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Seanad Éireann debate -
Thursday, 8 Feb 2007

Vol. 185 No. 22

Defence (Amendment) (No. 2) Bill 2006: Committee Stage.

SECTION 1.
Government amendment No. 1:
In page 7, subsection (2), line 34, after "provisions" to insert the following:
", including the application ofsections 4(2), 10 and 11 to different enactments specified in Schedules 2, 3 and 4 respectively and to different provisions of those enactments”.
Amendment agreed to.
Section 1, as amended, agreed to.
Sections 2 to 17, inclusive, agreed to.
SECTION 18.

Amendments Nos. 2 and 3 are cognate and may be discussed together by agreement. Is that agreed? Agreed.

I move amendment No. 2:

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

We tabled these amendments because the provision in section 18, which is based on the Prosecution of Offences Act, prohibits certain communications regarding pending prosecutions. We suggest that it be made slightly less restrictive by allowing contact on behalf of the persons concerned.

The proposed amendments seek to change the text of the Bill to reflect that communications made with the Director of Military Prosecutions or a member of his staff on behalf of another person do not come within the scope of the offence of improper communication with the director. The Bill already provides that communications with the Director of Military Prosecutions made by legal and medical advisers, social workers and family members do not come within the scope of this offence. I do not believe there are any other possibilities that need to be catered for here. In addition, the current provision reflects the position in ordinary criminal legislation, namely, section 6(2)(a) of the Prosecution of Offences Act 1974.

We are providing that the accused person can communicate with the Director of Military Prosecutions. We are also providing that people acting as legal or medical advisers, social workers or members of the person's family who are acting on his or her behalf may also communicate with the director without committing an offence. If I were to accept the amendment as drafted, it would mean that we would extend that immunity to people acting on behalf of such legal or medical advisers, social workers or family members. This would be to go too far and I regret that I cannot accept the amendments.

Amendment, by leave, withdrawn.
Amendment No. 3 not moved.
Section 18 agreed to.
Sections 19 to 32, inclusive, agreed to.
SECTION 33.

I move amendment No. 4:

In page 41, line 39, after "of" to insert "and in the name of".

This amendment seeks to clarify that the director will be named as the prosecutor in all proceedings at court martial. This is in contrast to the position relating to the Director of Public Prosecutions who prosecutes in the name of the people.

The amendment would be consistent with Article 30.3 of the Constitution in respect of the prosecution of offences on indictment, which employs the phrase "in the name of the People and at the suit of the Attorney General". The Prosecution of Offences Act 1974 transferred the powers of the Attorney General regarding the prosecution of offences to the DPP. In the case, therefore, of an ordinary criminal indictment, there are two parties to the laying of the charge, namely, the people and the DPP. This is reflected in the correct form for the indictment, which is "The People (DPP) v. the accused”. Under the proposed provisions of the Bill, the Director of Military Prosecutions alone will proffer the charges under military law and the charge will be laid as the Director of Military Prosecutions versus the accused. If the Bill is amended as proposed, the charge will still be laid in the same terms without alteration and therefore the amendment is unnecessary.

Amendment, by leave, withdrawn.
Section 33 agreed to.
SECTION 34.

Amendment No. 5 is in the names of Senators Tuffy, Ryan, O'Meara, McDowell, McCarthy and Bradford. Amendments Nos. 5, 7, 8 and 12 are related and may be discussed together by agreement.

I move amendment No. 5:

In page 44, line 35, to delete "recommendation of the Minister" and substitute "advice of the Government".

We believe the section as drafted is unconstitutional because the President's statutory powers could only be exercised on the advice of the Government and not just a Minister. I refer the Minister to Article 13.11 of the Constitution. Also, as ordinary judges are appointed on the advice of the Government it seems desirable to maintain that.

In our amendment No. 12 we again refer to the advice of the Government, which is the term used in Article 13.11 of the Constitution.

