S.I. No. 204/2008 - Rules of Procedure (Defence forces) 2008

S.I. No. 204 of 2008

RULES OF PROCEDURE (DEFENCE FORCES) 2008

Notice of the making of this Statutory Instrument was published in

“Iris Oifigiúil” of 11th July, 2008.

I, WILLIE O’DEA, Minister for Defence, in exercise of the powers conferred on me by sections 184 and 240 of the Defence Act 1954 (No. 18 of 1954) and of all other powers enabling me in this behalf, hereby make the following Rules.

	Rules of Procedure (Defence Forces) 2008
	Part 1 — Preliminary and General
1.	Citation, commencement and repeal
2.	Interpretation
	Part 2 — Chief Military Judge and Military Judge
3.	Form of oath
4.	Duties and functions of Chief Military Judge and Military judges
	Part 3 — Appeals to summary court-martial
5.	Appointment of prosecutor
6.	Forwarding of documents to prosecutor
7.	Listing of appeal for hearing
8.	Abandonment of appeal
	Part 4 — Summary or abstract of evidence
9.	Trial pursuant to section 181
10.	Summary or abstract of evidence
	Part 5 — Charges and charge-sheets
11.	Charge sheets
12.	Commencement of charge-sheets
13.	Contents of charge
14.	Validity of charge-sheet
15.	Joint trial
	Part 6 — Pre-trial stage
16.	Application to the Director for directions where person remanded or electing for trial by court-martial
17.	Application to the Director for consent to dismissal of charge or referral of charge of scheduled offence (Part II) for summary investigations
18.	Prosecution file to be submitted to the Director
19.	Matters of which Director must be satisfied
20.	Direction to convene court-martial
21.	Direction to refer to summary court-martial
22.	Withdrawal of charge
23.	Referral back of charge
24.	Consent to dismissal of charge
25.	Reason
26.	Preparation of defence
27.	Selection and appointment of members of court-martial board
28.	Order convening court-martial
29.	Dissolution by Court-Martial Administrator
	Part 7 — Post-trial stage
30.	Promulgation — court-martial finding
31.	Promulgation — appeal to summary court-martial
32.	Promulgation — appeal from court-martial finding
33.	Execution of sentences and punishments
34.	Effective date of certain sentences
35.	Orders for committal, transfer and release
36.	Re-trial
37.	Suspension of sentence
38.	Notice of application to revoke suspension of sentence
39.	Retention and supply of proceedings
40.	Supply of copy of record of proceedings
	Part 8 — Depositions (preliminary investigation in charge of an offence for which a person would be required on conviction to be sentenced to imprisonment for life)
41.	Application of this Part
42.	Preparation of defence for a preliminary investigation
43.	Preliminary investigation
44.	Materials to be considered
45.	Non-application of provisions as to recording
46.	Service of list of further witnesses, statements and list of exhibits
47.	Use of deposition at trial
	Part 9 — Courts of Inquiry and Boards
48.	Court of Inquiry
49.	Convening authorities
50.	Composition
51.	Appointment and functions of assessors
52.	Convening of Courts of Inquiry
53.	Attendance of and production of documents by witnesses subject to military law
54.	Attendance of witnesses not subject to military law
55.	Further witnesses
56.	Appointment of new members
57.	Court to continue, unless reduced below legal minimum
58.	Procedure at court of inquiry
59.	Procedure where reputation is adversely affected
60.	Signature of proceedings or findings
61.	Transmission of proceedings
62.	Re-assembly
63.	When proceedings of court of inquiry admissible in evidence
64.	Findings not admissible in evidence
65.	When copy of proceedings and findings to be furnished
66.	Absence without leave — additional matters
67.	Boards
68.	Convening authorities for Boards
69.	Composition of Board
70.	Procedure of Board
	Part 10 — Prescription and Declarations of Prescribed Officers, Prescribed Authorities and Prescribed Persons for the Purposes of Part V (Except Chapters IV and X)
71.	Prescribed officer
72.	Prescribed authority
73.	Prescribed person
	Part 11 — Miscellaneous
74.	Service or delivery of documents
75.	Revocation and saver
76.	Delay report
77.	Where no rule provided
78.	Exercise of powers vested in holder of military office
79.	Forms
	First Schedule — instruments repealed
	Second Schedule — Forms

Part 1 — Preliminary and General

Citation, commencement and repeal

1.

• (2) These Rules shall come into force on 1 September 2008.

Interpretation

2.

