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Dáil Éireann debate -
Tuesday, 14 Jun 1983

Vol. 343 No. 6

Courts-Martial Appeals Bill, 1983: Second Stage.

I move: "That the Bill be now read a Second Time."

The purpose of the Bill is twofold. Firstly it provides for the setting up of a new appeal court — to be styled the Courts-Martial Appeal Court — which will hear appeals against conviction by courts-martial. It also provides for the introduction of a scheme of free legal aid for accused person in court-martial cases and on appeal. It is a major reforming Bill insofar as the administration of military law is concerned and I trust that the House will give it its full support.

I should explain for the benefit of those who may be unfamiliar with the system of military law in this country that provision does not at present exist in law for an appeal to a higher tribunal by persons convicted by court-martial. Such persons may, however, petition the Minister against the findings or against the findings and sentence. The Minister, where it appears to him that the proceedings of the court-martial were illegal, must quash the findings and may at the same time direct that the accused be tried again. Where it appears to the Minister that the accused was wrongfully convicted he may quash the finding of guilty. Provision also exists whereby the Minister or the Adjutant-General may mitigate or remit, in whole or in part, punishments awarded by a court-martial.

Where a petition to the Minister raised a point of law it has been the practice to refer the proceedings of the court-martial and the petition to the Attorney General for his advice as to any action which it might be proper for the Minister to take under the powers vested in him in relation to the quashing of findings and mitigation or remission of sentences.

The petition procedure stemmed from the deliberations of a committee of legal experts set up by the then Minister for Defence in 1951 in the context of the passage through the Dáil of the Bill which became the Defence Act, 1954. The terms of reference of the committee were as follows:

to consider the question whether it is necessary or desirable that a system of appeal from conviction by court-martial should be introduced for the Defence Forces and to make recommendations.

The committee, having considered various options, were against conferring a right of appeal. They recommended instead that the rules of procedure to be made under the Defence Act should provide for petitions against any of the findings of a court-martial or against the sentence or against both findings and sentence. They also recommended the referral of certain petitions to the Attorney General in the circumstances which I have already mentioned.

The recommendations of the committee were accepted and were implemented after the Bill became law.

While I am bound to say that these arrangements have worked well, and I believe fairly in so far as the petitioner was concerned, developments in constitutional and international law over the years since they were introduced have made it increasingly clear that it would be both prudent and opportune at this point to establish a judicial appeal for persons convicted by courts-martial.

The proposed Courts-Martial Appeal Court will be constituted in the same way as, and have powers similar to, the Court of Criminal Appeal. The new court will thus be in a position to avail of the services of the judges who, under existing arrangements, may constitute the Court of Criminal Appeal and also to use the machinery of that court. The petition arrangements are being phased out and the appeal procedure will be introduced as soon as practicable. I should, however, mention that the powers of mitigation and remission to which I referred earlier will remain in force.

It is my intention that the appeal arrangements being provided for in the Bill should be made as meaningful as possible. For this reason I also propose to introduce a scheme of free legal aid for accused persons in court-martial cases and for appeals to the Courts-Martial Appeal Court. The scheme of legal aid outlined in the Bill is similar to that in operation for accused persons on trial on criminal charges in the civil courts. It is proposed to apply the same criteria as the civil courts both as regards the type of case in which legal aid would be granted and the assessment of means of the applicant for such aid. Under the proposed arrangements, therefore, the soldier accused before a court-martial will no longer be at a disadvantage by comparison with persons being tried by the civil courts.

It will be noted that both the Courts-Martial Appeal Court and, where appropriate, the Supreme Court will have power to grant legal aid. It is not considered practicable to bestow this power on a court-martial as each court-martial is an ad hoc body composed of military officers which is convened specially to try specific charges and dissolves after the trial. Instead provision is being made for the grant of legal aid at courts-martial and, where applicable, at preliminary proceedings, by a prescribed authority who will be a senior military officer with legal qualifications. The question of legal aid will, therefore, be decided before the commencement of the court-martial, thus avoiding delay or adjournment on this question.

The provisions of the Bill relating to legal aid are largely self-explanatory and it is unnecessary for me to dwell further on them. One small point, however, that I should like to mention is that any soldier charged with an offence before court-martial may elect to be represented by an officer subject to military law. This time-honoured practice is completely free to the soldier and I propose to continue it.

As many years have elapsed since the House last debated the disciplinary provisions of military law as applied to the Defence Forces it may be helpful if, at this stage, I said something about courts-martial and how they function.

Courts-martial are the military tribunals provided by law for the trial, by officers of the Defence Forces, of persons accused of offences against military law committed by such persons while subject to military law. The detail in relation to such offences and in relation to the constitution and procedures of courts-martial is provided in defence legislation, notably the Defence Act, 1954, and rules of procedure made thereunder.