On amendment No. 5, I support what Senator Tuffy said regarding the proposed change. I would have thought the advice of Government was the required wording under the constitutional provision. I look forward to the Minister's response.

Amendment No. 5 seeks to change the provisions in legislation to ensure that the appointment is made by the President on the advice of the Government rather than on the recommendation of the Minister. I am happy to accept the amendment.

Amendments Nos. 7 and 8 to the section of the Bill dealing with the military judge are required as a result of the Labour Party Senator's amendment No. 5, which I have just accepted, regarding the appointment of a military judge on the advice of the Government rather than on the recommendation of the Minister. They follow from my acceptance of amendment No. 5.

Amendment No. 12 is an amendment to the section of the Bill dealing with the removal of the military judge from office. This amendment is related to the previous amendment which provided that the military judge is appointed by the President on the advice of the Government. I have accepted the previous amendment, therefore, if the military judge is appointed on the advice of the Government it follows that the removal provision should also be on the advice of the Government. I therefore accept that amendment.

I thank the Minister for accepting the amendments.

On a point of clarification, is the Minister accepting amendment No. 5?

Yes, and amendment No. 12.

Amendment agreed to.

Amendment No. 6 is in the names of Senators Tuffy, Ryan, O'Meara, McDowell and McCarthy. Amendments Nos. 6 and 10 are related and amendment No. 11 is an alternative to amendment No. 10. Therefore, amendments Nos. 6, 10 and 11 may be discussed together by agreement.

I move amendment No. 6:

In page 44, line 37, after "judge" to insert the following:

"and where more than one such judge is appointed, may so appoint one such judge to be Chief Military Judge".

This amendment provides for the chief judge to be appointed on the advice of the Government and not by the Judge Advocate General, as currently provided under section 184N.

In our amendment No. 11 we suggest that the chief judge should be appointed on the advice of the Government, not by the Judge Advocate General, similar to the previous amendments I have addressed.

On amendment No. 6, the Bill currently provides that where there is more than one military judge, the Judge Advocate General may designate one of the military judges to be the chief military judge. This amendment seeks to change that so that the President would appoint the chief military judge. While I am happy to accept the principle of the amendment, the Parliamentary Counsel has advised it would be more appropriate to make this change on page 47 of the Bill in section 184N(1). The Senator will note that I have adopted this as a ministerial amendment to section 184N(1).

On amendment No. 10, the ministerial amendment is being adopted from the amendment submitted by the Labour Party Senators on the appointment of the chief military judge it follows. As previously stated, I was happy to accept the intent of the Labour amendment. However, the Parliamentary Counsel has advised it would be more appropriate to make this change in section 184N(1).

On amendment No. 11, the Bill currently provides that where there is more than one military judge, the judge advocate-general may designate one of the military judges to be the chief military judge. This amendment seeks to change this to allow the President appoint the chief military judge. While I am happy to accept the principle of the amendment, it is covered in my own amendment.

Amendment, by leave, withdrawn.
Government amendment No. 7:
In page 45, lines 9 and 10, to delete "and informing the Minister of their suitability" and substitute the following:
"and informing the Government of the suitability of those officers".
Amendment agreed to.
Government amendment No. 8:
In page 45, line 23, after "appointment" to insert the following:
"and the Government shall consider for appointment the officer or officers so selected".
Amendment agreed to.

I move amendment No. 9:

In page 46, line 12, after "his" to insert "or her".

This is a gender proofing amendment on which I would like to her the Minister's view.

This Bill is an amendment of the 1954 Act. In the case of amending legislation, it is the policy of the Office of the Parliamentary Counsel to follow the format and language of the parent legislation. In this case the language of the parent Act is not gender neutral although adequate provision for the interpretation of gender references is provided for in the Defence Act. If and when the Act is to be completely rewritten, I accept that every reference to "his" would be replaced by a reference to "his or her". While I have no difficulty with the Senator's case in principle, when amending legislation the advice of the Parliamentary Counsel is to follow the wording of the parent legislation, which is the Defence Act 1954.

