Special Committee Defence Bill, 1951 díospóireacht -
Tuesday, 1 Apr 1952

SECTION 119.

Captain Cowan

I move amendment No. 128 :—

In sub-section (1) to delete all words after " offence " in line 36 to the end of the sub-section.

The amendment proposes to delete about four lines. The section will then read :

" Where an offence against military law has been committed by any person while subject to military law, such person may, subject to sub-section (2) of this section, be taken into and kept in service custody and tried and punished for such offence."

I think that is sufficient. My view is that the words I propose to delete are unnecessary. If the Minister has any good reason for putting them in, I will have no objection to leaving them in but I think it is better without them.

Mr. Traynor

We will look into it and see what the position is.

Amendment, by leave, withdrawn.

Captain Cowan

I move amendment No. 129 :—

In sub-section (2), page 59, to delete paragraph (b), lines 46 and 47.

Where an offence has been committed by a person while subject to military law, such person shall not be tried for such offence within three months after he ceased to be subject to military law. As far as (b) is concerned, that again is a drafting amendment ; (b) does not seem to be necessary to complete the section.

Amendment, by leave, withdrawn.

Captain Cowan

I move amendment No. 130 :—

In sub-section (2), page 59, lines 48 and 49, to delete " unless his trial commences within three months " and substitute " by court-martial."

The effect of this amendment is that a person shall not be tried for the offence, by court-martial, after he has ceased to be subject to military law. What I am advocating in this amendment is that if a person has ceased to be subject to military law, while he may be tried by a civil court, he cannot be tried by court-martial.

Mr. Traynor

The Deputy's amendment would make it impossible to try a man by court-martial after he has left the force. This section as drafted represents no change from the law as it has stood since 1923. If, as the amendment seeks to secure, an officer or soldier cannot be tried for a military offence after the day of his demobilisation or discharge, how is military discipline to be maintained among men immediately prior to discharge ? Furthermore, cases of fraud, embezzlement, etc., are sometimes not discovered until the offender has ceased to be subject to military law. To say that he can be tried by civil court ignores the fact that in most cases it is Army systems of accountancy and relative Army responsibilities of officers and men which are in question and the most suitable, and perhaps the only suitable, tribunal is court martial by officers acquainted with Army administration.

I may mention as a matter of interest that as a result of their experience in the last war, the British have widened the three-month rule.

Mr. Carter

That is in the case of reservists or fellows being discharged.

Captain Cowan

If I were satisfied that it was really to deal with people who committed offences while awaiting discharge I would say it was all right.

Amendment, by leave, withdrawn.

Amendment No. 131 not moved.

Question proposed : " That Section 119 stand part of the Bill."

Captain Cowan

I oppose the section. I intended to oppose it because I was keen that once a person ceased to be subject to military law he should not be tried for an offence. However, I have explained that on amendments, and if the view of the Committee is that in certain circumstances it is right that he should be subject to trial by court-martial for three months and if there are few occasions on which the section operates—I only know of one—I will not oppose it further.

Question put, and agreed to.

Sections 120 and 121 agreed to.

SECTION 122.

Captain Cowan

I move amendment No. 132 :—

In sub-section (1), lines 22 and 23, to delete " (except mutiny, desertion or fraudulent enlistment)."

If a person who has committed mutiny, desertion or fraudulent enlistment gets away with it for three years he should not be triable by court-martial. Take a man who has mutinied and remained in the Army for three years; at the end of that time he should have expunged his crime and it should be forgotten.

Chairman

A difficulty arises in the case of desertion. Suppose a man mutinied and then deserted ?

Captain Cowan

I can see that desertion is not on the same basis.

Chairman

If the amendment were carried the deserter could snap his fingers after three years and one day.

Captain Cowan

When putting down the amendment I was inclined to that view. I can see that there are circumstances in which the military authorities might wish to deal with the person who deserted, but there should be some limit. You should not be subject to trial for desertion after 20 years. Is there a limit ?

Chairman

When you catch him.

Captain Cowan

Take a fellow who deserts as a young lad. Is he still liable when he has whiskers and is a grandfather ? I know that the proofs against him might have disappeared and he might get away with it, but the Minister should consider having a definite period. If a man is absent for ten years—

Mr. Traynor

They would not bother about him.

Mr. Brennan

Were there not a number of deserters during the emergency ?

