Defence Act , 1954

Type Act

Publication 1954-05-13

Last updated 2024-11-06

State In force

Source Irish Statute Book

articles 391

(i) in the case of an officer, dismissal from the Defence Forces or any less punishment awardable by a court-martial, or

(ii) in the case of a man, where the offence is committed on active service or on duty, imprisonment for any term not exceeding two years or any less punishment awardable by a court-martial, or

(iii) in the case of a man, where the offence is committed otherwise than on active service or on duty, detention for a period not exceeding ninety days or any less punishment awardable by a court-martial.

(2) In any proceedings for an offence under this section, evidence given by a person subject to military law of his opinion that another such person was, at the material time, under the influence of an intoxicant shall, without more, be evidence, until the contrary is proved, of intoxication.

(3) In any proceedings for an offence under this section it shall be a defence for the person charged with the offence to prove that the intoxicant concerned was administered by, or taken in accordance with the directions of, a registered medical practitioner or a registered dentist (or both so administered and taken).]

142A. F130[Drugs, etc.

142A.—F131[…]]

143. Malingering or maiming.

143.—Every person subject to military law—

(a)who malingers or feigns or induces disease or infirmity, or

(b)who induces, aggravates, or delays the cure of, disease or infirmity by misconduct or wilful disobedience of orders, or

(c)who wilfully maims or injures himself or any other person who is a member of the Defence Forces, whether at the instance of that person or not, with intent thereby to render himself or that other person unfit for service, or causes himself to be maimed or injured by any person with intent thereby to render himself unfit for service,

is guilty of an offence against military law and shall, on conviction by court-martial, be liable to suffer imprisonment F132[for any term not exceeding two years] or any less punishment awardable by a court-martial.

144. Dilatory conduct in regard to trials.

144.—Every person subject to military law who unnecessarily detains any other person in arrest or confinement without bringing him to trial, or fails to bring that other person’s case before the proper authority for investigation, is guilty of an offence against military law and shall, F133[where a charge under this section is disposed of summarily under section 177C, 178C or 179C, as the case may be, be liable to suffer any punishment awardable thereunder or,] on conviction by court-martial, be liable to suffer imprisonment F134[for any term not exceeding two years] or any less punishment awardable by a court-martial.

145. Negligent or wilful interference with lawful custody.

145.—Every person subject to military law—

(a)who, without proper authority, sets free or authorises or otherwise facilitates the setting free of any person in custody, or

(b)who negligently or wilfully allows to escape any person who is committed to his charge, or whom it is his duty to guard or keep in custody, or

(c)who assists any person in escaping or attempting to escape from custody,

is guilty of an offence against military law and shall, F135[where a charge under this section is disposed of summarily under section 177C, 178C or 179C, as the case may be, be liable to suffer any punishment awardable thereunder or,] on conviction by court-martial, be liable, in case he acted wilfully, to suffer F136[imprisonment for a term not exceeding seven years] or any less punishment awardable by a court-martial and, in any other case, to suffer imprisonment F137[for any term not exceeding two years] or any less punishment awardable by a court-martial.

146. Escape from custody.

146.—Every person subject to military law who, being in arrest or confinement or in prison or otherwise in lawful custody, escapes, or attempts to escape, is guilty of an offence against military law and shall, on conviction by court-martial, be liable to suffer imprisonment F138[for any term not exceeding two years] or any less punishment awardable by a court-martial.

147. Obstruction of officer or man carrying out police duties.

147.—Every person subject to military law—

(a)who resists or wilfully obstructs an officer or man in carrying out any duty, performed by such officer or man with due authority, pertaining to the arrest, custody or confinement of a person subject to military law, or

(b)who, when called upon, refuses or neglects to assist an officer or man in the performance of any such duty,

is guilty of an offence against military law and shall, F139[where a charge under this section is disposed of summarily under section 177C, 178C or 179C, as the case may be, be liable to suffer any punishment awardable thereunder or,] on conviction by court-martial, be liable to suffer imprisonment F140[for any term not exceeding two years] or any less punishment awardable by a court-martial.

148. Obstruction of civil power.

148.—Every person subject to military law—

(a)who neglects or refuses to deliver over an officer or man to the civil power, pursuant to a warrant in that behalf, or

(b)who neglects or refuses to assist in the lawful apprehension of an officer or man accused of an offence punishable by a civil court,

is guilty of an offence against military law and shall, on conviction by court-martial, be liable to suffer imprisonment F141[for any term not exceeding two years] or any less punishment awardable by a court-martial.

149. Losing, stranding or hazarding State ships.

149.—Every person subject to military law who wilfully or negligently or through other default loses, strands, hazards or damages or suffers to be lost, stranded, hazarded or damaged any State ship, is guilty of an offence against military law and shall, on conviction by court-martial, be liable to suffer F142[imprisonment for a term not exceeding seven years] or any less punishment awardable by a court-martial.

150. F143[Unauthorised carriage on ships or aircraft.

150.—Every person subject to military law who knowingly consigns, takes or receives on board, or allows to be carried on board, a State ship or service aircraft, or a ship or aircraft used for any purpose by the Defence Forces, persons, goods or merchandise that the person is not authorised to consign, take or receive on board is guilty of an offence against military law and shall, where a charge under this section is disposed of summarily under section 177C or 178C, as the case may be, be liable to suffer any punishment awardable thereunder or, on conviction by court-martial, be liable to suffer imprisonment for any term not exceeding two years or any less punishment awardable by a court-martial.]

151. Wrongful acts in relation to aircraft.

151.—Every person subject to military law—

(a)who, in the use of or in relation to any service aircraft or service aircraft material, wilfully or negligently or by neglect of or contrary to regulations, orders or instructions, does any act or omits to do anything, which act or omission causes or is likely to cause loss of life or bodily injury to any person, or

(b)who, wilfully or negligently or by neglect of or contrary to regulations, orders or instructions, does any act or omits to do anything, which act or omission results or is likely to result in damage to or destruction or loss of any service aircraft or service aircraft material, or

(c)who, during a state of war, wilfully or negligently causes the sequestration by or under the authority of a neutral State of any service aircraft, or

(d)who, during a state of war, wilfully or negligently causes, otherwise than in accordance with regulations, orders or instructions, the destruction in a neutral State of any service aircraft,

is guilty of an offence against military law and shall, on conviction by court-martial, be liable to suffer F144[imprisonment for a term not exceeding seven years] or any less punishment awardable by a court-martial.

152. Inaccurate certificate as regards aircraft.

152.—Every person subject to military law who signs any certificate in relation to F145[service aircraft or service aircraft material] without ensuring the accuracy thereof is guilty of an offence against military law and shall, on conviction by court-martial, be liable to suffer imprisonment F146[for any term not exceeding two years] or any less punishment awardable by a court-martial.

153. Low flying.

153.—Every person subject to military law who flies a service aircraft at a height less than the minimum height authorised in the circumstances is guilty of an offence against military law and shall, on conviction by court-martial, be liable to suffer imprisonment F147[for any term not exceeding two years] or any less punishment awardable by a court-martial.

154. Disobedience of orders of captain of aircraft.

154.—(1)Every person subject to military law who, when in a service aircraft, disobeys any lawful command given by the captain of the aircraft in relation to the flying or handling of the aircraft or affecting the safety of the aircraft, whether the captain is subject to military law or not, is guilty of an offence against military law and shall, on conviction by court-martial, be liable to suffer F148[imprisonment for a term not exceeding seven years] or any less punishment awardable by a court-martial.

(2)For the purposes of this section—

(a)every person, whatever his rank, shall when he is in a service aircraft be under the command, as respects all matters relating to the flying or handling of the aircraft or affecting the safety of the aircraft, of the captain of the aircraft, whether the latter is subject to military law or not;

(b)if the service aircraft is a glider and is being towed by another aircraft, the captain of the glider shall so long as his glider is being towed be under the command, as respects all matters relating to the flying or handling of the glider or affecting the safety of the glider, of the captain of the towing aircraft, whether the latter is subject to military law or not.

155. Fraud by persons in charge of property.

155.—Every person subject to military law who, being charged with or concerned in the care and distribution of any public property or service property, steals, fraudulently converts or misapplies or embezzles that property or is concerned in or connives at the stealing, fraudulent conversion or misapplication or embezzlement thereof shall be guilty of an offence against military law and shall, on conviction by court-martial, be liable to suffer F149[imprisonment for a term not exceeding seven years] or any less punishment awardable by a court-martial.

