Seanad Éireann díospóireacht -
Wednesday, 22 Jun 1983

Vol. 101 No. 2

Courts-Martial Appeals Bill, 1983: Second Stage.

Question proposed: "That the Bill be now read a Second Time."

Minister for Defence (Mr. Cooney)

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.

Mr. Fitzsimons

I welcome the Bill which is a reforming measure and which brings legislation in this area into line with that in most other European countries. Trials by court-martial are relatively few. I do not know what the numbers are but they are for serious offences only. There is a summary procedure for trivial offences. I understand that there is no appeal against these. Should this be considered?

As I understand it, the system will more or less correspond with the civil set-up. The Minister has given his reasons in the other House as to why there should be a separate system. Under this Bill a Courts-Martial Appeal Court, modelled on the Court of Criminal Appeal and with similar powers, will replace the petition against findings and sentences and the Minister's powers to quash findings and sentences of courts-martial. Provision also exists in the Defence Act, 1954 where under a superior authority, for example, the Minister, the Adjutant-General or other general officer appointed by the Minister for the purpose, may mitigate or remit in whole or in part punishments awarded by a court-martial. This provision will remain in force. I understand that whatever about reducing the punishment or sentence, there will be no question of increasing the sentence.

Defence legislation does not provide for free legal aid for persons tried by courts-martial. The Defence Act, 1954, provides that any person being tried by a court-martial may be represented by counsel, namely a barrister-at-law or a solicitor or, if not represented by counsel, by an officer of the Defence Forces subject to military law. If represented by counsel, the person being tried by a court-martial would be liable for the cost involved. Representation by an officer of the Defence Forces is free. Would that representation be by an officer who is also a lawyer?

It seems strange that even in situations where there was a sentence of death no machinery for an appeal was provided. The Bill is most welcome and I hope that the procedure to introduce the free legal aid scheme will be implemented as soon as possible after the Bill has been passed.

Professor Dooge

We all welcome the provisions being introduced in the Bill. It is a matter of history that we have had in most countries a parallel system of civil and of military law. Our Constitution is very jealous in regard to the establishment of courts and the exercise of judicial functions but it does allow, under Article 38.4º, for the establishment of military tribunals. The reasons why this separation occurs are valid ones. The Standard International Encyclopaedia of Social Sciences tells us, and I am quoting from the article on military law in that reference work:

The basic reasons for the existence of a separate system of military justice may be summarised as (1) the need for swift and summary machinery for the maintenance of discipline; (2) the fact that the adjudication of military crimes may require military expertise by the court; and (3) the fact that the armed forces may be stationed abroad, outside the jurisdiction of their country's civil courts.

So there is a very sound foundation for this dual system of law. Nevertheless, one would like to see within the course of the development of law that the two systems would operate in parallel. Therefore, it is indeed welcome that the Bill before us today introduces into our military law certain reforms which have taken place in the civil law.

The Minister has already mentioned that when review was going on in 1954 it was thought that the time was not right for that particular change. I do not think we should be critical of the decision made at that time, because, in fact, we should recognise that we have here a balance, trying to give all the protection of the civil law to those subject to military law without at the same time introducing elements which will frustrate the reason why there is in existence separate military law. I have already quoted what has been given in a standard reference work on this point. What we are now faced with is that we are deciding to introduce an appeal procedure. This is a decision to give an appeal which is very much the same type as the appeal available in civil law. It is something that outweighs the need for swift and summary military justice and the balance is in favour of making this change. Equally the second basic reason given for the separate system of military law is that the need for military expertise is now outweighed by this necessity for appeal. I should like to ask the Minister, perhaps on Committee Stage, whether there might not be occasions when a military assessor might be required as technical assessor to assist the judges of the High Court who would be hearing an appeal.

The Minister indicated to us that our last attempt to legislate in this matter was almost 30 years ago. It has stood the test of time very well. Perhaps we should remind ourselves of the fact that the legislation we processed in the Houses of the Oireachtas in 1954 was one of the very first pieces of legislation that adopted the procedure of a special committee discussing in detail the myriad sections of the Bill. Even the part of that Act that we are dealing with today, Part V, which deals with discipline, contains 134 sections and that is as big as a Bill on its own, yet only part of the Act. We also had in that year the Statutory Instrument of the Rules of Procedure under that Bill which is another 154 pages. We have this substantial corpus of law. I am glad to hear the Minister say that at present there is a review of military law under way; 30 years afterwards this review is being made. I would ask the Minister that at the conclusion of that review he should consider very carefully the question of whether the legislation he should bring in should not be rather in the form of consolidated legislation; I am not talking about consolidation in the technical sense, I am considering that we should avoid the worst excesses of legislation by reference in regard to the 1954 Act and in regard to the Statutory Instrument on the Rules of Procedure of 1954.

