Dáil Éireann debate -
Tuesday, 3 Apr 2007

Vol. 635 No. 1

Defence (Amendment) (No. 2) Bill 2006 [Seanad]: Report and Final Stages.

Mr. Timmins

I move amendment No. 1:

In page 11, between lines 27 and 28, to insert the following:

"CHAPTER 1

General Provisions

12.—The Principal Act is amended in Part V by the insertion of the following before Chapter 1:

"CHAPTER A1

Review of Procedures

A118.—The procedures in this Part shall be reviewed at least every 5 years to ensure that they are in line with—

(a) developments in the civil criminal justice system,

(b) any relevant new legislation,

(c) any relevant new Irish or European case law,

(d) relevant European Community law, and

(e) human rights and the principles of natural justice.“.”.

This amendment provides for ongoing reviews of procedures. I raised this issue on Committee Stage and asked the Minister to consider it in the intervening period. I am interested to learn whether he accepts the merit of this amendment.

Minister for Defence (Mr. O’Dea)

I have examined this issue in the intervening period. I have no objection to the Act being reviewed as often as is required. However, I am not persuaded that a statutory provision is the way to do it. It is my intention and that of the Department that the Act be kept under constant review and amended as often as necessary having regard to developments in the law.

A phase two process to amend further the disciplinary provisions of the Defence Act is due to be initiated later this year. This will provide an opportunity to review the operation of the provisions of this Bill. The insertion of a statutory time limit within which such a review must be conducted is therefore unnecessary. Such a provision could at some future date cause unforeseen and unnecessary difficulties. Therefore, I reject the amendment.

Mr. Costello

There is no doubt it would be useful to include an enabling provision in the legislation to allow for the review of legislation of this nature. The entire thrust of the legislation is to democratise and humanise existing structures in terms of dealing with courts martial. Reference should be made to best practice in terms of Irish and European law and in respect of human rights and the various principles of natural justice.

It is only as time goes on and the legislation is in operation that one will discover whether it has fulfilled the purpose for which it was intended. I take on board the Minister's statement that other legislation is forthcoming. I understood that legislation would be phased in quickly, however, in the next several months, and would not have a review mechanism. This amendment refers to a longer period, operating over several years.

As a compromise, when the Ministers brings forward the second part of the set of proposals about which he has spoken, he might consider building in such a review mechanism. That would offer reassurance that the procedures set in place today will be statutorily reviewed in due course.

Mr. Timmins

I withdraw the amendment in anticipation that the Minister might include in the next Bill that comes before the House in the coming weeks a mechanism whereby the legislation can be reviewed.

Amendment, by leave, withdrawn.

Acting Chairman (Mr. Sherlock)

Amendments Nos. 2 and 3 are related and may be discussed together.

Mr. Timmins

I move amendment No. 2:

In page 12, after line 53, to insert the following:

"14.—The Children Act 2001 is amended by the repeal of section 271.".

I will be brief on these amendments. Has the Minister changed his view on this amendment since Committee Stage?

Mr. O’Dea

I have thought about it but I have not changed my view. First, I do not believe it would be appropriate for the Defence (Amendment) (No. 2) Bill to unilaterally amend the Children Act. Second, and more importantly, I believe there are good reasons section 271 of the Children Act should not be repealed. The effect of section 271 of the Children Act is that any person under 18 years of age who is an enlisted member of the Defence Forces will continue to be subject to military law. The intention is that the provisions of the Children Act should not take precedence over the provisions of the Defence Acts in regard to military law as they apply to members of the Defence Forces who are under the age of 18.

In regard to the application of military law to members of the Defence Forces who are under the age of 18, first, a member of the Defence Forces may only be tried by court martial for the more serious of offences such as treason, murder, manslaughter or aggravated sexual assault if the offence was committed while on active service, which generally equates to serving on a peace support mission abroad. A member of the Permanent Defence Force shall not be sent on any such overseas mission unless he or she is over the age of 18. Second, with other less serious offences which are also offences punishable by ordinary law, if the offence was committed in the State by a person subject to military law under the age of 18 while a court marital might have jurisdiction to deal with those offences, in practice these offences would be dealt with by the ordinary courts and the provisions of the Children Act would apply.

Third, on the issue of breaches of military discipline within the code of military discipline committed by a member of the Defence Forces who is under the age of 18, it is important and proper that these offences are dealt with under the provisions of the Defence Acts. Many of the provisions in the Children Act would not be appropriate in these circumstances. In reality, however, the possibility of a member of the Defence Forces under the age of 18 years being the subject of court marital proceedings is extremely remote. It would normally take some months for the completion of an investigation into an alleged offence and for preparatory matters to be completed. Therefore, it is highly unlikely that a person who joined the Defence Forces under the age of 18 and who committed an offence which was to be dealt with by court martial would be tried before his or her 18th birthday. The danger is more apparent than real.

Mr. Timmins

On the basis of what the Minister has said, I am happy to withdraw the amendment.