If our amendment was accepted, the Interpretation Act would still apply to the parent legislation. This would be new legislation to which the Interpretation Act did not apply because it would be clear that it referred to "his" or "her". I do not understand the reason the Minister will not accept the amendment.

I accept Senator Tuffy's point. As she rightly said, the Interpretation Act states that "man" includes "woman" and vice versa. Nevertheless, the Parliamentary Counsel has advised us clearly that when we are legislating by reference to earlier legislation, if certain terminology appears in the earlier legislation the same terminology should be used in the interests of consistency. I understand that is the way it is done throughout the system. I cannot accept the amendment now but I will consider it between now and the debate in the Dáil.

Amendment, by leave, withdrawn.

Amendment No. 10 is a Government amendment. If amendment No. 10 is agreed, amendment No. 11, which has been discussed already, cannot be moved.

Government amendment No. 10:
In page 47, to delete lines 7 to 9 and substitute the following:
"184N.—(1) The President may appoint, on the advice of the Government, a military judge to be the Chief Military Judge.".
Amendment agreed to.
Amendment No. 11 not moved.

Amendment No. 12 is in the names of Senator Tuffy, Ryan, O'Meara, McDowell and McCarthy and was discussed earlier with amendment No. 5. The Minister has indicated his intention to accept this amendment.

I move amendment No. 12:

In page 47, line 20, to delete "recommendation" and substitute "advice".

Amendment agreed to.
Section 34, as amended, agreed to.
Sections 35 to 40, inclusive, agreed to.
SECTION 41.

I move amendment No. 13:

In page 53, to delete lines 6 and 7.

It is strange to disqualify persons with legal qualifications from sitting as members of a court-martial. We recognise that lawyers cannot sit on juries but they are allowed to do so in the UK.

The Bill provides that any member of the Defence Forces who is a barrister or solicitor may not be a member of a court-martial board. The amendment seeks to remove this provision. A person who is legally qualified in the Defence Forces is a potential member of the legal service. This fact could cast a doubt on his or her independence. In the recently enacted UK Armed Forces Act 2006, such persons are specifically disqualified from being members of what is known as a court-martial board in this jurisdiction. I am not in a position to accept the amendment.

Amendment, by leave, withdrawn.
Section 41 agreed to.
Sections 42 and 43 agreed to.
SECTION 44.

I move amendment No. 14:

In page 57, line 17, after "remain" to insert the following:

"and shall prohibit any publication, broadcast or dissemination of anything which could identify the complainant or, unless he or she is convicted, the accused person".

The purpose of this amendment is to make it clear that the same rules about non-publication of the identity of the parties involved, as in criminal cases, should apply to courts-martial cases.

I agree with the amendment's principle. I am, however, satisfied that the proposed insert is adequately provided for in section 194(2) of the principal Act in a more complete way. The section allows the military judge to prohibit the publication of information in the proceedings of certain circumstances, such as proceedings for an offence of a sexual nature, in exactly the same way as the ordinary criminal courts.

Amendment, by leave, withdrawn.
Section 44 agreed to.
Sections 45 to 52, inclusive, agreed to.
SECTION 53.

Amendments Nos. 15 to 17, inclusive, are related and may be discussed together by agreement.

I move amendment No. 15:

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".

The purpose of the amendment is to allow for victim impact statements by relatives of a deceased or incapacitated person in a court-martial. This is very much part of the criminal courts system.

Victim impact statements are becoming the norm in the law and it should be extended to this legislation.

The amendments seek to amend the provisions of the Bill relating to victim impact statements. While I have no objection to the general intention of the proposed amendments, the Bill reflects the provisions which apply in the ordinary criminal courts pursuant to section 5(3) of the Criminal Procedure Act 1993. The wording is exactly the same. If, by virtue in the current debate regarding the operation of those provisions, the law applicable to the ordinary criminal court is amended, then any such amendment should also apply to courts-martial at that stage.