It is ironic that one can discover in the Oireachtas Library, discover far more easily, what is the position in regard to any particular aspect of military law as regards the United Kingdom than one can in regard to a military law for this country. Even though we have only one Act and one set of Rules of Procedure it is not that easy to find it. I say immediately in this regard it is not too difficult either, and I can certainly say it is not as difficult as finding the position in regard to a number of other military regulations because there is a veritable forest in some other areas. I would hate to think that the relatively consolidated position in regard to military law would be lost when the other various desirable reforms are brought about.

There are a number of other points but I might more appropriately leave those until Committee Stage. However, I welcome the fact that military law has now been updated with regard to these three aspects of a finding of insanity, in regard to appeal and the provision of legal aid. The Minister and his advisers have done a good day's work in bringing this before us.

Mr. B. Ryan

This is interesting legislation. It is a custom in this House that a Minister in a new position is welcomed. If it had not been for recent remarks of the Minister about where he saw our economic, cultural and political interests lying, I would have great pleasure in doing so but since he sees those interests lying with an alliance which murders poor people, rapes and murders nuns in Central America, destabilises countries in Central America and gives succour to the opponents of the oppressed and the poor in this world, I for one regret that at least in his official capacity I can offer no welcome to the Minister who would align us with the murderers of the oppressed and poor in this world. I regret that and I am sorry to have to say it.

Acting Chairman (Séamus de Brún)

The Senator is going totally outside the terms of the Bill.

Mr. Cooney

Outside the terms of fact as well.

Acting Chairman

Please return to the terms of the Bill.

Mr. B. Ryan

I have said what I wanted to say on this issue and I have made my position perfectly clear. This Bill, like all military legislation, contains within it the mystique of armaments and the mystique of the armed forces. Senator Dooge explained to us the reasons why there is a need for a separate corpus of military law. There are good and rational reasons for it. I believe that we have other reasons for having a separate corpus of military law as epitomised by this legislation and that is the whole mystique of the armed forces which is probably psychologically a necessary part of justifying their existence. They have their own rules, legislation, police force and what is called their own codes of honour. There is a certain element of bravado about the way armed forces advertise themselves and within all that we have to keep them separate from the rest of us.

What is an army in reality? They are those who are charged with the obligation of using violence on our behalf to protect that which we regard as necessary to be protected. They are, without being offensive, our paid killers. They are the people we pay if necessary to use violence and to kill on our behalf to protect us. There are those who do a similar duty on our behalf without weapons who get far less of the mystique, our fire-fighters for instance and people like that. The question should be raised — apparently it is unacceptable to raise it — as to why this is?

Acting Chairman

The Senator is departing from the terms of the Bill again. It is a very restricted and confined Bill. Will the Senator please keep to the terms of it?

Mr. Fallon

As a person from Athlone, I object strongly to what Senator Ryan said. I know the Army as well as anybody. They are not killers on our behalf and it is a scurrilous attack on our good Army for Senator Ryan or for anybody to make that implication.

Mrs. Honan

Hear, hear.

Mr. Fallon

It is incorrect and I am absolutely surprised, amazed and very disappointed that Senator Ryan should say that.

Acting Chairman

I have made the position of the Chair quite clear. I appeal to Senator Ryan to return to the terms of the Bill and we will allow him to continue.

Mr. B. Ryan

I would really like to but some scurrilous attacks were made on me in the last few minutes and I thought I would be entitled to defend myself. I did not say anything about our Army in particular, I said it about armies in general. That is what we expect armies to do for us.

Mr. Fallon

Killers on our behalf, he said.

Mr. B. Ryan

That is what we expect them to do.

Acting Chairman

Please return to the terms of the Bill and proceed with your contribution.