Courts-martial are of two classes — limited and general — the essential difference in the classes being one of jurisdiction. A general court-martial, as the title implies, has jurisdiction to try a person subject to military law for any offence against military law. The jurisdiction of a limited court-martial is restricted to the trial of non-commissioned personnel and some major offences such as murder are excluded from the jurisdiction. In this connection I should mention that a court-martial may, in certain circumstances, try a person subject to military law for an offence which is punishable by the ordinary criminal law of the State. However, no court-martial can try a person for treason, murder, genocide, manslaughter or rape unless the offence was committed while the person was on active service.

As to the constitution of courts-martial, they are convened as required by convening authorities — in practice senior military officers authorised by warrant of the Minister so to act. For example each general officer commanding a command is so empowered. The officers who make up the court are appointed by the convening authority. Each general court-martial consists of not less than five officers — the president being of the Army rank of colonel or higher, or naval equivalent. A limited court-martial consists of not less than three officers — the president being of the Army rank of commandant, or naval equivalent of lieutenant-commander, or higher.

Provision is made for the attendance at each court-martial of a judge-advocate, normally an officer holding the legal qualification of barrister-at-law, whose functions include advice to the court-martial on matters of law, summing up of evidence, the recording of the proceedings of the court-martial and ensuring that the accused is given a fair trial.

The prosecutor and the person being tried by the court-martial may be represented by counsel, meaning either a barrister-at-law or a solicitor. Provision is made for evidence to be given on oath and it is also provided that the rules of evidence to be adopted in proceedings before courts-martial shall be the same as those which are followed in civil courts.

The finding and sentence of a court-martial are not valid unless confirmed by a confirming authority — an officer authorised by warrant of the Minister so to act.

A confirming authority may send back the finding and sentence of a court-martial for revision but, in such an event, the authority may not recommend nor shall the court-martial have power to increase the sentence originally awarded. The confirming authority may confirm or refuse confirmation either in whole or in part of the original or revised finding or sentence. The confirming authority may also, when confirming the sentence, mitigate the punishment, remit the punishment in whole or in part or substitute a sentence of any less punishment awardable by a court-martial.

In arriving at his decision the confirming authority is fortified by the advice of the Judge Advocate-General, a practising barrister-at-law of at least ten years' standing who is not a member of the Defence Forces, whose duties include the furnishing of advice and recommendations on proceedings of courts-martial before the findings and sentence are confirmed by a confirming authority.

Our system of military law has remained unaltered since the passage of the parent Act in 1954 nearly 30 years ago and while this Bill is proposing major substantive changes, the general corpus of military law needs to be reviewed. I have commenced this review and look forward to coming to the House in due course to propose whatever amendments are necessary to bring our military law up to date.

I would like to take this opportunity to pay tribute to the military authorities who have so ably and impartially administered the system of military law down through the years. I should also say that the military authorities fully support and welcome the present proposals.

I now turn to the more noteworthy provisions of the Bill. Sections 5 and 6 amend sections 202 and 203 of the Defence Act, 1954, dealing with findings by courts-martial of unfitness to stand trial by reason of insanity or of guilty but insane. The arrangements currently provided in those sections are no longer regarded as satisfactory and this opportunity is being taken to revise them.

Part II of the Bill provides for the establishment of the Courts-Martial Appeal Court, for its constitution, registrar, sittings and procedure and for the right of appeal to it. Section 14 provides for the right of the convicted person to appeal to the Supreme Court on a point of law. It also provides that where, on a question of law, an appeal is decided in favour of the appellant, the respondent to the appeal may, without prejudice to the decision in favour of the appellant, refer the question of law to the Supreme Court for determination. Section 21 provides for the postponement of execution of a sentence of death in the case of an appeal to the Courts-Martial Appeal Court. Section 22 provides that the authority convening the court-martial shall be empowered to defend the appeal.

Part III contains the provisions for the granting of legal aid certificates and which are analogous to those pertaining to criminal charges on the civil side.

I commend the Bill to the House.

(Clare): I welcome the Bill which as the Minister has said is a reforming measure. Reforms similar to those proposed have taken place down through the years in respect of the military in most European countries so it is good that we are introducing these reforms now.

The appeal to the new court will put a soldier on a par with civilians who can appeal to the Court of Criminal Appeal. It has occurred to me that a more simple way of providing for this appeal procedure would have been to apply the provisions of the existing Court of Criminal Appeal to courts-martial thus avoiding the setting up of a new court. No doubt this aspect was considered by the Minister so he might let the House know the reason for the proposals before us now.