Is the Minister satisfied that, as it stands, it will be possible to hear victim impact statements at courts-martial?

I am satisfied. Section 5(3) of the Criminal Procedure Act 1993 has been interpreted in cases such as the Robert Holohan case where a relative of the victim can make the impact statement on the behalf of the deceased. We have followed the wording of that section in this legislation.

Amendment, by leave, withdrawn.
Amendments Nos. 16 and 17 not moved.
Section 53 agreed to.
Sections 54 to 57, inclusive, agreed to.
SECTION 58.
Government amendment No. 18:
In page 66, to delete lines 14 and 15 and substitute the following:
"D. Detention—
(a) in the case of a general court-martial or limited court-martial, for any term not exceeding two years,
(b) in the case of a summary court-martial, for any term not exceeding six months, with or without forfeiture of all pay or any part thereof.”.

Section 192 of the principal Act provides that a summary court-martial shall not have jurisdiction to award to any person any sentence greater than imprisonment for a period of six months. The scale of punishments that may be awarded to an enlisted member of the Defence Forces is provided for in section 210 of the principal Act. It is the intention of the Bill that a summary court-martial shall not have jurisdiction to award detention for any term longer than six months. This amendment is designed to implement that intention and to remove any possible ambiguity in that regard.

Amendment agreed to.
Section 58, as amended, agreed to.
Sections 59 and 60 agreed to.
SECTION 61.
Government amendment No. 19:
In page 71, to delete lines 1 to 19 and substitute the following:
"(9) (a) A summary court-martial or the military judge presiding at a general court-martial or limited court-martial, as the case may be, to which a person is remanded under subsection (8) of this section shall revoke the order unless the military judge considers that revocation of that order would be unjust in all the circumstances of the case.
(b) Where the military judge revokes that order, the person shall be required to serve the entire of the sentence of imprisonment or detention originally awarded, or such part of the sentence as the military judge considers just having regard to all the circumstances of the case, less any period of that sentence already served and any period spent in custody (other than a period during which the person was serving a sentence of imprisonment or detention in respect of an offence referred to in subsection (8) of this section) pending revocation of the said order.”.

This amendment merely breaks up a long subsection into two paragraphs for ease of readability.

Amendment agreed to.
Section 61, as amended, agreed to.
Section 62 agreed to.
SECTION 63.
Government amendment No. 20:
In page 74, to delete lines 30 to 38 and substitute the following:
"(7) Where the military judge considers that—
(a) it would be appropriate both to award a fine under section 209 or 210, as the case may be, and to make an order under this section, but
(b) the convicted person has insufficient means to pay both an appropriate fine and appropriate compensation,”.

This minor amendment removes the word "that" from the start of paragraphs (a) and (b) and moves it to the subsection level. It is simply tidying up the language.

Amendment agreed to.
Government amendment No. 21:
In page 75, line 17, to delete "Court-Martial" and substitute "Courts-Martial".

This minor amendment corrects a typographical error.

Amendment agreed to.
Section 63, as amended, agreed to.
Sections 64 to 69, inclusive, agreed to.
SECTION 70.
Government amendment No. 22:
In page 79, lines 16 and 17, to delete "with respect to courts-martial".

The Bill provides that the Minister may make rules of procedure for the functions of the chief military judge "with respect to courts-martial". The amendment proposes to delete this so that rules of procedure may prescribe all the functions of the chief military judge, if there is one. The rules will not necessarily be limited to functions which specifically relate to courts-martial.

Amendment agreed to.
Section 70, as amended, agreed to.
SECTION 71.

I move amendment No. 23:

In page 79, line 33, after "as" to insert the following:

"Coiste Rialacha na nArmchúirteanna or in the English language as".

This amendment proposes to insert an Irish title for the courts-martial rules committee.

I thank Senator Tuffy for identifying an oversight on our part and I will accept the amendment.