Mr. B. Ryan

I am happy that at least some element of civilisation has been introduced into the way our Army conducts itself. I find it difficult to reconcile armies with civilisation but I am happy that some element of civilisation has been introduced by this legislation. It is very welcome. I congratulate the Minister within the terms of the Bill for introducing what he quite rightly described as an elemental piece of reform into military law. I hope that a similar philosophy will govern all our activities and that perhaps some day we will be able to look at the realities of armies in terms of reforming legislation.

Acting Chairman

The Senator is departing from the essence of the Bill.

Mr. B. Ryan

Senator Dooge was able to explain to us why there was a separate corpus of military law and why there was a need for differences in military law. I do not see why I cannot state the other view. However, your rulings are final, a Cathaoirligh.

The Bill is welcome. It is obviously a good Bill. I congratulate the Minister on it and I look forward with some interest, if not with some possible distaste, to his future reforms in this area. There are questions to be raised about the civil rights of individuals within armed forces which have been raised quite interestingly in other European countries, for example, trade union rights. I look forward with considerable interest to any further comments or reforming legislation in this area the Minister may have.

Mrs. Honan

I differ from my colleague Senator Ryan in his reservations about welcoming the Minister. I sincerely welcome him. Having read the script I should be grateful if the Minister would answer some questions I wish to put to him. I would be grateful also if the Minister would tell me what pressure, though that may be too severe a word, there is on him to bring in this legislation. I am concerned that the end result of this legislation may not be as good for the person serving in the Irish uniform as is the impression given when one reads this Bill and when one hears about it.

Is the Minister bringing in this legislation because of recent events of some of our Army personnel serving outside the nation? If that is so we will take it a stage further. Is the Minister happy about the number of our doctors in the Army Medical Corps? Is he happy about the medical checks on our Army personnel and the force in general? Maybe some of these persons are serving abroad for too long a period. Is the Minister satisfied that the medical checks are carried out by people who are experts in psychiatry and that the medical history of persons serving in the corps outside might need closer survey? The Minister is now putting his finger up to his mouth. One person stopped Senator Ryan and the Minister does this to me but I will continue anyway.

In this Bill I am concerned that the person who will benefit eventually from this legislation will be the man in the uniform. I have a horror of the legal profession of this nation and I do not want the unfortunate soldiers to be thrown to their mercy. Here again I differ from Senator Ryan in my regard for the men who at any time decide to put on the Irish Army uniform. I have the greatest admiration for them.

Mr. B. Ryan

On a point of order, I did not say a word about Irish Army personnel or Irish Army uniforms. I talked about armies in general.

Mr. Lanigan

The Senator talked about Irish Army uniforms.

Mrs. Honan

I note that the Courts-Martial Appeal Court have not the power to award costs to a person who has been granted a legal aid certificate so I would like to ask the Minister where is the gain here for the persons I am concerned about? I am concerned also as to how better off as a result of this Bill will be the private, the corporal or indeed the commissioned officer. Something that has gone out of the country a little but which is still very much in the Army is the trust of one person in uniform in another. In the old Courts-Martial Appeal Court a man had at his discretion a choice of officer to defend him. He went to an officer whom he absolutely trusted to defend him in a court-martial. If we let this into the outside world, will such a person have the same loyalty from the person who is defending him and the same protection as he has at the moment under Army regulations? As Senator Dooge said, the present system has stood us well for 30 years, something which we cannot say for a lot of legislation.

The system is that there are five officers, from a lieutenant up to a colonel. This is very fair. A rather interesting point is that when they are deciding their judgment in regard to a defendant they commence with the lieutenant — and not the colonel — who gives his decision first and says whether the defendant is guilty or not. I want to make it quite clear how fair this is because one could appreciate that if the colonel was asked to give his decision first, the lieutenant would be left with no choice at the end of the five except to say the man was guilty, because the colonel had said so. They start the other way when giving judgment of guilty or not guilty, which is in the order of the lieutenant, captain, commandant, lieutenant-colonel and colonel, so there is fairness and the person being tried knows he has support and that there is no question of his being convicted unless he is abolutely and totally guilty. At this stage, of course, the Minister will have sized up who briefed me a little on some Army regulations et cetera. I do not have a back-up group but I do know somebody who served with great loyalty and love of his country.

