LegalizeDefence Act , 1954
(b) In the case of the Director of Public Prosecutions signifying at any time unwillingness or inability to act for any period as a member of the committee, the Minister may, after consultation with the Attorney General, appoint as a member of the committee in place of the Director of Public Prosecutions, for that period, a practising barrister nominated by the General Council of the Bar of Ireland or a practising solicitor nominated by the Law Society of Ireland.
(3) The committee may adopt such procedures as it considers appropriate to carry out its functions under this section.
F226[(3A) A committee established under this section, having considered—
(a) the service of an officer, other than an officer referred to in section 184C(3), who is a qualified barrister or solicitor 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 any period following that qualification, and
(b) the duties and role discharged by the officer in relation to the service, during that period,
may determine that it is satisfied that—
(i) such duties and role are substantially similar in substance and effect to those discharged by an officer referred to in section 184C(3), and
(ii) such duties and role were carried out by the officer on a day to day basis throughout that period.]
(4) The committee shall, whenever so requested by the Minister, select an officer or officers,F227[or, as the case may be, one, or more than one, person other than an officer,]for appointment under section 184C and shall inform the Minister of the selection made and of his or their suitability for the appointment.
(5) The Government shall not appointF228[an officer, or a person other than an officer, to be the Director unless the officer, or person,]was selected or amongst those selected by the committee pursuant to a request under subsection (4) of this section in relation to that appointment, but—
(a) if the committee is unable to selectF229[a suitable officer or person other than an officer,]pursuant to a particular request under that subsection, or
(b) if the Government decide not to appoint to be the DirectorF230[the officer or any of the officers, or such person or any of such persons selected by the committee]pursuant to a particular request under that subsection,
then either—
(i) the Government shallF231[appoint an officer, or as the case may be, a person other than an officer, to be the Director,]who was selected or amongst those selected by the committee pursuant to a previous request (if any) under that subsection in relation to that appointment, or
(ii) the Minister shall make a further request to the committee under that subsection andF232[the Government shall appoint an officer, or such person, to be the Director]who was selected or amongst those selected by the committee pursuant to that request or pursuant to another request under that subsection in relation to that appointment.
(6) All proceedings of the committee and all communications to the committee shall be confidential and shall not be disclosed except for the purposes of this Chapter.]
184E. F233[Terms and conditions of appointment.
184E.—(1) Subject to this Chapter, the Director shall hold and vacate office on the terms and conditions determined by the Minister with the consent of the Minister for Finance.
(2) The Director shall be independent in the performance of his functions.
(3) The Director shall neither report on, nor be the subject of any report in respect of, the performance of his functions under this Act.
(4) The Attorney General, the Director of Public Prosecutions and the Director may consult together from time to time in relation to matters pertaining to the functions of the Director.]
184F. F234[Appointment of court-martial prosecutor.
184F.—(1) The Director may appoint in writing any of the following persons to be a prosecutor in a court-martial (in this Act referred to as a "court martial prosecutor"):
(a) a member of the Defence Forces who at the date of appointment under this subsection is a practising solicitor or practising barrister;
(b) a practising solicitor nominated by the Attorney General;
(c) a practising barrister nominated by the Attorney General.
(2) A court-martial prosecutor shall hold and vacate office in accordance with such terms and conditions as may be determined by the Director.
(3) A court-martial prosecutor may, unless the Director otherwise directs, exercise any function of the Director.
(4) In this section—
"practising barrister" has the same meaning as it has in theLegal Services Regulation Act 2015;
"practising solicitor" has the same meaning as it has in theLegal Services Regulation Act 2015.]
184G. F235[Prosecution of offences.
184G.—(1) This section applies where a charge has been referred to the Director under any of the provisions of this Act.
(2) When a charge for an offence under this Act is referred to the Director he may exercise any of the powers conferred on him by any of the provisions of this Act.
(3) Where the Director directs that a specified offence or offences be tried by court-martial, he shall also decide the class of court-martial that is to try the offence or offences concerned and shall direct the Court-Martial Administrator accordingly.
(4) Where a direction has been given by the Director for the trial by court-martial of a person accused of an offence against military law, the offence shall be taken to be prosecuted at the suit of the Director who shall be responsible for the conduct of all prosecutions at court-martial, and accordingly the Director shall have, in respect of that offence, in addition to any other powers conferred on him by or under this Act, powers similar to those conferred by law on the Director of Public Prosecutions in respect of offences triable on indictment before a civil court.]
184H. F236[Removal of Director from office.
184H.—(1) Subject to section 184I, the Director may be removed from office by the Government but only for stated reasons, including because—
(a) he has become incapable, through ill-health, either physical or mental, of effectively performing the functions of the office,
(b) he has failed to perform the functions of the office with due diligence and effectiveness,
(c) he has engaged in conduct that brings discredit on the office or that may prejudice the proper performance of the functions of the office, or
(d) his removal from office would, in the Government’s opinion, be in the best interests of the Defence Forces.
(2) On notifying the Director under section 184I(1) that the Government intends to consider removing him from office, the Government may immediately suspend the Director from duty.
(3) The suspension from duty continues until the Government makes a decision in relation to the matter under consideration, but only if there is no undue delay in taking steps under section 184I or in making that decision.]
184I. F237[Steps to be taken before removal of Director.
184I.—(1) Before considering the Director’s removal from office under section 184H the Government shall—
(a) notify the Director that the Government intends to consider the matter and include in the notice a statement of their reasons for doing so, and
(b) give the Director an opportunity to make representations as to why he ought not to be removed from office.
(2) The Government may, if they consider it necessary or appropriate to do so, appoint a Judge of the High Court nominated by the President of the High Court to—
(a) hold an inquiry into any matter giving rise to a notification under subsection (1) of this section, and
(b) report to the Government on the findings of the inquiry.
(3) A Judge of the High Court appointed under this section to hold an inquiry may do one or more of the following:
(a) direct a person, by notice delivered to the person, to provide any information that is specified in the notice and is required for the purposes of the inquiry;
(b) direct any person, by notice delivered to the person, to produce at the time and place specified in the notice a document specified in the notice that is relevant to the inquiry and is in the person’s power or control;
(c) summon witnesses to attend the inquiry;
(d) direct a witness to answer a question put to the witness at the inquiry;
(e) give any other direction that appears to the Judge appointed under this section to be necessary, just and reasonable for the purposes of the inquiry;
(f) administer oaths and affirmations to witnesses and examine witnesses attending the inquiry.
(4) A person whose evidence has been, is being, or is to be given before an inquiry under this section, or who produces or sends a document to the inquiry pursuant to a summons or direction, as the case may be, under subsection (3) of this section or who is required by such a summons or direction to give evidence or produce a document to the inquiry or to attend before the inquiry and there to give evidence or produce a document, shall be entitled to the same privileges and immunities as if the person were a witness before the High Court.
(5) If a person fails or refuses to comply with or disobeys a summons or direction under subsection (3) of this section, the High Court may, on application by the Judge appointed under this section—
(a) order the person in relation to whom the application was made to comply with the direction or, in the case of a summons, to attend the inquiry, and
(b) make such other (if any) order as it considers necessary and just to enable the direction to have full effect or, in the case of a summons, to ensure the attendance at the inquiry.
(6) A person who—
(a) is notified under subsection (3) of this section and who, without lawful excuse, refuses or fails to comply with a direction under paragraph (a) or (b) of that subsection,
(b) fails, without lawful excuse, to attend an inquiry in response to a summons under subsection (3)(c) of this section,
(c) refuses to answer a question that the Judge of the High Court conducting the inquiry may legally direct the person to answer, or
(d) does or omits to do in relation to the inquiry any other thing the doing or omission of which would, if the inquiry had been a proceeding in the High Court, have been contempt of that Court,
is guilty of an offence and is liable on summary conviction to a fine not exceeding€3,000 or to imprisonment for a term not exceeding 6 months or both.
(7) If an inquiry is held, the Government shall—
(a) consider the report on the findings of the inquiry,
(b) make a copy of the report available to the Director whose removal from office is the subject of the report, and
(c) give the Director an opportunity to make representations relating to the report.
(8) As soon as practicable after the Director is removed from office under section 184H, the Minister shall cause a statement of the reasons for the removal to be laid before each House of the Oireachtas.]
Chapter IVC
184J. Military judge.