Amendment, by leave, withdrawn.

Amendment No. 3 not moved.

Acting Chairman

Amendments Nos. 4 and 5 are cognate and may be discussed together.

Mr. Costello

I move amendment No. 4:

In page 16, line 21, after "by" to insert "or on behalf of".

I will be brief because we discussed this matter at length on Committee Stage. We should allow communication made by or on behalf of a person who is a complainant in the proceedings. This provision is based on the Prosecution of Offences Act and it prevents certain improper communications about pending prosecutions, and rightly so. What I am proposing is that it be slightly less restrictive by allowing contact on behalf of the person concerned.

Mr. O’Dea

The proposed amendment seeks to change the text of the Bill to reflect that communications made with the director of military prosecutions or a member of staff on behalf of a complainant in proceedings, or on behalf of a person charged with or who believes he is likely to be charged with an offence, or on behalf of a person involved in the matter personally, do not come within the scope of the offence of improper communication with the director of military prosecutions. I argue that this matter is already catered for in this section of the Bill which, as drafted, provides that communications with the director of military prosecutions made by legal and medical advisers, social workers and other family members of a person involved in the matter do not come within the scope of the offence.

The provisions reflect the position in the ordinary criminal legislation pursuant to section 6(2)(a) of the Prosecution of Offences Act 1974. I, therefore, do not consider it appropriate to depart from the current position in the ordinary criminal law.

Mr. Costello

As I am sure the Minister will not change at this stage, I will leave it at that.

Amendment, by leave, withdrawn.

Amendment No. 5 not moved.

Mr. Costello

I move amendment No. 6:

In page 42, line 3, after "of" to insert "and in the name of".

This amendment provides that where a direction has been given by the Director of Public Prosecutions for the trial he should be responsible for the conduct of all prosecutions at court martial. I seek clarification in the sense that the Director of Public Prosecutions will always prosecute in the name of the people, that is, the people v. accused. As a result the section does not seem clear who the DPP is prosecuting unless one inserts “and in the name of”. While all prosecutions will be in his name, on behalf of whom is the prosecution taking place?

Mr. O’Dea

Under the proposed provisions of the Bill the director of military prosecutions alone will prefer the charges under military law. A charge would be laid as the director of military prosecutions versus the accused. I am advised by the Parliamentary Counsel that it is not necessary, therefore, to make the amendment as proposed and I will explain the reason. In ordinary offences on indictment the Constitution provides that they are to be prosecuted by the Attorney General at the suit of the people. There are two parties to the prosecution, the Attorney General and the people. The powers of the Attorney General in prosecutions was transferred to the DPP by the Prosecution of Offences Act 1974. Therefore, there are two parties, the DPP v. the people. However, as we are doing here there is only one prosecuting party, the director of military prosecutions. Therefore, the charge will be the director of military prosecutions versus the accused.

Mr. Costello

This is a substantial departure from the normal procedure in the sense that if the DPP operates and prosecutes on behalf of the people, the DPP is prosecuting on behalf of nobody other than himself or herself. What is the strength of that prosecution? Given that it does not carry the weight of the people, what weight does it carry? On whose behalf is the DPP prosecuting, other than on his own behalf? It appears that is a weakness in the legislation, considering that it is supposed to embody, in so far as possible, the existing tenets of civil jurisdiction and the civil administration of justice. It seems this is a significant departure in regard to court martial when we are trying to make them as close as possible in terms of the administration of justice within the Defence Forces.

Mr. O’Dea

It does not weaken it in any way, it is simply the way the indictment in this case is formulated. Article 30.3 of the Constitution provides that if an ordinary criminal offence is being prosecuted on indictment it is to be done in the name of the people and at the suit of the Attorney General — that was changed to the DPP in 1974. We have the option — this has been vetted by the Attorney General and we have legal advice on the matter — of simply stating that the director of military prosecutions will prosecute an offence under military law in his own name. It does not lessen it in any way and it does not make any practical difference, it is simply the way the indictment is formulated.

Mr. Costello

If we have the option, so be it, but why not go along with the existing format which is the format within civil administration of justice? It appears to depart from that would be the lesser of the more desirable options. Is there the option? Is it possible for the Director of Public Prosecutions to prosecute on behalf of the people in a court martial?

Mr. O’Dea

The way all prosecutions are formulated under military law is simply that it is the prosecutor versus the accused. The only reason we do it in the rather unwieldy way for ordinary criminal charges on indictment is the Constitution states we are to do it that way, for whatever reason. There is no legal reason it should be done that way.

Amendment, by leave, withdrawn.

Amendment No. 7 not moved.

Mr. Costello

I move amendment No. 8:

In page 46, line 31, after "his" to insert "or her".

We dealt with this matter in some detail on Committee Stage. It concerns the desirability of gender proofing all our legislation. The Minister said he would provide for this in future legislation but that it would be difficult to do so in this Bill, given the way it amends earlier legislation. I presume that still remains the case.