156. Stealing, embezzlement, etc., of property.

F150[156.—(1) Every person subject to military law who—

(a) steals or otherwise unlawfully obtains any property belonging to a person subject to military law or any public service property or service property, or

(b) handles or possesses (within the meaning of section 17 or 18 of the Criminal Justice (Theft and Fraud Offences) Act, 2001) any such property,

is guilty of an offence against military law and shall, on conviction by court-martial, be liable to suffer imprisonment for any term not exceeding two years or any less punishment awardable by a court martial.

(2) The said sections 17 and 18 shall apply to the offences of handling and possessing under subsection (1)(b) of this section as they apply to the offences of handling and possessing stolen or otherwise unlawfully obtained property.]

157. Destruction, loss or improper disposal of property.

157.—Every person subject to military law—

(a)who wilfully destroys or damages, loses by neglect, improperly sells or wastefully expends any property being—

(i)public property, or

(ii)service property, or

(iii)property received for, or administered by or through, service messes, institutes or canteens, or

(iv)property contributed by members of the Defence Forces for the collective benefit and welfare of such members, or

(v)property derived from, purchased out of the proceeds of sale of, or received in exchange for property mentioned in subparagraph (iii) or (iv) of this paragraph, or

(b)who wilfully destroys, damages or improperly sells, pawns, or pledges any property belonging to another person who is subject to military law,

is guilty of an offence against military law and shall, F151[where a charge under this section is disposed of summarily under section 177C, 178C or 179C, as the case may be, be liable to suffer any punishment awardable thereunder or,] on conviction by court-martial, be liable to suffer imprisonment F152[for any term not exceeding two years] or any less punishment awardable by a court-martial.

158. Bribery, corruption and fraud.

158.—Every person subject to military law—

(a)who connives at the exaction, by a person supplying property or services to the Defence Forces, of an exorbitant price therefor, or

(b)who wrongfully demands or accepts compensation, consideration or personal advantage in respect of the performance of any military duty or in respect of any matter relating to the Department of Defence or the Defence Forces, or

(c)who receives directly or indirectly, whether personally or by or through any member of his family or person under his control, or for his benefit, any gift, loan, promise, compensation or consideration, either in money or otherwise, from any person, for assisting or favouring any person in the transaction of any business relating to the Department of Defence or the Defence Forces, or to any service mess, institute or canteen,

is guilty of an offence against military law and shall, on conviction by court-martial, be liable to suffer F153[imprisonment for a term not exceeding seven years] or any less punishment awardable by a court-martial.

159. Negligent or furious driving of service vehicles.

159.—(1)Every person subject to military law—

(a)who, having the charge of a service vehicle, by wanton or furious driving or racing or other wilful misconduct or by wilful neglect, does or causes to be done any bodily injury to any person or damage to any property, or

(b)who drives a service vehicle on a street, road, highway or any other place, whether public or private, in a manner that is dangerous to any person or property having regard to all the circumstances of the case, or

(c)who drives or attempts to drive a service vehicle while he is F154[under the influence of an intoxicant],

is guilty of an offence against military law and shall, F155[where a charge under this section is disposed of summarily under section 177C, 178C or 179C, as the case may be, be liable to suffer any punishment awardable thereunder or,] on conviction by court-martial, be liable to suffer imprisonment F156[for any term not exceeding two years] or any less punishment awardable by a court-martial.

F154[(2) For the purposes of paragraph (c) of subsection (1) of this section a person shall be deemed to have been under the influence of an intoxicant while driving or attempting to drive a service vehicle if—

(a) the officer investigating the charge under Chapter IV of this Part, or

(b) the summary court-martial or, in the case of a general court-martial or limited court-martial, the court-martial board,

is satisfied that such person was, by reason of the taking by him of an intoxicant, in such a condition that he was incapable of exercising effective control of such vehicle while in motion.]

160. Unauthorised use of service vehicles.

160.—Every person subject to military law—

(a)who uses a service vehicle for an unauthorised purpose, or

(b)who, without due authority, uses a service vehicle for any purpose, or

(c)who uses a service vehicle contrary to any regulation, order or instruction,

is guilty of an offence against military law and shall, F157[where a charge under this section is disposed of summarily under section 177C, 178C or 179C, as the case may be, be liable to suffer any punishment awardable thereunder or,] on conviction by court-martial, be liable to suffer imprisonment F158[for any term not exceeding two years] or any less punishment awardable by a court-martial.

161. Offences in relation to courts-martial, etc.

161.—(1)In this section, the expression “service tribunal” means—

(a)a court-martial,

F159[(b)an officer, pursuant to section 177, investigating a charge of an offence for which a person would be required on conviction to be sentenced to imprisonment for life,

(c)a commanding officer, pursuant to section 178, investigating a charge of an offence for which a person would be required on conviction to be sentenced to imprisonment for life,]

(d)an officer taking a summary of evidence in accordance with regulations made under section 184,

(e)a court of inquiry.

(2)Every person subject to military law—

(a)who, being duly summoned or ordered to attend as a witness before a service tribunal, makes default in attending, or

(b)who refuses to take an oath or make an affirmation lawfully required by a service tribunal to be taken or made, or

(c)who refuses to produce any document in his power or control lawfully required by a service tribunal to be produced by him, or

(d)who refuses when a witness to answer any question to which a service tribunal may lawfully require an answer, or

(e)who uses insulting or threatening language or causes any interruption or disturbance in the proceedings of a service tribunal, or

F160[(ea) who communicates with the Director, a member of his staff (including aF161[court-martial prosecutor]), a member of a court-martial board, a military judge or a witness in any proceedings under this Act for the purpose of influencing, directly or indirectly, any decision relating to the performance of their functions, including, as appropriate, a decision to withdraw or not to institute such proceedings or any particular charge in such proceedings or the conduct or trial of any such proceedings, or

(eb)who fails, refuses or neglects to comply with a direction of the military judge under section 195, or

(ec)who, by act or omission, obstructs or hinders a service tribunal in the performance of its functions, or]

F162[(f)who does or omits to do any other thing, which, if the service tribunal were a civil court having power to commit for contempt, would be contempt of that court,]

is guilty of an offence against military law and shall, on conviction by court-martial, be liable to suffer imprisonment F163[for any term not exceeding two years] or any less punishment awardable by a court-martial.

F164[(3) If the Director, a member of his staff (including aF161[court-martial prosecutor]), a member of a court-martial board, a military judge or a witness in any proceedings under this Act is of the opinion that a communication is in breach of subsection (2)(ea) of this section, it shall be the duty of that person not to entertain the communication further.

(4) (a) In the case of the Director or a member of his staff, subsection (2)(ea) of this section does not apply to—

(i) communications made by a person who is a complainant in proceedings for, or has been charged with, an offence under this Act or believes that he is likely to be charged with an offence under this Act, or

(ii) communications made by a person involved in the matter either personally or as legal or medical adviser to a person involved in the matter or as a social worker or a member of the familyF165[or the civil partner within the meaning of the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010]of a person involved in the matter.

(b) In this subsection "member of the family" means spouse, parent, grandparent, step-parent, child (including a step-child or an adopted child), grandchild, brother, sister, half-brother, half-sister, aunt, uncle, niece or nephew of the person concerned;

"spouse" means each person of a couple in relation to the other;

"couple" means a married couple or a man and woman who are not married to each other but are cohabiting as husband and wife.

(5) Subsection (2) of this section shall apply in relation to the summary disposal of charges under section 177C, 178C or 179C, as the case may be, as it applies to a service tribunal and for the purposes of such application references in the said subsection (2) to a service tribunal shall be construed as references to the summary disposal of charges under section 177C, 178C or 179C, as the case may be.]

162. F166[False evidence.

162.—Every person subject to military law who, when examined on oath or solemn declaration before—

(a) a service tribunal within the meaning of section 161,

(b) an authorised officer investigating a charge under section 177C,

(d) a subordinate officer investigating a charge under section 179C,

knowingly gives false evidence is guilty of an offence against military law and shall, on conviction by court-martial, be liable to suffer imprisonment for any term not exceeding two years or any less punishment awardable by a court-martial.]

163. Disturbances, etc., in billets.

163.—Every person subject to military law—

(a)who ill-treats, by violence, extortion or making disturbance in billets or otherwise, any occupant of a house in which any person is billeted or of any premises in which accommodation for matériel has been provided, or

(b)who fails to comply with regulations in respect of payment of the just demands of the person on whom he or any officer or man under his command is or has been billeted or the occupant of premises in which matériel is or has been accommodated,

is guilty of an offence against military law and shall, on conviction by court-martial, be liable to suffer imprisonment F167[for any term not exceeding two years] or any less punishment awardable by a court-martial.