184J.—(1) The President may appoint, on the advice of the Government, one, or more than one, qualified officer of the Permanent Defence Force,F239[or a qualified person other than an officer of the Permanent Defence Force,]to be a military judge.
(2) An officer,F240[or a person other than an officer of the Permanent Defence Force,]who is a practising barrister or a practising solicitor of not less than 10 years standing shall be qualified for appointment as a military judge.
(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 practise 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.
F241[(3A) For the purposes of this section—
(a) service, in respect of which a determination has been made in accordance with section 184K(2A), 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.]
F242[(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 military judge, or where there is more than one military judge, the Chief Military Judge, shall not be below the army rank of colonel or the equivalent naval rank.]
F243[(5) Where a qualified person, referred to in subsection (1), is to be appointed under subsection (1) to be a military judge 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).]
184K. F244[Committee.
184K.—(1) For the purpose of identifying officersF245[, and persons other than officers,]and informing the Government of the suitability of those officersF246[, and such persons,]for appointment to judicial office, there shall be established a committee consisting of—
(a) the Chief of Staff,
(b) the Judge Advocate-General, and
(c) a Judge of the High Court, nominated by the President of the High Court.
(2) The committee may adopt such procedures as it considers appropriate to carry out its functions under this section.
F247[(2A) A committee established under this section, having considered—
(a) the service of an officer, other than an officer referred to in section 184J(3), who is a qualified barrister or solicitor 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 any period following that qualification, and
(b) the duties and role discharged by the officer in relation to the service, during that period,
may determine that it is satisfied that—
(i) such duties and role are substantially similar in substance and effect to those discharged by an officer referred to in section 184J(3), and
(ii) such duties and role were carried out by the officer on a day to day basis throughout that period.]
(3) The committee shall, whenever so requested by the Minister, select an officer or officersF248[, or, as the case may be, one, or more than one, person other than an officer,]for appointment under this section and shall inform the Minister of the selection made and of his or their suitability for the appointment and the Government shall consider for appointmentF249[the officer or officers, or such person or persons, so selected.]
(4) The committee shall not submit or recommend the name of an officerF250[, or a person other than an officer,]to the Minister under this section unlessF251[the officer or person concerned]satisfies the requirements of section 184J(2) as regards the proposed appointment, and the committee shall not recommend the name of the officerF252[, or a person other than an officer,]to the Minister unless, in the opinion of the committeeF253[or person], the officer—
(a) has displayed in his or her practice as a barrister or solicitor, as the case may be, a degree of competence and a degree of probity appropriate to and consistent with the appointment as a military judge,
(b) is suitable on grounds of character and temperament,
(c) is otherwise suitable, and
(d) complies with the requirements of subsection (5) of this section.
(5) An officerF254[or a person other than an officer]who wishes to be considered for appointment under section 184J shall undertake in writing to the committee, if appointed as a military judge, to take such courses of training or education, or both, as may be required by the Judge Advocate-General.
(6) All proceedings of the committee and all communications to the committee shall be confidential and shall not be disclosed except for the purposes of this Chapter.]
184L. F255[Terms and conditions of appointment.
184L.—(1) Subject to this Chapter, a military judge shall hold and vacate office on and subject to the terms and conditions (including terms and conditions relating to remuneration and superannuation) determined by the Minister with the consent of the Minister for Finance.
(2) A military judge shall be independent in the performance of his judicial functions under this Act.
(3) A military judge shall not hold any other office or employment in respect of which remuneration is payable.
(4) The remuneration of a military judge shall not be reduced during his continuance in office.
(5) A military judge may at his own request be relieved of office by the President.
(6) It shall be a condition of his appointment that a military judge—
(a) who is relieved of office by the President under subsection (5) of this section shall cease to be an officer,
(b) who ceases to be an officer under any of the provisions of this Act shall cease to be a military judge,
(c) who retires in accordance with the terms and conditions of his appointment under this Chapter shall cease to be an officer,
(d) who is removed from office under section 184O, shall cease to be an officer.
(7) Every officer appointed as a military judge under this Chapter shall, before entering upon his duties under this Act and in any case not later than 10 days after the date of his appointment, swear an oath or make a solemn declaration in the prescribed form which shall be administered by the Judge Advocate-General and a military judge who declines or neglects to swear an oath or make such a declaration shall be deemed to have vacated his office.
(8) A military judge shall neither report on, nor be the subject of any report in respect of, the performance of his functions under this Act.]
184LA.. F256[Circuit Judge to perform functions of military judge in certain circumstances.
184LA.—(1) The Minister may, having consulted with the Minister for Justice and Equality, request the President of the Circuit Court to temporarily designate, under section 11A of the Act of 1947, one, or more than one, Circuit Judge to perform the functions of a military judge in all or any of the following circumstances:
(a) where there is a vacancy for the position of military judge and no person has been appointed, under section 184J(1), as military judge;
(b) where a military judge, appointed under section 184J(1), is ill, absent or otherwise unable to carry out his or her functions;
(c) where a military judge appointed under section 184J cannot properly deal with any matter before him or her by reason of the fact that he or she has a personal interest in the matter or personal knowledge of the facts or the parties as might prejudice the hearing and determination of the matter;
(d) without prejudice to paragraphs (a) to (c), any other circumstance in respect of which the Minister is satisfied that such temporary designation is necessary or appropriate.
(2) Where a Circuit Judge has been temporarily designated under section 11A of the Act of 1947 pursuant to a request under this section, sections 184J, 184K, 184L, 184N, 184O and 184P shall not apply to such Circuit Judge.
(3) Where a Circuit Judge has been temporarily designated under section 11A of the Act of 1947 pursuant to a request under this section, notwithstanding the definition of military judge in section 2, references in this Act, or any instrument made under it, to a military judge in relation to the carrying out of the functions of a military judge shall be construed in accordance with such temporary designation of such Circuit Judge and nothing in this Act, or any statutory instrument made under it, shall be construed as preventing such Circuit Judge from carrying out such functions of a military judge.
(4) For the purposes of this Act, without prejudice to the generality of subsection (1), references to functions of a military judge includes the judicial functions referred to in section 240(1)(r), if any, as may be provided for in rules of procedure made under that section.
(5) In this section, "functions of a military judge" means—
(a) the functions of a military judge under this Act and any instrument made under it, and undersection 8of theDefence (Amendment) Act 1987, and
(b) the functions of a military judge under theCourts-Martial Appeals Act 1983and any instrument made under that Act;
(6) In this Act—
"Circuit Judge" has the meaning assigned to it by the Act of 1947;
"President of the Circuit Court" shall be construed in accordance with section 9 of the Act of 1947.]
184M. F257[Functions of military judge.
184M.—A military judge shall preside at courts-martial and shall perform any other judicial functions that may be prescribed.]
184N. F258[Chief Military Judge.
184N.—(1) The President may appoint, on the advice of the Government, a military judge to be the Chief Military Judge.
(2) The Chief Military Judge shall have such functions as are prescribed including assignment of military judges to preside at courts-martial and to perform other judicial duties under this Act.
(3) The Chief Military Judge may delegate any of the Chief Military Judge’s functions to a military judge.]
184O. F259[Removal of military judge from office.
184O.—(1) Subject to section 184P, a military judge may be removed from office by the President on the advice of the Government but only for stated reasons including because—
(a) he has become incapable, through ill-health, either physical or mental, of effectively performing the functions of the office,
(b) he has failed to perform the functions of the office with due diligence and effectiveness,
(c) he has engaged in conduct that brings discredit on the office or that may prejudice the proper performance of the functions of the office, or
(d) his removal from office would, in the Government’s opinion, be in the best interests of the Defence Forces.
(2) On notifying a military judge under section 184P(1) that the Government intends to consider his removal from office, the Government may immediately suspend the military judge from duty.
(3) The suspension from duty continues until the Government makes a decision in relation to the matter under consideration, but only if there is no undue delay in taking steps under section 184P or in making that decision.]
184P. F260[Steps to be taken before removal of military judge.
184P.—(1) Before considering removal of a military judge from office under section 184O the Government shall—
(a) notify the military judge that the Government intends to consider the matter and include in the notice a statement of their reasons for doing so, and
(b) give the military judge an opportunity to make representations as to why he ought not to be removed from office.