I notice that the new court is being modelled on the Court of Criminal Appeal and that the judges and the facilities of that court will be available in the operation of the new establishment. Apart from the obvious advantages of using a well established arrangement as a model, it is clear that the new court will have the effect of giving to a soldier appeals machinery similar to that available to citizens who are not under military law. It is right for the Minister to refer to the petitions procedure which will be replaced by the new appeal court. It is no harm to recall that as Ministers for Defence, the late General Seán Mac Eoin and the late Oscar Traynor were the architects of the defence legislation we have today. It could be said also that few if any Bills received such detailed consideration in this House as the Defence Act of 1954. This was due largely to the agreement of the House to set up a special committee of the House on the measure. That was a committee which included as members many Deputies who had military service either in the Old IRA or in the emergency forces and who consequently had a particular interest in the legislation. The establishment of that special committee might be of interest to modern reformers. In the past year much has been written about the absence of an appeal court in respect of persons convicted by courts-martial. Some people may fail to appreciate that the subject was considered in detail by this House at meetings of the special committee I have mentioned. During those deliberations the Minister of the day, the late Mr. Oscar Traynor, presented to the committee the advice of a group of legal experts set up to examine the question of appeals. That group were against conferring a right of appeal. It is odd that in view of the other proposal in the present Bill one of the reasons for their so advising was the absence of a system of free legal aid. In any event, instead of a right of appeal system, the group examined the question of the right of petition to the Minister against the findings and sentencing of courts-martial. That recommendation was accepted. The fact that it is regarded now as necessary to change these arrangements should not take from the effectiveness of the petition system as administered by successive Ministers since 1954.

On that point I am pleased to note that the Minister will retain the powers of mitigation or remission of sentence vested in him under current legislation. Although a soldier has always had the right to be defended at a court-martial by an officer, the lack of legal aid could well have caused distress or hardship. Therefore, I am pleased that it is proposed to introduce a scheme of free legal aid comparable to that available to persons on trial before the criminal courts. I urge the Minister to bring in this scheme as soon as possible after the Bill becomes law. The reforms proposed here are very necessary.

I am grateful to Deputy Barrett for his acceptance of the Bill and for his co-operation in arranging to have it taken this evening. He raised a pertinent point when he asked why we should set up a separate appellate system for court-martial appeals instead of using the existing appeal courts system available on the civil side in criminal law. This matter was considered when the problem was presented to me and when the legislation was being contemplated. The Government reached the conclusion that the separate corpus of military law and the separate system for the enforcement of military law should be preserved and carried into the appeals system. It was considered that to merge the two at appeal level could be detrimental to both, This will not lead to difficulties so far as the Judiciary are concerned in terms of finding the personnel or in terms of imposing extra demands on their services because the appeals will be separate and the number of trials by court-martial are comparatively few. It means also that when an appeal arises from a court-martial there will be possibly a certain element of extra speed about it because it will have a separate and distinct court in which to be heard.

I take the Deputy's point with regard to the special committee of 1951. Having read the proceedings of that committee one can appreciate the depth of their work, It was a most comprehensive and analytic debate and it is a great pity that the valuable legislation that emanated from it did not give rise to a committee system on a continuing basis. It has taken 30 years to realise that greater use has not been made of the committee system.

I join the Deputy in paying tribute to the late Oscar Traynor and the late Seán Mac Eoin because of the Defence Act, 1954, an Act on which the whole law relating to the Defence Forces is based. The fact that it has stood for so long without any inherent need for change is a tribute to the work they put into its construction.

The need for this change arises because there have been changes in constitutional law thinking and in international law with regard to rights of representation which are part and parcel of the human rights now being protected in an enhanced way both by international tribunals and domestic courts. It is to keep on a level with that part of international jurisprudence that this Bill has arisen. I agree with Deputy Barrett that there should not be any delay in implementing the provisions on legal aid and I am glad to be able to tell the Deputy that the regulations to implement legal aid are in draft form and will be considered at the appropriate official level. It is expected that these regulations will be made formally very shortly after the Bill has become law.

Question put and agreed to.
Agreed to take remaining Stages today.
Bill put through Committee and reported without amendment.
Question proposed: "That the Bill do now pass."

(Clare): I should have made a point on Second Stage. The Minister said, and the Title implies, that a general court-martial has juisdiction to try persons subject to military law for any offence against military law. I trust this will not necessarily mean that less important or smaller offences for which there may be a court-martial and a conviction will not be subjects of appeals to the courts. As I understand it, a court-martial is not called on for trivial offences, only for certain offences. I am thinking of the courts having to deal with appeals against convictions for minor offences if such offences were sent before a court-martial. We welcome this Bill which means that nobody can regard a soldier as a second class citizen before the law as was the case heretofore.

In the case of any offence that comes to be tried before a court-martial the defendant will be entitled to avail of the new appeals machinery whether those offences are offences which are regarded as part of the ordinary criminal law or offences that might be regarded as being military discipline. Any offence tried before a court-martial will be appealable to the new Courts-Martial Appeals Court. There will be a certain number of minor military offences which will be tried now, as before, in a summary fashion by a commanding officer. They will not be subject to appeals because they will not be court-martial offences.

In deciding to abolish the present procedure of petitions I was conscious that the petition procedure as it is could act to take out of the system perhaps unworthy or trivial appeals against minor matters. On reflection I thought that when the appeals situation was being introduced it should be unimpeded.

Question put and agreed to.
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