Courts Martial Appeals Act , 1983

PART I Preliminary and General

1. Short title.

1.—This Act may be cited as the Courts-Martial Appeals Act, 1983.

2. Commencement of Part III.

2.—Part III of this Act shall come into operation on such day as may be fixed therefor by order of the Minister.

3. Definitions.

3.—In this Act—

F1[”Act of 1947”means theCourts of Justice Act 1947;]

“the Act of 1954” means the Defence Act, 1954;

“the Court” means the Courts-Martial Appeal Court established by section 9;

“the Minister” means the Minister for Defence.

F1[”military judge”—

(a) means a military judge appointed under Chapter IVC of Part V of the Act of 1954, and

(b) in relation to the performance of the functions of a military judge under this Act or any instrument made under it, where a temporary designation of a Circuit Judge to carry out the functions of a military judge has been made under section 11A of the Act of 1947, references to the performance of such functions shall be construed in accordance withsection 3A.]

3A.. F2[Performance of functions of military judge by Circuit Judge.

3A.—(1) Where a Circuit Judge has been temporarily designated under section 11A of theCourts of Justice Act 1947pursuant to a request under section 184LA of the Act of 1954, notwithstanding the definition of military judge in section 3, 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 under this Act, or any instrument made under it, 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.

(2) In this section "Circuit Judge" has the meaning assigned to it by the Act of 1947.]

4. Expenses.

4.—The expenses incurred by a Minister of the Government in the administration of this Act shall, to such extent as may be sanctioned by the Minister for Finance, be paid out of moneys provided by the Oireachtas.

5. Amendment of section 202 of Act of 1954.

5.—Section 202 of the Act of 1954 is hereby amended—

(a)by the substitution of the following paragraph for paragraphs (b) and (c) of subsection (1):

(b)by the substitution of the following subsection for subsection (2):

and that section, as so amended, is set out in the Table to this section.

TABLE

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 insanity unfit to take his trial, the following provisions shall have effect, that is to say:—

(a)the court-martial shall find specially that fact;

(b)the court-martial shall order that such person be kept in custody in an institution suitable for the detention of such person until such time as he is fit to take his trial or until his release is sooner ordered by the Minister or the High Court, which court shall for that purpose have all the powers which a judge of the Central Criminal Court would have had if the case had been tried before him.

(2)A finding under this section shall not require confirmation or be subject to revision.

6. Amendment of section 203 of Act of 1954.

6.—Section 203 of the Act of 1954 is hereby amended—

(a)by the substitution of the following paragraph for paragraphs (b) and (c) of subsection (1):

(b)by the substitution of the following subsection for subsection (2):

and that section, as so amended, is set out in the Table to this section.

TABLE

203.—(1)Where at the trial by court-martial of a person charged with an offence it appears that such person did the act or made the omission charged, but was insane at the time when he did the said act or made the said omission, the following provisions shall have effect, that is to say:—

(a)the court-martial shall find specially that the accused was guilty of the act or omission charged but was insane at the time he did the act or made the omission;

(b)the court-martial shall order that such person be kept in custody in an institution suitable for the detention of such person until further order of the High Court, which court shall for that purpose have all the powers which a judge of the Central Criminal Court would have had if such person had been tried before him.

(2)A finding under this section shall not require confirmation or be subject to revision.

7. Amendment of section 215 of Act of 1954.

7.—Section 215 of the Act of 1954 is hereby amended by the substitution for “Subject to section 204,” of “Subject to sections 202 to 204,” and that section, as so amended, is set out in the Table to this section.

TABLE

215.—Subject to sections 202 to 204, the finding and sentence of a court-martial shall not be valid except in so far as the same may be confirmed by a confirming authority under this Chapter.

8. Restriction of section 224 of Act of 1954.

8.—Section 224 of the Act of 1954 (quashing of finding of court-martial) shall not have effect in relation to the finding or sentence of a court-martial against which the person convicted may, by virtue of an order under section 24 of this Act, appeal to the Court.

PART II Courts-Martial Appeal Court

9. Establishment and constitution of the Courts-Martial Appeal Court.

9.—F3[…]

10. Court to be a superior court of record, etc.

10.—F4[…]

11. Registrar of the Court.

11.—F5[…]

12. Sittings and procedure of the Court.

12.—F6[…]

13. Right of appeal to the Court.

13.—F7[(1)]A person convicted by a court-martial may appeal to the Court against the finding or sentence change F8[…] of the court-martial or against both such finding and such sentence.

F9[(2) A person in respect of whom a finding or order of committal is made under section 202 or 203 of the Act of 1954 may appeal that finding or order of committal to the Court.]