(2) The Government may, if they consider it necessary or appropriate to do so, appoint a Judge of the High Court nominated by the President of the High Court to—
(a) hold an inquiry into any matter giving rise to a notification under subsection (1) of this section, and
(b) report to the Government on the findings of the inquiry.
(3) A Judge of the High Court appointed under this section to hold an inquiry may do one or more of the following:
(a) direct a person, by notice delivered to the person, to provide any information that is specified in the notice and is required for the purposes of the inquiry;
(b) direct any person, by notice delivered to the person, to produce at the time and place specified in the notice a document specified in the notice that is relevant to the inquiry and is in the person’s power or control;
(c) summon witnesses to attend the inquiry;
(d) direct a witness to answer a question put to the witness at the inquiry;
(e) give any other direction that appears to the Judge appointed under this section to be necessary, just and reasonable for the purposes of the inquiry;
(f) administer oaths and affirmations to witnesses and examine witnesses attending the inquiry.
(4) A person whose evidence has been, is being, or is to be given before an inquiry under this section, or who produces or sends a document to the inquiry pursuant to a summons or direction, as the case may be, under subsection (3) of this section or who is required by such a summons or direction to give evidence or produce a document to the inquiry or to attend before the inquiry and there to give evidence or produce a document, shall be entitled to the same privileges and immunities as if the person were a witness before the High Court.
(5) If a person fails or refuses to comply with or disobeys a direction or summons under subsection (3) of this section, the High Court may, on application by the Judge appointed under this section—
(a) order the person in relation to whom the application was made to comply with the direction or, in the case of a summons, to attend the inquiry, and
(b) make such other (if any) order as it considers necessary and just to enable the direction to have full effect or, in the case of a summons, to ensure the attendance at the inquiry.
(6) A person who—
(a) is notified under subsection (3) of this section and who, without lawful excuse, refuses or fails to comply with a direction under paragraph (a) or (b) of that subsection,
(b) fails, without lawful excuse, to attend an inquiry in response to a summons under subsection (3)(c) of this section,
(c) refuses to answer a question that the Judge of the High Court conducting the inquiry may legally direct the person to answer, or
(d) does or omits to do in relation to the inquiry any other thing the doing or omission of which would, if the inquiry had been a proceeding in the High Court, have been contempt of that Court,
is guilty of an offence and is liable on summary conviction to a fine not exceeding€3,000 or to imprisonment for a term not exceeding 6 months or both.
(7) If an inquiry is held, the Government shall—
(a) consider the report on the findings of the inquiry,
(b) make a copy of the report available to the military judge whose removal from office is the subject of the report, and
(c) give the military judge an opportunity to make representations relating to the report.
(8) As soon as practicable after the military judge is removed from office under section 184O, the Minister shall cause a statement of the reasons for the removal to be laid before each House of the Oireachtas.]
Chapter V.
185. Acquittal or conviction to bar subsequent trial by court-martial.
185.—F261[(1) Where a person subject to military law has been acquitted of an offence by a court-martial, he shall not be liable to be tried again by a court-martial in respect of that offence.]
F262[(1A) Where a person subject to military law has been convicted of an offence by a court-martial, he shall not be liable to be tried again by a court-martial in respect of that offence unless the conviction has been quashed and a re-trial ordered by the Courts-Martial Appeal Court pursuant to theCriminal Procedure Act 1993.]
(2)Where a person subject to military law has been acquitted or convicted of an offence by a competent civil court, he shall not be liable to be tried again by a court-martial in respect of that offence.
(3)Where—
(a)a person subject to military law is charged with an offence against military law, and
(b)the charge is dealt with under Chapter IV of this Part either by being dismissed or being summarily dealt with,
such person shall not be liable to be tried by court-martial in respect of that offence.
186. F263[Classes of courts-martial.
186.—There shall be three classes of courts-martial, namely, general courts-martial, limited courts-martial and the summary court-martial.]
187. F264[Convening of courts-martial.
187.—(1) Where the Director directs that a specified offence or offences be tried by court-martial, the Court-Martial Administrator shall, subject to the directions of the Director, convene a general court-martial or limited court-martial, or refer the matter for trial by summary court-martial.
(2) A court-martial may sit in any place whether within or outside the State.]
187A. F265[Summary court-martial.
187A.—(1) There shall be a court-martial to be known as the summary court-martial.
(2) Every military judge is authorised to preside at a summary court-martial and a military judge who does so constitutes the summary court-martial.
(3) The summary court-martial shall, subject to section 192, have jurisdiction to hear—
(a) charges or other matters referred to it by the Court-Martial Administrator as directed by the Director,
(b) appeals under section 178E from determinations made, punishments awarded or compensation orders made under section 177C or 178C, and
(c) applications for legal aid.]
188. Special powers of convening authorities.
188.—F268[…]
189. F269[General court-martial.
189.—(1) A general court-martial shall consist of—
(a) a military judge, and
(b) save in the case of a general court-martial convened pursuant to subsection (8) or (11) of section 212A, a court-martial board of not less than five members specified by or on behalf of the Court-Martial Administrator.
(2) Where the accused is an officer, the court-martial board shall include—
(a) an officer of the Permanent Defence Force not below the army rank of colonel or the equivalent naval rank and in any case not of a lower rank than the accused, and
(b) not less than four other officers, none of whom shall be below the army rank of captain or the equivalent naval rank.
(3) Where the accused is not an officer, the court-martial board—
(a) shall include—
(i) an officer of the Permanent Defence Force not below the army rank of colonel or the equivalent naval rank, and
(ii) not less than three other officers, none of whom shall be below the army rank of captain or the equivalent naval rank,
and
(b) may include not more than one non-commissioned officer who shall not be below the army rank of battalion quarter-master sergeant or the equivalent naval rank and in any case not of a lower rank than the accused.]
190. F270[Limited court-martial.
190.—(1) A limited court-martial shall consist of—
(a) a military judge, and
(b) save in the case of a limited court-martial convened pursuant to subsection (8) or (11) of section 212A, a court-martial board of not less than three members specified by or on behalf of the Court-Martial Administrator.
(2) The court-martial board—
(a) shall include—
(i) an officer of the Permanent Defence Force not below the army rank of commandant or the equivalent naval rank, and
(ii) at least one other officer who shall not be below the army rank of lieutenant or the equivalent naval rank,
and
(b) may include not more than one non-commissioned officer who shall not be below the army rank of battalion quarter-master sergeant or the equivalent naval rank and in any case not of a lower rank than the accused.]
191. F271[Membership of court-martial board.
191.—(1) None of the following persons may serve as a member of a court-martial board:
(a) the Court-Martial Administrator or a member of his staff;
(b) the Director or a member of his staff;
(c) a member of the Defence Forces who has examined into or advised on the matters on which any charge against the accused is based;
(d) a person who has been or may be summoned as a witness for the prosecution or the accused before the court-martial concerned;
(e) a member of the Defence Forces who investigated the charge against the accused or took down any summary or abstract of evidence against the accused or who was a member of a court of inquiry inquiring into the matters on which the charge against the accused is based;
(f) a member of the military police corps;
(g) any member of the Defence Forces who is a barrister or solicitor;
(h) any member of the Defence Forces who has a personal interest in the case;
(i) any member of the Defence Forces who is not for the time being subject to military law;
(j) an officer or non-commissioned officer who is serving in the same military chain of command as the accused.
(2) A member of a court-martial board shall neither report on, nor be the subject of any report in respect of, the performance of his functions as such member under this Act.]
192. Jurisdiction of courts-martial.
192.—F272[(1) Subject to and in accordance with the provisions of this Act, a general court-martial, limited court-martial or summary court-martial shall, in addition to any other powers conferred on it by this Act, have jurisdiction to try and punish any person for an offence against military law committed by the person while subject to military law as an officer or as a man.]