“the Act” means the Defence Act 1954 (No. 18 of 1954);

“abstract of evidence” means—

• (a) any statement in writing, prepared in accordance with these Rules of Procedure, of the evidence of witnesses proposed to be called at the trial by court-martial of an accused person, or

• (b) where the context so admits or requires, any statement or record of evidence of a witness, (including that, if any, of the person charged) given or prepared to be given, or heard, at an investigation of a charge before a commanding officer (pursuant to sections 177, 177A or 178C), or an authorised officer (pursuant to section 177C), or an officer appointed for that purpose by the Deputy Chief of Staff (Support) (pursuant to section 177), as the case may be;

“authorised officer” means an officer in whom powers and duties are vested pursuant to section 184;

a “Board” is an assembly of members of the Defence Forces appointed by a convening authority authorised by rule 49 or rule 68 and convened for the purpose of examining and, if so directed, reporting upon any service subject which may be referred to them by a convening authority;

a “charge” means an accusation contained in a charge-sheet that a person amenable to military law has been guilty of an offence;

“Chief Military Judge” means the person for the time being appointed in accordance with section 184N(1) to be the Chief Military Judge and, where the context so admits or requires, includes the military judge where there is only one appointed and any military judge to whom functions of the Chief Military Judge have been delegated by the Chief Military Judge in accordance with section 184N(3);

“counsel” has the meaning ascribed to it by section 196(6);

a “court of inquiry” is an assembly of officers convened for the purpose of inquiring into any matter which may be referred to it by a convening authority authorised by rule 49, and to make such finding or declaration as may be required;

“Director” means the Director of Military Prosecutions appointed under Chapter IVB of Part V of the Act;

“investigating officer” means a commanding officer or an officer appointed by, and on the direction of, the Deputy Chief of Staff (Support) in accordance with section 177(1);

“the Minister” means the Minister for Defence;

“oath” and “swear” and cognate expressions, include affirmation or declaration, affirm or declare, in cases where an affirmation or declaration is by law allowed instead of an oath;

“person in waiting” means a person who is qualified to be a member of a court-martial board and who is specified by the Court-Martial Administrator in an order convening a general court-martial or a limited court-martial, as the case may be, to be a reserve member to be available for appointment to that particular court-martial;

“proper military authority” when used in relation to any jurisdiction, power, duty, act or other matter, means such military authority as exercises or performs that jurisdiction, power or duty or is concerned with that act or matter pursuant to regulations made under the Act, or the custom of the service;

“prosecutor” means the Director and includes any prosecuting officer appointed in accordance with section 184F(1) and counsel instructed by or representing either;

“subordinate officer” means an officer to whom power is delegated under section 179(1);

“summary of evidence” means the evidence in relation to a charge against an accused, taken down in writing in accordance with these Rules, and includes any statement made by the accused and taken down in accordance with these Rules and any further statement of evidence included in the summary of evidence in accordance with these Rules.

• (2) In these Rules, unless otherwise provided, a reference to a section is to a section of the Act.

• (3) The words and expressions defined in section 2(1) of the Act have the same meaning in these Rules as in the Act.

• (4) Time for the purpose of any proceedings or other matter under these Rules shall be reckoned exclusive of Sunday, Good Friday, Christmas Day and St. Patrick’s Day. Time reckoned for the purposes of arrest, custody, punishment or forfeiture or deduction of pay shall include those days.

Part 2 — Chief Military Judge and Military Judge

Form of oath

3.

“I, , swear by Almighty God (or — do solemnly and sincerely promise and declare — as the case may be) that I will duly and faithfully and to the best of my knowledge and power execute the office of military judge in accordance with the Defence Act 1954 , the Court-Martial Rules and the Rules of Procedure made thereunder without partiality, fear or favour, affection or ill-will towards any person, and that I will uphold the Constitution and the laws.”.

Duties and functions of Chief Military Judge and military judges

4.

• (2) In addition to his or her judicial duties, the Chief Military Judge may perform any other functions and duties as he or she may agree to undertake, provided that any such other functions and duties are not incompatible with the Act or with his or her judicial duties under these Rules.

• (3) Military judges shall preside at courts-martial and shall perform other judicial duties under the Act, these Rules and any court-martial rules for the time being in force that are required to be performed by military judges.

• (4) In addition to such duties, a military judge shall perform any other duties that the Chief Military Judge may direct, provided that any such other duties are not incompatible with the Act or with his or her judicial duties under these Rules.

Part 3 — Appeals to summary court-martial

Appointment of prosecutor

5.

Forwarding of documents to prosecutor

6.

Listing of appeal for hearing

7.

• (2) The Court-Martial Administrator shall give notice in writing, in Form 1 or endorsed on any notice submitted to him, of the date and time which has been fixed for the hearing of any appeal or application to the summary court-martial, and the place where the court is to sit, to:—

• (a) the appellant or applicant, and such person’s commanding officer and (where relevant) the authorised officer;

• (b) the Director; and

• (c) the Chief Military Judge or the military judge presiding at the summary court-martial.

• (3) If, having notified a person in accordance with sub-rule (2), the Court-Martial Administrator changes the time or place for the hearing of any appeal or application to the summary court-martial he or she shall notify the persons referred to in sub-rule (2) of such change.

