INFORMATION ABOUT COURTS-MARTIAL
Background
The legal basis for the establishment of Military Courts (known as Courts-Martial) in Ireland is Article 38.4.1 of the Constitution (Bunreacht na hEireann 1937), which provides:
“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 …..”
The Defence Act 1954 (as amended) is the statutory basis for the Court-Martial system, which administers Military Justice in the Irish Defence Forces. The Military Justice system currently in use in the Defence Forces came into effect on 1st September 2008 when the Defence (Amendment) Act 2007 came fully into force.
The main purpose of the Court-Martial system is to provide a mechanism for the enforcement of Military Law in the Defence Forces. Military Law consists of a system of rules and regulations contained in the Defence Act 1954 as amended (“The Act”) and regulations made under the authority of the Act. Members of the Permanent Defence Force are subject to Military Law at all times. Chapter II of Part V of the Act, sections 124 to 169A (inclusive) provide for the various offences against Military Law for which persons subject to Military Law may be tried and punished by Courts-Martial. Section 169 of The Act provides that any offence against the ordinary criminal law of the State committed by a person subject to Military Law is also an offence against Military Law. Military Law applies both within and outside the State and Courts-Martial may likewise be held both within and outside the State.
The effect of the Defence (Amendment) Act 2007 was to completely overhaul the Military Justice system in the Irish Defence Forces. The changes were required in order to modernize the old system and to ensure that the revised Military Justice system is fully compliant not only with the Constitution but also with the requirements of the European Convention on Human Rights, in particular Article 6 and with international human rights norms. Under the new provisions, a completely new Summary Court-Martial came into existence and changes were also made to the composition and jurisdiction of the two other types of Courts-Martial, which had also existed in the old system i.e. Limited Courts-Martial and General Courts-Martial. The Act also provided for a number of new appointments in the Military Justice system, including a Military Judge(s), the Director of Military Prosecutions and the Court-Martial Administrator.
PERSONNEL OF THE COURT-MARTIAL SYSTEM
The Judge Advocate-General
Appointed by the President, the Judge Advocate-General (JAG) is a practising Barrister- at-Law of at least ten years standing who is not a member of the Defence Forces. The JAG appoints the Court–Martial Administrator. The current JAG is Ms Oonah McCrann Senior Counsel.
The Court-Martial Administrator
The Defence Amendment Act 2007 made provision for the office of the Court-Martial Administrator (CMA). Colonel Paul A. Pakenham, Director of Administration, was appointed CMA by warrant of the Judge-Advocate General (JAG) on 16th May 2007. The warrant provides that any person, who for the time being is performing the duties of Director of Administration, is appointed to be the Court-Martial Administrator. The CMA must hold military rank of not less than Colonel. Acting under the general supervision of the JAG, the CMA and his staff manage and control the administration and business of Courts-Martial, similar to the Courts Service in the civilian court system. The CMA is the convening authority for all Limited and General Courts-Martial, which he will convene from time to time as directed by the Director of Military Prosecutions. The CMA also refers cases to the Summary Court-Martial as directed by the Director of Military Prosecutions. The CMA is independent in the performance of his functions.
The Director of Military Prosecutions
The Defence Amendment Act 2007 made provision for the office of the Director of Military Prosecutions (“The Director”). The Director is appointed by the Government. Colonel John Spierin is the current Director of Military Prosecutions. The Director of Military Prosecutions makes the final decision as to whether a case will be prosecuted before a Court-Martial. This mirrors the position in the civilian criminal justice system, where the Director of Public Prosecutions makes the final decision as to whether a case will be prosecuted before a civilian criminal court. The Director is independent in the performance of his functions.
The Military Judge.
Military Judges are appointed by the President. Currently only one Military Judge, Colonel Anthony McCourt has been appointed. He was appointed on 19th September 2007. His term of office is until retirement. While he holds military rank of not less than that of Colonel, he only performs judicial functions. He may not be removed except for cause shown. A Military Judge presides at every Court-Martial. A Military Judge is independent in the performance of his functions.
CLASSES OF COURT-MARTIAL
The Summary Court-Martial
The Summary Court-Martial is a standing Military Court consisting of a Military Judge sitting alone. All Military Judges are authorised to preside at and constitute the Summary Court-Martial. The Court-Martial Administrator, on the direction of the Director of Military Prosecutions, refers cases to the Summary Court-Martial. The Summary Court-Martial exercising its original or appeal jurisdiction as the case may be, hears cases involving less serious offences against Military Law and/or the Criminal Laws of the State. Personnel of all ranks up to and including the commissioned rank of Commandant may be tried by Summary Court-Martial. The Summary Court-Martial may sit at any place within or outside the State. The Military Judge decides on all issues of law and fact arising before the Summary Court-Martial. The maximum sentence of imprisonment, which may be awarded by the Summary Court-Martial, is six months.