F273[(1A) In this section—
"aggravated sexual assault", "rape under section 4" and "sexual assault" have the same meanings as they have in theCriminal Law (Rape) (Amendment) Act 1990;
"relevant offence" means—
(a) the offence of treason or murder,
(b) an offence under section 3, as amended, of theGeneva Conventions Act 1962or an offence under section 7 (genocide, crimes against humanity and war crimes) or 8 (ancillary offences) of theInternational Criminal Court Act 2006,
(c) manslaughter,
(d) rape,
(e) rape under section 4,
(f) aggravated sexual assault,
(g) sexual assault,
(h) attempted rape, rape under section 4, aggravated sexual assault or sexual assault,
(i) aiding, abetting, counselling or procuring the offence of rape, rape under section 4, aggravated sexual assault or sexual assault,
(j) incitement to the offence of rape, rape under section 4, aggravated sexual assault or sexual assault,
(k) conspiracy to commit the offences specified in paragraphs (d), (e), (f), (g), (h), (i) or (j),
(l) an offence under theCriminal Justice (United Nations Convention Against Torture) Act 2000,
(m) an offence under theCriminal Justice (Safety of United Nations Workers) Act 2000, or
(n) an offence under theCriminal Justice (Terrorist Offences) Act 2005.]
(1B) A summary court-martial shall not have jurisdiction—
(a) to try any person who is for the time being an officer holding the army rank of lieutenant colonel or the equivalent naval rank or higher commissioned rank,
(b) to try any person for a relevant offence,
(c) to award to any person any sentence greater than imprisonment for a term of six months, or
(d) in the case of an appeal under section 178E, to award any punishment greater than that awardable on summary disposal of the matter under section 177C or 178C, as appropriate.
F274[(2) A limited court-martial shall not have jurisdiction—
(a) to try any person for any offence against military law committed by the person while subject to military law as an officer,
(b) to try any person who is for the time being an officer or a man of the army rank of battalion quarter-master sergeant or the equivalent naval rank or of any higher non-commissioned rank,
(c) to try any person for a relevant offence, or
(d) to award to any person any sentence greater than imprisonment for a term of two years.]
F275[(3) A general court-martial shall not have jurisdiction to try any person subject to military law for a relevant offence unless the offence was committed while the person was on active service outside the State or despatched for service outside the State under section 2 of theDefence (Amendment) (No. 2) Act 1960or for any purpose specified in section 3 of theDefence (Amendment) Act 2006when the offence was committed.]
(3A) F276[…]
(4)(a)The Minister, with the concurrence of the Minister for Justice, may make regulations with regard to the exercise of the jurisdiction conferred on courts-martial by section 169 and may in particular by the regulations provide that the exercise of such jurisdiction shall depend on the consent of such civil authority as may be specified in the regulations.
(b)A certificate under the hand of F277[the Director certifying that as respects the trial of a civil offence] the consent referred to in paragraph (a) of this subsection has been obtained shall be prima facie evidence of that fact.
193. F278[Dissolution of courts-martial.
193.—(1) This section applies to the dissolution of a general court-martial or limited court-martial.
(2) The Court-Martial Administrator may dissolve a court-martial at any time before it has been sworn, where he considers that by reason of the exigencies of the service or for any other reason it is desirable to do so.
(3) The military judge for a trial by court-martial may dissolve the court-martial at any time after it has been sworn where he considers it to be necessary or expedient in the interests of the administration of justice.
(4) Where a court-martial has been sworn and the military judge dies or for any other reason is unavailable, the court-martial may be dissolved by another military judge or by the Court-Martial Administrator, as appropriate.
(5) The military judge shall dissolve the court-martial—
(a) where, on account of the illness of the accused at any time before the finding, it is impossible, in the opinion of the military judge, to continue the trial within a reasonable time, or
(b) where at any time after the court-martial is sworn, and before the finding, the number of members of the court-martial board is reduced below the minimum number of members required for the trial—
(i) by reason of the death of a member or the discharge of a member by the military judge owing to his being incapable through illness or any other cause of continuing to act as a member, or
(ii) because the military judge directs that a member shall not serve or shall not continue to serve as a member where he considers that for any stated reason it is desirable in the interests of justice.
(6) Where a court-martial is dissolved under this section, the accused may, on the directions of the Director, be retried by another court-martial in accordance with this Part.
(7) For the purposes of subsection (5) of this section the minimum number of members of a court-martial board shall be—
(a) in the case of a general court-martial, 5 members (including the officer referred to in section 189(2)(a) or (3)(a)(i), as the case may be), and
(b) in the case of a limited court-martial, 3 members (including the officer referred to in section 190(2)(a)(i)).]
194. F279[Admission to courts-martial.
194.—(1) Subject to this section and to any other enactment, proceedings before a court-martial shall be held in public.
(2) Where the military judge presiding at a court-martial is satisfied that because of the nature or circumstances of the case or otherwise in the interests of justice or the security of the State or of the Defence Forces that it is desirable to do so, he may do any one or more of the following:
(a) exclude the public or any portion of the public or any particular person or persons from the court during the whole or any part of a trial;
(b) prohibit the publication of information in relation to the proceedings or any particular part of them;
(c) impose restrictions or limitations on publication.
(3) In any proceedings for an offence which is, in the opinion of the military judge, of an indecent or obscene nature (including proceedings for rape, rape under section 4 (within the meaning of theCriminal Law (Rape) (Amendment) Act 1990) or sexual assault or aggravated sexual assault (both within the meaning of theCriminal Law (Rape) (Amendment) Act 1990), attempted aggravated sexual assault or sexual assault or aiding, abetting, counselling or procuring the offence of aggravated sexual assault or sexual assault or attempted aggravated sexual assault or sexual assault or of incitement to the offence of aggravated sexual assault or sexual assault or conspiracy to commit any of the foregoing offences), the military judge shall, subject to subsections (4) and (5) of this section, exclude from the court-martial during the trial all persons except officers of the court, persons directly concerned in the proceedings, bona fide representatives of the press and such other persons (if any) as the military judge may in his discretion permit to remain.
(4) In any proceedings for an offence referred to in subsection (3) of this section—
(a) in the case of the accused person, an assisting person or, where the accused person so requests, a parent, relative or friend of the accused person shall be entitled to remain in court during the whole of the trial, and
(b) in the case of a person in respect of whom the offence is alleged to have been committed, where the person so requests, a parent, relative or friend of the person shall be entitled to remain in court while that person is giving evidence as a witness before the court-martial.
(5) In any proceedings to which subsection (2) or (3) of this section applies the findings and the sentence (if any) shall be announced in public.
(6) Witnesses, other than the accused person, shall not be admitted to a trial, except when under examination or by specific leave of the military judge presiding at the trial concerned.
(7) No persons other than the members of the court-martial board shall be present during any deliberations by the court-martial board as to its findings.]
195. F280[Divers matters of procedure.
195.—(1) A court-martial may adjourn from time to time and from place to place whenever the military judge considers adjournment desirable.
(2) The military judge and, in the case of a general court-martial or a limited court-martial, the court-martial board, after it is sworn and before making its findings, if the military judge considers it appropriate, may view any place, person or thing which in the opinion of the military judge it is expedient for the purposes of the proceedings that he and, as the case may be, the court-martial board should see.
(3) For the purposes of viewing any place, person or thing under subsection (2) of this section, the military judge shall give such directions as appear to him to be expedient for the purpose of preventing undue communication with the court-martial board during the viewing.]
196. Counsel at courts-martial.
196.—(1)F281[The Director] at a court-martial may be represented by counsel.
(2)Any person being tried by a court-martial may be represented by counsel or, if not represented by counsel, by an officer subject to military law.
(3)Any conduct of counsel which would be liable to censure or would be contempt of court if it took place before the High Court shall be likewise deemed liable to censure or be deemed contempt of court in the case of a court-martial, and rules prescribed for practice of courts-martial and the guidance of counsel shall be binding on counsel appearing before such courts-martial and any wilful disobedience of such rules shall be professional misconduct and if persevered in be deemed contempt of court.
(4)Where a counsel at a court-martial is guilty of conduct liable to censure or is guilty of contempt of court, the F282[military judge] may certify the offence of such counsel under his hand to the High Court, and the High Court may, after such inquiry as it thinks proper to make, punish or take steps for the punishment of such counsel in like manner as if he had been guilty of contempt of the High Court.
(5)A court-martial may, by order under the hand of the F282[military judge], cause a counsel to be removed from the court who is guilty of such an offence as may in the opinion of the court require his removal from court, but in every such case the F282[military judge] shall certify the offence to the High Court under the immediately preceding subsection.
(6)In this section, the word “counsel” means a person who is either a barrister-at-law or a solicitor.