Mr. Traynor

That was desertion into another army.

Chairman

Delete " fraudulent enlistment ".

Captain Cowan

Fraudulent enlistment is the offence of a person who belongs to the forces joining up again.

Mr. Traynor

Or withholding information. A man is supposed to tell the enlisting officer if he was at any time sentenced by a court for a criminal offence. If he fails to tell that, it is fraudulent enlistment. You might very easily get a very bad character into the army as a result of his withholding that information and he might do untold damage before he was found out.

Captain Cowan

If he has been all right for three years he should get away with it. Three years satisfactory service should compensate for the fact that he gave a false answer on attestation.

Mr. Traynor

As far as I know fraudulent enlistment is usually dealt with by discharge. I can only speak of the position as I am aware of it and I have not myself come across a case of a person being sentenced to imprisonment for fraudulent enlistment.

Captain Cowan

Fraudulent enlistment under the old Act was where a person without having obtained a regular discharge—in other words he is a soldier—or otherwise fulfilling the conditions enabling him to enlist, yet enlists. It is enlisting when you are not entitled to do so. If having enlisted, having broken the regulation, he gives three years satisfactory service he should not be liable to be charged.

Mr. Traynor

I suggest that you leave it there. It will not be used any more than it has been but it is a desirable provision for the authorities to have at their disposal.

Captain Cowan

Mutiny is collective insubordination—if two people come together and are insubordinate. That is the technical definition as distinct from mutiny as we understand it. After three years men who do that should not be liable to be charged. Would the Minister consider deleting " mutiny ".

Mr. Traynor

I could not do that. You could have a situation where a man mutinied and then deserted. We cannot visualise what the circumstances of the mutiny would be. It would have to be more than a mere expression of opinion. You could have a mutiny by a certain number of individuals and the same individuals deserting. The authorities would have to have power to arrest these men if they found them and charge them not only with desertion but with mutiny. Mutiny is a dangerous thing in an army. It is a thing that could affect a large number of men. You must have rigid obedience to military orders. If you have not that you cannot have an army on which you can depend. To take out any of these words would weaken the position from the point of view of the maintenance of the military discipline which is so much needed in an army. Therefore, I would strongly appeal to the Deputy not to press this.

Captain Cowan

I will not.

Mr. Colley

I think so too. Unless it was a serious question the army would not go any further with it after three years.

Amendment, by leave, withdrawn.

Question proposed : " That Section 122 stand part of the Bill".

Captain Cowan

I was seriously considering putting down an amendment limiting the time to one year instead of three years for ordinary military offences—the 101 offences that may arise. Even a year I consider too long in certain cases. Military discipline in the general way is enforced with speed. In the words of the late President of the High Court, Judge Gavan Duffy, " Military law is speedy in its application ". He made some reference in the Captain Curran case when we were arguing it in the High Court. Undoubtedly, it is. If a man breaks some military regulation he should be dealt with quickly or not at all. It is a bad thing to have it coming up six, nine or twelve months afterwards—that is in the case of an ordinary offence, a purely military offence, as distinct from speculation, misappropriation or embezzlement, for instance an offence like insubordination, refusing to obey orders or a breach of standing orders.

Mr. Traynor

You have put your views on record and I am sure that they will be read with interest.

Captain Cowan

In the normal way people are dealt with reasonably speedily but you do get a case where somebody complains after a period of six or nine months to the Minister about the conduct of a member of the forces. The Minister in the usual way enquires what did happen. It goes through the ordinary channels and somebody says " This fellow did break the Regulations. There is no doubt about it. He committed an offence ". Then they proceed to have him charged and he is brought before his commanding officer. Clearly if the commanding officer were doing his duty he would say, as he has power to do, " This is a case which should not be proceeded with. It happened nine months ago " and dismiss it, but unfortunately some commanding officers feel that as higher authority has intervened, if only to ask the question, he must return the accused for court-martial and it is wrong that a man should be sent to court-martial for an offence committed a year ago.

Mr. Traynor

I do not know that there is any such case on record. I myself have never been in contact with a case where such a length of time was involved. They are usually cases that are current. The fact that your views are on record may result in their being given practical consideration by officers.

Captain Cowan

That would be the proper approach by the commanding officer in the circumstances I mentioned. The matter had been investigated and dealt with in accordance with military law and that was the end of it.

Question put, and agreed to.