To give an idea of the fairness of a court-martial in just one case, without delaying the House, there was a particular private charged before a court-martial as the impression was that because he wanted to leave the Army he shot off his right hand index finger in order to be discharged. Before the trial at all it was said that he was guilty. He was very wise in his choice of officer to defend him at the court-martial because it was an officer who had served on an Irish Army shooting team. Here again is an example of the trust I talked about between the non-commissioned man and the commissioned officer. That non-commissioned soldier was able to prove that he could shoot with his left hand also, which is a bit unusual, so he did not shoot off his right hand index finger in order to get a discharge. Of course the verdict in that case was one of not guilty.

I am trying to emphasise that I have reservations but if the Minister tells me that he is happy that both the non-commissioned and the commissioned personnel in the Army will have a fairer or a better deal, those reservations may be allayed. Perhaps there is something in this Bill that I do not understand. We are joining military law with civil law but will these changes provide us with a better system?

The Minister said that there will be a separate court and that Army personnel will have a swift trial and verdict but I am going back again to something I said earlier. I do not think the medical corps in the Army may be sufficient for people who are serving in a different field at the moment than they served in years gone by.

I have reservations about the whole situation. I do not want the people who serve our country, and serve it well, to be sent into the civil world out there because there is a loyalty and a bond when one is serving. That is still very much in the Army today as it was in the past. I think the Minister has a fair idea of what I am getting at.

Mr. Lanigan

There are a few points I should like to make on this legislation. First, I must say that I was absolutely appalled by the references made by Senator Brendan Ryan to members of our Defence Forces. He may try to gloss over what he said by suggesting that he was talking about armies in general and that in doing so he might get over the fact that he has denigrated one of the finest armies in the world. We have a Defence Force and there should not go out from this House any suggestion that we have a group of paid killers in our Defence Forces. Our Army, since the State was founded, has protected this State. Our Army has gone abroad and has protected the freedom of people abroad and I sincerely hope they will continue to do so. The reference to paid killers is not one that I would ever like to hear again in this House. Whatever way Senator Ryan tries to gloss over what he said, it stands as a record which I am not too sure he should be proud of.

To get back to this Bill. I have always felt that it is unnecessary to have two types of courts in this State, to have civil courts and military courts. From what has been said by the Leader of the House there may have been historical reasons for this. He mentioned the question of expediency when people were serving abroad and also the fact that military regulations were different in a sense from civil law. Something we should be proud of is that we have an educated Army. I think that if one went through the historical basis on which military tribunals were set up, one would find that in days gone by the people who constituted the courts in the military sense were made up of the gentry and that they decided what was to happen to the poor lads down on the firing line. There was a totally uneducated upper class military establishment in Britain and in many other European countries and they dictated what the plebians should do. They were never very much to the forefront when the fighting had to be done.

I am glad that a court of appeal is being set up and that free legal aid can be made available to people who go before a court-martial. The system up to now was that people within the military system were tried by their peers and in all cases they were tried — if they were non-commissioned officers or privates — by commissioned officers right up along the line. As anyone who has had any dealing with the Army will know, there is an inhibition on the private soldier when he comes up against a court-martial or any committee which is made up totally of officers.

In the final analysis the only appeal that could be made on conviction was by virtue of a petition to the Minister. The system again dictated against the rights of the individual who was on trial or who was petitioning because what happened next was that the Minister had a look at the findings of the court-martial and he then asked various people who were involved in the hierarchy of the Army or in the court-martial to give him further information. It was on the basis of this further information that the Minister then made his decision as to whether the judgment should or should not be set aside. I wonder how many petitions to Ministers have been successful down through the years. It would appear to me, listening to many people who are connected with the Army, that it was very rarely a Minister set aside a court-martial decision on petition. I know of only one case and the Minister in that instance had to withstand a lot of pressure from both the Department of Defence and from the senior military officers before he decided that the situation, as put to him, should be reversed.

The Minister said that although this court can be set up and will be similar to the Court of Criminal Appeal, judges from the Court of Criminal Appeal can be used but he stated also that the powers of remission or mitigation shall still be in the hands of the Minister. Would the Minister tell us whether this means that irrespective of the outcome of the court of appeal, the Minister will still have the power to over-ride the appeal if the appeal goes against the original finding?

The Minister said also that the military court can try people for offences which are not of a military nature but that there are certain crimes such as murder, treason, and genocide for which no court-martial can try a person unless the offence was committed while the person was on active service. I would just like to have clarified what is the situation when a military court tries somebody for a civil offence. Does that mean that that trial overrides any case that can be taken against that person in the civil courts? It seems that the military court has the power to try the case but if they do try the case is that the end of the trial for the person concerned?