14. Appeal to the Supreme Court.

14.—F10[…]

15. Interlocutory applications.

15.—F11[…]

16. Consequential orders of the Court.

16.—Where a person convicted by a court-martial gives notice of appeal to the Court, the Court shall have power to make all consequential orders it may think fit, including—

(a)in the case of an appellant who is a member of the Defence Forces, an order suspending the operation of a sentence of F12[…] imprisonment or detention pending the determination of the appeal, and

(b)in the case of an appellant who is not a member of the Defence Forces, an order admitting the appellant to bail on such terms as the Court thinks proper pending the determination of the appeal.

17. Hearing of appeal by the Court.

17.—(1)An appeal to the Court shall be heard and determined by the Court on the proceedings of the trial of the appellant, with power to the Court to hear new or additional evidence and to refer any matter for report by the F13[military judge presiding at the court-martial] by which the appellant was tried.

(2)F14[…]

18. Jurisdiction of the Court.

18.—F15[…]

19. Finding of guilty but insane.

19.—If on any appeal F16[(other than an appeal under sections 203B to 203D (inserted by the Defence (Amendment) Act 2007) of the Act of 1954)] it appears to the Court that, although the appellant did the act or made the omission charged against him, he was insane at the time when the act was done or the omission was made so as not to be responsible according to law for the act or omission, the Court may quash the sentence passed at the trial and order the appellant to be kept in custody in like manner as if the case had been determined by the Court of Criminal Appeal on appeal from a conviction on indictment.

19A. F17[Appeals (mental disorder at time of trial).

19A.—Where an appeal is made to the Court under section 203B (inserted by the Defence (Amendment) Act 2007) of the Act of 1954 from a finding by a court-martial pursuant to section 202 of that Act, the Court shall, if it allows the appeal, order that the appellant be tried or retried, as the case may be, by court-martial for the offence alleged.]

19B. F18[Appeals (mental disorder at time of commission of offence).

19B.—(1)A person tried for an offence by court-martial and found not guilty by reason of insanity may appeal to the Court against the finding on all or any of the following grounds:

(a) that it was not proved that the person did the act or made the omission in question;

(b) that the person was not, at the time when he did the act or made the omission, suffering from a mental disorder of the nature referred to in section 203(1) of the Act of 1954;

(c) that the military judge ought to have made a finding in respect of the person that he was unfit to take his trial.

(2)If on an appeal to the Court on the ground referred to in subsection (1)(a) of this section, the Court is satisfied that it was not established that the appellant did the act or made the omission in question it shall order that the appellant be acquitted.

(3)If, on an appeal to the Court on the ground referred to insubsection (1)(b)of this section, the Court is satisfied that the appellant did the act or made the omission alleged but having considered the evidence or any new evidence relating to the mental condition of the appellant given by a consultant psychiatrist is satisfied that he was not suffering from a mental disorder of the nature referred to in section 203(1) of the Act of 1954, the Court shall substitute a verdict of guilty of the offence charged or of any other offence of which it is satisfied that the person could (by virtue of the charge) and ought to have been convicted, and shall have the like powers of punishing or otherwise dealing with the person as the court-martial concerned would have had if the person had been convicted of the offence in respect of which the verdict of guilty has been so substituted.

(4)If, on appeal to the Court on the ground set out atsubsection (1)(c)of this section, the Court is satisfied that the appellant ought to have been found unfit to take his trial it shall make a finding to that effect and, in that case the provisions of section 202(1)(b) of the Act of 1954 shall apply.

(5)If on appeal to the Court, the Court is satisfied, having considered the evidence or any new evidence relating to the mental condition of the appellant, that he was at the time that the offence alleged was committed suffering from a mental disorder of the nature referred to in section 203(1) of the Act of 1954 and that but for that disorder the appellant would have been found guilty of the offence charged or of another offence of which the person could have been found guilty by virtue of the charge, the Court shall dismiss the appeal.

(6) In this section and insection 19Cof this Act "consultant psychiatrist" has the same meaning as in theMental Health Act 2001.]

19C. F19[Appeals (supplementary provisions).

19C.—(1)Where an appeal is made to the Court 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) of the Act of 1954, the Court may, having considered the evidence or any new evidence relating to the mental condition of the person charged given by a consultant psychiatrist, make such order, being an order that it was open to the court-martial to make, as it considers appropriate and, without prejudice to the provisions ofsection 13of theCriminal Law (Insanity) Act 2006relating to the review of orders of committal, no further appeal shall lie from an order made on an appeal under this section.

(2)Where the Court allows an appeal against a conviction or against a verdict of not guilty by reason of insanity on the ground that the appellant ought to have been found unfit to take his trial, or allows an appeal against a conviction on the ground that the appellant ought to have been found not guilty by reason of insanity, it shall have the same powers to deal with the appellant as the court-martial concerned would have had under section 202 or 203 of the Act of 1954 if it had come to the same conclusion.