164. Fraudulent enlistment.

164.—(1)Every person subject to military law as a man who fraudulently enlists is guilty of an offence against military law and shall, F168[where a charge under this section is disposed of summarily under section 177C, 178C or 179C, as the case may be, be liable to suffer any punishment awardable thereunder or,] on conviction by court-martial, be liable to suffer imprisonment F169[for any term not exceeding two years] or any less punishment awardable by a court-martial.

(2)For the purposes of this Act, a man fraudulently enlists who,—

(a)while belonging to the Permanent Defence Force, or having been called out on permanent service as a man of the Reserve Defence Force, without having obtained a regular discharge therefrom, or otherwise fulfilling the conditions enabling him to enlist, enlists in the Permanent Defence Force, or

(b)when belonging to the Permanent Defence Force, enlists in the Reserve Defence Force without having fulfilled the conditions enabling him to so enlist.

(3)When an offender has fraudulently enlisted on several occasions he may for the purpose of this section be deemed to belong to any one or more of the service corps or units to which he has been appointed or transferred as well as the service corps or unit to which he properly belongs.

165. General offences in relation to enlistment.

165.—Every person subject to military law—

(a)who is concerned in the enlistment for service in the Permanent Defence Force or the Reserve Defence Force of any man when he knows or has reasonable cause to believe such man to be so circumstanced that by enlisting he commits an offence against military law, or

(b)who wilfully contravenes any enactment or regulation in any matter relating to the enlistment or attestation of men of the Permanent Defence Force or the Reserve Defence Force,

is guilty of an offence against military law and shall, F170[where a charge under this section is disposed of summarily under section 177C, 178C or 179C, as the case may be, be liable to suffer any punishment awardable thereunder or,] on conviction by court-martial, be liable to suffer imprisonment F171[for any term not exceeding two years] or any less punishment awardable by a court-martial.

166. Negligent performance of duties.

166.—Every person subject to military law who negligently performs a military duty imposed on him is guilty of an offence against military law and shall, F172[where a charge under this section is disposed of summarily under section 177C, 178C or 179C, as the case may be, be liable to suffer any punishment awardable thereunder or,] on conviction by court-martial, be liable, if an officer, to suffer dismissal from the Defence Forces or any less punishment awardable by a court-martial or, if a man, to suffer imprisonment F173[for any term not exceeding two years] or any less punishment awardable by a court-martial.

167. Offences in relation to documents.

167.—Every person subject to military law—

(a)who knowingly or negligently makes or signs a document, required for official purposes, that is false, or

(b)who knowingly or negligently orders the making or signing of a document, required for official purposes, that is false, or

(c)who, when signing a document required for official purposes, leaves in blank any material part for which his signature is a voucher, or

(d)who, knowingly and with intent to injure any person or with intent to deceive, suppresses, defaces, alters or makes away with any document or file kept, made or issued for any purpose connected with the Department of Defence or the Defence Forces, or

(e)who refuses or, by culpable neglect, omits to make or send a report or return which it is his duty to make or send, is guilty of an offence against military law and shall, F174[where a charge under this section is disposed of summarily under section 177C, 178C or 179C, as the case may be, be liable to suffer any punishment awardable thereunder or,] on conviction by court-martial, be liable to suffer imprisonment F175[for any term not exceeding two years] or any less punishment awardable by a court-martial.

168. Conduct to the prejudice of good order and discipline.

168.—(1)Every person subject to military law who commits any act, conduct, disorder or neglect to the prejudice of good order and discipline is guilty of an offence against military law and shall, F176[where a charge under this section is disposed of summarily under section 177C, 178C or 179C, as the case may be, be liable to suffer any punishment awardable thereunder or,] on conviction by court-martial, be liable, if an officer, to suffer dismissal from the Defence Forces or any less punishment awardable by a court-martial and, if a man, to suffer imprisonment F177[for any term not exceeding two years] or any less punishment awardable by a court-martial.

(2)(a)A person shall not be charged under this section with an offence which is, by virtue of any previous section contained in this Chapter, an offence against military law.

(b)Where a person is charged with an offence in contravention of this subsection and is convicted—

(i)the conviction shall not be invalid by reason only of such contravention unless it appears that an injustice has been done to the person charged by reason of such contravention,

(ii)the responsibility of an officer for such contravention shall not be affected by the validity of the conviction.

(3)For the purposes of this section—

(a)the contravention (by act or omission) by any person of—

(i)any of the provisions of this Act, or

(ii)any regulations, orders or instructions published for the general information and guidance of that portion of the Defence Forces to which that person belongs or to which he is attached, or

(iii)any general, garrison, unit, station, standing or local orders,

is an act, conduct, disorder or neglect to the prejudice of good order and discipline;

(b)an attempt to commit any offence which is, by virtue of any previous section contained in this Chapter, an offence against military law is, unless such attempt is in itself an offence against military law under that section, an act, conduct, disorder or neglect to the prejudice of good order and discipline.

(4)Subsection (3) of this section shall not be construed as affecting the generality of subsection (1) of this section.

169. F178[Offences punishable by ordinary law.

169.—(1)Subject to the provisions of this Act, every person who, while he is subject to military law, commits any of theF179[offences referred to in this section, other than an applicable offence committed in the circumstance referred to in subsection (4)]shall be deemed to be guilty of an offence against military law and, if charged under this section with any such offence (in this Act referred to as a civil offence) shall be liable to be tried by court-martial.

(2)Where a person charged under this section is convicted by a court-martial of treason or murder, he shall be sentenced to imprisonment for life.

F180[(3) Where a person charged under this section is convicted by a court-martial of an offence other than treason or murder, he shall be liable to be punished as follows:

(a) if he is convicted of manslaughter, be liable to imprisonment for life or any lesser punishment awardable by a court-martial;

(b) if he is convicted of rape,F179[rape undersection 4or aggravated sexual assault, where the offence was committed while the person so convicted was on active service outside the State or despatched for service outside the State undersection 2of theDefence (Amendment) (No. 2) Act 1960or for any purpose specified insection 3of theDefence (Amendment) Act 2006], be liable to imprisonment for life or any lesser punishment awardable by a court-martial;

F181[(c) if convicted of an offence undersection 3of theGeneva Conventions Act 1962or an offence under section7(genocide, crimes against humanity and war crimes) or8(ancillary offences) of theInternational Criminal Court Act 2006, be liable—

(i) to imprisonment for life—

(I) if the offence involves murder or, in the case of an offence committed outside the State, the killing of a person in such circumstances as would constitute murder if the offence were committed within the State, or

(II) if a term of life imprisonment would be justified by the extreme gravity of the offence and the individual circumstances of the convicted person,

(ii) in any other case, to imprisonment for a term not exceeding thirty years;]

(d) if he is convicted of an offence underthe Criminal Justice (United Nations Convention against Torture) Act 2000be liable to imprisonment for life;

(e) if he is convicted of an offence underthe Criminal Justice (Safety of United Nations Workers) Act 2000be liable either to suffer any punishment assigned for such offence by that Act or any lesser punishment awardable by a court-martial;

(f) if he is convicted of an offence under theCriminal Justice (Terrorist Offences) Act 2005, be liable to suffer any punishment assigned for such offence by that Act;

(g) if heF179[is convicted of any offence, other than an applicable offence, not before in this section particularly specified]which when committed in the State is punishable by the ordinary criminal law of the State, be liable, whether the offence is committed in the State or elsewhere, either to suffer any punishment assigned for such offence by law of the State or to suffer—

(i) if he is subject to military law as an officer, dismissal withF182[disgrace]from the Defence Forces or any lesser punishment awardable by a court-martial, or

(ii) if he is subject to military law as a man, imprisonment for any term not exceeding two years or any lesser punishment awardable by a court-martial.]]

F183[(4) The circumstance referred to in subsection (1) is that the offence was committed by a person subject to military law who was not, when the offence was committed—

(a) on active service outside the State,

(b) despatched for service outside the State under section 2 of theDefence (Amendment) (No. 2) Act 1960, or

(5) In this section—

"aggravated sexual assault", "rape undersection 4" and "sexual assault" have the same meanings as they have in theCriminal Law (Rape) (Amendment) Act 1990;

"applicable offence" means—

(a) rape,

(b) rape under section 4,

(d) sexual assault,

(e) attempted rape, rape under section 4, aggravated sexual assault or sexual assault,

(f) aiding, abetting, counselling or procuring the offence of rape, rape under section 4, aggravated sexual assault or sexual assault,

(g) incitement to the offence of rape, rape under section 4, aggravated sexual assault or sexual assault, or

(h) conspiracy to commit any of the foregoing offences.]

