Special Committee Defence Bill, 1951 debate

SECTION 109.

Captain Cowan

I move amendment No. 115 :—

Before Section 109 to insert a new section as follows :—

" Where a person is convicted or acquitted by a court-martial in pursuance of this Act for an offence such person shall not be subsequently tried by a civil court for the same offence."

This is an important amendment. The section sets out that if a person is sentenced by a court-martial in pursuance of this Act to punishment for an offence and such person is subsequently tried and convicted by a civil court for the same offence, the civil court, in awarding punishment shall have regard to the military punishment. The fundamental principle and conception of justice comes in. A court-martial is a court established by the law of the country in just the same way as the civil courts.

It is set up under an Act and given statutory powers. The people who administer it are set out, and the punishments they inflict are laid down, and these, in most cases, are greater than may be awarded by an ordinary court outside. Let us take the reverse case—if he is convicted by a civil court, he may not be tried by a court-martial for the sames offence. I see no reason why if a man is convicted by one court set up under the Constitution by law for a particular offence, he should be tried again or should be liable to be tried again and punished by another court, also set up under the Constitution and under the law of the country, for the same offence.

Mr. S. Collins

I am inclined to support the amendment on the basis that there is a general acceptance of the fact that a man should not be put on his peril twice, and this definitely is putting him on his peril twice. It may not occur normally that he will be tried by both people, but this excludes the possibility of his having to suffer that risk, and I feel that if a man is tried and dealt with under military law, he should not at the termination of his sentence or on the expiration of a period of detention, have to come out with the civil charge still hanging over him. The two authorities are in a position before the trial takes place to decide which leg they will stand on. They should not be given the opportunity of standing on two legs. I must confess that I am completely in sympathy with the principle which motivates Deputy Cowan in this amendment.

Chairman

Perhaps the Minister could say whether this provision is in the other Act? It strikes any lawyer as a very peculiar thing.

Mr. Traynor

There is a very fundamental principle involved here and it again relates to the paramount position of the civil power. Under the existing Acts and under this Bill members of the Defence Forces may be tried for offences against the civil law either by court martial or by the civil court. As the Deputy is no doubt aware, there is an arrangement in the matter. Broadly, this arrangement is that where an offence is purely military in its effect or result, such as an assault against another soldier committed in barracks, it is dealt with by court-martial, but where it affects the civil power—for example, an offence outside barracks in which a soldier is involved, such as dangerous driving of a car or larceny—it is tried in the civil court. There are, of course, certain serious offences reserved entirely to the civil courts except during active service conditions. It has, however, always been acknowledged that the civil courts have the right to try any citizen for an offence against the civil law, and where a soldier has been tried by court-martial for an offence which the civil authorities think should properly have been tried in the civil courts, the case may still be brought before the civil court. If the members of the Committee will consider for a moment they will see the desirability of such a position. It could conceivably happen—although it is not likely in the ordinary course of events—that for certain reasons—to avoid publicity in an Army matter—the military authorities would arrange for a trial before court-martial in order to forestall the civil authority or to make it impossible for the civil authority to bring into the open a state of affairs which would have a considerable public importance. It could happen also that, in error, the military authorities might try a soldier by court-martial for an offence which, in the light of subsequent examination or further evidence becoming available, should properly have gone to the civil courts in the first instance. If the members of the Committee will look at Section 109 as it is drafted they will see that it does not provide for a second trial by the civil courts. It admits that the principle of a second trial is possible and merely provides that the punishment awarded at the first trial shall be taken into consideration at the second, and that is how it is also provided in Section 195 of the 1923 Act.

Mr. Collins

Despite what the Minister has said, I still feel that the door is open under this section to dual trial. It may not be that this amendment is the best way to meet the situation, but there should be some way of crystallising into a statutory form the fact that up to a certain stage the decision can be made either to proceed in the civil courts or to go by court-martial, but once the die is cast in one direction there should be no going back. Once the decision is made to have the man tried either civilly or by court-martial, that should be the only extent to which he would be placed in peril. The provision here is not in accord with any principle of law that I know of. Even though the Minister may make the case that courts-martial might be able to hush up things that would be in the public interest, there is infinitely less danger from that than there is in establishing a principle that a man can be put on peril under two different codes for the same offence. I do not believe the Minister presses his case seriously on the issue of scandal in the Army, because under normal democracy, whether there is a civil trial or not, if a matter of that kind were to arise it would be ventilated in a far more serious way than by a civil trial or a court-martial.

