Defence (Amendment) Act 2007

PART 1 Preliminary

1. Short title, commencement, collective citation and construction.

1.— (1) This Act may be cited as the Defence (Amendment) Act 2007.

(2) Subject to subsection (3), this Act shall come into operation on such day or days as the Minister may appoint by order or orders either generally or with reference to any particular purpose or provision and different days may be so appointed for different purposes or different provisions, including the application of sections 4(2), 10 and 11 to different enactments specified in Schedules 2, 3 and 4 respectively and to different provisions of those enactments.

(3) This Part and sections 6 to 9, 12, 14 to 17, 31 to 34 and 65 shall come into operation on the passing of this Act.

(4) The Defence Acts 1954 to 2006 and this Act may be cited together as the Defence Acts 1954 to 2007 and shall be read together as one.

2. Definition.

2.— In this Act “Principal Act” means the Defence Act 1954.

3. Saving and transitional provisions.

3.— The saving and transitional provisions in Schedule 1 have effect.

PART 2 Amendments and Repeals

Chapter 1 Miscellaneous Amendments to Principal Act

4. Principal Act: repeals and amendments.

4.— (1) Sections 142A, 180, 188 and 215 to 224 of the Principal Act are repealed.

(2) The Principal Act is amended as indicated in Schedule 2.

5. References to judge advocate in certain Acts and instruments.

5.— Every reference in the Defence Acts 1954 to 2007 or in any instrument made under those Acts to a judge-advocate shall be read as a reference to a military judge.

6. Amendment of section 2 of Principal Act (interpretation generally).

6.— Section 2 of the Principal Act is amended—

(a) by inserting the following definitions:

“ ‘a day’s pay’ means—

(a) in relation to a person who is convicted by a court-martial of an offence against military law or in respect of whom a determination is made or confirmed under Chapter IV of Part V of this Act and who is a member of the Defence Forces, the basic pay, excluding any additional pay or allowance, that is, or would be, payable to that person in respect of the day on which punishment is awarded in respect of the offence, or

(b) in relation to a person who is convicted by a court-martial of an offence against military law or in respect of whom a determination is made or confirmed under Chapter IV of Part V of this Act and who is not a member of the Defence Forces but who was a member of the Defence Forces when the offence was committed (not being a person to whom paragraph (c) of this definition applies), the basic pay, excluding any additional pay or allowance, that would be payable to that person in respect of the day on which punishment is awarded in respect of the offence if he were a member of the Defence Forces on that day and his rank and service (or service in rank, if appropriate) were the same as those on the last day of his service in the Defence Forces, or

(c) in relation to a person who is convicted by a court-martial of an offence against military law or in respect of whom a determination is made or confirmed under Chapter IV of Part V of this Act and who is not a member of the Defence Forces but who is, or was when the offence was committed, subject to military law as an officer pursuant to section 118(d) or (e) or as a man pursuant to section 119(c) or (d), the basic pay, excluding any additional pay or allowance, that would be payable to an officer in the rank of second lieutenant who is in receipt of the maximum pay applicable to that rank, or to a man in the rank of private of the highest grade who is in receipt of the maximum pay applicable to that rank, as the case may be, in respect of the day on which punishment is awarded in respect of the offence;

‘assisting person’ means in relation to proceedings for an offence under Part V of this Act, subject to the consent of the member concerned, such member of the Defence Forces who is subject to military law as the person charged with the offence may choose for the purposes of providing assistance to that person as provided for in the said Part V;

‘court-martial’, when used without qualification, means a general court-martial, a limited court-martial or a summary court-martial;

‘Court-Martial Administrator’ means the Court-Martial Administrator appointed under Chapter IVA of Part V of this Act;

‘court-martial rules’ means rules made under section 240B with respect to courts-martial;

‘Director’ means the Director of Military Prosecutions appointed under Chapter IVB of Part V of this Act;

‘document’ includes—

(a) a map, plan, graph, drawing, photograph or record, or

(b) a reproduction in permanent legible form, by a computer or other means (including enlarging), of information in non-legible form;

‘intoxicant’ includes any alcohol, drug, solvent or any other substance or combination of substances;

‘military judge’ means a military judge appointed under Chapter IVC of Part V of this Act;

‘scheduled offence’, for the purposes of Part V of this Act, shall have the meaning assigned to it by section 176A;”,