Amendment agreed to.

I move amendment No. 24:

In page 80, lines 16 and 17, to delete "the Director General of the Office of".

As the Attorney General is the political head of the Office of the Attorney General, he, rather than the director general, should nominate a person to be a member of the rules committee.

This amendment relates to the courts-martial rules committee. The Bill provides that an officer of the Attorney General will be nominated to sit on the committee by the director general of the Office of the Attorney General. The amendment seeks to change this so that the officer is nominated by the Attorney General. This amendment improves the legislation. Again, we are indebted to Senator Tuffy and I am happy to accept the amendment.

Amendment agreed to.
Government amendment No. 25:
In page 80, line 23, to delete "Forces" and substitute "Force".

This minor amendment corrects another typographical error.

Amendment agreed to.
Section 71, as amended, agreed to.
SCHEDULE 1
Government amendment No. 26:
In page 81, paragraph 2, lines 35 and 36, to delete "of Military Prosecutions".

Section 33 provides that the director of military prosecutions is referred to as the director in the Act. This minor amendment to schedule 1 deletes the words "of Military Prosecutions" so the phrase now correctly reads "on the directions of the director, the person may". The amendment simply tightens up the language.

Amendment agreed to.
Schedule 1, as amended, agreed to.
Schedules 2 to 3 agreed to.
SCHEDULE 4.
Government amendment No. 27:
In page 88, between lines 5 and 6, to insert the following:
"
New section
Insert the following section after section 27:
"Legal aid (case stated) certificate.
27A.—(1) Where—
(a) a person appeals to the summary court-martial under section 178E (inserted by the Defence (Amendment) Act 2007) of the Act of 1954 and the military judge before whom the appeal is heard refers a question of law arising in the proceedings to the Court pursuant to section 22A of this Act, and
(b) a certificate for free legal aid (in this Part of this Act referred to as ‘a legal aid (case stated) certificate’) is granted in respect of the person by the prescribed authority or under subsection (3) of this section,
the person shall be entitled to free legal aid in the preparation and conduct of his case in relation to the case stated and to have a solicitor and counsel assigned to him for that purpose in such manner as may be prescribed by regulations under section 33 of this Act.
(2) A legal aid (case stated) certificate shall be granted in respect of the person concerned if (but only if)—
(a) application is made therefor,
(b) it appears to the prescribed authority that the means of the person are insufficient to enable him to obtain legal aid, and
(c) it appears to the prescribed authority that, by reason of the serious nature of the offence with which the person is charged or of exceptional circumstances, it is essential in the interests of justice that a legal aid (case stated) certificate should be granted in respect of the person.
(3) Where, in relation to a case stated, a person is refused a legal aid (case stated) certificate by the prescribed authority, he may apply for the certificate to the Court either—
(a) by letter addressed to the registrar of the Court setting out the facts of the case and the grounds of the application, or
(b) to the Court itself,
and the Court shall grant the certificate if (but only if)—
(i) it appears to the Court that the means of the person are insufficient to enable him to obtain legal aid, and
(ii) it appears to the Court that, by reason of the serious nature of the offence with which the person is charged or of exceptional circumstances, it is essential in the interests of justice that a legal aid (case stated) certificate should be granted in respect of the person."
".

This matter was referred to during the Second Stage debate. This amendment inserts a new section into the Courts-Martial Appeals Act 1983 to include the referral of questions of law from a summary court martial to the court martial appeal court within the scope of legal aid. This is in line with the practice in the ordinary criminal law system. It was unfortunately omitted from the published Bill and we are correcting the error. I thank Members for their contributions in that regard.

Amendment agreed to.
Schedule 4, as amended, agreed to.
Schedules 5 to 7, inclusive, agreed to.
Title agreed to.
Bill reported with amendments.

When is it proposed to take Report Stage?

Next Tuesday, 13 February 2007.

Sitting suspended at 12.05 p.m. and resumed at 1 p.m.
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