169A. F184[Trial by court-martial of treason and certain murders and attempts.

169A.—(1)A person subject to military law who is accused of murder which is alleged to be murder to which section 3 of the Criminal Justice Act, 1990, applies or of an attempt to commit such a murder and is to be tried by court-martial shall be charged with murder to which that section applies or, as the case may be, with an attempt to commit such a murder, and the following provisions of that Act, namely—

(a)section 4, with the substitution of "court-martial" for "court", and

(b)subsection (2) of section 6, with the substitution of "charged with" for "indicted for",

shall apply and have effect in relation to the trial.

(2)The said section 4 shall apply and have effect, in relation to the trial of a person subject to military law who is accused of treason, with the substitution of "court-martial" for "court".]

Chapter

170. Provost Marshal.

170.—For the prompt suppression of all offences a provost marshal of commissioned rank may from time to time be appointed.

171. Arrest.

171.—(1)Any person subject to military law, who has committed, is found committing, is suspected of being about to commit, or is suspected of or charged under this Act with having committed an offence against military law, may be placed under arrest.

(2)In the circumstances mentioned in subsection (1) of this section—

(a)a provost marshal or an officer legally exercising authority under a provost marshal or on his behalf may arrest or order the arrest of any officer;

(b)a provost marshal or an officer or non-commissioned officer legally exercising authority under a provost marshal or on his behalf may arrest or order the arrest of any man;

(c)an officer may arrest or order the arrest of—

(i)any man,

(ii)any officer of lower rank,

(iii)any officer of equal or higher rank who is engaged in any quarrel, affray or disorder;

(d)a non-commissioned officer may arrest or order the arrest of any man;

(e)any person subject to military law who is so authorised by any commanding officer may arrest or order the arrest of a person subject to military law other than an officer or a man.

(3)Every person authorised by subsection (2) of this section to effect arrest may use such force as is reasonably necessary for that purpose.

(4)An order given under subsection (2) of this section shall be obeyed although the person giving the order and the person to whom and the person in respect of whom the order is given do not belong to the same service corps or unit.

172. Placing of person arrested in service custody.

172.—Where a person has been arrested under section 171, he may forthwith on his being arrested be placed in service custody by or on the order of an officer, man or other person having authority to arrest him, and for this purpose such force as is reasonably necessary may be used.

173. Guard report.

173.—(1)Any person who under section 172 places any other person in service custody shall, at the time he does so or as soon as practicable thereafter, and in any case not later than twenty-four hours thereafter, deliver to the officer or man into whose custody the person is committed, an account in writing signed by himself of the offence with which the person so committed is charged.

(2)Any officer or man commanding a guard or a provost marshal or any of his assistants or any officer or man shall not refuse to receive or keep any person who is placed in service custody under section 172.

(3)It shall be the duty of an officer or a man who takes or receives any person (in this subsection referred to as the prisoner) into custody, as soon as he is relieved from guard or duty or, if he is not sooner relieved, within twenty-four hours after he took the prisoner into custody,—

(a)to give in writing to his commanding officer—

(i)the name and, as far as is known to him, the offence with which the prisoner is charged, and

(ii)the name and rank (if any) of the person by whom the prisoner was committed, and

(b)if he has received the account in writing referred to in subsection (1) of this section, to deliver it to his commanding officer.

174. Court of inquiry on absent man.

174.—(1)When a man of the Permanent Defence Force has been absent without leave from his duty for a period of twenty-one days, a court of inquiry in relation to such man may as soon as practicable be assembled.

(2)When any man of the Reserve Defence Force is subject to military law F185[by reason of his being called out on permanent service or in aid of the civil power or for annual training or being deployed on military service under section 91A] and is illegally absent from duty, a court of inquiry in relation to such man may be assembled after the expiration of twenty-one days from the date of such absence, whether the period during which such man was subject to military law is or is not less than twenty-one days or has or has not expired before the expiration of twenty-one days from the date of such absence.

(3)Where a court of inquiry in relation to a man is assembled under subsection (1) or (2) of this section, the following provisions shall have effect—

(a)the court shall inquire in the prescribed manner on oath or solemn declaration (which any member of such court is hereby authorised to administer) respecting the absence of such man and the deficiency (if any) in his arms, ammunition, equipment, instruments, service necessaries and clothing,

(b)if the court is satisfied that such man has absented himself without leave or other sufficient cause, the following provisions shall have effect, that is to say:—

(i)the court shall declare such absence and the period thereof, and the said deficiency (if any);

(ii)a record of such declaration shall be entered by his commanding officer in the service books;

(iii)in case such man is a man of the Permanent Defence Force or a man of the Reserve Defence Force called out on permanent service, such record shall, if such man does not afterwards surrender or is not apprehended, have the legal effect of a conviction by court-martial for desertion.

Chapter

175. Acquittal or conviction to be a bar to summary proceedings.

175.—(1)Where—

(a)a person has been charged with an offence against military law, and

(b)(i)he has been acquitted or convicted of the offence by a civil court, or

(ii)he has been acquitted of the offence by a court-martial, or

(iii)he has been found guilty of the offence by a court-martial F186[…],

he shall not be liable to be dealt with summarily for the offence under this Chapter.

(2)Where—

(a)a person subject to military law is charged with an offence against military law, and

(b)the offence was dealt with under this Chapter either by being dismissed or being dealt with summarily,

he shall not be liable to be dealt with summarily again under this Chapter in respect of that offence.

176. Charge to be investigated without delay.

176.—The charge against every person taken into service custody shall, without unnecessary delay, be investigated by the proper military authority, and as soon as possible either proceedings shall be taken for punishing him or such person shall be discharged from custody.

176A. F187[Scheduled offences.

176A.—An offence of a disciplinary nature under any of the provisions of this Act specified in the Eleventh Schedule to this Act shall be a scheduled offence for the purposes of this Part of this Act.]

177. F188[Charges against officers and other specified persons.

177.—(1) A charge against a person subject to military law—

(a) as an officer, or

(b) as a non-commissioned officer in the rank of sergeant major or battalion quarter-master sergeant or their equivalent naval ranks,

shall, subject to the giving of a notice under section 177A, in accordance with regulations made under section 184, be investigated by the person’s commanding officer or,F189[subject to subsection (1A),]if the Deputy Chief of Staff (Support) so directs, by such officer as the Deputy Chief of Staff (Support) may appoint for the purpose.

F189[(1A) The Chief of Staff may, where the circumstances so require—

(a) appoint an officer to investigate a charge for the purpose of subsection (1), or

(b) direct the Deputy Chief of Staff (Operations) to appoint an officer for the said purpose.]

(2) (a) Where a person is charged with a scheduled offence, the officer investigating the charge under subsection (1) of this section shall—

(i) where the person charged holds the rank of lieutenant colonel or commander or any higher commissioned rank—

(I) subject to paragraph (b) of this subsection, dismiss the charge if, in his discretion, he considers that it should not be proceeded with, or

(II) remand the person charged for trial by court-martial if he considers that the charge should be proceeded with,

(ii) in any other case—

(I) subject to paragraph (b) of this subsection, dismiss the charge if, in his discretion, he considers that it should not be proceeded with, or

(II) remand the person charged for trial by court-martial if he considers that the charge should be proceeded with, or

(III) subject to this section and to regulations made under section 184, refer the charge for summary investigation by an authorised officer.

(b) In the case of a charge against a person for a scheduled offence specified in Part II of the Eleventh Schedule to this Act, dismissal of the charge under subparagraph (i)(I) or (ii)(I) of paragraph (a) of this subsection or referral of the charge for summary investigation by an authorised officer under subparagraph (ii)(III) of the said paragraph (a) shall be subject to the prior consent of the Director and where the Director refuses consent in any such case the person charged shall be remanded for trial by court-martial.

(3) (a) Where a person is charged with an offence other than a scheduled offence, the officer investigating the charge under subsection (1) of this section shall—

(i) subject to the prior consent of the Director, dismiss the charge if the officer considers that it should not be proceeded with, or

(ii) remand the person for trial by court-martial.