Abandonment of appeal

8.

• (2) Where an appellant abandons his or her appeal prior to the hearing of the appeal, he or she shall do so by serving notice on the Court-Martial Administrator in Form 2 (referred to in this rule as “the notice of abandonment”).

• (3) The Court-Martial Administrator shall as soon as practicable after receipt serve a copy of the notice of abandonment on the Director and on the appellant’s commanding officer, and (where relevant) the authorised officer, and shall notify the military judge presiding at the summary court-martial.

• (4) Where the notice of abandonment relates to the whole of any appeal, the appeal shall be treated as having been determined on the date on which the copy of the notice is received by the appellant’s commanding officer.

• (5) A prosecutor may give notice in writing at any time prior to the hearing of the appeal that he or she does not contest the whole or any specified part of an appeal. In such a case, the notice shall be given to the Court-Martial Administrator, the appellant and the appellant’s commanding officer.

Part 4 — Summary or abstract of evidence

Trial pursuant to section 181

9.

Summary or abstract of evidence

10.

• (a) where an accused has been remanded for trial by court-martial; or

• (b) in any other case where directed by the Director.

• (2) Where a summary of evidence is to be taken, the evidence of all reasonably available witnesses who gave evidence against the accused before the authorised officer, the commanding officer or the investigating officer, and of any other relevant witness shall be taken down in writing or otherwise recorded in the presence of the accused before the commanding officer or before another officer directed by the commanding officer to take such summary.

• (3) Every commanding officer and every other officer directed by a commanding officer to take a summary of evidence in accordance with this rule is hereby empowered to administer oaths for that purpose.

• (4) The accused may put questions in cross-examination to any witness, and the questions with the answers shall be added to the evidence taken down in writing or otherwise recorded.

• (5) The evidence of each witness, when taken down or recorded as provided in sub-rule (2) or (4) shall, unless the witness waives the requirement that it be read or replayed to him or her, be read over or replayed to him or her and the record shall be signed or otherwise authenticated by him or her in such manner as the officer before whom the summary of evidence is taken shall consider satisfactory, and witnessed by that officer.

• (6) After all the evidence against him or her has been recorded, the accused shall be asked “Do you wish to make any statement or to give evidence upon oath? You are not obliged to say anything or give evidence unless you wish to do so, but whatever you say or any evidence you give will be taken down in writing, and may be given in evidence”. Any statement or evidence of the accused shall be taken down or recorded, but he or she shall not be cross-examined on it. If the accused is tried by court-martial, no evidence shall be admitted at the trial of any statement or evidence he or she may have made or given at the taking of the summary of evidence before the above caution was given to him or her.

• (7) The accused may call and examine witnesses in his or her defence and their evidence shall be taken as provided in the case of witnesses called for the prosecution.

• (8) Save as provided with regard to the accused in sub-rule (6), the evidence of all witnesses shall be taken on oath. The oath shall be administered by the officer taking the summary of evidence.

• (9) A witness taking the oath shall hold the New Testament or, if of a faith other than Christian, the appropriate holy book, in his or her hand and shall repeat after the person administering the oath the words: “I swear by Almighty God that the evidence which I shall give shall be the truth, the whole truth, and nothing but the truth.”.

• (10) Where a witness is permitted to make a solemn declaration, the witness shall repeat after the officer taking the summary of evidence the words: “I (name in full) do solemnly promise and declare that the evidence which I shall give shall be the truth, the whole truth, and nothing but the truth.”.

• (11) If a person cannot be compelled to attend as a witness, a written statement of such person’s evidence purporting to be signed by him or her may be read to the accused and included in the summary of evidence.

• (12) If, owing to the exigencies of the service or on other grounds (including the expense and loss of time involved), the attendance of any witness cannot in the opinion of the officer taking the summary (to be certified by him or her in writing) be readily procured, a written statement of such person’s evidence purporting to be signed by him or her may be read to the accused and included in the summary of evidence. However, if such person can be compelled to attend, the accused may demand that he or she shall attend for cross-examination.

• (13) The officer taking the summary of evidence may put such questions to witnesses as he or she may find necessary to elicit the facts relevant to the charges, but he or she shall not cross-examine the accused.

• (14) Subject to the following sub-rule, no counsel or representative shall be allowed to appear for the accused or for the prosecution at the taking of the summary of evidence.

• (15) Notwithstanding sub-rule (14), where a person subject to military law is charged with an offence for which a person would be required on conviction to be sentenced to imprisonment for life, then each of the following persons namely, the person charged and the person by whom the charge is preferred may, if he or she so wishes, be represented by counsel or by an officer subject to military law, and the person who in relation to the proceedings is the commanding officer may have a legal officer or counsel in attendance on him or her as regards the proceedings, and the proceedings shall be conducted in accordance with Part 8 of these Rules.

