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Seanad Éireann debate -
Wednesday, 22 Jun 1983

Vol. 101 No. 2

Courts-Martial Appeals Bill, 1983: Committee and Final Stages.

Sections 1 to 4, inclusive, agreed to.
SECTION 5.
Question proposed: "That section 5 stand part of the Bill."

I should like to ask the Minister if he would explain to us exactly what is involved in the change here. It applies also to the following section and they are both bound together in section 7. As I read the Bill, what is being done here is to introduce a power in the High Court to release somebody from custody to which he has been committed as a result of being found not fit to plead or, in the following section, found to have been insane at the time of the committing of the offence. I would like to ask the Minister: is this another way in which the High Court is coming into the military system or is it essentially part and parcel of the appeal procedure? It seems to me that this is almost an introduction of habeas corpus into the military law in this restricted field.

It might have that incidental effect or consequence but the motivation for the change is based on the fact that the parent sections 202 and 203 of the Defence Act, 1954, provide in the two cases of "unfit to stand trial" or "guilty but insane" for the person being detained at the pleasure of the Minister. There is a view that because of recent pronouncements of the Supreme Court in relation to the idea of custody during pleasure that the power might be held to be in conflict with the Constitution. In order to obviate any danger in that regard it was felt that the power of the Minister to detain during pleasure in those two restricted situations should be removed and that the power be given to the courts.

How will the application be made in these circumstances? It is not made under this Act. There must be another provision for the applications to the High Court for the release.

That is a grey area both in regard to this matter and in regard to the criminal law generally. Those applications come to be made by the person himself or are possibly brought to the notice of the court by a friend or a professional adviser, or it sometimes can be brought to the courts by a medical professor taking an initiative. It is very difficult to lay down a procedure as such. We just have to assume that the normal channels of going to court will be availed of by and on behalf of the person in question.

I thank the Minister for his explanation and I welcome this provision which in a sense is an additional reform other than the three which we have been debating. It does reflect the fact that, while leaving the military law intact, we have here this special appeal, the question of release on order of the High Court, and, of course, the appeal to the Supreme Court. This provides a fourth reason to welcome the Bill.

Question put and agreed to.
Sections 6 and 7 agreed to.
SECTION 8.
Question proposed: "That section 8 stand part of the Bill."

I want to be quite clear that I understand what is happening here. I understand that after a date which will be fixed under section 24 the position is that the Minister then will have no power whatsoever in regard to the quashing of findings.

That is the meaning of it. The powers under the parent section 224 with regard to findings will cease to have effect and section 8 has been so worded as to cater for the transition.

I also have a drafting point on section 8. I have been continually appealing in this House, as has Senator Eoin Ryan, that in the amendment of legislation we might make it as clear as possible. I do find it strange that the words in brackets in the first and second lines are included. They are certainly helpful but it does read here as if there is an Act of 1954 concerned with the quashing of findings of courts-martial, whereas it is only the section that does so. I do not know if this is customary or not.

I would not like to speak here on behalf of the draftsman but Senator Dooge has no difficulty in getting the meaning.

It is not true of all the other sections.

Question put and agreed to.
SECTION 9.
Question proposed: "That section 9 stand part of the Bill."

Am I right in thinking that the last three lines of that section mean that there may be occasions when four or five or more judges may sit at a court-martial? It states:

but any other available judge or judges of the Supreme Court or the High Court may, at the request of the Chief Justice, attend as a member or members of the Court.

It has not to do with the numbers but with the personnel. The court normally would consist of judges of whom one would be either the Chief Justice or a judge of the Supreme Court and the other two would be two judges of the High Court or the President of the High Court or another judge of the High Court. So the court of three would consist of a member of the Supreme Court and two from the High Court, one of whom could be the President, but any other available judges of the Supreme Court or High Court may attend. I understand that means that we could have, for example, a court consisting of three judges of the Supreme Court in the event that members of the High Court were not available. In addition, I refer Senator Ryan to subsection (2) which provides that the court shall consist of not fewer than three judges.

That is why I raised that point. It seems as though it could be more than three and that perhaps in a very important case the Chief Justice might ask two extra judges to sit in.

They could be from either court.

