The purpose of the amendment moved by Deputy Clohessy is to make it possible to prove in Irish courts martial that a person is or was at any given time subject to military law by virtue of being on active service. The legal difficulty is that lawfully one cannot be on active service in the Irish Defence Forces outside the State unless under some statutory authority and the only statutory authority that exists for such service with a UN force is under the Defence (Amendment) (No. 2) Act, 1960. Unfortunately, that Act, when it was introduced in the House — it was the second Bill, which dealth with the same topic, to be introduced in a year — provided particular circumscribed circumstances in which a contingent could be sent on a peace-keeping role under the aegis of the United Nations. In that context it was not anticipated that the restrictions, that is, that a certain form of resolution had to be adopted by the United Nations and that this House had to make a certain form of resolution, could in the last analysis provide obstacles to proof that a member of the Permanent Defence Forces was at any given time subject to military law. If strict proof of the matter is required in any court martial and I have some limited experience of this, the only way it can be proved is by producing to the court martial some admissible evidence of the proceedings of this House and also admissible evidence of the proceedings of the United Nations.
In the trial to which the Minister referred, a United Nations Deputy Secretary General had to be flown from New York to Ireland and brought to the Curragh in great pomp and circumstance and at great expense to the taxpayer to prove the making of a resolution by the relevant council of the UN at the time. That was a remarkably round-about way of effectively plugging a loophole in a case, one which might not be raised by an accused person, because it was not an issue, unless there was difficulty in proving it. Likewise, the Secretary of the Government in that case had to go before the same court martial and produce the record of this House in order to prove that the House had authorised the presence of Irish soldiers in a UN contingent in the Lebanon. Such things should not be the matter of controversy between an accused person and the prosecutor in a court martial.
Although the Minister is correct in saying it has arisen on one occasion only, it is not safe to conclude it is an entirely rare bird that will not arise again. The fact that it was brought up on one occasion and proved in that manner will inevitably occur to some advocate, be he military or civil, appearing before a court martial whenever a similar necessity of proof arises. Although the conduct of our soldiers abroad is exemplary and there have not been very many courts martial of Irish soldiers held in Ireland to adjudicate on their guilt or innocence in respect of offences committed while abroad, it is not to be assumed there will not be more of these courts martial, although I hope for lesser offences. In those circumstances the same difficulty of proof arises in each case — proof of the status of the member of the Permanent Defence Forces is a necessary proof.
The Minister would be wise to avail of the opportunity presented by the passage of this Bill to amend the law to take what is effectively a technical defence away from an accused person and to take away from the State an expensive onus of proof. The Minister said he wanted time to consider the matter because there may be legal implications. We do not want to be unreasonable, but I would like to point out a few things about the legal implications of such a certificate. First, although it is a necessary proof in some cases, it is not one which is, in general terms, likely to be contested if there is an easily accessible way of proving it. Secondly, the way in which Deputy Clohessy has phrased his amendment means that the certificate will be sufficient evidence without further proof of the facts stated in it, unless the contrary is shown. That does not mean it could infringe the Constitution by being conclusive evidence. It is not conclusive. It only brings the matter beyond the point of requiring further proof unless there is controversy, and sustainable controversy, about it.
I urge the Minister to amend the Bill in this way because it is evident that at some future stage a person accused of an infringement of military law in Lebanon or while on a United Nations operation will avail of the inconvenience and expense involved to put the State to equal expense or to the much less desirable alternative of saying it is not worth proving the case against him because it is so insignificant and then dropping the case. It would be most embarrassing if the State had to make a choice between spending £5,000 or £10,000 to move a United Nations official to this country or letting a man off without proving his guilt. It appears that this clause is a sensible way out of that difficulty.
The phraseology of this amendment shows that a cetificate will not be given lightly because it will require a lieutenant colonel to be the purported signatory. That, of itself, means these certificates will not be abused or thrown about in courts martial with a degree of carelessness. This is a serious certificate, but a necessary certificate, unless proof of the contents of the certificate can otherwise be supplied. I urge the Minister to consider the potential embarrassment he will be saved and the saving that will accrue to the taxpayers if he introduces an amendment of this kind, not out of caution or an unwillingness to face a problem which has occurred only once, but which will occur much more often especially when it is in the interests of the accused members of the Permanent Defence Forces to avail of this legal advice.
This is a substantial amendment which will improve military law and will make the conduct of court martial more realistic and make the conduct of accused persons more realistic.