(b) Where the Director refuses consent to the dismissal of the charge concerned, the person charged shall be remanded for trial by court-martial.

(4) Where a person is remanded under this section for trial by court-martial, the matter shall be referred to the Director for his directions.

(5) Where a person is charged with an offence for which the person would be required on conviction to be sentenced to imprisonment for life and the charge is investigated under this section, the person may, if he so wishes, be represented by counsel (within the meaning of section 196) or by an officer subject to military law.]

177A. F190[Notice.

177A.—Where a charge against a person subject to military law is—

F191[(a) to be investigated under section 177, or]

(b) referred to an authorised officer for summary investigation under section 177(2)(a)(ii)(III),

the person charged shall be entitled to receive, in the prescribed manner, at least 24 hours before the charge is to be so investigated—

(i) written notice in the prescribed form of the date on which and the time and place at which the charge is to be so investigated, and

(ii) a copy of the charge sheet containing particulars of the offence concerned, a list of the witnesses who will be giving evidence against the person and, where available, an abstract of the evidence to be given against the person and a copy of any witness statements.]

177B. F192[Right to elect for trial by court-martial.

177B.—(1) Before disposing of a charge summarily under section 177C, the authorised officer shall, in the prescribed manner—

(a) ask the person charged whether he elects to have the charge disposed of summarily by the authorised officer or to be tried by court-martial, and

(b) inform the person charged that he may obtain legal advice regarding the matter of the election and, where the person wishes to obtain such legal advice, that the hearing shall be adjourned for such period as the authorised officer considers reasonable (which period shall not in any case be less than 48 hours).

(2) Where the person charged elects to be tried by court-martial, whether or not the person obtains legal advice, the authorised officer shall remand the person charged for trial by court-martial and shall refer the charge to the Director for his directions but otherwise shall proceed to dispose of the charge summarily under section 177C and may do so then and there.

(3) Where two or more charges are brought against the person concerned, an election for trial by court-martial in respect of any of the charges shall take effect as an election in respect of all of them.]

177C. F193[Summary disposal by authorised officer.

177C.—(1) This section applies where the person charged elects under section 177B to have the charge disposed of summarily by the authorised officer.

(2) The authorised officer may, subject to subsection (5) of this section, dismiss the charge at any stage of the hearing.

(3) If the authorised officer determines that the charge has not been proved he shall dismiss the charge.

(4) The authorised officer may, after hearing the evidence or without hearing the evidence, remand the person charged for trial by court-martial and, in that case, shall refer the matter to the Director for his directions.

(5) After hearing the evidence or, if the person charged consents to the attendance of witnesses being dispensed with and admits the offence charged, after reading a summary or abstract of the evidence, where the authorised officer makes a determination that the charge has been proved, he shall—

(a) record the determination, and

(b) subject to subsection (6) of this section—

(i) in the case of a person subject to military law as an officer pursuant to section 118(a), (b) or (c) or as a non-commissioned officer in the rank of sergeant major or battalion quarter-master sergeant or their equivalent naval ranks, award one of the following punishments:

(I) reduction on the applicable scale of pay of the person by one increment from a specified date for a specified period not exceeding one year;

(II) deferral for a specified period not exceeding one year of the next increment due to the person on the applicable scale of pay of that person;

(III) a fine not exceeding an amount equal to seven days’pay of the person at the most recent applicable rate;

(IV) severe reprimand;

(V) reprimand,

(ii) in the case of a person subject to military law as an officer pursuant to section 118(d) or (e), award one of the following punishments:

(I) a fine not exceeding an amount equal to seven days’pay of the person at the most recent applicable rate;

(II) severe reprimand;

(III) reprimand.

(6) Where the authorised officer records a determination that two or more charges against the person have been proved, he shall award a single punishment in accordance with subsection (5) of this section in respect of the charges taken together.

(7) The person charged may have an assisting person present at but not participating in the hearing before the authorised officer.

(8) The evidence against the person charged taken before the authorised officer shall, if the person charged so demands, be taken on oath, and in that event there shall be administered to each witness the same oath or solemn declaration as that required to be taken by a witness before a court-martial, and for this purpose the authorised officer may administer oaths or solemn declarations.

(9) Where the authorised officer makes a determination under this section that a charge has been proved and the offence charged occasioned any personal injury, expense or loss or destruction of, or damage to, any property, the authorised officer may, instead of or in addition to any punishment which he is authorised by this section to award in respect of the offence, order that there shall be paid by the person charged, as compensation for the personal injury, expense, loss, damage or destruction so occasioned, to any person who has suffered such personal injury, expense, loss, damage or destruction, such sum as the authorised officer may direct not exceeding the lesser of—

(a) the amount required to make good such personal injury, expense, loss, damage or destruction, or

(b) subject to subsection (10) of this section, an amount equal to twenty-eight days’pay of the person charged.

(10) A compensation order under subsection (9) of this section may provide for payment of the compensation by such instalments and at such times as the authorised officer shall in all the circumstances consider reasonable subject to a maximum deduction of seven days’pay in any one calendar month.]

177D. F194[Remand for trial by court-martial.

177D.—(1) Where the person charged is remanded for trial by court-martial under section 177(2)(a)(ii)(II) or 177C and the matter is referred to the Director for his directions, the Director may direct that the charge (with such alterations, amendments, additions, substitutions and additional charges as he thinks fit) be referred back to an authorised officer and the authorised officer shall either dismiss or, subject to the right to elect to be tried by court-martial pursuant to section 177B, dispose of the charge or charges so referred back summarily in accordance with section 177C.

(2) Where the person charged—

(a) is remanded for trial by court-martial under section 177(2)(a)(ii)(II) or 177C and no direction is given under subsection (1) of this section, or

(b) is remanded for trial by court-martial under section 177 (other than under section 177(2)(a)(ii)(II)) or 177B,

the Director may—

(i) subject to section 192, in respect of the charge concerned (with such alterations, amendments, additions, substitutions and additional charges as he thinks fit)—

(I) direct that the matter be referred for trial by summary court-martial, or

(II) direct that the Court-Martial Administrator convene a general court-martial or limited court-martial, as specified in his direction, to try the person charged,

(ii) withdraw the charge.]

178. F195[Charges against men.

178.—(1) This section and sections 178A to 178D apply to the summary disposal by a commanding officer of a charge against a person subject to military law as a man other than a sergeant major or battalion quarter-master sergeant or their equivalent naval ranks.

(2) (a) Where a person referred to in subsection (1) of this section is charged with a scheduled offence, the commanding officer investigating the charge (including a charge referred to the commanding officer under section 179(2)(b) or 179B) shall—

(i) subject to paragraph (b) of this subsection, dismiss the charge if, in his discretion, he considers that it should not be proceeded with, or

(ii) remand the person for trial by court-martial if he considers that the charge should be proceeded with, or

(iii) subject to this section and to regulations made under section 184, deal with the charge summarily.

(b) In the case of a charge against a person referred to in subsection (1) of this section for a scheduled offence specified in Part II of the Eleventh Schedule to this Act, dismissal of the charge under subparagraph (i) of paragraph (a) of this subsection or the decision to dispose of the charge summarily under subparagraph (iii) of the said paragraph (a) shall be subject to the prior consent of the Director and where the Director refuses consent in any such case the person shall be remanded for trial by court-martial.

(3) (a) Where a person is charged with an offence other than a scheduled offence, the commanding officer investigating the charge shall—

(i) subject to the prior consent of the Director, dismiss the charge if he considers that it should not be proceeded with, or

(ii) remand the person for trial by court-martial.

(b) Where the Director refuses consent to the dismissal of the charge concerned, the person charged shall be remanded for trial by court-martial.

(4) Where a person is remanded under this section for trial by court-martial, the matter shall be referred to the Director for his directions.

(5) Where a person referred to in subsection (1) of this section is charged with an offence for which the person would be required on conviction to be sentenced to imprisonment for life and the charge is investigated under this section, the person may, if he so wishes, be represented by counsel (within the meaning of section 196) or by an officer subject to military law.]

178A. F196[Notice.

178A.—Where a charge against a person referred to in section 178(1) is to be investigated by a commanding officer, the person charged shall be entitled to receive, in the prescribed manner, at least 24 hours before the charge is to be so investigated—

(a) written notice in the prescribed form of the date on which and the time and place at which the charge is to be so investigated, and

(b) a copy of the charge sheet containing particulars of the offence concerned, a list of the witnesses who will be giving evidence against the person and copies of any available evidence to be given against the person and of any witness statements.]

