First of all, I apologise for keeping the House. My officers were under the impression that the Bill was third on the Order Paper.
The Bill which is a major reforming measure in so far as the administration of military law is concerned has two main objectives. 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 persons in court-martial cases and on appeal.
Under the system of military law in this country there is at present no provision 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 finding 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 raises a point of law the proceedings of the court-martial and the petition are referred 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 of the Bill which became the Defence Act, 1954. The terms of reference of the committee were, and I quote:
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.
The recommendations of the committee were accepted and were implemented after the Bill became law. I might point out here, since there seems to be an obvious question, that under the Constitution — specifically Article 38.6º — courts-martial are not bound by the appellate provisions applicable to the civil courts.
While I am glad to say that the petition arrangements have worked well, and I believe fairly insofar 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 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 the Court of Criminal Appeal and will have powers similar to that court. 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.
As to the question of setting up a separate appellate system for court-martial appeals instead of using the existing facilities available on the civil side in criminal cases, this matter was fully considered when the legislation was being contemplated. The Government reached the conclusion that because there is a separate corpus of military law and a separate system for its enforcement, that distinctiveness and separateness should be preserved into the appeals arrangements. It was considered important to maintain the distinction since to merge the two systems at appeal level could be detrimental to both. There is also, of course, the added advantage that when an appeal arises from a court-martial it may be possible to deal with it more expeditiously because it will have a separate and distinct court in which to be heard.
In order that the appeal arrangements being provided for in the Bill should be as meaningful as possible I propose also 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. One small point I should like to mention in that connection is that at present any soldier charged with an offence before a 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 disciplinary provisions of military law as applied to the Defence Forces have been debated it may be helpful if I said something about the jurisdiction of courts-martial and how they function. Courts-martial are the military tribunals provided under the Constitution for the trial of offences against military law committed by 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 jurisidction 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.
Courts-martial 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. 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 courts-martial may be represented by counsel, meaning either a barrister or a solicitor.
The findings 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. 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.
Our system of military law has remained unaltered since the passage of the parent Act in 1954 nearly 30 years ago. This Bill is proposing major substantive changes in specific areas but the general corpus of military law needs to be reviewed. I have commenced this review and look forward to introducing in due course whatever further amendments are necessary to bring our military law up to date.
I need hardly say that the military authorities fully support and welcome the present proposals. Indeed the impartial and efficient manner in which they have administered the system of military law over the years is worthy of special tribute.
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 trust that I have adequately explained the purpose of the Bill and I now commend it to the Seanad.