• (16) Any witness who is not subject to military law may be summoned in writing to attend by the commanding officer of the accused in accordance with Rule 74 and Form 20 of the Court-Martial Rules 2008.

• (17) When a witness who is not subject to military law is summoned to attend in accordance with the preceding sub-rule, his or her reasonable expenses of attending shall be paid or tendered to him or her on the service of the summons.

• (18) Nothing in this rule shall be construed so as to require a summary or abstract of evidence to be taken after the remand for court-martial by an authorised officer of an accused officer holding a commissioned rank lower than that of Lieutenant-Colonel or Commander in whose case a summary or abstract of evidence has been taken before the charge against him or her was investigated by an authorised officer, unless such authorised officer so directs.

• (19) An additional summary or summaries of evidence may be taken by or on behalf of the commanding officer, the authorised officer or the investigating officer in the same manner as is herein provided for a summary of evidence.

Part 5 — Charges and charge-sheets

Charge-sheets

11.

• (2) A charge-sheet may contain one or more charges but each charge shall allege only one offence and in no case should an offence be described in the alternative in the same charge.

• (3) A charge-sheet may contain alternative charges.

• (4) A charge-sheet which is for summary hearing in accordance with section 177C, 178C or 179C (a “summary charge-sheet”) may be prepared, signed and dated by any person having authority to prefer such a charge.

• (5) A charge-sheet in respect of any offence which is to be tried by court-martial (a “court-martial charge-sheet”) shall be signed and dated by or on behalf of the Director.

• (6) Any court-martial charge-sheet, when served on the accused person, shall be copied to the Court-Martial Administrator and the accused’s commanding officer.

• (7) Where any court-martial charge-sheet is served on an accused, there shall be served also a notice in writing advising of the right of an accused person to apply for a legal aid (preliminary proceedings) certificate, within the meaning of section 26 of the Courts-Martial Appeals Act 1983 or a legal aid (court-martial) certificate, within the meaning of section 27 of the Courts-Martial Appeals Act 1983 , and identifying the prescribed authority, within the meaning of section 25 of the Courts-Martial Appeals Act 1983 , for the purpose of any application for legal aid.

Commencement of charge-sheets

12.

Contents of charge

13.

• (a) the statement of the offence; and

• (b) the statement of the particulars of the act, conduct, disorder, neglect or omission constituting the offence.

• (2) The offence should be stated, if not a civil offence, in the words of the Act. If a civil offence, it should be stated in such words as sufficiently describe that offence, but not necessarily in technical words. The provisions of rule 5 contained in the First Schedule to the Criminal Justice (Administration) Act 1924 (No. 44 of 1924), shall apply to the charging of statutory civil offences. The provisions of rules 6, 7, 8 and 10 of those Rules shall apply to the charging of all offences.

• (3) The particulars should state such circumstances respecting the alleged offence as will enable the accused to know what act, conduct, disorder, neglect or omission is intended to be proved against him or her as constituting the offence. It shall be sufficient to describe any place, time, thing or matter whatsoever to which it is necessary to refer in the particulars in ordinary language in such a manner as to indicate with reasonable clarity the place, time, thing or matter referred to therein.

• (4) The particulars in one charge may be framed wholly or partly by a reference to the particulars in another charge and, in that case, so much of the latter particulars as are so referred to shall be deemed to form part of the first-mentioned charge as well as of the other charge.

• (5) Where it is intended to prove any facts in respect of which any deduction from pay can be awarded or any direction can be given to pay compensation for any personal injury, expense, loss, damage or destruction of property occasioned as a consequence of the offence charged, the particulars should state those facts, the nature of the personal injury suffered by any injured party, the amount of any expense occasioned or the value of any property lost, damaged or destroyed.

Validity of charge-sheet

14.

• (2) In the construction of a charge-sheet or charge, every proposition which may reasonably be presumed to be impliedly included, though not expressed, therein shall be presumed to support the same.

Joint trial

15.

Part 6- Pre-trial stage

Application to the Director for directions where person remanded or electing for trial by court-martial

16.

Application to the Director for consent to dismissal of charge or referral of charge of scheduled offence (Part II) for summary investigation

17.

• (2) An application for the Director’s consent to the referral of a charge for a scheduled offence (Part II) for summary investigation by an authorised officer under section 177(2)(a)(ii)(III) or to the decision by a commanding officer to dispose of a charge for a scheduled offence (Part II) summarily under section 178(2)(b) shall be in writing in Form 5 and shall be made as soon as possible after the investigating officer or the commanding officer has completed his or her investigation.

Prosecution file to be submitted to the Director

18.