178B. F197[Right to elect for trial by court-martial.

178B.—(1) Before disposing of a charge summarily under section 178C, the commanding officer shall, in the prescribed manner—

(a) ask the person charged whether he elects to have the charge disposed of summarily by the commanding officer or to be tried by court-martial, and

(b) inform the person charged that he may obtain legal advice regarding the matter of the election and, where the person wishes to obtain such legal advice, that the hearing shall be adjourned for such period as the commanding officer considers reasonable (which period shall not in any case be less than 48 hours).

(2) Where the person charged elects to be tried by court-martial, whether or not the person obtains legal advice, the commanding officer shall remand the person for trial by court-martial and shall refer the charge to the Director for his directions but otherwise shall proceed to dispose of the charge summarily under section 178C and may do so then and there.

178C. F198[Summary disposal by commanding officer.

178C.—(1) This section applies where the person charged elects under section 178B to have the charge disposed of summarily by the commanding officer and, in the case of a scheduled offence specified in Part II of the Eleventh Schedule to this Act, the Director has consented to the charge being disposed of summarily.

(2) The commanding officer may, subject to subsection (5) of this section, dismiss the charge at any stage of the hearing.

(3) If the commanding officer determines that the charge has not been proved he shall dismiss the charge.

(4) The commanding officer may, after hearing the evidence or without hearing the evidence, remand the person charged for trial by court-martial and, in that case, shall refer the matter to the Director for his directions.

(5) After hearing the evidence or, if the person charged consents to the attendance of witnesses being dispensed with and admits the offence charged, having considered the available evidence, where the commanding officer makes a determination that the charge has been proved, he shall—

(a) record the determination, and

(b) subject to subsection (7) of this section—

(i) in the case of a non-commissioned officer, award one of the following punishments:

(I) reduction on the applicable scale of pay of the person by one increment from a specified date for a specified period not exceeding one year;

(II) deferral for a specified period not exceeding one year of the next increment due to the person on the applicable scale of pay of that person;

(III) a fine not exceeding an amount equal to seven days’pay of the person at the most recent applicable rate;

(IV) severe reprimand;

(V) reprimand,

(ii) in the case of a private or a seaman, award one or, subject to subsection (6) of this section, a combination of the following punishments:

(I) reduction on the applicable scale of pay of the person by one increment from a specified date for a specified period not exceeding one year;

(II) deferral for a specified period not exceeding one year of the next increment due to the person on the applicable scale of pay of the person;

(III) a fine not exceeding an amount equal to seven days’pay of the person at the most recent applicable rate;

(IV) stoppage of local leave or shore leave, as the case may be, for a period or periods not exceeding a total of fourteen days, as may be prescribed under section 184;

(V) additional duties as may be prescribed under section 184;

(VI) a warning,

(iii) in the case of a person subject to military law as a man pursuant to section 119(c) or (d), award one of the following punishments:

(I) a fine not exceeding an amount equal to seven days’pay of the person at the most recent applicable rate;

(II) a warning.

(6) Where the person charged is a private or seaman, save as provided for by subsection (10) of this section, only the following combinations of punishments may be awarded by a commanding officer:

(a) in the case where the commanding officer awards a fine under subparagraph (ii)(III) of paragraph (b) of subsection (5) of this section, he may also award—

(i) stoppage of local leave or shore leave under subparagraph (ii)(IV) of the said paragraph (b), or

(ii) additional duties under subparagraph (ii)(V) of the said paragraph (b);

(b) in the case where the commanding officer awards stoppage of local leave or shore leave under subparagraph (ii)(IV) of paragraph (b) of subsection (5) of this section, he may also award additional duties under subparagraph (ii)(V) of the said paragraph (b).

(7) Where the commanding officer records a determination that two or more charges against the person have been proved, he shall award a single punishment or combination of punishments in accordance with subsections (5) and (6) of this section in respect of the charges taken together.

(8) The person charged may have an assisting person present at but not participating in the hearing before the commanding officer.

(9) The evidence against the person charged taken before the commanding officer shall, if the person so demands, be taken on oath, and in that event there shall be administered to each witness the same oath or solemn declaration as that required to be taken by a witness before a court-martial, and for this purpose the commanding officer may administer oaths or solemn declarations.

(10) Where the commanding officer makes a determination under this section that a charge has been proved and the offence charged occasioned any personal injury, expense, or loss or destruction of, or damage to, any property, the commanding officer may, instead of or in addition to any punishment which he is authorised by this section to award in respect of the offence, order that there shall be paid by the person charged, as compensation for the personal injury, expense, loss, damage or destruction so occasioned, to any person who has suffered such personal injury, expense, loss, damage or destruction, such sum as the commanding officer may direct not exceeding the lesser of—

(a) the amount required to make good such personal injury, expense, loss, damage or destruction, or

(b) subject to subsection (11) of this section, an amount equal to twenty-eight days’pay of the person charged.

(11) A compensation order under subsection (10) of this section may provide for payment of the compensation by such instalments and at such times as the commanding officer shall in all the circumstances consider reasonable subject to a maximum deduction of seven days’pay in any one calendar month.]

178D. F199[Remand for trial by court-martial.

178D.—(1) Where the person charged is remanded for trial by court-martial under section 178(2)(a)(ii) or 178C and the matter is referred to the Director for his directions, the Director may direct that the charge (with such alterations, amendments, additions, substitutions and additional charges as he thinks fit) be referred back to the commanding officer and the commanding officer shall either dismiss or, subject to the right to elect to be tried by court-martial pursuant to section 178B, dispose of the charge or charges so referred back summarily in accordance with section 178C.

(2) Where the person charged—

(a) is remanded for trial by court-martial under section 178(2)(a)(ii) or 178C and no direction is given under subsection (1) of this section, or

(b) is remanded for trial by court-martial under section 178 (other than under section 178(2)(a)(ii)) or 178B,

the Director may—

(i) subject to section 192, in respect of the charge concerned (with such alterations, amendments, additions, substitutions and additional charges as he thinks fit)—

(I) direct that the matter be referred for trial by summary court-martial, or

(II) direct that the Court-Martial Administrator convene a general court-martial or limited court-martial, as specified in his direction, to try the person charged,

(ii) withdraw the charge.]

178E. F200[Appeal to summary court-martial.

178E.—(1) This section and sections 178F and 178G shall apply in relation to a compensation order made under section 177C or 178C as they apply to a punishment awarded under the said section 177C or 178C, as the case may be, and for the purpose of such application references in this section and sections 178F and 178G to a punishment shall be construed as references to a compensation order.

(2) A person in respect of whom, under section 177C or 178C—

(a) a charge has been disposed of summarily, and

(b) a determination made and punishment awarded by an authorised officer or commanding officer, as the case may be,

may appeal in the manner prescribed by court-martial rules to the summary court-martial against the determination or the punishment or both the determination and the punishment.

(3) An appeal under this section shall be brought—

(a) within seven days beginning with the date on which the punishment was awarded ("the initial period"), or

F201[(b) within such longer period as the summary court-martial may allow following an application made in that behalf to the summary court-martial before the end of the initial period.]

(4) The respondent to an appeal under this section shall be the Director.]

178F. F202[Hearing of appeal by summary court-martial.

178F.—(1) An appeal under section 178E against a determination shall be by way of—

(a) a rehearing of the charge, and

(b) except where section 178G(2) applies, a rehearing as regards punishment.

(2) An appeal under section 178E against punishment shall be by way of a rehearing as regards punishment.

(3) The appellant may, if he so wishes, be represented at the hearing of the appeal by counsel (within the meaning of section 196) or by an officer subject to military law.]

178G. F203[Powers of summary court-martial.

178G.—(1) At a rehearing of the charge concerned under section 178F, the summary court-martial may confirm or quash the determination concerned.

(2) Where the summary court-martial quashes a determination, or where there is more than one determination, every determination, made in respect of the appellant, the summary court-martial shall quash the punishment which relates to that determination or, as the case may be, those determinations.

(3) At a rehearing as regards punishment under section 178F, the summary court-martial may—

(a) confirm the punishment awarded,

(b) quash that punishment, or

(c) substitute any other punishment which it would have been within the powers of the authorised officer or commanding officer, as the case may be, who heard the charge against the appellant summarily, to award.

(4) Where the summary court-martial substitutes a punishment under subsection (3)(c) of this section, the substituted punishment shall take effect on and from the date on which the original punishment was awarded or such other date as the military judge may order.