(b) in the definition of “prescribed”, in paragraph (a), by substituting “(other than Chapters IV and X or in the case of any matter or thing referred to in Part V as prescribed by court-martial rules)” for “(except Chapters IV and X)”,

(c) in the definition of “service” by inserting “or any other matter” after “property”,

(d) by deleting the definition of “steal”,

(e) by substituting the following for the definition of “superior officer”:

“ ‘superior officer’ includes—

(a) when used in relation to a member of the Permanent Defence Force, an officer or non-commissioned officer of the Permanent Defence Force of equal or higher rank who is authorised, in relation to that member, by or under this Act or by custom of the service, to exercise authority over that member,

(b) when used in relation to a member of the Reserve Defence Force, an officer or non-commissioned officer of the Permanent Defence Force or of the Reserve Defence Force, of equal or higher rank, who is authorised, in relation to that member, by or under this Act or by custom of the service, to exercise authority over that member;”,

and

(f) by inserting the following after subsection (3):

“(4) In this Act, a reference to stealing shall be construed as a reference to theft within the meaning of section 2 of the Criminal Justice (Theft and Fraud Offences) Act 2001.”.

7. Amendment of section 26 of Principal Act (general regulations in relation to Defence Forces).

7.— Section 26 of the Principal Act is amended—

(a) by renumbering the existing provision as subsection (1) of that section, and

(b) by inserting the following subsection:

“(2) Regulations under this section may—

(a) contain such incidental, supplementary and consequential provisions as appear to the Minister to be necessary or expedient for the purposes of the regulations or for giving full effect to this Act,

(b) apply either generally or by reference to a specified category or categories of persons.”.

8. Amendment of section 61 of Principal Act (transfer of men of Permanent Defence Force enlisted under section 53 from one service corps to another).

8.— Section 61 of the Principal Act is amended in subsection (1) by substituting “who were enlisted under section 53 before the commencement of section 8 of the Defence (Amendment) Act 2007” for “enlisted under section 53”.

9. Amendment of section 114 of Principal Act (redress of wrongs).

9.— Section 114 of the Principal Act is amended by inserting the following after subsection (4):

“(5) This section shall not apply to—

(a) any determination made, punishment awarded or compensation order made under section 177C, 178C or 179C, or

(b) the decision of a summary court-martial under section 178G following an appeal under section 178E.”.

Chapter 2 Miscellaneous Amendments to other Acts and Instruments

10. References to ignominy in certain Act and instruments.

10.— (1) The Act specified in Part 1 of Schedule 3 is amended as indicated in that Schedule.

(2) The instruments specified in Part 2 of Schedule 3 are amended as indicated in that Schedule.

(3) Every reference in any Act or in any instrument made under any Act (other than an Act or instrument to which subsection (1) or (2) relates) to ignominy, as it applies to dismissal or discharge (however expressed) from the Defence Forces, shall be read as a reference to disgrace.

11. Miscellaneous amendments to other Acts.

11.— The Acts specified in Schedule 4 are amended as indicated in that Schedule.

PART 3 Amendments to Part V of Principal Act

Chapter 1 Liability to Military Law

12. Amendment of section 120 of Principal Act (liability to military law in respect of status).

12.— Section 120 of the Principal Act is amended—

(a) by substituting the following for subsection (2):

“(2) Where—

(a) an offence (other than that of mutiny, desertion, fraudulent enlistment or a civil offence committed by a person subject to military law while he was on active service outside the State or while he was despatched for service outside the State for any purpose specified in section 3 of the Defence (Amendment) Act 2006) against military law triable by court-martial under this Act has been committed by any person while subject to military law, and

(b) such person has since commission of the offence ceased to be subject to military law,

that person may not be tried for the offence unless he is charged with the offence in accordance with this Act within six months beginning on the date on which he ceased to be so subject, but nothing in this subsection shall be construed as affecting the jurisdiction of a civil court where the offence is triable by that court as well as by court-martial.”,

and

(b) by substituting the following for subsection (3):

“(3) Where a person subject to military law is sentenced by a court-martial to a term of imprisonment or detention and is in service custody, this Act shall apply to the person during the term of that sentence, notwithstanding that the person is discharged or dismissed from the Defence Forces or has otherwise ceased to be subject to military law, and the person may be kept, removed, imprisoned, made to undergo detention and punished accordingly as if the person continued to be subject to military law.”.