• (a) where a person charged is remanded for trial by court-martial under Chapter IV of Part V of the Act, by order of the investigating officer, authorised officer or commanding officer;

• (b) where a person charged elects to be tried by court-martial under section 177B(2) or section 178B(2);

• (c) where an investigating officer refers the matter to the Director for his or her directions;

• (d) where the consent of the Director is sought to:

• (i) the dismissal of a charge under Chapter IV of Part V of the Act,

• (ii) the referral of a charge for a scheduled offence (Part II) for summary investigation by an authorised officer under section 177(2)(a)(ii)(III), or

• (iii) the decision by a commanding officer to dispose of a charge for a scheduled offence (Part II) summarily under section 178(2)(b).

• (2) The prosecution file to be forwarded to the Director shall contain or include:—

• (a) a copy of any report concerning the case prepared by the investigating officer, authorised officer or the commanding officer concerned;

• (b) a copy of the summary charge-sheet;

• (c) any summary or abstract of evidence;

• (d) any written statements or written record of evidence of any witnesses or potential witnesses;

• (e) a list of any potential witnesses;

• (f) any statements made by the accused including records or transcripts of interviews conducted under caution;

• (g) a list of any exhibits;

• (h) any other information or material in the possession of the investigating officer, authorised officer or commanding officer which may be material to, or which the Director notifies that officer is material to, the Director’s consideration of the charge or charges, or to the giving of any consent.

• (3) Where in any case, the person charged is remanded for trial by a court-martial and the Director does not withdraw the charge or refer the charge back to an investigating officer, authorised officer or commanding officer, the Director shall, without delay, settle the court-martial charge-sheet and in so doing may do all or any one or more of the following as may appear to him or her to be necessary having regard to the evidence:—

• (a) add to, alter or amend any charge;

• (b) substitute for any charge any other charge or charges;

• (c) add new charges.

Provided, however, that where the person charged has elected to be tried by court-martial the following provisions shall apply:—

• (i) the charge in respect of which the person has so elected shall not be added to nor a charge for a more serious offence substituted therefor but it may be amended so as to conform to the provisions of the Act and of these Rules;

• (ii) where from the summary of evidence or abstract of evidence there appears to be disclosed a more serious offence than that in respect of which the person has elected for trial by court-martial, the Director may direct that the person be charged with the more serious offence so disclosed. On such direction being given the commanding officer of the person shall proceed with the investigation of the charge as a matter of first instance in accordance with the provisions of the Act and of these Rules, provided, however, that if the person is remanded for trial by court-martial the summary of evidence or abstract of evidence already taken may be deemed in compliance with rule 10.

Matters of which Director must be satisfied

19.

• (a) that the person is charged with an offence under the Act;

• (b) that the evidence is sufficient to justify a trial by court-martial;

• (c) that the provisions of any Regulations made under section 192(4)(a), where applicable, have been complied with;

• (d) that any consent required under section 192(3A), where applicable, has been obtained,

and if he or she is not so satisfied may withdraw the charge, may require an additional summary or abstract of evidence to be taken or prepared, or may direct that such Regulations be complied with or require or procure that such consent be obtained.

• (2) The Director shall also satisfy himself or herself that the case is a proper one to be tried by the class of court-martial he or she proposes to specify in his or her direction.

• (3) Any court-martial charge-sheet settled by the Director shall promptly be sent to the Court-Martial Administrator, who shall serve the charge-sheet on the person charged, and provide a copy of the charge-sheet to the person’s commanding officer. The Court-Martial Administrator shall notify the Director that the charge-sheet has been served on the person charged.

Direction to convene court-martial

20.

Direction to refer to summary court-martial

21.

• (2) In such a case, the Court-Martial Administrator shall summon the accused to appear before the summary court-martial to answer the charge in writing in Form 8 and shall copy such summons to the Director.

Withdrawal of charge

22.

Referral back of charge

23.

Consent to dismissal of charge

24.

• (i) the dismissal of a charge under Chapter IV of Part V of the Act;

• (ii) the referral of a charge for a scheduled offence (Part II) for summary investigation by an authorised officer under section 177(2)(a)(ii)(III), or

• (iii) the decision by a commanding officer to dispose of a charge for a scheduled offence (Part II) summarily under section 178(2)(b)

the Director shall give notice of such consent in writing to the investigating officer, the authorised officer or the commanding officer concerned and shall return the prosecution file to such investigating officer, authorised officer or commanding officer. The officer concerned shall copy a written record of any disposal of the charge to the Director.

Reasons

25.

Preparation of defence

26.

• (2) At the same time as the accused is supplied with the documents referred to in sub-rule (1) he or she shall be informed by the relevant officer that upon his or her giving the names of any witnesses whom he or she intends to call in his or her defence, reasonable steps will be taken for procuring their attendance.