The situation regarding military trials throughout the years basically could be said to have been as fair as was possible under military law. We have seen that it takes quite a serious offence to have something brought before a court-martial because the normal misdemeanours of a disciplinary nature that can occur can be dealt with on a summary basis by the comanding officer in a particular barracks and so it precludes the need to go to court-martial.

The court-martial procedure is outdated but I am glad that we are getting a sense of respect for the fact that a person, even though he is in the Army, is still a citizen of the country and, therefore, can have free legal aid and if convicted there will be a Courts-Martial Appeal Court set up in which the court-martial appeal judges need not necessarily be military people.

I welcome the Bill. It will reform to a degree an anomaly that has been there for a number of years in that a member of the Armed Forces would not be able to avail of the same civil rights as would a person who was not a member of the Army.

Mr. Fallon

I, too, take this opportunity of welcoming the Minister to the House. He was a minute or two late coming into the House because he was engaged in what I would call a very practical exercise of civics. He and I were meeting with school warden teams from the Dean Kelly school and the Marist school in Athlone. Many of these well-disciplined young boys are sons of Army personnel and I have no doubt that many of them will be the soldiers of tomorrow.

This Bill has two aspects to it. It provides a system of appeal for persons convicted by a court-martial and, secondly, it provides legal aid in connection with court-martial proceedings. It is only right and proper that we should pay tribute to the military authorities who, down the years, have ably and impartially administered the system of military law. The military authorities, it should be said, fully support the Bill. They have been advocating it for quite some time.

From my experience of courts-martial in my own town in which are located Custume Barracks, one of the biggest barracks in the country, I know that there are two forms of courts-martial. One is the general court-martial type consisting of five members. They would deal with very serious offences. Then there is the local court-martial consisting of three members who deal with less serious offences. Having checked on the records since the Defence Act, 1954, came into being I understand that probably no more than four or five of the serious types of courts-martial have taken place in that barracks. This would be the trend right across the country. In fairness, we have to say that this is a fine tribute to the men who have formed the Army since the mid-fifties and before. The standard of discipline is of an extremely high order. The Army is to be congratulated for this discipline. The Army men in Athlone play a major role in many events — sporting and cultural — and in the many areas of administration in the town. They instil into the youth of our town, if they are involved, a discipline into the character training of these young men which they themselves have obtained in the Army. This is something which should be mentioned at this time.

The Minister has said that this Bill will probably be a start to a review of the Defence Act, 1954. I welcome this. That Act needs updating to deal with the trials and the punishments and, indeed, any other area that may be in need of review.

Coming from an Army town, knowing what the Army means to my town and knowing what the Army generally means around the country, I am happy to support the Bill. In a nutshell, the Bill means that under the proposed arrangements a soldier accused before a court-martial will be no longer at a disadvantage vis-á-vis the civil courts, that he will no longer be regarded in any way as a second-class citizen before the law.

Minister for Defence (Mr. Cooney)

I thank Senators, with one obvious exception, for their welcome for the Bill. I thank Senators, too, who have welcomed me here and I include in that expression of gratitude Senator Ryan for his welcome to me on a personal basis even though he was careful to distinguish his welcome for me personally and for me in my official capacity. Having expressed my gratitude to him I now proceed to make the same distinction as to what I want to say.

I share with Senators Fallon and Lanigan a deep sense of distaste of Senator Ryan's denigratory remarks about our Army. He attempted to run away from his remarks by suggesting that they were made about all armies and could not be construed as applying to our Army. That is a distinction that was perfectly capable of being made in the course of his remarks but he failed to make it. He was making his remarks in the course of the Bill dealing with our Army and not with any other armed force. Ordinary interpretation could not lead anyone to believe but that he was having a go at the members of our Permanent Defence Forces. I reject totally the insulting remarks he made about a loyal, dedicated and disciplined body of men who are an example in a country which is falling apart from a lack of loyalty, lack of discipline and from intolerance.

Senator Ryan in his out-of-order opening remarks, which I regret I have to reply to at the risk of following him down that slightly disorderly road, misrepresented and misquoted what I said in the speech on the Estimate for Defence in the Dáil. All I can say is that what he displayed here by way of intolerance and of his dishonest approach — I regret I have to say it — are the hallmarks of the professional liberal.

Mr. B. Ryan

Professional what?