Mr. O’Dea

Yes, that is still the position. I intend to do it when the opportunity arises.

Amendment, by leave, withdrawn.

Mr. Costello

I move amendment No. 9:

In page 53, to delete lines 19 and 20.

This amendment concerns any member of the Defence Forces who is a barrister or solicitor. I am proposing that where legal qualifications are involved, they should not be excluded from sitting as members of courts-martial. The situation is similar in the United Kingdom but solicitors and barristers are allowed to sit on juries in the civil courts and criminal cases.

Mr. O’Dea

The Bill provides that any members of the Defence Forces who are barristers or solicitors may not be members of a court martial board. The amendment seeks to remove this provision. A person in the Defence Forces who is legally qualified is a potential member of the legal service. This fact should cast doubt on his or her independence. In the recently passed UK Armed Forces Act 2006 such persons are specifically disqualified from being members of what in this jurisdiction would be called a court martial board. I am not disposed to change the provision.

Mr. Costello

I accept that.

Amendment, by leave, withdrawn.

Mr. Costello

I move amendment No. 10:

In page 62, line 29, after "committed" to insert the following:

", or, where such person is incapacitated or deceased, on the application of a person who is the spouse or relative of such person".

Effectively, this amendment would allow for a victim impact statement to be made by relatives of a deceased or incapacitated person. I ask the Minister to consider the matter.

Mr. O’Dea

The current provisions in the Bill are modelled on section 5 of the Criminal Justice Act 1993. Although I would have no objection to the general intention of the amendment, I do not consider it appropriate to depart from the current position in ordinary criminal law. There would appear to be a practice of making it possible for a relative of the deceased to make a statement, rather than it being enshrined in law. I am aware that there is an ongoing debate regarding the operation of these provisions in ordinary criminal law. It would appear to be appropriate to await the outcome of that debate and reconsider the provisions at that stage, as appropriate.

Mr. Costello

I accept that.

Amendment, by leave, withdrawn.

Bill received for final consideration.

Question proposed: "That the Bill do now pass."

Minister for Defence (Mr. O’Dea)

I thank all the Deputies from both sides of the House who contributed to the debate on the Bill. Subsequent to the debate on Second Stage, I received the finalised report from the Irish Human Rights Commission detailing its observations on the proposals contained in the Bill. The report is comprehensive. I wish to record my appreciation of the valuable work done by the commission in considering the Bill. The commission emphasises that it views the main thrust of the Bill as progressive and an important step towards affording clear and consistent protection of human rights.

The commission makes several positive observations on the provisions of the Bill. Specifically, it welcomes the following: structural changes in the court martial system; the introduction of an offence of improper communication with military judicial staff; amendments made to the list of persons who may not serve on a court martial board; the amendment to restrict the role of the court martial board to making findings of fact, as a jury does in the civilian courts; the establishment of an independent military prosecuting authority, the director of military prosecutions; the system for the selection of the director of military prosecutions; and safeguards to ensure his or her independence and security of tenure. The commission raised an issue regarding the composition of the committee to select the director of military prosecutions. I amended the Bill on Committee Stage in a manner which I am satisfied will address this valid issue.

In addition, the commission's report sets out a number of reservations regarding the replacing of the former appointment of president of a court martial with a new appointment of "senior member", as well as the possibility that such an appointment could give rise to influence among members of the board. I amended the Bill on Committee Stage to remove all references to there being a "senior member" of a court martial board. I am also satisfied that there are sufficient safeguards to ensure the differences in rank of the various members of a court martial board which are both necessary and inevitable in a military force will not result in any command influence on the deliberations of the board.

The commission comments on the establishment of the new office of military judge. It views the committee involved in the selection process as appropriate. It welcomes the safeguards provided in section 34 of the Bill as significant in guaranteeing an independent and impartial hearing. It does suggest the exclusion of civilians as eligible military judges should be considered further. As I stated, had we discussed amendment No. 7, for both policy and practical reasons, it was decided to opt for a uniformed military judge. However, this new arrangement and the views of the commission will be kept under review in the light of experience.

The commission suggests the provision of legal aid for a person considering whether to elect for trial by court martial where such person is charged with one of the potentially more serious disciplinary offences listed in Part II of the schedule of disciplinary offences. I am not persuaded at this time that the provision of such legal aid is necessary, having regard to all the safeguards built into the system.

In addition to the commission's report, I have received a submission on the Bill from PDFORRA which generally welcomes the provisions of the Bill and suggests a small number of amendments. The PDFORRA submission will be considered in the context of the phase two process to further update the disciplinary provisions of the Defence Act.

The Bill represents a major advancement for the operation of the military disciplinary system. It represents a sensible and practical model. It draws on the most recent developments in common law jurisdictions and will serve us well in the years ahead. The measures included are proactive as regards human rights. Crucially, they also provide for the effective maintenance of discipline within the Defence Forces.

Once again, I thank everybody for his or her constructive and supportive engagement with the Bill in the course of its passage through the House.

Question put and agreed to.