the fact that any ship mentioned therein as a State ship is a State ship, and
(ii) the status and commissioned naval rank of any officer mentioned therein and of any appointment held by him;
(g) where a record is made in a service book in pursuance of this Act or any regulations made thereunder or otherwise in pursuance of military duty and purports to be signed by the commanding officer or by the officer whose duty it is to make such record—
(i) such record shall be evidence of the facts therein stated,
(ii) a copy of such record purporting to be certified to be a true copy by the officer having the custody of such service book shall, without proof of the signature of such officer or of his having custody of such service book, be prima facie evidence of such record;
(h) any warrant or order made under this Act by a military authority shall be deemed to be evidence of the matters therein directed to be stated by or in pursuance of this Act;
(i) a document purporting to be a copy of any instrument (being a warrant or order made under this Act by a military authority) shall, if certified by an officer authorised by the Minister in that behalf to be a true copy of such instrument, be prima facie evidence of such instrument and it shall not be necessary to prove the signature of the officer so certifying such document or that he was so authorised;
(j) where the proceedings are proceedings against an officer or man (in this paragraph referred to as the accused) on a charge of being a deserter or an absentee, and the accused has been arrested by a member of the Garda Síochána or any officer or man or has surrendered himself into the custody of an officer or any portion of the Defence Forces, a certificate purporting to have been signed by the member of the Garda Síochána, officer or man by whom the arrest was made or by the officer to whom the surrender was made or by the commanding officer of the portion of the Defence Forces to whom the surrender was made, and stating the fact, date, time and place of such arrest or surrender, and whether the accused so surrendering was dressed in uniform or not at the time of arrest or surrender shall be evidence of the matters so stated;
(k) where the proceedings are proceedings against an officer or man (in this paragraph referred to as the accused) on a charge of being a deserter or an absentee, and the accused has surrendered to any member of the Garda Síochána, a certificate purporting to be signed by such member or the person in charge of a Garda Síochána station when the accused has been delivered into service custody by such person and stating the fact, date, time and place of such surrender, and whether the accused was dressed in uniform or not at the time of surrender shall be evidence of the matters so stated;
(l) where the proceedings are proceedings against an officer or man (in this paragraph referred to as the accused) on a charge of being a deserter or an absentee, and either the accused has been arrested by a member of the Garda Síochána or an officer or man and brought to a Garda Síochána station or has surrendered to a member of the Garda Síochána at a Garda Síochána station, a certificate purporting to be signed by the member of the Garda Síochána in charge of such station at the time when the accused is delivered into service custody and stating the fact, date and place of arrest or surrender, and whether the accused was dressed in uniform or not at the time of arrest or surrender shall be evidence of the matters so stated.
Annotations
Amendments:
F371
Inserted (1.09.2008) by Defence (Amendment) Act 2007 (24/2007), s. 4(2) and sch. 2, S.I. No. 254 of 2008.
F372
Inserted (24.06.1987) by Defence (Amendment) Act 1987 (8/1987), s. 13, commenced on enactment.
F373
Substituted (1.09.2008) by Defence (Amendment) Act 2007 (24/2007), s. 4(2) and sch. 2, S.I. No. 254 of 2008.
F374
Substituted (1.10.1998) by Defence (Amendment) Act 1998 (31/1998), s. 7, S.I. No. 366 of 1998.
Section 249
Evidence of conviction or acquittal by a civil court.
249.—(1) Whenever any person subject to military law has been tried by any civil court, the certificate of the clerk of such court or of his deputy, or of any other officer having the custody of the records of such court, setting out the offence for which such person subject to military law was tried, together with the judgment of the court thereon or, if such person was acquitted, the acquittal, shall be evidence of the conviction and sentence, or of the order of the court, or of the acquittal of such person, as the case may be.
(2) This section shall apply to F375[a member of the Reserve Defence Force] who is tried by a civil court, whether he is or is not at the time of trial subject to military law.
Annotations
Amendments:
F375
Substituted (1.09.2008) by Defence (Amendment) Act 2007 (24/2007), s. 4(2) and sch. 2, S.I. No. 254 of 2008.
Section 250
Evidence of proceedings of court-martial.
250.—(1) The original proceedings of a court-martial purporting to be signed by the F376[military judge], and being in the custody of the prescribed officer having the lawful custody thereof, shall be deemed to be of such a public nature as to be admissible in evidence on their mere production from such custody, and any copy purporting to be certified by the prescribed officer, having such custody as aforesaid, to be a true copy of such proceedings, or of any part thereof, shall be admissible in evidence without proof of the signature of such officer.
(2) Whenever any person subject to military law has been tried by court-martial, the certificate of the prescribed officer having custody of the original proceedings of the court-martial, setting out the place and date of trial, the offence for which such person was tried, together with the finding and sentence of the court-martial F377[…] or, if such person was acquitted, the acquittal, shall be evidence of the matters so set out in such certificate.
Annotations
Amendments:
F376
Substituted (1.09.2008) by Defence (Amendment) Act 2007 (24/2007), s. 4(2) and sch. 2, S.I. No. 254 of 2008.
F377
Deleted (1.09.2008) by Defence (Amendment) Act 2007 (24/2007), s. 4(2) and sch. 2, S.I. No. 254 of 2008.