Mr. Cooney

Professional liberal. It will be on the record as well and the Senator may read it there. With regard to some particular remarks he made, which typify this inaccurate approach, when the inaccuracy is carefully chosen to add to the case, he regards the measure with barely concealed contempt and says that I described it as an elemental piece of reform. This is in the context of denigrating the armed forces as a body so bereft of standards that they would be incapable of reform. In no part of the Bill did I use the word or the description "elemental piece of reform". I said the Bill is a major reforming measure. If we are going to be critical and quote we should do it accurately. He had a sneer at what he described as "what are called their own codes of honour." I have had close contact with the military for many years. The military code of honour is a very real and upstanding thing. It means that there is a great sense of loyalty and discipline, two qualities which are badly needed in this country today. It is a real code of honour. However, I feel, like Senator Lanigan, that it is not a subject that one wants to pursue at too great a level.

On the contributions on the Bill itself, Senator Fitzsimons asked why we need the appeals court at all. I mentioned in my opening speech that the Constitution specifically permits a situation where there is no appeal from findings of courts-martial and that is why there has not been any appeals court up to now. However, having regard to the development of jurisprudence in the area of civil rights it is quite clear that that jurisprudence is expanding and that the spirit of modern domestic jurisprudence in that area and international jurisprudence demands that we would acknowledge the new tone and acknowledge the fact that the right of appeal from a trial tribunal is now part and parcel of any system of jurisprudence. We are supplying the lack in our code through the Bill. At the time of the passage of the Defence Act in 1954 jurisprudence in that area was not so developed. It has been evolving over the years and we recognise that and in pursuance of that recognition we are now introducing this measure. That is why we are having a system of appeal.

Senator Fitzsimons also wanted to know if there would be appeals from summary trials. There will not be an appeal as such but a person tried summarily may elect for a court-martial and then if he undergoes a court-martial he will have a right of appeal against the findings. It is not considered necessary to provide for appeals as such from summary trials. There is a review procedure. If a person is not satisfied he can elect for trial by full court-martial with the right of appeal that that brings with it.

Senator Honan spoke of the value of the procedure of having a defending officer. The defending officer can be a lawyer, if a suitably qualified officer is available. Most of the officers in the Defence Forces with legal qualifications are members of the legal service and they would not be available for defending persons on trial. There are more and more officers who are acquiring legal qualifications in their own time and if they are not in the legal service and are in the general service they would be available to act as defending advocates for a soldier in a court-martial. As Senator Honan says, the particular offence might be one where the services of a general line officer might be more valuable than the services of a specialised legal officer. The Bill, as I pointed out in my speech, continues the position where an accused can be defended by an officer subject to military law, that is, an officer who would be serving.

Senator Honan wondered if outside advocates would have the same commitment of loyalty to their accused clients as would an officer advocate and on behalf of the outside advocates I would like to reassure her that there would be the same level of commitment and possibly a little more skill in the art of advocacy.

An Leas-Chathaoirleach

Maybe not.

Mr. Cooney

I thought Senator Honan had left the House. I take the point. Because it is a valuable procedure it is being retained. The right of petition against findings is being abolished because of the introduction of the appeal but the petition against sentence is being retained and Senator Fitzsimons asked if following such a petition the Minister could increase the sentence. The answer is "No" because the power is to mitigate or remit, so there is no power to increase. The appeals court, on the other hand, in accordance with the recent decision of the Supreme Court, would have power to increase the sentence imposed by the court-martial on the determination of the appeal, as would an appelate court in a criminal matter on the civil side. Regarding petitions to the Minister against sentence, the power is only to confirm, mitigate or remit.

On the question of the appeals and the nature of the court hearing them, Senator Dooge raised the question of a military assessor being a desirable adjunct to the court. I do not think it would be necessary, any more than it would be necessary in the case of civil appeal courts or civil courts of trial on a technical matter. Where technical considerations apply they are generally disposed of in courts of trial by expert witnesses and in the case of the appeal court the transcript will be available and in addition learned counsel would be able to guide the court on any technical matters that might arise. In any event, so far as the military scene is concerned, I cannot envisage anything of such a technical nature arising that would require the presence of a military assessor to guide the appeal court.