197. F283[Challenges by accused.
197.—(1) When a court-martial is assembled and before the members of the court-martial board are sworn, their names shall be read to the accused who shall then be asked if he objects to any of them and in the event of an objection the decision as to whether to allow the objection shall be made by the military judge in accordance with the procedure prescribed by court-martial rules.
(2) The procedure for the replacement of a member of the court-martial board in respect of whom an objection has been allowed shall be as prescribed, subject to the same right of the accused to object to the member selected to fill the subsequent vacancy in accordance with subsection (1) of this section.]
197A. F284[Rulings and directions.
197A.—(1) Rulings and directions on questions of law, practice or procedure relative to the charge or trial shall be given by the military judge presiding at a court-martial.
(2) Any rulings or directions given under subsection (1) of this section shall be binding on the court-martial concerned.]
198. F285[Courts-martial: findings and sentence.
198.—(1) Subject to the provisions of this section, in the case of a general court-martial or limited court-martial, a finding of guilty on any charge shall be decided by a majority of at least two-thirds of the members of the court-martial board, after the military judge has summed up the law and the evidence.
(2) Where two-thirds of the members of the court-martial board is not a whole number, the next highest whole number shall be taken to be two-thirds for the purposes of subsection (1) of this section.
(3) If the number of members of the court-martial board who vote for a guilty finding on any charge is less than that referred to in subsection (1) of this section the accused shall be acquitted of that charge.
(4) The military judge presiding at a general court-martial or limited court-martial is not entitled to vote on the finding.
(5) The military judge presiding at a court-martial shall determine the sentence.]
199. F286[Swearing of court-martial.
199.—(1) When a court-martial board is constituted with the required number of persons who are not objected to or the objections to whom have not been allowed, an oath in the form prescribed by court-martial rules shall be administered by the person or persons so prescribed to—
(a) each member of the court-martial board, and
(b) every interpreter and shorthand writer or other note-taker in attendance.
(2) If a person required by this section to take an oath objects to taking an oath or is objected to as incompetent to take an oath, the military judge shall, if satisfied of the sincerity of the objection or, where the competence of a person to take an oath is objected to, of the oath having no binding effect on the conscience of that person, permit the person, instead of being sworn, to make a solemn declaration in the prescribed form, and for the purposes of this Act that declaration is deemed to be an oath.
(3) For the purposes of this section, different forms of oath may be prescribed for members of a court-martial board, interpreters and shorthand writers or other note-takers, and different persons may be prescribed to administer oaths and to take declarations.]
200. Evidence to be on oath.
200.—(1)Every witness before a court-martial shall be examined on oath which the F287[…] prescribed person shall administer in the prescribed form.
(2)If a person by this Act required as witness before a court-martial, or otherwise in respect of a court-martial, to take an oath, objects to take an oath or is objected to as incompetent to take an oath, the court-martial shall, if satisfied of the sincerity of the objection or, where the competence of the person to take an oath is objected to, of the oath having no binding effect on the conscience of such person, permit such person, instead of being sworn, to make a solemn declaration in the prescribed form, and for the purposes of this Act such solemn declaration shall be deemed to be an oath.
201. Evidence at courts-martial.
201.—(1)The rules of evidence to be adopted in proceedings before courts-martial shall be the same as those which are for the time being followed in civil courts.
(2)(a)In this subsection, the expression “summary of evidence” means evidence in relation to a charge against an accused taken down in writing in accordance with rules of procedure in that behalf.
(b)Where a statement of evidence given on oath by a witness against an accused is contained in a summary of evidence—
(i)subject to subparagraph (ii) of this paragraph, the statement may be read as evidence at the trial of the accused by court-martial, if it is proved that—
(I)the witness is dead or insane or so ill as to be unable to attend the trial, and
(II)the statement was made in the presence of the accused, and
(III)the accused or his counsel or representative had an opportunity of cross-examining the witness,
(ii)if the witness is insane or so ill as to be unable to attend the trial, the statement shall not be read without the accused’s consent.
(3)No person shall at any proceedings before a court-martial be required to answer any question or to produce any document which he could not be required to answer or produce in similar proceedings before a civil court.
202. F288[Mental disorder at time of trial.
202.—(1) Where at the trial by court-martial of a person charged with an offence it appears that such person is by reason of mental disorder unfit to take his trial the following provisions, subject to subsection (4), shall have effect, that is to say:
(a)F289[the military judge presiding at the court-martial]shall find specially that fact,
(b)F290[the military judge, if he is]satisfied having heard evidence relating to the mental condition of the person given by a consultant psychiatrist that such person is suffering from a mental disorder (within the meaning ofF291[theMental Health Act 2001]) and is in need of in-patient care or treatment in a designated centre, shall commit him to a specified designated centre until an order is made under section13F292[or 13A]of the Criminal Law(Insanity) Act 2006.
F293[(1A) In the case of a general court-martial or limited court-martial, the question of whether a person charged with an offence is fit to be tried shall be determined, and the finding shall be made, by the military judge sitting alone.]
(2)F294[…]
(3) A person charged with an offence shall not be fit to take his trial if he is unable by reason of mental disorder to understand the nature or course of the proceedings so as to—
(a) plead to the charge,
(b) instruct a legal representative,
F295[(bb) in the case of a general court-martial or limited court-martial, object to a member of the court-martial board to whom he might wish to object,]
(c) make a proper defence, or
(d) understand the evidence.
F296[(4) After the military judge presiding at a court-martial has found that a person charged with an offence is unfit to take his trial, the military judge may on application to him and without prejudice to any further proceedings allow evidence to be adduced before the court-martial as to whether or not that person did the act or made the omission alleged against him and if the summary court-martial or, in the case of a general court-martial or limited court-martial, the court-martial board, is satisfied that there is a reasonable doubt that the person committed that act or made the omission, the summary court-martial or the court-martial board, as the case may be, shall acquit him.]
(5) In this section and in section 203 of this Act "mental disorder" and "designated centre" shall have the meanings respectively assigned to them by section1of the Criminal Law (Insanity) Act 2006, unless the context otherwise requires.]
F297[(5) In this section and in section 203 "consultant psychiatrist" has the same meaning as in theMental Health Act 2001.]
203. F298[Mental disorder at time of commission of offence.
203.—(1) Where at the trial by court-martial of a person charged with an offence,F299[the summary court-martial, or in the case of a general court-martial or limited court-martial, the court-martial board, finds]that the person did the act or made the omission charged but, having heard evidence relating to his mental condition given by a consultant psychiatrist, finds that he was at the time when he did the act or made the omission suffering from a mental disorder and that the mental disorder was such that he should not be held responsible for the act or omission alleged by reason of the fact that—
(a) he did not know the nature and quality of the act he was doing, or
(b) he did not know what he was doing was wrong, or
(c) he was unable to refrain from committing the act or making the omission,
F300[the summary court-martial, or in the case of a general court-martial or limited court-martial, the court-martial board, shall specially find]that the person is not guilty by reason of insanity.
F301[(2) If the military judge presiding at the court-martial having considered any evidence adduced before the court-martial is satisfied that the person found not guilty by reason of insanity is suffering from a mental disorder (within the meaning of theMental Health Act 2001) and is in need of in-patient care or treatment in a designated centre the military judge shall, after consultation with the clinical director of the designated centre concerned, commit him to a specified designated centre until an order is made undersection 13F302[or 13A]of theCriminal Law (Insanity) Act 2006.]
F303[(2A) In this section "clinical director" shall have the same meaning as insection 1of theCriminal Law (Insanity) Act 2006.]
(3)F304[…]]
203A. F305[Diminished responsibility.
203A.—Section6of the Criminal Law (Insanity) Act 2006, shall apply with any necessary modifications to a person subject to military law who is tried by court-martial for murder as it applies to a person who is tried for murder.]
203B. F306[Appeals (mental disorder at time of trial).
203B.—(1) An appeal shall lie to the Courts-Martial Appeal Court (in this section and in sections 203C and 203D referred to as "the Court") from a finding by a court-martial pursuant to section 202 that a person charged with an offence is unfit to take his trial.
(2) Where the Court makes an order pursuant to section 19A (inserted by the Defence (Amendment) Act 2007) of theCourts-Martial Appeals Act 1983that the appellant be tried or retried, as the case may be, by court-martial for the offence alleged, the appellant may, subject to the directions of the Director, be tried or retried for an offence other than the offence alleged in respect of which he was found unfit to take his trial being an offence of which he might be found guilty on a charge for the offence alleged.]