Limited Court-Martial
A Limited Court-Martial (LCM) is not a standing Military Court and will only be convened by the Court-Martial Administrator (CMA) on the direction of the Director of Military Prosecutions. A LCM consists of a Military Judge presiding and a Court-Martial Board composed of at least three members of the Defence Forces. The CMA specifies the members of the Board, which is usually composed of three members (two commissioned officers and one senior non-commissioned-officer, or it may be composed entirely of commissioned officers) and it must include at least one officer holding the military rank of Commandant (or higher rank). A LCM can only hear cases where the accused holds non-commissioned rank. A LCM may sit at any place within or outside the State. The Military Judge decides on all issues of law arising, and the Court-Martial Board decides all issues of fact. Findings of fact will require a two-thirds majority. The Military Judge decides the sentence, if any, to be imposed. The maximum sentence of imprisonment, which may be awarded by a LCM, is two years.
General Court-Martial
Like a Limited Court-Martial (LCM), a General Court-Martial (GCM) is not a standing Military Court and will only be convened by the Court-Martial Administrator (CMA) on the direction of the Director of Military Prosecutions. A GCM consists of a Military Judge presiding and a Court-Martial Board composed of at least five members of the Defence Forces. The CMA specifies the members of the Board, which may be composed of commissioned officers and one senior non-commissioned-officer or it may be composed entirely of commissioned officers. If the accused is a commissioned officer the entire Board must be composed of commissioned officers. The Board must include at least one officer holding the military rank of Colonel (or higher rank). A GCM hears cases involving serious offences against Military Law and/or the Criminal Laws of the state. Commissioned officers holding the military rank of Lieutenant Colonel or any higher rank cannot be tried by Summary Court-Martial or LCM. Lieutenant Colonels and higher ranks can only be tried by GCM. A GCM may sit at any place within or outside the State. Similar to the procedure at a LCM, the Military Judge decides on all issues of law arising before a GCM and the Court-Martial Board decides all issues of fact. Findings of fact will require a two-thirds majority. The Military Judge decides the sentence, if any, to be imposed. A GCM may award sentences of imprisonment up to and including imprisonment for life.
PROCEDURE AT COURTS-MARTIAL
The practice and procedure of Courts-Martial is laid down in the Court-Martial Rules 2008 (SI No 205 of 2008). The accused person at a Court-Martial may be represented by a civilian lawyer(s) of his own choice, or by a commissioned officer of the Defence Forces (“Defending Officer”) who may or may not be a qualified lawyer. Legal Aid may be granted to an accused person on application to the Military Judge in accordance with the provisions of the Courts-Martial (Legal Aid) Regulations 2008 (SI No 206 of 2008). The Prosecutor at a Court-Martial is usually a commissioned officer of the Permanent Defence Force who is also a qualified lawyer. The Director of Military Prosecutions appoints the Prosecutor. In general, the normal rules of evidence applicable in civilian criminal courts also apply to Courts-Martial.
PUBLIC ACCESS TO COURTS-MARTIAL
Unless otherwise ordered by the Military Judge, all Courts-Martial are open to the general public. The dates and locations of upcoming Courts-Martial are posted in the Legal Diary on the Defence Forces Website www.military.ie. In certain cases e.g. cases involving serious sexual offences, the Military Judge may make an order that the public are to be excluded from the Court-Martial proceedings. In such cases an “In camera” sign is placed outside the Court-Martial Room.
APPEALS TO THE COURTS-MARTIAL APPEAL COURT
The Courts-Martial Appeals Act 1983 (as amended) provides a statutory right of appeal to the Courts-Martial Appeal Court (CMAC) from all classes of Court-Martial. An appeal to the CMAC may be against the conviction or sentence of the trial Court-Martial or against both conviction and sentence. The CMAC consists of a judge of the Supreme Court and two High Court Judges and sits in the Four Courts in Dublin. Similar to the Court of Criminal Appeal, which hears appeals from the Circuit Criminal Court, the Central Criminal Court and the Special Criminal Court, the CMAC may make the following orders:
- Affirm the conviction, or;
- Quash the conviction, or;
- Quash the conviction and order the appellant to be retried for the offence(s), or;
- Quash the conviction and where the CMAC finds that the appellant could have been found guilty of some other offence and that the trial Court-Martial must have been satisfied of facts which proved him guilty of that offence, substitute for the verdict, a verdict of guilty of that offence and substitute such sentence for the sentence imposed by the trial Court-Martial as is authorised for that offence.
Note: The Court-Martial Administrator provides the information on the Defence Forces Internet site Military.ie, for the general information of members of the public. However, the application of the information provided on the Court-Martial Administrator Web Page to individual circumstances can vary, from case to case, depending upon the specific or unique facts involved. The Court-Martial Administrator makes no representations or warranties of any kind regarding applicability of information presented on the Web Page or provided through its links to any specific or individual circumstances. The information presented by the Court-Martial Administrator on the Web page is provided with the understanding that the Court-Martial Administrator is not engaged in rendering legal services or advice through the information provided. Web site users should not rely on any information on this Web page to take the place of necessary legal or other consultations with qualified professionals. Links to other web sites are inserted for convenience and do not constitute endorsement of material at those sites, or any associated organisation, product or service.