I did raise the point on Second Stage, to which the Minister responded, in regard to the question of technical military matters being involved. The Minister thought this would not be necessary. I did indicate that in the civil code there is the question of expert witnesses. We have a difficulty here when we depart from the military code in which the officers of the court-martial are providing the technical element. In the court-martial itself, technical evidence in regard to the military aspect would not be brought because of the fact that the officers who constitute the tribunal are experts. When it comes to the appeal, we have the position that the appeal is under section 17 judged on the proceedings, on the actual record. There is no direct provision for expert witnesses to be interpolated for the benefit of the judges in this case. I do not want to argue the point too strongly in this regard or to say that it would always be necessary but I put forward the point that there may be occasion on which justice would be helped by ensuring in some way that expert military opinion is available. It may well be that it is necessary under section 17 to enable the judges in the Courts-Martial Appeals Court to take evidence from somebody other than the president of the court-martial or the judge-advocate. There may be an occasion on which judges can say there is nothing in the transcript before them which enables them to evaluate that particular circumstance because of the military expertise involved.

Senator Dooge has an interesting point here. The members of the court-martial would almost certainly be experts of the facts before them but not of the law, whereas the court of appeal will be experts on the law but not on the facts.

An Leas-Chathaoirleach

Before the Minister replies, this was the point I was trying to get across but I think the Minister missed it. I was not speaking too clearly it seems and normally I do. I am concerned about the military evidence being left out of the appeal but obviously the Minister did not understand that.

I take the point that Senator Dooge, Senator Ryan and the Leas-Chathaoirleach make. There will be appeals generally in the two main areas, where the offence was purely a military one and where the offence would be a civil offence tried before a court-martial. Obviously in the latter case there will be no need for an assessor. So we would be dealing then with an offence against a peculiar piece of military law. It might be, for example, a court-martial on a charge of desertion and it could turn on the question of whether there was intent or——

Or what is the face of the enemy.

——desertion in the face of the enemy. Fortunately we do not have enemies. The absence of an assessor would not prejudice the appeal or in any way inhibit the court for two reasons. All that an assessor would do would be to expand to the court on the nature of the particular military thing involved. In doing that he might seem in some way to be presuming the court's prerogative to make that decision itself. It would be difficult to have in regard to a purely military offence advice that would be more than just advice or explanatory. He would be automatically getting into a judicial position.

In so far as technical explanations to the military court will be concerned, I find it difficult to envisage what would be so technical in that sense that would require an assessor that could not be explained to the court or be open to the court by counsel in the normal way explaining a technical matter to an appeal court. In addition, section 17 says that an appeal should be determined on the proceedings of the trial with power to the court to hear new or additional evidence and to refer any matters for report by the president or judge-advocate. If there was difficulty on a technical point the appeal court could call for a witness or call for an explanatory report from the president of the court-martial or the judge-advocate at the court-martial. I think that should cure the Senator's worry.

I accept the Minister's last point. The power to hear new or additional evidence should provide for the problem.

Question put and agreed to.
Sections 10 to 12, inclusive, agreed to.
SECTION 13.
Question proposed: "That section 13 stand part of the Bill."

Section 13 gives the right of appeal. This is extremely valuable. We tend to think of this and other legislation as operating in times of peace. I should like to ask the Minister if it is anticipated that there will be no diminution of this right in times of war, perhaps, of severe military difficulty: that the right could not be removed by emergency legislation.

That, again, is asking me to say what will be the view of the Government of the day in a hypothetical situation. One could envisage, without great difficulty, that rights given here might be difficult to allow to be exercised in times of emergency. One could envisage a temporary suspension of such rights in a time of emergency, knowing, of course, and fortified by the knowledge, that one would be acting within the Constitution.

Question put and agreed to.
SECTION 14.
Question proposed: "That section 14 stand part of the Bill."

Subsection (2) refers to "the respondent to the appeal". Would the "respondent" always be the Minister?

Why is the next provision put in, "that this section shall be settled by the Attorney General"? Is there a particular reason why the Attorney General should not do it rather than the Minister's own advisers?