203C. F307[Appeals (not guilty by reason of insanity).
203C.—A person tried for an offence by court-martial and found not guilty by reason of insanity may appeal against the finding to the Court pursuant to section 19B (inserted by the Defence (Amendment) Act 2007) of theCourts-Martial Appeals Act 1983.]
203D. F308[Appeals (order of committal under section 202 or 203).
203D.—An appeal against a decision by a court-martial to make or not to make an order of committal under section 202(1)(b) or 203(2) shall lie at the instance of the person charged with the offence concerned or the Director to the Court pursuant to section 19C (inserted by the Defence (Amendment) Act 2007) of theCourts-Martial Appeals Act 1983.]
204. Finding of acquittal.
204.—A finding of acquittal by a court-martial, whether on all or any one or more of the charges with which the accused is charged, F309[…] shall be pronounced at once in open court, and, if it relates to all the charges with which the accused is charged before the court-martial, the accused shall be released.
205. Conviction for offence other than that charged.
205.—(1)An accused charged before a court-martial with desertion may be found guilty of attempting to desert or of being absent without leave.
(2)An accused charged before a court-martial with attempting to desert may be found guilty of being absent without leave.
(3)An accused charged before a court-martial with any one of the offences mentioned in section 132 may be found guilty of any other offence mentioned in that section.
(4)An accused charged before a court-martial with any one of the offences mentioned in section 133 may be found guilty of any other offence mentioned in that section.
(5)An accused charged before a court-martial with stealing may be found guilty of embezzlement or fraudulently misapplying property.
(6)An accused charged before a court-martial with embezzlement may be found guilty of stealing or fraudulently misapplying property.
(7)An accused charged before a court-martial with any other offence against military law may, on failure of proof of an offence being committed under circumstances involving a higher degree of punishment, be found guilty of the same offence as being committed under circumstances involving a less degree of punishment.
(8)Where an accused is charged before a court-martial with a civil offence and the charge is one upon which, if he had been tried by a civil court, he might have been found guilty of any other offence, the court-martial shall have power to find him guilty of that other offence.
205A. F310[Effect of certain offences on persons in respect of whom committed.
205A.—(1) In determining the punishment to be awarded to a person for an offence to which this section applies, the military judge presiding at the court-martial concerned shall take into account, and may, where necessary, receive evidence or submissions concerning, any effect (whether long-term or otherwise) of the offence on the person in respect of whom the offence was committed.
(2) This section applies to—
(a) a sexual offence within the meaning of theCriminal Evidence Act 1992(as amended by theCriminal Law (Sexual Offences) Act 2006),
(b) an offence involving violence or the threat of violence to a person, and
(c) an offence consisting of attempting or conspiring to commit, or aiding, abetting, counselling, procuring or inciting the commission of, an offence mentioned in paragraph (a) or (b) of this subsection.
(3) Where a military judge is determining the punishment to be awarded to a person for an offence to which this section applies, the military judge shall, upon application by the person in respect of whom the offence was committed, hear the evidence of the person in respect of whom the offence was committed as to the effect of the offence on that person.]
206. Effective dates of sentences by courts-martial.
206.—F311[(1) Subject to section 212A, every term of imprisonment or detention to which a person is sentenced by a court-martial, whether the person is already undergoing sentence or not, shall, save as otherwise expressly provided in this Act, be reckoned to commence on the day on which the sentence is signed by the military judge presiding at the court-martial or on such earlier date as the military judge may direct.]
(2)Each of the following sentences—
(a)dismissal with F312[disgrace] from the Defence Forces,
(b)dismissal from the Defence Forces,
F313[(bb)reduction to a lower commissioned army rank, or to a lower commissioned naval rank,]
(c)discharge with F312[disgrace] from the Defence Forces,
(d)discharge from the Defence Forces,
(e)reduction to a lower non-commissioned army rank, or to a lower non-commissioned naval rank,
shall take effect on and from a date to be fixed in the manner prescribed.
207. Summoning and privilege of witnesses at courts-martial.
207.—(1)Every person required to give evidence before a court-martial may be summoned or ordered to attend in the prescribed manner.
(2)Every person attending in pursuance of such summons or order as a witness before any court-martial shall during his necessary attendance in or on such court-martial and in going to and returning from the same have the same privilege from arrest as if he were a witness before the High Court.
F314[(3) For the purposes of this section and section 208 (except subsection (2) of section 208), references to a court-martial shall be deemed to include an officer taking a written summary of evidence in accordance with rules of procedure.]
208. Contempt of court-martial.
208.—F315[(1)If any person not subject to military law—
(a)having been duly summoned as a witness before a court-martial, without just cause or excuse disobeys the summons, or
(b)being in attendance as a witness at a court-martial, without just cause or excuse fails or refuses to take an oath or make a solemn declaration when legally required by the court-martial to do so, or to produce any document, record or other thing in his power or control legally required by the court-martial to be produced by him, or to answer any question to which the court-martial may legally require an answer, or
F316[(ba) fails, neglects or refuses to comply with a direction of the military judge under section 195, or
(bb) wilfully gives evidence to a court-martial which is material to the court-martial and which he knows to be false or does not believe to be true, or
(bc) by act or omission, obstructs or hinders the court-martial in the performance of its functions, or]
F317[(c) does or omits to do any other thing, which, if the court-martial were a civil court having power to commit for contempt, would be contempt of that court,]
the person shall be guilty of an offence and shall be liable on summary conviction to a fine not exceedingF318[€3,000]or, at the discretion of the court, to imprisonment for a term not exceeding twelve months or to both such fine and such imprisonment.]
F319[(1A) A prosecution for an offence under this section may be brought only by or with the consent of the Director of Public Prosecutions.]
(2)F320[(a) If any person subject to military law is guilty of contempt of a court-martial by using insulting or threatening language or by causing any interruption or disturbance in the proceedings of the court-martial, the military judge presiding at the court-martial, if he considers it expedient, instead of the offender being tried by court-martial, may by order under his hand—
(i) order the offender to be imprisoned, or, in the case of a man, to undergo detention, for a period not exceeding ninety days, or
(ii) where the offender is a person subject to military law as an officer under section 118(1)(a), (b) or (c), award a fine not exceeding fourteen days’pay at the most recent rate payable, or
(iii) where the offender is a person subject to military law as an officer under section 118(1)(d) or (e), award a fine not exceeding the maximum fine awardable for the time being by a court-martial to an officer holding the rank of second lieutenant who is in receipt of the maximum pay applicable to that rank, or
(iv) where the offender is a person subject to military law as a man under section 119(a) or (b), award a fine of an amount not exceeding fourteen days’pay at the most recent rate payable, or
(v) where the offender is a person subject to military law as a man under section 119(c) or (d), award a fine not exceeding the maximum fine awardable for the time being by a court-martial to a man holding the rank of private of the highest grade who is in receipt of the maximum pay applicable to that rank.]
(b)Chapter VII of this Part shall not apply to an order under paragraph (a) of this subsection.
Chapter VI.
209. Punishments which may be awarded to officers by courts-martial.
209.—F321[(1) Subject to section 192, punishments may be awarded in respect of offences against military law committed by persons subject to military law as officers and convicted by court-martial according to the following scale:
SCALE.
A. Imprisonment for life or any specified period.
B. Dismissal with disgrace from the Defence Forces.
C. Dismissal from the Defence Forces.
D. Where the person convicted is an officer, reduction to any lower commissioned rank.
E. Forfeiture of all seniority of rank or of a specified term of seniority.
F. Reduction to any lower point on the scale of pay for the rank held.
G. (a) In the case of a person subject to military law as an officer under section 118(1)(a), (b) or (c), a fine not exceeding fourteen days’pay of the person at the most recent rate payable.
(b) In the case of a person subject to military law as an officer under section 118(1)(d) or (e), a fine not exceeding the maximum fine awardable for the time being by a court-martial to an officer holding the rank of second lieutenant who is in receipt of the maximum pay applicable to that rank.
(c) In the case of a person who is not a member of the Defence Forces but who was an officer when the offence was committed, a fine not exceeding an amount equal to fourteen days’pay at the most recent rate applicable to his former rank.