Chairman

I can see the Minister's point, but on the other hand we have to look at it from the point of view of the unfortunate man who is accused. It is a long standing matter now, but it was arrived at after a great deal of experience, that where a man has been put on hazard for his life in regard to a charge, and the issue determined, he would not have to face that again. There was a very good reason for that. For instance, you could have a number of try-outs which would finally knock a man into the position where he would have no chance at all. That is well recognised, as Deputy Cowan says, in the criminal law. If provision has to be made such as the Minister suggests, it would be better to meet it in regard to machinery rather than leave a man open to a second trial.

You may have a soldier tried for some military offence. All the evidence is given, the witnesses have gone over the ground, and a certain complexion is put upon the case at that stage. His fate should be ultimately decided on that. Instead of that, the prosecution is to be given two chances ; they will have the benefit of all the evidence and so on, and if necessary can recast the case.

We have been very careful to see that we have saved the civil law from abuse on the military side, but the arm on the civil side must be subject to similar safeguards. I have a great deal of sympathy with the way the Minister has put the matter. Perhaps it could be approached in another way. This appears to be a lift from previous legislation.

Captain Cowan

The Minister might have given us the official attitude of the Department. That defence might have been successfully raised more than 100 or 150 years ago, when that section was introduced into a British Army Act, when courts-martial were in the hands of officers who had no military or legal training at all, who obtained their commissions by purchase and ran the army as family regiments. You cannot get away from the historical side of it. At that time it was necessary that the civil law should be paramount. What is the position now ? All officers get training in military law, in the laws of evidence, in that part of the ordinary law dealing with assault and larceny and offences that come before courts-martial from time to time. A military officer is a trained professional person, trained to evaluate, to decide, and to adjudicate on evidence. He is assisted in courts-martial by a legal officer who must be a barrister-at-law or a solicitor or a member of the Judge Advocate General's staff. There is a command legal officer before whom the proceedings go and he is also either a barrister or solicitor or a trained member of the Judge Advocate General's staff. Those command legal officers consider the evidence that should be put before the court, they prepare the charge, a summary of the evidence is prepared, it is served on the soldier, and the soldier may be defended at his trial by an officer or by a solicitor or by senior or junior counsel—or by both—instructed by a solicitor. I have personal experience, as members of the Committee have had, of courts-martial. They deal not only with purely military offences but very frequently with offences against the person, with assaults both of an ordinary and of an indecent nature, with embezzlement of funds, larceny, misappropriation, and so on. They deal with as many types of offences as are dealt with in the District Court and in respect of which a soldier could possibly be guilty of.

If a soldier has come before his commanding officer in the ordinary way under military law, and at his own request or otherwise has been returned for court-martial, the court-martial will be convened by one of the convening authorities in the way I have mentioned on the advice of a trained lawyer. There is a judge advocate to advise this court on the law and the judge advocate advises the court in the open. The accused is prosecuted by the command legal officer who has prepared the case against him and is defended by a solicitor or officer with experience in defence of accused soldiers or by counsel. If that accused is convicted and punished, in all cases I know of the punishment will always be more severe than the punishment a district court would impose. The district justices in proper cases apply the Probation of Offenders Act. Courts-martial up to now—and this is one of the things I hope will be improved when we come to it in the Bill—has no such power. There is no such thing as a Probation of Offenders Act in the Army legal code.

In those circumstances where a soldier is charged with an offence and tried by a court-martial set up under the Constitution and the law he should not be liable to be arrested and tried again by a district court for the same offence. I have made it very clear in my amendment that if he is convicted or acquitted by a court-martial in respect of an offence he shall not be subsequently tried by a civil court for the same offence. That is according to ordinary justice. The defence that in the old days it was there should not apply now. When the British Army was young and organised, as I explained, it was necessary to put the civil law above the military law. But we have now our written Constitution here setting up our courts-martial in the same way as our civil courts are set up by statute. A man who is convicted or acquitted by court-martial should not have to run the risk of another trial by a civil court for the same offence.

Mr. Traynor

In this particular case we are trying to retain the law as it is. Deputy Cowan was strongly in favour of that a couple of nights ago.

Captain Cowan

Sometimes it suits, sometimes it does not.

Mr. Traynor

It has stood the test since 1923, and I am informed that it would be difficult to discover a single case in which it was resorted to. In addition, there is an arrangement between the Department of Defence and the Department of Justice so that, wherever it might be necessary—and apparently it had not been found necessary—to resort to this type of action, there would be power to do so.