(5) Where an appeal is made to the summary court-martial under section 178E, the military judge—

(a) shall, if requested by the appellant or the respondent, unless the military judge considers the request frivolous, and

(b) may, without request,

refer any question of law arising in that appeal to the Courts-Martial Appeal Court for determination in accordance with the Courts-Martial Appeals Act 1983.]

179. F204[Charges against privates and seamen.

179.—(1) A commanding officer may, in accordance with regulations made under section 184, delegate to any officer under his command the power of disposing of charges against privates or seamen under the command of the commanding officer in respect of any of the scheduled offences specified in Part I of the Eleventh Schedule to this Act and every officer to whom such power is delegated shall, for the purposes of this section, be a subordinate officer.

(2) A subordinate officer investigating a charge against a private or seaman, who is subject to military law, of having committed any of the offences referred to in subsection (1) of this section shall—

(a) dismiss the charge if, in his discretion, he considers that it should not be proceeded with, or

(b) where the subordinate officer considers that the charge should be proceeded with, refer the charge to the commanding officer who shall deal with the charge in accordance with sections 178 to 178D, or

179A. F205[Notice.

179A.—Where a subordinate officer proposes to investigate a charge against a private or seaman in respect of any of the offences referred to in section 179(1), the private or seaman shall be entitled to receive, in the prescribed manner, at least 24 hours before the charge is to be so investigated—

(a) written notice in the prescribed form of the date on which and the time and place at which the charge is to be so investigated, and

179B. F206[Right to elect to have charge disposed of summarily by commanding officer.

179B.—(1) Before disposing of a charge summarily under section 179C, the subordinate officer shall, in the prescribed manner, ask the private or seaman whether he elects to have the charge disposed of summarily by the subordinate officer or to have the charge referred to the commanding officer and, if the private or seaman elects to have the charge so referred, the subordinate officer shall refer the charge to the commanding officer who shall deal with the charge in accordance with sections 178 to 178D but otherwise the subordinate officer shall proceed to dispose of the charge summarily under section 179C and may do so then and there.

(2) Where two or more charges are brought against a private or seaman, an election to have any of the charges dealt with summarily by the commanding officer shall take effect as an election in respect of all of them.]

179C. F207[Summary disposal by subordinate officer.

179C.—(1) This section applies where a private or seaman elects under section 179B to have the charge disposed of summarily by the subordinate officer.

(2) The subordinate officer may, subject to subsection (5) of this section, dismiss the charge at any stage of the hearing.

(3) If the subordinate officer determines that the charge has not been proved he shall dismiss the charge.

(4) The subordinate officer may, after hearing the evidence or without hearing the evidence, refer the charge to the commanding officer who shall deal with the charge in accordance with sections 178 to 178D.

(5) After hearing the evidence or, if the private or seaman consents to the attendance of witnesses being dispensed with and admits the offence charged, having considered the available evidence, where the subordinate officer makes a determination that the charge has been proved, he shall—

(a) record the determination, and

(b) subject to subsections (6) and (7) of this section, award one or a combination of the following punishments:

(i) a fine not exceeding an amount equal to three days’pay of the private or seaman at the most recent applicable rate;

(ii) stoppage of local leave or shore leave, as the case may be, for a period or periods not exceeding a total of seven days, as may be prescribed under section 184;

(iii) additional duties as may be prescribed under section 184;

(iv) a warning.

(6) Save as provided for by subsection (10) of this section, only the following combinations of punishments may be awarded by a subordinate officer:

(a) in the case where the subordinate officer awards a fine under subparagraph (i) of paragraph (b) of subsection (5) of this section, he may also award—

(i) stoppage of local leave or shore leave under subparagraph (ii) of the said paragraph (b), or

(ii) additional duties under subparagraph (iii) of the said paragraph (b);

(b) in the case where the subordinate officer awards stoppage of local leave or shore leave under subparagraph (ii) of paragraph (b) of subsection (5) of this section, he may also award additional duties under subparagraph (iii) of the said paragraph (b).

(7) Where the subordinate officer records a determination that two or more charges against the private or seaman have been proved, he shall award a single punishment or combination of punishments in accordance with subsections (5) and (6) of this section in respect of the charges taken together.

(8) The private or seaman may have an assisting person present at but not participating in the hearing before the subordinate officer.

(9) The evidence against the private or seaman taken before the subordinate officer shall, if the private or seaman so demands, be taken on oath, and in that event there shall be administered to each witness the same oath or solemn declaration as that required to be taken by a witness before a court-martial, and for this purpose the subordinate officer may administer oaths and solemn declarations.

(10) Where the subordinate officer makes a determination under this section that a charge has been proved and the offence charged occasioned any personal injury, expense or loss or destruction of, or damage to, any property, the subordinate officer may, instead of or in addition to any punishment which he is authorised by this section to award in respect of the offence, order that there shall be paid by the private or seaman, as compensation for the personal injury, expense, loss, damage or destruction so occasioned, to any person who has suffered such personal injury, expense, loss, damage or destruction, such sum as the subordinate officer may direct not exceeding the lesser of—

(a) the amount required to make good such personal injury, expense, loss, damage or destruction, or

(b) an amount equal to seven days’pay of the private or seaman.

(11) A compensation order under subsection (10) of this section may provide for payment of the compensation by such instalments and at such times as the subordinate officer shall in all the circumstances consider reasonable.]

179D. F208[Appeal to commanding officer.

179D.—(1) This section and section 179E shall apply in relation to a compensation order made under section 179C as they apply to a punishment awarded under the said section 179C, and for the purpose of such application references in this section and section 179E to a punishment shall be construed as references to a compensation order.

(2) A private or seaman in respect of whom, under section 179C—

(a) a charge has been disposed of summarily, and

(b) a determination made and punishment awarded by a subordinate officer,

may appeal in the prescribed manner to a commanding officer against the determination or the punishment awarded (or both).

(3) An appeal under this section shall be brought—

(a) within two days beginning on the date on which the punishment was awarded ("the initial period"), or

(b) within such longer period as the commanding officer of the private or seaman concerned may allow, by leave given before the end of the initial period, which longer period shall not exceed five days beginning on the date on which the punishment was awarded.]

179E. F209[Hearing of appeals by commanding officer.

179E.—(1) An appeal under section 179D against a determination shall be by way of a rehearing of the charge and a rehearing as regards punishment.

(2) An appeal under section 179D against punishment shall be by way of a rehearing as regards punishment.

(3) The appellant is entitled to have an assisting person present at but not participating in the hearing of the appeal.

(4) Subsections (2) to (11) of section 178C and section 178D shall apply, with any necessary modifications, to the hearing of an appeal under this section as they apply for the purpose of the summary disposal of a charge under the said section 178C.]

179F. F210[Suspension of operation of certain punishments pending appeal.

179F.—The operation of a punishment awarded (other than stoppage of local leave or shore leave) or a compensation order made under this Chapter shall be suspended—

(a) in any case until the time for bringing an appeal (whether against the determination, punishment or compensation order, as the case may be) under section 178E or 179D has expired, and

(b) in a case where the appeal is brought within that time, until the appeal or, in the case of an appeal under section 179D, any further appeal is finally determined (and the determination, punishment or compensation order, as the case may be, has been confirmed) or abandoned or the time for bringing any further appeal has expired.]

180. Revision of summary awards.

180.—F211[…]

181. Trial of accused without preliminary investigation.

181.—(1)Where an offence against military law is alleged to have been committed by a person subject to military law and a court of inquiry has been held in respect of matters relating to the alleged offence, an officer having power to convene a court-martial may, if satisfied that there is prima facie evidence of the commission of such offence, order such person to be tried by court-martial without any previous investigation of the charge against such person.

(2)Where a person is ordered to be tried by court-martial under subsection (1) of this section, a statement of the evidence of the witnesses proposed to be called for the prosecution at the trial and a copy of the proceedings and findings of the court of inquiry shall be delivered to him before the trial.

182. Confession of desertion or fraudulent enlistment.

182.—(1)Where a man of the Permanent Defence Force or a man of the Reserve Defence Force F212[called out on permanent service or deployed on military service under section 91A] signs a confession that he has been guilty of the offence of desertion or of fraudulent enlistment, a prescribed military authority may by order dispense with his trial by court-martial, and may by such order or a subsequent order do any one or more of the following things, that is to say:—

(a)reduce him, if he holds a non-commissioned army rank, to any lower non-commissioned army rank or, if he holds a non-commissioned naval rank, to any lower non-commissioned naval rank;

(b)forfeit in the prescribed manner his seniority of rank;

(c)in case any expense, loss, damage or destruction is occasioned by the commission of such offence, direct that there shall be paid by him as compensation for such expense, loss, damage or destruction such sum (not exceeding the amount required to make good such expense, loss, damage or destruction) as may be specified in such order.