• (3) The relevant officer shall, if necessary, read the charge-sheet and the summary or abstract of evidence to the accused and explain to the accused the charges and his or her rights under these Rules as to preparing his or her defence and being represented at the trial. The relevant officer shall ask the accused whether or not he or she wishes to have an officer assigned to represent him or her at the trial. If the accused wishes to have an officer assigned to represent him or her at his or her trial, the Court-Martial Administrator shall ensure that the accused is represented at his or her trial.

• (4) The relevant officer shall, immediately after delivery of the documents referred to in sub-rule (1), furnish to the Court-Martial Administrator a certificate, in Form 9, of conformity with the provisions of this rule.

Selection and appointment of members of court-martial board

27.

• (2) The Court-Martial Administrator shall, having regard to sections 189 and 190, appoint the persons selected pursuant to sub-rule (1) to be members or persons in waiting of the court-martial board concerned.

• (3) The Court-Martial Administrator shall not appoint a person referred to in section 191(1).

• (4) The Court-Martial Administrator may excuse from performing court-martial duties a person selected pursuant to sub-rule (1) where the Court-Martial Administrator is satisfied that:—

• (a) the person will be required, during the period the court-martial is expected to take place, for duties sufficiently urgent and important to warrant the person not being appointed;

• (b) the person is scheduled, during the period the court-martial is expected to take place, to attend a course that is important for the person’s professional development or career progression;

• (c) the person has served as a member of a court-martial board within the preceding 24 months;

• (d) the person is unfit to perform court-martial duties as a result of illness or injury;

• (e) the person has compassionate reasons for not being appointed to perform court-martial duties, such as serious illness, injury or death in the person’s family or for any other sufficient reasons.

• (5) Where a person selected pursuant to sub-rule (1) is not appointed to perform court-martial duties for a reason set out in sub-rule (3) or (4), the Court-Martial Administrator shall record the reason and select a replacement in accordance with this rule.

• (6) The Court-Martial Administrator shall, at the request of the military judge, appoint a replacement for any member of a court-martial board where an objection to a member is allowed and no eligible person in waiting remains to replace the member.

• (7) The Court-Martial Administrator shall maintain for each general court-martial and limited court-martial a record indicating:—

• (a) the name of each person selected pursuant to sub-rule (1); and

• (b) the name of any person who is not appointed pursuant to sub-rule (3) or who is excused pursuant to sub-rule (4) and the reasons therefor.

• (8) The record referred to in sub-rule (7) shall be open to examination on request by the accused or the prosecutor.

Order convening court-martial

28.

• (a) the Director;

• (b) the military judge;

• (c) members of the court-martial board and persons in waiting;

• (d) the accused; and

• (e) the commanding officer of the accused.

Dissolution by Court-Martial Administrator

29.

• (a) the Director;

• (b) the military judge;

• (c) members of the court-martial board and persons in waiting;

• (d) the accused; and

• (e) the commanding officer of the accused.

Part 7 — Post-trial stage

Promulgation — court-martial finding

30.

• (2) The findings and sentence of a court-martial shall be promulgated by the commanding officer by service on the accused of the Form 12. Where the accused has died or become insane or has absented himself or herself, publication in routine orders shall be sufficient promulgation.

Promulgation — appeal to summary court-martial

31.

• (2) The decision of the summary court-martial on any appeal under section 178E shall be promulgated by the commanding officer by service on the appellant of the Form 13. Where the appellant has died or become insane or has absented himself or herself, publication in routine orders shall be sufficient promulgation.

Appeal from court-martial finding

32.

Execution of sentences and punishments

33.

• (2) Where a punishment awarded has been confirmed or substituted by the summary court-martial on appeal, and the carrying out of such punishment is not suspended or stayed by operation of any order of any court having jurisdiction to do so, the commanding officer of the person concerned shall take the necessary action to ensure that the punishment is carried out and shall cause the appropriate entries to be made to the service records of the person concerned.

• (3) Before taking any action under this rule, a commanding officer may consult with the Court-Martial Administrator.

Effective date of certain sentences

34.

• (a) dismissal with disgrace from the Defence Forces,

• (b) dismissal from the Defence Forces,

• (c) reduction to a lower commissioned army rank, or to a lower commissioned naval rank,

• (d) discharge with disgrace from the Defence Forces,

• (e) discharge from the Defence Forces,

• (f) reduction to a lower non-commissioned army rank, or to a lower non-commissioned naval rank,

shall take effect on and from such date as may be fixed by the Deputy Chief of Staff (Support) who, in fixing such date, shall act without delay and shall have due regard to the provisions of the preceding rule.

• (2) The order relating to the effective date of sentence shall be in Form 14.

• (3) Before taking any action under this rule, the Deputy Chief of Staff (Support) may consult with the Court-Martial Administrator.

Orders for committal, transfer or release

35.

Re-trial

36.

Suspension of Sentence

37.