Chairman

I could not give any examples myself where I have seen a soldier tried in both courts on the same offence, but you have a number of conflicting principles here.

Captain Cowan

I have seen it in the case of the Guards, and it is wrong, and I have raised it in the House.

Chairman

You have the principle to which the Minister has referred, the paramount position of the civil law. In regard to a person subject to military law, during peace-time, as far as possible he should be subject to the ordinary law to which each citizen is subject. But there is another principle, recognised as one of the fundamental principles of criminal law, that a man should not be put on trial twice for the same offence. There is a conflict there. The Minister says this is a long-standing provision. That is no reason why we should not now try to get a more satisfactory position, if we can, when we are considering this Bill.

Secondly, apparently now—and this is an obnoxious business—there are arrangements made in regard to implementation of the law, privately made between the Department of Justice and the Department of Defence. Where are we, if there is this type of public administration of the law, if because of the wording of the Acts, it has been necessary to have such an arrangement ? Although there is no amendment down, the matter might be covered by making the Minister's arrangement statutory, by saying that where a person subject to military law is charged with an offence chargeable by court-martial or by the military authorities, and the same offence is one cognisable by the civil law, the military authorities will make the appropriate Garda authorities aware, and give them the option of prosecuting in a civil court. Then we could provide (a) that the military trial will not be prosecuted to a conclusion until the decision of the civil authority is obtained, and (b) upon the civil authority indicating its intention to prosecute, all further military proceedings would be stayed.

Mr. Collins

That is what I had in mind also.

Chairman

If the Minister's existing arrangement were put into the Bill in something like that form and then if we carried on with Deputy Cowan's amendment, it would provide a more satisfactory position. It is admittedly dangerous to the liberty of the individual to continue as at present. Deputy MacBride, Deputy Cowan and myself, who have defended personally in the civil courts and some in the military courts, will agree that it is an unfair and dangerous hazard to inflict on any individual, military or civil, to put him in peril twice.

Mr. MacBride

I would like to say a few words on this. I am in considerable difficulty about the matter because it seems to me to raise two conflicting principles of equal importance, practically. In the first place, the Minister's case is that this is necessary to ensure the supremacy of the civil courts, of civil law generally. As against that, Deputy Cowan, Deputy de Valera and Deputy Collins quite properly raised the question of double jeopardy, that is, that no man should be put on trial twice for the same offence. These are two extremely important principles and it is very difficult to decide which of them supervenes over the other.

From the Minister's point of view, I take it that he is trying to cover a situation which would be extremely unusual and, I hope, infrequent, where it might be determined that a court-martial, for some particular reason, be it a political one or be it one relating particularly to some military department, had not dealt with an accused soldier in the same manner as a civil court would have done. It is difficult to think of instances. We know that we have had a good deal of trouble since the establishment of the State where very often the military personnel might have taken a different view from the view taken by the civil personnel, but one can visualise cases of offences that might be regarded rather leniently by a military court, whereas a civil court might take a very serious view of them ; in other words, where you have a conflict, if you like, between the military view and the civilian viewpoint. It is possible to visualise cases where that would arise in a bona fide fashion. So that I think there is something to be said for the Minister’s contention. Equally, I think it is highly dangerous to create a situation where a man can be tried twice. I think no exception should be made to that rule if at all possible.

The more I think about this the more I think it is a matter that should be reconsidered very carefully by the Minister in conjunction with the Attorney General. What position would arise, for instance, if a man were to be acquitted, say, by a court-martial of an offence and was convicted the following month by a civil court of having committed that offence, or was convicted by the military court and was then put on trial by the civil court and acquitted of that offence ? Would not the Minister, would not the Department of Justice, would not all the Departments of State find themselves in an extremely difficult position as to which decision supervened—the decision of the military court or the decision of the civil court ?

Furthermore, since the discussion opened I looked at the Constitution. It seems to me that we are treading on very dangerous ground. First of all, Article 30 of the Constitution provides —paragraph 3 :—

" All crimes and offences prosecuted in any court constituted under Article 34 of this Constitution other than a court of summary jurisdiction shall be prosecuted in the name of the People and at the suit of the Attorney General or some other person authorised in accordance with law to act for that purpose."

That is the constitutional provision and we must be careful not to infringe it. Turn, then, to Article 38 of the Constitution. It provides :—

" 1. No person shall be tried on any criminal charge save in due course of law."