13. Amendment of section 121 of Principal Act (modification of Part V in its application to civilians subject to military law).

13.— The following section is substituted for section 121 of the Principal Act:

“Modification of Part V in its application to civilians subject to military law.

121.— In the application of this Part to persons who do not belong to the Defence Forces, the following modifications shall be made:

(a) where an offence against military law has been committed by any person subject to military law who does not belong to the Defence Forces and the person is remanded for trial by court-martial under this Act, that person may be tried by such class of court-martial as the Director directs and, on conviction, dealt with and punished accordingly;

(b) any person subject to military law who does not belong to the Defence Forces shall, for the purpose of this Part, be deemed to be under the command of the prescribed officer, and that person, subject to the right to elect to be tried by court-martial pursuant to section 177B or 178B, as appropriate, may, with the prior consent of the Director, be dealt with summarily and punished under Chapter IV of this Part, according to whether the person is subject to military law as an officer or as a man.”.

14. Amendment of section 123 of Principal Act (time limit for trial of offences).

14.— Section 123 of the Principal Act is amended—

(a) by substituting the following for subsection (1):

“(1) Subject to subsection (1A), a person subject to military law shall not be charged with an offence (other than that of mutiny, desertion, fraudulent enlistment or a civil offence committed by a person subject to military law while he was on active service outside the State or while he was despatched for service outside the State for any purpose specified in section 3 of the Defence (Amendment) Act 2006) against military law triable by court-martial under this Act after the end of six years beginning with the date of commission of the offence.”,

and

(b) by inserting the following after subsection (1):

“(1A) Proceedings for the summary disposal of a scheduled offence under Chapter IV of this Part may be commenced—

(a) at any time within 12 months from the date on which the offence was committed, or

(b) at any time within 12 months from the date on which evidence sufficient, in the opinion of the person by whom the proceedings are initiated, to justify the proceedings comes to that person’s knowledge,

whichever is the later, but no such proceedings shall be commenced later than 3 years from the date on which the offence concerned was committed.

(1B) In calculating a period referred to in subsection (1) or (1A) of this section there shall not be included any period during which the person is certified by his commanding officer as being—

(a) on active service,

(b) despatched for service outside the State for any purpose specified in section 3 of the Defence (Amendment) Act 2006,

(c) otherwise engaged in any other essential operational duties within or outside the State,

(d) absent without leave, or

(e) unavailable for investigation due to illness.”.

Chapter 2 Offences against Military Law

15. Amendment of section 135 of Principal Act (desertion).

15.— Section 135(2)(a) of the Principal Act is amended in subparagraph (i) by inserting “(which, for the purpose of this section, includes, but is not limited to, active service or service with a contingent or as a member despatched for service outside the State for any purpose specified in section 3 of the Defence (Amendment) Act 2006)” after “important service”.

16. Amendment of section 142 of Principal Act (drunkenness).

16.— The following section is substituted for section 142 of the Principal Act:

“Prohibition on being under the influence of an intoxicant.

142.— (1) Every person subject to military law who, whether on duty or not on duty, due to his or her being under the influence of an intoxicant—

(a) is unfit to be entrusted with any duty that the person is or may be required to perform, or

(b) behaves in a disorderly manner or in any manner likely to bring discredit on the Defence Forces,

is guilty of an offence against military law and shall, where a charge under this section is disposed of summarily under section 177C, 178C or 179C, as the case may be, be liable to suffer any punishment awardable thereunder or, on conviction by court-martial, be liable to suffer—

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

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

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

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

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

17. Amendment of section 150 of Principal Act (unauthorised carriage on ships or aircraft).

17.— The following section is substituted for section 150 of the Principal Act:

“Unauthorised carriage on ships or aircraft.

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

18. Amendment of section 161 of Principal Act (offences in relation to courts-martial, etc.).

18.— Section 161 of the Principal Act is amended—

(a) in subsection (1), by substituting the following for paragraphs (b) and (c):

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

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

(b) in subsection (2)—

(i) by inserting the following after paragraph (e):

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

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

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

and

(ii) by substituting the following for paragraph (f):

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

and

(c) by inserting the following after subsection (2):

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

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

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

(ii) communications made by a person involved in the matter either personally or as legal or medical adviser to a person involved in the matter or as a social worker or a member of the family of a person involved in the matter.