• (2) Where the Provost Marshal or, as the case may be, the governor of a prison or detention barrack refers a matter to the Director under section 212A(11), he or she shall send to the Director:—

• (a) a summary of the grounds he or she has for believing the person to whom the order under section 212A(2) applies has contravened a condition referred to in the order;

• (b) any written statements or written record of evidence of any witnesses or potential witnesses in support of such grounds;

• (c) any other information or material in his or her possession which may be relevant to the Director’s consideration of any direction he or she might give under section 212A(11);

• (d) any other information or material in his or her possession which the Director notifies him or her is relevant to the Director’s consideration of any direction he or she might give under section 212A(11).

• (3) The Court-Martial Administrator shall follow the procedure in rule 20 or rule 21 as appropriate in respect of any direction under section 212A(11)(a).

Notice of application to revoke suspension of sentence

38.

Retention and supply of proceedings

39.

Supply of copy of record of proceedings

40.

Part 8 — Depositions (Preliminary investigation in charge of an offence for which a person would be required on conviction to be sentenced to imprisonment for life)

Application of this Part

41.

• (2) The remaining provisions of these Rules shall apply where a charge is preferred against a person of an offence for which a person would be required on conviction to be sentenced to imprisonment for life with such modifications as are necessitated by this Part.

• (3) In the event that any conflict shall arise between the provision of any rule of this Part and any other provision of these Rules, the provision of the rule of this Part shall, where the charge is of an offence for which a person would be required on conviction to be sentenced to imprisonment for life, prevail.

Preparation of defence for a preliminary investigation

42.

• (a) a copy of the summary charge sheet;

• (b) a list of the witnesses whom it is proposed to call on behalf of the prosecution at the trial by court-martial, should the person charged be remanded for such trial, which list shall be in Form 17;

• (c) as regards each such witness, a statement of the evidence that is to be given by him or her at such trial, which statement shall be in Form 18; and

• (d) in relation to such trial, a list of exhibits (if any) which list shall be in Form 19.

• (2) At the same time as the person charged is supplied with the documents mentioned in sub-rule (1) he or she shall be informed by the relevant officer that upon his or her giving the names of any witnesses whom he or she intends to call in his or her defence, reasonable steps will be taken for procuring their attendance.

• (3) The relevant officer shall also serve on the person charged a notice in writing advising of the right of the person charged to apply for a legal aid (preliminary proceedings) certificate, within the meaning of section 26 of the Courts-Martial Appeals Act 1983 and identifying the prescribed authority, within the meaning of section 25 of the Courts-Martial Appeals Act 1983 for the purpose of any application for legal aid.

• (4) Where a statement of the evidence to be given by any witness has already been served on the person charged under this rule, the relevant officer shall cause to be served on the person charged any further statement made by that witness of the evidence to be given by him or her. Such further statement shall be made in Form 18.

• (5) The relevant officer shall cause to be furnished to the officer who is to conduct an investigation under rule 43 the summary charge-sheet together with a copy of each other document served on the person charged.

• (6) Where a list of exhibits is served on the person charged, the person charged shall have the right to inspect all or any of the exhibits to which the list relates.

• (7) The relevant officer shall, if necessary, read the charge-sheet to the person charged and explain to him or her the charges and also as to his or her rights under these Rules as to preparing his or her defence and being represented at the trial, and shall ask him or her whether or not he or she wishes to have an officer assigned to represent him or her at the preliminary investigation and any trial. If the person charged wishes to have an officer assigned to represent him or her at his or her trial, the Court-Martial Administrator shall ensure that the accused is so represented at his or her trial.

• (8) The relevant officer shall, immediately after delivery to the person charged of the documents mentioned in sub-rule (1), furnish to the Court-Martial Administrator a certificate, in Form 20, of conformity with the provisions of this rule.

Preliminary investigation

43.

• (2) At such investigation, each of the person charged and the person by whom the charge is preferred may, if he or she so wishes, be represented by counsel or by an officer, and the person who in relation to the proceedings is the commanding officer may have a legal officer or counsel to be in attendance on him or her as regards the proceedings.

• (3) At an investigation under this rule:—

• (a) the person charged shall be entitled to present anything in his or her defence or mitigation;

• (b) the person by whom the charge is preferred and the person charged shall each be entitled to give evidence on sworn deposition and also to require the attendance at the investigation of any person, whether included in the supplied list of witnesses or not, and to examine him or her by way of sworn deposition;

• (c) any witness at the investigation may be cross-examined and re-examined on his or her evidence and his or her deposition shall be taken down in writing, read over to him or her and signed by him or her and by the commanding officer;

• (d) witnesses who are not subject to military law may be summoned or ordered to attend by the commanding officer by summons in accordance with the Defence Forces (Summoning of Civilian Witnesses) Regulations 1954 (S.I. 297 of 1954) served on the witness, provided that his or her reasonable expenses of attending shall be paid or tendered to the witness with the service of the summons;