Then it proceeds to describe the courts before which he may be tried. It provides :—

" Special courts may be established by law for the trial of offences in cases where it may be determined in accordance with such law that the ordinary courts are inadequate to secure the effective administration of justice, and the preservation of public peace and order."

That is a very limited purpose. In other words, a court other than a court established under the Constitution is not entitled to try any case except where it is determined that the effective administration of justice and the preservation of public peace and order cannot be achieved by pursuing the ordinary course. Then you find that Section 4 of Article 38 provides for military tribunals :—

" Military tribunals may be established for the trial of offences against military law alleged to have been committed by persons while subject to military law, and also to deal with a state of war or armed rebellion."

That is the case of a court-martial. A court-martial may be established for the trial of offences against military law—not against the civil law—and only in regard to persons subject to military law at the time.

Captain Cowan

I think that is why in the Act they proceed to set out ordinary crimes as being offences against military law. That is to get over that difficulty.

Mr. MacBride

That appears to be an attempt to circumvent, certainly, the intention of the Constitution.

Captain Cowan

It is.

Mr. MacBride

The second paragraph of the same Section, 4, provides :—

" A member of the Defence Forces not on active service shall not be tried by any court-martial or other military tribunal for an offence cognisable by the civil courts unless such offence is within the jurisdiction of any court-martial or other military tribunal under any law for the enforcement of military discipline."

I think there are other provisions of the Constitution that also touch on this question. Certainly, I would not feel at all competent to express any view as to whether the section as it stands is constitutional, but I think it is a matter that should be looked into. It does raise very important principles. It is a matter where the Attorney-General should be consulted with the Minister and his Department with a view to determining the proper course to adopt.

Who is the deciding person ? Who is to decide whether a member of the Defence Forces is to be tried in the first instance before a military court or a civil court? It seems to me it is important to have the answer to that question and that the answer to that question should be contained in the Statute, as Deputy de Valera remarked.

Chairman

Because, apparently, the answer to that question is now an administrative arrangement and it could be easily defined in the way I have tried to indicate.

Mr. MacBride

That is the first question we want to have determined and included, if possible, in the Act : Who is to determine whether a person is to be tried by a civil court or by a military court? Secondly, if the Minister's view were to be adopted and the section passes as it stands, what position arises in case somebody is convicted by a military court and acquitted by a civil court in regard to the same offence. Which decision supervenes ?

Captain Cowan

The Minister has power to quash the findings of the court-martial. It does not say he is bound to do it but he has the power.

Mr. MacBride

Has the accused person any say in choosing which form of trial he will adopt? It is normal that where there are alternative tribunals the accused person has the deciding voice as to which tribunal he will adopt. For instance, it often happens in regard to offences that are of a summary nature and can be tried either by the District Court or by Judge and Jury. The accused person has an opportunity of saying : " I want trial by Jury." It seems to me that where a person is capable of being tried by two different courts he should have an opportunity of electing by which court he will be tried.

I again want to say that my difficulty is that there are two important conflicting principles. It is very difficult to know which of them is more important but, in the light of the remarks that have been made by members of the Committee, I think the whole position should be examined by the Minister with the Attorney-General and an attempt should be made to regularise the position once and for all now that we have the opportunity to do it.

Captain Cowan

In England there is no written constitution and because of the Cromwellian situation and a number of other situations they had to establish very firmly the doctrine of the supremacy of the civil law. They would not have a permanent Army Act in England, but pass one every year. There are historical grounds for that, and the same historical grounds for the similar section in the British Act. I suggest that in drafting the new Act this section was simply put in in exactly the same words as in the 1923 Act except that the word " where " is substituted for " if," but the section is set out differently, being divided into two sub-paragraphs, (a) and (b). Once it was tested by amendment we get the old English defence of the supremacy of English civil law over English military law, as that is what the Minister has been advised to say. Deputy MacBride has raised a point which is I think important : Who is to decide, as in the case I mentioned, where a man arrested on two charges, is formally charged on one, and the district justice throws it out ? Clearly it was the civil authorities who decided. Clearly the superintendent decided that the district justice was not going to convict that man on the other offence and said : " You had better get after it." Every member of the Committee will agree that that is a most objectionable procedure. There is only one way out of the difficulties mentioned in this discussion. If a man is tried by court-martial and acquitted or convicted he should not be liable to further trial by any court, military or civil, for the same offence. I think that my amendment in very simple language is probably the best way to do it, but I will accept the views of the Committee as a whole that it is of such importance that the Minister and his advisers and the Attorney-General should have an opportunity of considering what has been said here, and I withdraw the amendment for that purpose.