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

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

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

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

19. Amendment of section 162 of Principal Act (false evidence).

19.— The following section is substituted for section 162 of the Principal Act:

“False evidence.

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

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

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

(c) a commanding officer investigating a charge under section 178C, or

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

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

Chapter 3 Investigation and Summary Disposal of Charges, Appeals to Summary Court-martial and Remands for Court-martial

20. Insertion of new section: scheduled offences.

20.— (1) The following section is inserted after section 176 of the Principal Act:

“Scheduled offences.

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

(2) The Schedule set out in Schedule 5 is inserted after the Tenth Schedule to the Principal Act.

21. Amendments to Principal Act consequential on section 20.

21.— The Principal Act is amended as indicated in Schedule 6.

22. Amendment of section 177 of Principal Act (charges against officers).

22.— The following section is substituted for section 177 of the Principal Act:

“Charges against officers and other specified persons.

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

(a) as an officer, or

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

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

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

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

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

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

(ii) in any other case—

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

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

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

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

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

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

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

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

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

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

23. Insertion of new sections: notice, right to elect, summary disposal and remand.

23.— The following sections are inserted after section 177 of the Principal Act:

“Notice.

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

(a) to be investigated under section 177 by the person’s commanding officer or an officer appointed for that purpose by the Deputy Chief of Staff (Support), or

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

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

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

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

Right to elect for trial by court-martial.

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

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

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

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

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

Summary disposal by authorised officer.

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

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

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

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

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

(a) record the determination, and

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

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

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

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

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

(IV) severe reprimand;

(V) reprimand,

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

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

(II) severe reprimand;

(III) reprimand.

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

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

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

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

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

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

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

Remand for trial by court-martial.

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

(2) Where the person charged—

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

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

the Director may—

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

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

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

or

(ii) withdraw the charge.”.

24. Amendment of section 178 of Principal Act (disposition of charges against men by commanding officers).

24.— The following section is substituted for section 178 of the Principal Act:

“Charges against men.

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

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

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

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

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

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

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

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

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

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

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

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

25. Insertion of new sections: notice, right to elect, summary disposal and remand.

25.— The following sections are inserted after section 178 of the Principal Act:

“Notice.

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

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

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

Right to elect for trial by court-martial.

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

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

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

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

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

Summary disposal by commanding officer.

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

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

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

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

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

(a) record the determination, and

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

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

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

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

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

(IV) severe reprimand;

(V) reprimand,

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

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

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

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

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

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

(VI) a warning,

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

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

(II) a warning.

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

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

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

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

or

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

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

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

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

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

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

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

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

Remand for trial by court-martial.

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

(2) Where the person charged—

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

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

the Director may—

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

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

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

or

(ii) withdraw the charge.”.

26. Insertion of new sections: appeal to summary court-martial, etc.

26.— The following sections are inserted after section 178D (inserted by section 25) of the Principal Act:

“Appeal to summary court-martial.

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

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

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

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

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

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

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

(b) within such longer period as the summary court-martial may allow by leave given before the end of the initial period.

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

Hearing of appeal by summary court-martial.

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

(a) a rehearing of the charge, and

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

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

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

Powers of summary court-martial.

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

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

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

(a) confirm the punishment awarded,

(b) quash that punishment, or

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

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

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

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

(b) may, without request,

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

27. Amendment of section 179 ofPrincipal Act (disposition of charges against privates and seamen by subordinate officers).

27.— The following section is substituted for section 179 of the Principal Act:

“Charges against privates and seamen.

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

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

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

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

(c) subject to this section and in accordance with regulations made under section 184, deal with the charge summarily.”.

28. Insertion of new sections: notice, right to elect and summary disposal.

28.— The following sections are inserted after section 179 of the Principal Act:

“Notice.

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

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

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

Right to elect to have charge disposed of summarily by commanding officer.

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

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

Summary disposal by subordinate officer.

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

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

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

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

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

(a) record the determination, and

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

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

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

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

(iv) a warning.

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

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

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

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

or

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

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

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

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

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

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

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

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

29. Insertion of new sections: appeal to commanding officer, etc.

29.— The following sections are inserted after section 179C (inserted by section 28) of the Principal Act:

“Appeal to commanding officer.