H. Severe reprimand.
I. Reprimand.]
(2)For the purposes of this Act in its application to a person subject to military law as an officer, any punishment mentioned in the Scale to subsection (1) of this section shall be deemed to be a punishment less than any punishment mentioned before it in the said Scale.
(3)Where—
(a)a person subject to military law as an officer is convicted by court-martial of an offence against military law mentioned in any section contained in Chapter II of this Part, and
(b)such section provides that on such conviction he shall be liable to suffer a specified punishment or any less punishment awardable by a court-martial.
the expression “any less punishment awardable by a court-martial” means in such section any punishment mentioned in the Scale to subsection (1) of this section which is less than the specified punishment.
(4)Save as is otherwise expressly provided in this Act, a person convicted by court-martial of having committed an offence against military law while subject to military law as an officer shall be sentenced to one punishment only.
F322[(5) (a) Where an officer is sentenced to a term of imprisonment of more than six months, the military judge shall, in addition, sentence him to dismissal with disgrace from the Defence Forces or dismissal from the Defence Forces.
(b) Where an officer is sentenced to a term of imprisonment of six months or less (other than under section 208(2)), the military judge may, in addition, sentence him to dismissal with disgrace from the Defence Forces or dismissal from the Defence Forces or reduction to any lower commissioned rank.]
(6)An officer sentenced by a court-martial to a fine may be also sentenced to severe reprimand or reprimand.
F323[(6A) An officer sentenced by a court-martial to reduction in rank may, in addition, be sentenced to—
(a) reduction to any lower point on the scale of pay for that rank and forfeiture of a specified term of seniority or all seniority in respect of the rank to which the officer is sentenced to be reduced, or
(b) to a fine or severe reprimand or reprimand,
or both.]
F324[(7) An officer sentenced by a court-martial to forfeiture of seniority of rank may, in addition, be sentenced to reduction to any lower point on the scale of pay for the rank held, or to a fine or severe reprimand or reprimand.]
F325[(7A) An officer sentenced by a court-martial to reduction to a lower point on the scale of pay for the rank held may, in addition, be sentenced to a fine or severe reprimand or reprimand.]
F326[(8)An officer dismissed withF327[disgrace]from the Defence Forces shall—
(a)be disqualified for ever serving the State again in any military capacity, and
(b)during the period of seven years beginning on the date of his dismissal, subject to subsection (9) of this section, be disqualified for serving the State in any civil capacity.]
F328[(9)Where a person by reason of this section is for the time being disqualified for serving the State in any civil capacity, the Government may, in their absolute discretion, remove the disqualification.]
210. Punishments which may be awarded to men by courts-martial.
210.—F329[(1) Subject to section 192, punishments may be awarded in respect of offences against military law committed by persons subject to military law as men and convicted by court-martial according to the following scale:
SCALE.
A. Imprisonment for life or any specified period.
B. Discharge with disgrace from the Defence Forces.
C. Discharge from the Defence Forces.
D. Detention—
(a) in the case of a general court-martial or limited court-martial, for any term not exceeding two years,
(b) in the case of a summary court-martial, for any term not exceeding six months,
with or without forfeiture of all pay or any part thereof.
E. Where the person convicted is a non-commissioned officer, reduction to any lower non-commissioned rank.
F. Forfeiture of all seniority of rank or of a specified term of seniority.
G. Reduction to any lower point on the scale of pay for the rank held.
H. (a) In the case of a person subject to military law as a man under section 119(a) or (b), a fine of an amount not exceeding fourteen days’pay of the person at the most recent rate payable.
(b) In the case of a person subject to military law as a man under section 119(c) or (d), a fine not exceeding the maximum fine awardable for the time being by a court-martial to a man holding the rank of private of the highest grade who is in receipt of the maximum pay applicable to that rank.
(c) In the case of a person who is not a member of the Defence Forces but who was a non-commissioned officer, private or seaman when the offence was committed, a fine not exceeding an amount equal to fourteen days’pay at the most recent rate applicable to his former rank.
I. Severe reprimand.
J. Reprimand.]
(2)For the purposes of this Act in its application to a person subject to military law as a man, any punishment mentioned in the Scale to subsection (1) of this section shall be deemed to be a punishment less than any punishment mentioned before it in the said Scale.
(3)Where—
(a)a person subject to military law as a man is convicted by court-martial of an offence against military law mentioned in any section contained in Chapter II of this Part, and
(b)such section provides that on such conviction he shall be liable to suffer a specified punishment or any less punishment awardable by a court-martial,
the expression “any less punishment awardable by a court-martial” means in such section any punishment mentioned in the Scale to subsection (1) of this section which is less than the specified punishment.
(4)Save as is otherwise expressly provided in this Act, a person convicted by court-martial of having committed an offence against military law while subject to military law as a man shall be sentenced to one punishment only.
(5)F330[…]
F331[(6) Where a man is sentenced to a term of imprisonment exceeding six months, the military judge shall, in addition, sentence him to discharge with disgrace from the Defence Forces or discharge from the Defence Forces.]
F332[(7) Where a man is sentenced to a term of imprisonment of six months or less (other than under section 208(2)), the military judge may, in addition, sentence him to discharge with disgrace from the Defence Forces or discharge from the Defence Forces.]
F333[(8) A non-commissioned officer sentenced by a court-martial to a punishment mentioned at F or G in the Scale to subsection (1) of this section may, in addition, be sentenced to a fine or severe reprimand or reprimand.]
F334[(8A) A non-commissioned officer sentenced by a court-martial to reduction in rank may, in addition, be sentenced to—
(a) reduction to any lower point on the scale of pay for that rank and forfeiture of a specified term of seniority or all seniority in respect of the rank to which he is sentenced to be reduced, or
(b) to a fine or severe reprimand or reprimand,
or both.]
(9)Where a court-martial sentences a man to detention or severe reprimand or reprimand, the court-martial may also sentence him to a fine.
(10)Where a non-commissioned officer is sentenced by a court-martial to imprisonment F335[for any term not exceeding two years] or detention, the court-martial shall also sentence him to reduction to, in case he holds a non-commissioned army rank, the rank of private or, in any other case, the rank of seaman.
F336[(11)A man discharged withF337[disgrace]from the Defence Forces shall—
(a)be disqualified for ever serving the State again in any military capacity, and
(b)during the period of seven years beginning on the date of his discharge, subject to subsection (12) of this section, be disqualified for serving the State in any civil capacity.]
F338[(12)Where a person by reason of this section is for the time being disqualified for serving the State in any civil capacity, the Government may, in their absolute discretion, remove the disqualification.]
211. F339[Separate sentence for each offence.
211.—(1) Where a person is convicted by a court-martial of two or more offences, a separate sentence shall be awarded in respect of each offence.
(2) Subject to section 212A, where a person is convicted by a court-martial in respect of two or more offences, any custodial sentences awarded in respect of each such offence shall be served concurrently.]
211A. F340[Restriction on sentence of imprisonment or detention on person who is not represented.
211A.—(1) Subject to subsection (2) of this section, a person convicted by a court-martial of an offence against military law shall not be sentenced to imprisonment or dismissal or discharge with disgrace from the Defence Forces or dismissal or discharge from the Defence Forces where the person has not been represented by counsel (within the meaning of section 196) at some time after he is found guilty and before he is sentenced.
(2) Subsection (1) of this section shall not apply where the person—
(a) pursuant to rules of procedure, having been informed of his right to be represented by counsel and having had the opportunity to arrange such representation, refused or failed to do so, or
(b) has previously been sentenced to imprisonment for an offence under this Act or by a civil court in the State.
(3) For the purposes of subsection (2)(b) of this section—
(a) a previous sentence of imprisonment which has been suspended and has not taken effect is to be disregarded,
(b) "sentenced to imprisonment" does not include a committal for contempt of court under section 208.]
212. Restriction on sentence of imprisonment and detention on person already undergoing imprisonment or detention.
212.—Where—
(a)a person is convicted by a court-martial of an offence against military law, and
(b)the court-martial proposes to sentence such person to imprisonment or detention, and
(c)such person is at the time of sentence undergoing imprisonment or detention under a former sentence,
any sentence of imprisonment or detention awarded by the court-martial shall F341[be served concurrently with the term then unexpired of the former sentence and on completion of either sentence any balance of the other sentence shall be served].
