Members of the Defence Forces are subject to military law. This applies equally to officers and non-commissioned officers and soldiers. They are also subject to the laws of the State.
The purpose of military law is to maintain discipline and good order in the Defence Forces. Good order, discipline and obedience to commands are essential parts of the Defence Forces and military law is designed to uphold them. This necessitates that commanding officers or other authorities should have the power to investigate alleged wrongdoing and implement sanctions.
Military law is analogous to disciplinary procedures in the civil sector. However, it has the force of law and carries penal consequences. Because of the unique role of the Defence Forces, military law has many unique features with no civilian counterparts.
The Constitution specifically allows military tribunals for the trial of offences against the military law, alleged to have been committed by persons who are subject to military law. Separately, there is provision in the Constitution which may be invoked in time of war or armed rebellion by which military tribunals may have wider remit.
Persons being tried under military law are entitled to the protection of the Constitution. The trial must be in due course of law. The military authorities may adopt their own procedure.
Provided the broad principles of Constitutional justice are adhered to, the civil courts will be reluctant to intervene. Military trials are designed to uphold military order and discipline, which is primarily a matter for the military authorities. The courts will intervene, only if there is a clear denial of Constitutional justice or breach of legal rights.
Subject to Military Law
Members of the Defence Forces who are not on active service may not be tried by court-martial or military tribunals unless the offence is specifically subject to their jurisdiction for the purpose of military discipline. Some offences which may be triable with respect to civilians are triable or potentially triable by military courts and courts-martial.
Members of the permanent Defence Forces are subject to military law at all times. Officers of the Reserve Defence Forces are subject to military law
- when on service or duty
- when in uniform
- when attending training
- attached to or doing duty with troops subject to military law or
- ordered on duty by military authority.
A man/ member of the Reserve Defence Forces is subject to military law
- when on permanent service
- in aid of civil power
- training or exercise
- in uniform
- voluntarily in training or
- employed by military service under the order of an officer subject to military law.
A person remains liable to be punished under military law within three months of cessation of service. The trial must commence within this period. The more serious offences of desertion mutiny and fraudulent enlistment are not subject to this time limit.
For persons who remain subject to military law, a general time period applies to the commencement of offences except the above-mentioned serious offences.
Civilians may be subject to military law when they are employed by or in the service of or accompanying any part of the Defence Forces on active service. Persons accompanying the Defence Forces in an official capacity under orders of the Minister for Defence are subject to military law.
Persons serving sentences including imprisonment and detention imposed by court-martial remain subject to military law, even if discharged from the Defence Forces.
Many ordinary offences are also offences against military law with a separate scale of sanctions and punishments.The seriousness of the offence determines the relevant procedure. A range of offences are triable summarily by a commanding officer. They include
- disobedience to a superior officer,
- insubordinate behaviour,
- connivance at desertion,
- absence without leave,
- a false statement in respect of leave
- false accusations,
- dilatory conduct,
- obstructing an officer or man carrying out police duties,
- destroying or improperly, disposing of property,
- unauthorised carriage on ships or aircraft,
- negligently or furiously driving a service vehicle
- driving under the influence of alcohol
- unauthorised use of service vehicle,
- negligent performance of duties
- engaging in conduct prejudicial to good order.
The above offences may be referred to trial by court martial if the officer commanding considers they so warrant. Another range of more serious offences require the consent of a superior authority in order to be tried summarily by a commanding officer. The offences include
- escaping and attempting to escape from custody
- enlistment of offences,
- negligently or wilfully interfering with persons in custody.
Commanding officers have duties to enforce military law. They must ensure that the offences are communicated to persons subject to military law. Officers are obliged to cooperate and report possible breach in military law to their superior.
A person subject to military law who is committing an offence or suspected to have or be about to commit an offence against military law, may be arrested. An officer may arrest or order the arrest of a man or officer or lower rank. He may arrest an officer of equal or higher rank who is engaged in a quarrel, a fight or disorder.
The chief military police officer or an officer authorised by him may arrest any officer or man. A non-commissioned officer may arrest or order the arrest of any man. Any person who is subject to military law may arrest another person subject to military law and who is not an officer or man provided a commanding officer so authorised.