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

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

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

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

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

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

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

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

Hearing of appeals by commanding officer.

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

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

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

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

30. Insertion of new section: suspension of operation of certain punishments pending appeal.

30.— The following section is inserted after section 179E (inserted by section 29) of the Principal Act:

“Suspension of operation of certain punishments pending appeal.

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

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

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

31. Amendment of section 184 of Principal Act (regulations in relation to investigation and summary disposition of charges).

31.— The following section is substituted for section 184 of the Principal Act:

“Regulations

Regulations in relation to investigation and summary disposal of charges.

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

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

(i) the practice and procedure to be followed;

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

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

(iv) evidence;

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Chapter 4 Courts-martial

32. Insertion of new Chapter: Court-Martial Administrator.

32.— The following Chapter is inserted after Chapter IV of Part V of the Principal Act:

Court-Martial Administrator

Appointment of Court-Martial Administrator.

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

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

(3) A warrant under this section—

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

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

(i) be limited to an officer named, or

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

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

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

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

Functions of Court-Martial Administrator.

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

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

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

(4) The Court-Martial Administrator shall—

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

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

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

33. Insertion of new Chapter: Director of Military Prosecutions.

33.— The following Chapter is inserted after Chapter IVA (inserted by section 32) of Part V of the Principal Act:

Director of Military Prosecutions

Appointment of Director of Military Prosecutions.

184C.— (1) Subject to this Chapter, the Government shall appoint an officer of the Permanent Defence Force to be the Director of Military Prosecutions (in this Act referred to as the ‘Director’).

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

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

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

Committee.

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

(a) the Chief of Staff,

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

(c) the Director of Public Prosecutions.

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

(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.

(4) The committee shall, whenever so requested by the Minister, select an officer or officers 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 appoint an officer to be the Director unless the officer 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 select a suitable officer pursuant to a particular request under that subsection, or

(b) if the Government decide not to appoint to be the Director the officer or any of the officers selected by the committee pursuant to a particular request under that subsection,

then either—

(i) the Government shall appoint 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 and the Government shall appoint an officer 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.

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.

Prosecuting officers.

184F.— (1) The Director may appoint officers to be prosecuting officers.

(2) An officer shall not be appointed as a prosecuting officer unless, at the date of appointment under subsection (1) of this section, the officer is a barrister or solicitor.

(3) A prosecuting officer shall hold and vacate office in accordance with the terms of his appointment.

(4) A prosecuting officer may, unless the Director otherwise directs, exercise any function of the Director.

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.

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.

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.”.

34. Insertion of new Chapter: Military Judge.

34.— The following Chapter is inserted after Chapter IVB (inserted by section 33) of Part V of the Principal Act:

Military Judge

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 to be a military judge.

(2) An officer 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 the Civil 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.

(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.

Committee.

184K.— (1) For the purpose of identifying officers and informing the Government of the suitability of those officers 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.

(3) The committee shall, whenever so requested by the Minister, select an officer or officers 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 appointment the officer or officers so selected.

(4) The committee shall not submit or recommend the name of an officer to the Minister under this section unless the officer concerned satisfies the requirements of section 184J(2) as regards the proposed appointment, and the committee shall not recommend the name of the officer to the Minister unless, in the opinion of the committee, 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 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.

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.

Functions of military judge.

184M.— A military judge shall preside at courts-martial and shall perform any other judicial functions that may be prescribed.

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.

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.

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.”.

35. Amendment of section 185 of Principal Act (acquittal or conviction to bar subsequent trial by court-martial).

35.— Section 185 of the Principal Act is amended—

(a) by substituting the following for subsection (1):

“(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.”,

and

(b) by inserting the following after subsection (1):

“(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 the Criminal Procedure Act 1993.”.

36. Amendment of section 186 of Principal Act (classes of courts-martial).

36.— The following section is substituted for section 186 of the Principal Act:

“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.”.

37. Amendment of section 187 of Principal Act (convening of courts-martial).

37.— The following section is substituted for section 187 of the Principal Act:

“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.”.

38. Insertion of new section: summary court-martial.

38.— The following section is inserted after section 187 of the Principal Act:

“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.”.

39. Amendment of section 189 of Principal Act (constitution of general courts-martial).

39.— The following section is substituted for section 189 of the Principal Act:

“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