212A. F342[Power to suspend sentence.
212A.—(1) In this section—
"governor" includes, in relation to a military prisoner or a person undergoing detention, a person for the time being performing the functions of governor;
"imprisonment" includes—
(a) detention in a military prison or detention barrack or in other service custody or in a public prison, as referred to in section 229 of this Act,
(b)F343[…]
(c) detention in a place provided undersection 2of thePrisons Act 1970, and
(d) detention in a place specified undersection 3of thePrisons Act 1972,
and "sentence of imprisonment" shall be construed accordingly;
"mandatory term of imprisonment" includes, in relation to an offence, a term of imprisonment awarded by a court-martial under this Act or any other enactment where provision is made that a person who is guilty of the offence concerned shall be liable to a term of imprisonment of not less than such term as is specified in this Act or that enactment.
(2) Where a person is sentenced by a court-martial in respect of an offence to a term of imprisonment (other than a mandatory term of imprisonment) or to detention, the military judge presiding at the court-martial may make an order suspending the execution of the sentence in whole or in part, subject to the person entering into a recognisance to comply with the conditions of, or imposed in relation to, the order.
(3) It shall be a condition of an order under subsection (2) of this section that the person in respect of whom the order is made keep the peace and be of good behaviour during—
(a) the period of suspension of the sentence concerned, or
(b) in the case of an order that suspends a sentence in part only, the period of imprisonment or detention and the period of suspension of the sentence concerned,
and that condition shall be specified in the order concerned.
(4) The military judge may, when making an order under subsection (2) of this section, impose such conditions in relation to the order as he considers—
(a) appropriate having regard to the nature of the offence, and
(b) will reduce the likelihood of the person in respect of whom the order is made committing any other offence,
and any condition imposed in accordance with this subsection shall be specified in that order.
(5) In addition to any condition imposed under subsection (4) of this section, the military judge may, when making an order under subsection (2) of this section consisting of the suspension in part of a sentence of imprisonment or detention, impose any one or more of the following conditions in relation to that order:
(a) that the person cooperate with such support services, and to such extent, as may be specified by the military judge;
(b) that the person undergo such—
(i) treatment for addiction,
(ii) course of education, training or therapy,
(iii) psychological counselling or other treatment,
as may be approved by the military judge.
(6) A condition imposed under subsection (5) of this section shall be specified in the order concerned.
(7) Where an order is made under subsection (2) of this section, a copy of the order shall be given by the Court-Martial Administrator—
(a) to the commanding officer of the person to whom the order applies and the Provost Marshal, or
(b) in the case of an order consisting of the suspension of a sentence of imprisonment or detention in part only, to the persons referred to in paragraph (a) of this subsection, to the governor of the prison or detention barrack to which the person is committed and to such other person, authority or support services as the military judge may direct having regard to the conditions (if any) imposed under subsection (5) of this section.
(8) (a) Where a person to whom an order under subsection (2) of this section applies is, during the period of suspension of the sentence concerned, convicted by a court-martial of an offence, the military judge presiding at the court-martial before which proceedings for the offence were brought shall, after imposing sentence for that offence, remand the person in custody or otherwise to appear before a court-martial of the same class as that which made the order.
(b) Where a person is remanded pursuant to paragraph (a) of this subsection, the Court-Martial Administrator shall, subject to the directions of the Director—
(i) refer the matter to the summary court-martial, or
(ii) convene a general court-martial or limited court-martial, as specified in the direction, but without a court-martial board,
to deal with the matter.
(9) (a) A summary court-martial or the military judge presiding at a general court-martial or limited court-martial, as the case may be, to which a person is remanded under subsection (8) of this section shall revoke the order unless the military judge considers that revocation of that order would be unjust in all the circumstances of the case.
(b) Where the military judge revokes that order, the person shall be required to serve the entire of the sentence of imprisonment or detention originally awarded, or such part of the sentence as the military judge considers just having regard to all the circumstances of the case, less any period of that sentence already served and any period spent in custody (other than a period during which the person was serving a sentence of imprisonment or detention in respect of an offence referred to in subsection (8) of this section) pending revocation of the said order.
(10) Notwithstanding the provisions of section 211 or of any other section of this Act, a sentence (other than a sentence consisting of imprisonment for life) awarded—
(a) in respect of an offence committed by a person to whom an order under subsection (2) of this section applies, and
(b) during the period of suspension of sentence to which that order applies,
shall not commence until the expiration of any period of imprisonment or detention that the person is required to serve of the sentence referred to in paragraph (b) of this subsection either by virtue of the order under subsection (2) or a revocation under subsection (9) of this section.
(11) Where the Provost Marshal or, as the case may be, the governor of the prison or detention barrack to which a person was committed has reasonable grounds for believing that a person to whom an order under this section applies has contravened a condition referred to in the order he shall refer the matter to the Director who may—
(a) subject to the court-martial being of the same class as that which made the order, direct the Court-Martial Administrator to—
(i) refer the matter to the summary court-martial, or
(ii) convene a general court-martial or limited court-martial, as specified in his direction, but without a court-martial board,
and
(b) apply in the prescribed manner to that court-martial to fix a date for the hearing of an application for an order revoking the order under subsection (2) of this section.
(12) Where a date for the hearing of an application referred to in subsection (11) of this section is fixed, the person in respect of whom the application will be made, or where that person is in prison or a detention barrack, the governor of the prison or detention barrack, shall be notified in writing in the prescribed manner, and the notice shall require the person to attend at the hearing, or require the said governor to produce the person before the court-martial, on the date and at the time specified in the notice.
(13) A notice under subsection (12) of this section shall be addressed to the person concerned by name, and may be given to the person in the prescribed manner.
(14) If a person who is not in prison or a detention barrack fails to appear before the court-martial in accordance with a requirement contained in a notice under subsection (12) of this section, the military judge presiding at the court-martial concerned may make an order for the arrest of the person.
(15) The military judge presiding at the court-martial shall, where he is satisfied that a person to whom an order under subsection (1) of this section applies has contravened a condition of the order, revoke the order unless he considers that revocation of that order would be unjust in all of the circumstances of the case, and where the military judge revokes that order, the person shall be required to serve the entire of the sentence originally awarded, or such part of the sentence as the military judge considers just having regard to all of the circumstances of the case, less any period of that sentence already served in prison or in a detention barrack and any period spent in custody pending the revocation of the order.
(16) The revocation of an order under subsection (9) or (15) of this section shall for the purposes of this Act and theCourts-Martial Appeals Act 1983be deemed to be a sentence of a court-martial.]
212B. F344[Review of certain sentences.
212B.—(1) If it appears to the Director that a sentence awarded by a court-martial, on conviction of a person for an offence in respect of which punishment for a term of imprisonment of two years or for any longer period is awardable by the court-martial, is unduly lenient, the Director may apply to the Courts-Martial Appeal Court to review the sentence in accordance with section 22B (inserted by the Defence (Amendment) Act 2007) of theCourts-Martial Appeals Act 1983and rules of court made under that Act.
(2) Section 161(2)(ea) (which prohibits certain communications in relation to proceedings before a service tribunal) shall apply, with any necessary modifications, to communications made to the persons mentioned in that section for the purpose of influencing the making of a decision in relation to an application under this section as it applies to those communications made for the purposes specified in that provision.]
213. F345[Order for payment of compensation.
213.—(1) Where—
(a) a person subject to military law is convicted by a court-martial of an offence against military law, and
(b) the offence occasioned any personal injury, expense or loss or destruction of, or damage to, any property,
the military judge presiding at the court-martial may, instead of or in addition to any other punishment which he is authorised by this Act to award in respect of the offence, order that there shall be paid by the person convicted compensation for the personal injury, expense, loss, damage or destruction so occasioned to any person (in this Act referred to as the "injured party") who has suffered such personal injury, expense, loss, damage or destruction.
(2) The compensation payable under this section shall be of such amount as the military judge considers appropriate, having regard to any evidence and to any representations that are made by or on behalf of the convicted person, the injured party or the Director and, subject to the relevant maximum amounts specified in subsection (3) of this section, shall not exceed the amount of the damages that, in the opinion of the military judge, the injured party would be entitled to recover in a civil action against the convicted person in respect of the injury, expense, loss, damage or destruction concerned.
(3) In this section "relevant maximum amount" means—
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