As a matter of practice, when it comes to appeal the Minister will be represented by the Attorney General or by counsel nominated by the Attorney General. In the case of an unsuccessful appeal, if the Minister thinks there is a point of law that should go through the Supreme Court, it would be appropriate that it would be the Attorney General who would define the point. It would be the Attorney General who would be seeking clarification of that particular point. He would have the right to specify the point on which he wants clarification, which, of course, would be without prejudice as a general note to the appeal itself. The appeal would have been decided and that would be a fait accompli. The only matter then for argument would a point of law in the Supreme Court. It would be appropriate that the person seeking the decision on the point of law would be the Attorney General. This power is analogous to a power on the civil side; either the Director of Public Prosecutions or the Attorney General can bring an appeal without prejudice to the findings of the appeal court on a point of law to the Supreme Court. In such cases the point to be clarified is identified by the Attorney General on behalf of the nominal respondent.

Question put and agreed to.
Sections 15 to 17, inclusive, agreed to.
SECTION 18.
Question proposed: "That section 18 stand part of the Bill."

There is here a provision whereby the court may increase the sentence. This is normal, but when we look at this on the civil side, there is a very tight joining of the matter of maximum sentence with the particular crime. From a quick reading of the Defence Act, my understanding is that there is not the exact one-to-one correspondence in military law, that there is more flexibility in regard to the range of punishment in this regard. Is there some difficulty about limits on the increase of punishment in the appeal court?

Does the Senator mean that there should be a limit?

There should be a limit. It should not be unduly open ended.

I would not have any worry in that regard. I would have to rely on the discretion of a court composed of not fewer than three very experienced judges and there could be more. They would be well aware that they would be dealing with a matter which was not a normal criminal appeal. The experts in deciding sentences would probably be the lower court. I could see them being slow to intervene in whatever the lower court found as the sentence in a military matter. If it were to be a case of appeal concerning a criminal charge tried by a court-martial, different considerations might apply because the court, obviously, would have more experience in that regard. There is a limit built in by the provisions of the Defence Act, 1954. The maximum punishment is provided in each section.

That is fairly complete?

It is. The residual right to petition the Minister against severity of sentence still remains.

Subsection (2) states that the court may, notwithstanding that it is their opinion that the point raised in an appeal might be decided in favour of the appellant, dismiss the appeal if it considered that no miscarriage of justice has actually occurred. Subsection (3) deals with costs and gives a discretion to the court not to award costs in certain circumstances, even though the appellant has been successful. Has the court discretion under subsection (2) when, in fact, the appellant was right in law, but they are deciding that no miscarriage of justice occurred, to give him costs? If he has a legal point, if he is right in law, even though he does not win his appeal, he certainly should not have to pay the costs.

There would be nothing to stop the court giving the costs in that situation. The following subsection would deal with a different situation.

Question put and agreed to.
Sections 19 and 20, agreed to.
SECTION 21.
Question proposed: "That section 21 stand part of the Bill."

It would ill-behove a professional liberal to let this section pass. I can only express my regret that in the reforming legislation the Minister did not do what I know would have been interesting to the vast majority of the Members of both Houses to initiate a process for the abolition of capital punishment. I do not like any killing on my behalf. I do not think it does any good even in the armed forces. I regret that this was not done.

Question put and agreed to.
Sections 22 to 32, inclusive, agreed to.
SECTION 33.
Question proposed: "That section 33 stand part of the Bill."

I was mildly surprised on reading section 33, on regulations the Minister may make, that he may prescribe certain things, and that it includes matters of legal aid certificates. A very important prescription in these regulations would be the question of prescribed persons which are referred to specifically earlier in the Bill. I found it strange that that was not directly cited in section 33. This does not prevent the Minister from making such a prescription but I would have thought that where one did have the question of prescribed persons who play quite an important role in regard to the provisions of the Bill, they should be specifically mentioned.

It is intended that the prescribed authority would be the Deputy Judge-Advocate-General. He is the senior legal military officer in the Defence Forces and the intention in the regulations is to prescribe him as the person to decide on the granting of the legal aid certificates. I thought it better not to write the identity of the person into the Act because then it would be fixed for all time. The regulations give a little more flexibility. If it should happen that it did not tie in with the job or duties of the Deputy Judge-Advocate-General we wanted the power to change it to another prescribed authority.

I appreciate that point. If you look from sections 25 to 34 you will find that the prescribed authority specifically refers to section 33. When you look to section 33 you do not get the reference back, whereas in regard to the legal aid certificates, which are also mentioned in section 25, their form is specifically cited. The criticism is not of the Minister. It is a mild criticism of the draftsmen.

Question put and agreed to.
Section 34 agreed to.
Title agreed to.
Bill reported without amendment, received for final consideration and passed.
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