(3)All ancillary and procedural provisions contained in a statute or an instrument made under statute relating to appeals against convictions, including provisions relating to leave to appeal, shall apply with the necessary modifications to appeals undersections 19Aand19Bof this Act andsubsection (1)of this section.

(4)The powers of the Court in an appeal undersection 19Aor19Bof this Act orsubsection (1)of this section shall include the power to make any such order as may be necessary for the purpose of doing justice in accordance with the provisions of this Act and theCriminal Law (Insanity) Act 2006.]

20. Convictions and sentences of the Court, etc.

20.—(1)Where on any appeal the Court substitutes a conviction of a different offence or substitutes a different sentence, that conviction or sentence shall, for the purposes of the Defence Acts, 1954 to 1979, and any instrument made thereunder, be deemed to be a duly confirmed finding or sentence of a court-martial.

(2)Notwithstanding section 206 of the Act of 1954, the Court may by order provide for the date on which a sentence substituted by it, or passed by a court-martial and not varied by the Court, shall commence or take effect.

21. Postponement of execution of sentence of death.

21.—F20[…]

22. Defence of appeal.

22.—The defence of an appeal under this Part of this Act shall be undertaken by F21[the Director of Military Prosecutions].

22A. F22[Case stated for the Court on question of law.

22A.—Where an appeal is made to the summary court-martial under section 178E (inserted by the Defence (Amendment) Act 2007) of the Act of 1954, 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 Court for determination in accordance with this Act.]

22B. F23[Review of certain sentences.

22B.—(1) An application by the Director of Military Prosecutions under section 212B (inserted by the Defence (Amendment) Act 2007) of theDefence Act 1954to review a sentence awarded by a court-martial shall be made, on notice given to the convicted person, within 28 days or such longer period not exceeding 56 days as the Court may, on application to it in that behalf, determine, from the day on which the sentence was awarded.

(2) On such an application, the Court may either—

(a) quash the sentence and in its place award to the convicted person the sentence it considers appropriate, being a sentence which could have been awarded to him by the court-martial concerned, or

(b) refuse the application.]

23. Rules of court.

23.—The Superior Courts Rules Committee shall, with the concurrence of the Minister for Justice, make rules of court for the purposes of this Part of this Act.

23A.. F24[Section 23: supplemental provisions.

23A.—Without prejudice to the generality ofsection 23, rules of court made under that section may, in relation to the functions of a military judge provided for in those rules, include provisions required for the performance of the functions of a military judge by a Circuit Judge who, pursuant to section 184LA of the Act of 1954 is temporarily designated to perform such functions under section 11A of the Act of 1947.]

24. Application of Part II.

24.—The provisions of this Part of this Act shall have effect in relation to convictions by courts-martial of which the findings are or were promulgated on or after such day (whether before or after the passing of this Act) as the Minister may fix by order under this section.

PART III Legal Aid

25. Definitions for Part III.

25.—In this Part of this Act—

“legal aid certificate” means a legal aid (preliminary proceedings) certificate, a legal aid (court-martial) certificate, F25[a legal aid (court-martial appeal) certificate] or a legal aid (Supreme Court) certificate;

“the prescribed authority” means the person prescribed by regulations under section 33 of this Act to be the prescribed authority for the purposes of this Part of this Act.

26. Legal aid (preliminary proceedings) certificate.

26.—Where—

(a)a person (in this section referred to as “the accused”) is charged with an offence against military law, and

F28[(b) any of the provisions of the Act of 1954 or any instrument made under that Act permit the accused to be represented by counsel or by a solicitor at the investigation of the charge or the taking down of the evidence pursuant to any such provisions or instrument (or at both such investigation and such taking down of evidence),]

then, if it appears to the prescribed authority—

(i)that the means of the accused are insufficient to enable him to obtain legal aid, and

(ii)that by reason of the gravity of the charge or of exceptional circumstances it is essential in the interests of justice that he should have legal aid at the investigation of the charge or the taking down of the evidence (or at both such investigation and such taking down of evidence),

the prescribed authority shall, on application being made to him in that behalf, grant in respect of the accused a certificate for free legal aid (in this Part of this Act referred to as “a legal aid (preliminary proceedings) certificate”) and thereupon the accused shall be entitled to such aid and to have a solicitor and (where he is charged with F30[an offence for which a person would be required on conviction to be sentenced to imprisonment for life] and the prescribed authority thinks fit) counsel assigned to him for such investigation or such taking down of evidence (or both such investigation and such taking down of evidence) in such manner as may be prescribed by regulations under section 33 of this Act.

27. Legal aid (court-martial) certificate.

27.—(1)Where—

F31[(a) a person (in this section referred to as "the accused")—

(i) is, at the direction of the Director of Military Prosecutions, to be tried by court-martial, or

(ii) appeals to the summary court-martial pursuant to section 178E (inserted by the Defence (Amendment) Act 2007) of the Act of 1954,

and]