(2)When a man of the Permanent Defence Force or a man of the Reserve Defence Force F212[called out on permanent service or deployed on military service under section 91A] signs a confession that he has been guilty of the offence of desertion or fraudulent enlistment and evidence of the truth or falsehood of such confession cannot then be conveniently obtained, the record of such confession signed by the commanding officer of the man shall be entered in the service books, and such man shall continue to do duty in the service corps in which he may then be serving or to which he may be transferred until he is discharged or, if he is a man of the Permanent Defence Force, is transferred to the Reserve Defence Force or until legal proof can be obtained of the truth or falsehood of such confession.

183. Summoning of civilian witnesses before authorised officers and commanding officers.

183.—(1)Every person not subject to military law required to give evidence before an authorised officer or a commanding officer investigating a charge under this Chapter may be summoned or ordered in the prescribed manner to attend as a witness before the authorised officer or the commanding officer.

(2)If any person not subject to military law on being duly summoned or ordered to attend as a witness before an authorised officer or a commanding officer and after payment or tender of the reasonable expenses of his attendance makes default in attending, he shall be guilty of an offence under this section and shall be liable on summary conviction thereof to a fine not exceeding F213[€2,000].

184. F215[Regulations in relation to investigation and summary disposal of charges.

184.—(1) For the purposes of this Chapter, the Minister may make regulations, not inconsistent with this Act, in relation to all or any of the following matters:

(a) the investigation and summary disposal under this Chapter of charges against persons subject to military law, including the exercise of the right to elect for trial by court-martial, which regulations may include:

(i) the practice and procedure to be followed;

(ii) the form of notices and the giving of such notices under this Chapter;

(iii) the summoning of witnesses and the production of relevant documents and other things;

(iv) evidence;

(v) the administration of oaths or solemn declarations to witnesses in a case where the person charged is subject to military law and demands that the witnesses be sworn;

(b) where a person is remanded for trial by court-martial pursuant to this Chapter, the appointment of an officer to take a written summary of evidence in the case;

(c) the officers in whom are to be vested the powers and duties of authorised officers and commanding officers and the officers in whom may be vested by delegation the powers and duties of subordinate officers;

(d) the delegation to a subordinate officer of power to deal summarily with a case;

(e) the making of an application to the Director to deal summarily with a charge against a person for an offence specified in Part II of the Eleventh Schedule to this Act;

(f) the referral of charges for summary investigation to an authorised officer under section 177(2);

(g) the reference back by the Director of charges for summary disposal;

(h) the making and retention of records of proceedings and determinations made in respect of the investigation and summary disposal of charges;

(i) the effective dates of, and the carrying into effect of, punishments awarded and compensation orders made under section 177C, 178C or 179C, as the case may be;

(j) the stoppage of local leave or shore leave under section 178C or 179C, including the times at which any such stoppage may be imposed;

(k) the additional duties which may be awarded by a commanding officer under section 178C or by a subordinate officer under section 179C, including the nature of those duties and the period for which and the times at which those duties may be performed which period shall not in any case exceed three hours per day for seven days;

(l) the making of an appeal by a private or seaman to a commanding officer under section 179D;

(m) any person, matter or thing referred to as prescribed or to be prescribed;

(n) any other matter or thing necessary for carrying this Chapter into effect.

(2) Every regulation made under this section shall be laid before each House of the Oireachtas as soon as may be after it is made and, if a resolution annulling the regulation is passed by either such House within the next twenty-one days on which that House has sat after the regulation is laid before it, the regulation shall be annulled accordingly, but without prejudice to the validity of anything previously done under the regulation.]

Chapter IVA

184A. Appointment of Court-Martial Administrator.

184A.—(1) An officer of the Permanent Defence Force not below the army rank of colonel or the equivalent naval rank may by warrant of the Judge Advocate-General be appointed as the Court-Martial Administrator.

(2) A warrant under this section may be made subject to such restrictions, reservations, exceptions and conditions as the Judge Advocate-General thinks fit including terms and conditions relating to the delegation by the Court-Martial Administrator of his functions under this Act.

(3) A warrant under this section—

(a) may be addressed to an officer by name or by designation of his office or partly in one way and partly in another, and

(b) may or may not, according to the terms of the warrant and the mode in which it is addressed—

(i) be limited to an officer named, or

(ii) be extended to a person for the time being performing the duties of the office named, or

(iii) be extended to the successors in office of an officer.

(4) The Court-Martial Administrator shall be independent in the performance of his functions.

(5) The Court-Martial Administrator shall neither report on, nor be the subject of any report in respect of, the performance of his functions under this Act.]

184B. F217[Functions of Court-Martial Administrator.

184B.—(1) The Court-Martial Administrator shall manage and control generally the administration and business of courts-martial and shall perform such other functions as may be specified or prescribed by or under this Act.

(2) The Court-Martial Administrator shall act under the general supervision of the Judge Advocate-General.

(3) The Court-Martial Administrator shall provide to the Judge Advocate-General such information in relation to the performance of his functions as the Judge Advocate-General may from time to time require.

(4) The Court-Martial Administrator shall—

(a) as directed by the Director under this Part, convene general courts-martial and limited courts-martial and refer any charge or other matter to the summary court-martial, and

(b) in the case of a general court-martial or limited court-martial, specify the members of the court-martial board.

(5) Subject to the terms of the warrant under section 184A, the functions of the Court-Martial Administrator may be delegated by him from time to time to any other person or persons or class or classes of persons for such purposes as may be specified in the warrant.]

Chapter IVB

184C. F218[Appointment of Director of Military Prosecutions.

184C.—(1) Subject to this Chapter, the Government shall appoint an officer of the Permanent Defence ForceF219[, or a qualified person other than an officer of the Permanent Defence Force,]to be the Director of Military Prosecutions (in this Act referred to as the "Director").

(2) Subject to this Chapter, an officerF220[, or a person other than an officer of the Permanent Defence Force,]who is a practising barrister or practising solicitor of not less than 10 years standing shall be qualified for appointment as the Director.

(3) For the purposes of this section service for any period in a position in the full-time service of the State (including as a member of the Permanent Defence Force and as a civil servant within the meaning of theCivil Service Regulation Act 1956) for which qualification as a barrister or solicitor was a requirement shall be deemed to be practice as a barrister or a solicitor, as the case may be, for that period and an officer, while holding that position, shall be deemed to be a practising barrister or a practising solicitor, as the case may be.

F221[(3A) For the purposes of this section—

(a) service, in respect of which a determination has been made in accordance with section 184D(3A), shall be deemed to be practice as a barrister or a solicitor, as the case may be, for the period to which that service relates, and

(b) the officer in respect of whom that service relates shall be deemed to be a practising barrister or a practising solicitor, as the case may be, while holding the position to which that service relates.]

F222[(3B) For the purposes of this section, having regard to the appointment of a person other than an officer of the Permanent Defence Force—

(a) service for any period in a position in the full-time service of the State (including as a member of the Permanent Defence Force and as a civil servant within the meaning of theCivil Service Regulation Act 1956) for which qualification as a barrister or solicitor was a requirement shall be deemed to be practice as a barrister or a solicitor, as the case may be, for that period, and

(b) a person, other than an officer of the Permanent Defence Force, while holding that position, shall be deemed to be a practising barrister or a practising solicitor, as the case may be.]

(4) The Director shall not be below the army rank of colonel or the equivalent naval rank.]

F223[(5) Where a qualified person, referred to in subsection (1), is to be appointed under subsection (1) to be the Director that person shall, for the purposes of subsection (4), be nominated for appointment as a commissioned officer under section 42 at the rank specified in subsection (4).]

184D. F224[Committee.

184D.—(1) For the purpose of identifying officers,F225[and persons other than officers,]and informing the Minister of their suitability for appointment as Director, there shall be established a committee consisting of—

(a) the Chief of Staff,

(b) a Judge of the High Court, nominated by the President of the High Court, and

(2) (a) In the case of the person specified in subsection (1)(b) of this section signifying at any time unwillingness or inability to act for any period as a member of the committee, the President of the High Court may nominate any other available Judge of the High Court to be a member of the committee in place of that person for that period.

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