An officer who is suspected of an offence may be arrested without previous investigation. However, a prior investigation will usually take place in advance. Where an office is charged, he is placed under arrest. A non-commissioned officer or man discharged who is charged with a serious offence may be arrested on discovery of the offence.
A non-serious offence may be investigated and disposed of without an arrest. A non-commissioned officer or man who disobeys clear orders or resists authority may be immediately arrested and placed in custody.
Service custody involves putting in place in the charge of an escort comprising an officer or a non-commissioned officer of equal rank, deprived of firearms and confined to quarters. A soldier in close service custody may be placed in confinement or detention under the custody of a guard subject to being allowed to take exercise under supervision.
A soldier may, where necessary, be committed by his commanding officer to temporary detention up to seven days in a prison or police station. Open service custody confines the prisoner to the barracks, and he may not leave them without the consent of his commanding officer. He is restricted in relation to use of the facilities and certain aspects of the performance of his duties.
A signed copy of the alleged offence must be given to the person in custody within 24 hours. If this is not given, then within 48 hours, the prisoner should be released but may be rearrested for the same offence. Custody may be varied from open to close and vice-versa.
A charge sheet sets out the particulars of the charge. There may be several charges or alternative charges. A charge may allege no more than one offence, the charge shall describe the offence. It should state the circumstances so to enable the accused know what is alleged against him or what he must deny. Certain other details must be given as to the possible offences and sanctions.
Charges must be investigated by military authorities as soon as practicably possible. The commanding officer or investigating officer, on receipt of the charges, may cause witnesses and the accused to appear before him at a stated time in order to investigate the charge informally.
Courts-martial may try all offences against military law. There are limited courts-martial and general courts-martial.
They may cross-examine persons making statements against them. The accused may cross-examine all witnesses, including civilians. Civilian witnesses may be ordered or summons to attend. The y may be required to produce records.
On each adjournment, the accused may be released or detained in custody. Where a charge is for a very serious offence, such as murder, a more elaborate procedure is required at the investigation stage. The accused may be entitled to representation at certain stages of investigations.
There is provisions for sworn depositions in respect of more serious offence. The procedure is more formal and affords greater protection for the accused.
The commanding officer may determine, following an investigation, that a summary trial is appropriate. In the case of soldiers, he may deal with the case summarily himself. In the case of officers below the rank of commandant, he may refer the charge for trial by a senior officer. by court-martial.
The commanding officer may dismiss a charge if he considers it should not proceed or if there is insufficient evidence. The charge may be amended. New charges may be made where a basis for such charges is disclosed in the investigation.
Where the commanding officer is satisfied where the offence should be dealt with summarily (or in the case of certain offences where consent is obtained from superior authority to do so, the commanding officer may deal with the offence summarily. He acts as a prosecutor. Witnesses may be examined and cross-examined. There are different procedures in respect of trials against officers and soldiers.
If the commanding officer proposes after hearing evidence to make an award or order which involves a fine deduction of pay or payment of compensation. Notice must be given details of the proposed award or order and that he may ask for trial by court-martial. The accused has a period in which to consider this option.
The sanctions or punishments depend on the rank of the accused. In the case of private soldiers’ punishments may include detention of up to 28 days, a fine up to three days’ pay, confinement to barracks up to 14 days, or a combination.
Non-commissioned officers may be subject to fines up to three days, reprimand, and severe reprimand. The above applies to officers and non-commissioned officers.
A commanding officer may delegate the investigation of offences to a subordinate officer. The range of sanctions which may be imposed by a subordinate officer is correspondingly lower. If the subordinate officer proposes to confine or forfeit a deduction from pay, he must give the accused the opportunity to have the matter referred to the scommanding officer.
Detention may be carried out in the detention room in the barracks. The person against whom detention is made may not leave the barracks other than with the permission of his commanding officer. Deductions may be made from pay.
Summary awards are recorded in records for the officer or soldier concerned. Certain minor summary sanctions, such as confinement, are not recorded. A punishment may be mitigated or reduced but not increased after publication.
A sanction which may be revised in some circumstances by a superior officer. He may change the award if it is too severe; it may be varied and recorded.