The number of appeals is not anticipated to be many. The number of courts-martial in the past year was approximately 148 and in many of those the offences would be purely military and they would not all be general courts-martial. As Senator Fallon pointed out, a general court-martial is a comparatively rare occurrence. Most of these would be limited courts-martial dealing with purely military offences such as absence without leave and the number of appeals or petitions from them is very few.

Senator Lanigan raised the question of how many petitions there would be and the fate that petitions suffer. The number of petitions coming before a Minister in any one year would hardly exceed six out of an average of 150 courts-martial. That gives an idea of the low incidence of appeals. I have not got the figures for the rate of success in the petitions but I would like to assure Senator Lanigan, contrary to his belief in this matter, that Ministers consider petitions very seriously and do not follow the procedure which he described where they get the petition and then go and seek advice from various members of the military or the civil side of the Department. The file comes to the Minister with the full transcript of the hearing, the judge-advocate's address to the court and the court's findings. All petitions are sent as well to the Attorney General's Office for an expert legal view on the law and procedures involved and the complete file then comes before the Minister. It is then the personal prerogative of the Minister to make a decision. As in most appeals before the civil court, the number that would succeed would be less than the number that fail because it has been my experience since I came into office and my experience as an advocate in an Army town appearing before courts-martial that the trials are punctilious in their attention both to procedural and legal detail. Consequently it would be only the occasional petition that would succeed on the grounds of mis-trial or some error of law or fact. The Minister of the day up to now has had the assistance of expert advice from the Attorney General's Office in this regard. It will not arise in the future because petitions against findings are being abolished and the procedure will now be dealt with by way of appeal.

Senator Lanigan mentioned that he knew of one case where the Minister had to withstand pressure from his Department both on the civil and military sides and he nevertheless set aside a court-martial. He could well have been right; I do not know the facts. I would be surprised to hear that he was being pressured by either the civil side or the military side in any one direction because my experience is that the matter is presented to the Minister without intervention from either the civil or military side. It is the Minister's prerogative and I would be surprised if Senator Lanigan's statement is accurate in that regard.

Senator Lanigan asked if there can be an appeal against sentence after determination of an appeal, in other words if there can be a petition to the Minister to mitigate the sentence. The answer is "yes". The petition procedure against sentence is being retained both as regards the findings of the court-martial and as against the confirmation or otherwise by the court of appeal. This would be analogous to the petition procedure available on the civil side to the Minister for Justice. Senator Lanigan wondered if we need courts-martial at all. I am satisfied we do. Senator Dooge pointed out the reasons in his speech and those reasons are valid and will continue. The system has worked well and fairly. It is very important that in military matters there would be a speedy conclusion and that there would not be any undue delay in matters coming to trial.

Senator Honan asked the reason for the provision that no costs could be paid to a successful appellant who was in receipt of legal aid. Clearly if that person is in receipt of legal aid he should not have any need for costs and it is just to remove the matter from doubt that the provision is being made or to remove the danger that the State might have to pay twice for the one appeal.

I can assure Senator Honan that the medical expertise available within and to the Army is adequate for all military purposes and all military requirements. There is an excellent medical service for members of the Defence Forces.

I take Senator Dooge's point that after 30 years the time has probably come to review our code of military law. The fact that 30 years have elapsed and there has been general satisfaction with the provisions of the Defence Act, 1954, is a tribute to the careful way in which that Act was brought into being. It might be apposite at this time when committees are being spoken of to recall that this Act was dealt with by a Special Committee of the other House. A most careful, analytic and painstaking debate took place in the other House on Committee Stage of the Defence Bill in 1954 and preceding years. Certainly the care that was put into that measure was well worthwhile because the measure has endured up to now in a most satisfactory manner. The amendment that is now being made is not due to any inherent defect in the parent Act but is a response to the way jurisprudence in this area has been evolving.

There will be further amendments made and they will be essentially of a minor nature, updating penalties and matters such as that. While I take Senator Dooge's point that it would be a pity to have these amendments made in such a way that they would involve referring back to the parent Act, they would be essentially, so far as I can see at the moment, not minor amendments but a large number of technical amendments. I will have to consider or certainly keep in mind Senator Dooge's point that one should re-enact the entire Act for ease of reference in the future. Essentially it is only a matter of printing.

I have dealt with all the points that were raised. If there are any more detailed points we can deal with them on Committee Stage. In conclusion I thank Senators for participating in the debate and by and large welcoming the measures proposed.

Question put and agreed to.

Agreed to take remaining Stages today.