• (e) having considered the matters specified in rules 44(a) and (b)—

• (i) the commanding officer shall as regards the charge, or as may be appropriate, each of the charges, ask the person charged if he or she has anything to say in answer to the charge, and such officer shall caution the person charged that he or she is not obliged to say anything unless he or she wishes to do so and that whatever he or she does say will be taken down in writing and, if he or she is remanded for trial by court-martial, may be given in evidence at such trial,

• (ii) whatever the person charged says in answer to the commanding officer’s question and caution shall be taken down in writing in Form 21 and read over to him or her; the person shall be invited to sign the statement and the statement shall then be signed by the commanding officer who is taking such statement;

• (f) nothing in this rule shall prevent the person by whom the charge is preferred from giving in evidence any confession or other statement made at any time by the person charged which, by virtue of section 201, is admissible in proceedings before courts-martial as evidence against the person charged.

• (4) Sub-rule (3) shall not entitle the person by whom the charge is preferred or the person charged in an investigation under this rule to require the attendance before the commanding officer of a person or to examine him or her by way of sworn deposition where the officer is satisfied that the person is outside the State and that it is not reasonably practicable to secure his or her attendance before such officer for examination under this rule.

• (5) Where a preliminary investigation is required to be held under this rule, no other summary investigation shall be held under these Rules as regards the charge, or any of the charges, as may be appropriate, to which the preliminary investigation under this rule relates.

• (6) Where pursuant to this Part there is in attendance on a commanding officer a legal officer or counsel, such officer or counsel may, as regards the relevant proceedings, advise the commanding officer he or she is so attending, question any witness on behalf of such commanding officer or otherwise act on behalf of or assist such commanding officer in the performance of his or her duties as regards the proceedings.

Materials to be considered

44.

• (a) any copy document furnished to him or her pursuant to this Part and the exhibits to which a copy list of exhibits (if any) so furnished relates;

• (b) any deposition taken in accordance with this Part;

• (c) any statement referred to in rule 43(3)(e)(ii); and

• (d) anything presented or any submission made by or on behalf of the person charged or any submission made by or on behalf of the person by whom the charges are preferred.

Non-application of provisions as to recording

45.

Service of list of further witnesses, statements and list of exhibits

46.

• (2) The relevant officer who has caused a document to be served on the person charged under sub-rule (1) shall also cause a copy of such document to be furnished to the Court-Martial Administrator.

Use of deposition at trial

47.

• (a) the deponent is dead or is unable to attend or is prevented from attending to give evidence at such trial; and

• (b) the deposition was taken in the presence of the accused; and

• (c) an opportunity was given for the cross-examination and re-examination of the deponent.

• (2) Except in the case of the deponent’s death, a deposition taken under this Part on the application of the person by whom the charges are preferred shall not be read unless the accused consents.

Part 9 — Courts of inquiry and Boards

Court of inquiry

48.

Convening authorities

49.

• (a) the Minister;

• (b) the Chief of Staff;

• (c) a Deputy Chief of Staff;

• (d) a General or Flag Officer;

• (e) a commanding officer holding a commissioned rank not lower than that of Commandant or Lieutenant-Commander, except in the case of a court of inquiry under section 174 which may be convened by any commanding officer.

Composition

50.

• (2) A court of inquiry into a traffic accident or illegal absence may be composed of any number of officers but in no case shall the court be composed of less than two officers.

• (3) The selection of officers shall be in accordance with the nature of the inquiry to be carried out by the court. Where the inquiry is into the death or serious injury of a member of the Defence Forces a medical officer may be appointed to be a member of the court.

Appointment and functions of assessors

51.

• (2) An appointment of an assessor may be made at any time before the court has closed to consider its findings or, if it is not required to make findings, before the taking of evidence has concluded.

• (3) A convening authority (other than the Minister) shall not appoint an assessor without the prior sanction of the Secretary General of the Department of Defence.

• (4) An assessor shall not be a member of the court to which he or she is appointed to advise but shall be present throughout so much of the proceedings as the convening authority may direct. The assessor may not question witnesses but may suggest to the president questions to be put to the witnesses, and any such question and the reply thereto will be recorded in the proceedings of the court.

• (5) The assessor shall give his or her opinion in closed court upon any professional or technical matter which may be referred to him or her by the convening authority or by the court and such opinion shall be recorded in the proceedings of the court.

• (6) If a court of inquiry decides to disregard the opinion of the assessor appointed to advise it upon any professional or technical matter, it shall record in its proceedings such decision and the reasons therefor.

Convening of Courts of Inquiry

52.

• (a) appoint the president and any other members of the court and any assessor;

• (b) appoint the place, date and time for the first assembly of the court;

• (c) specify the matters into which the court is to inquire and, in particular, set out any particular questions in respect of which he or she requires a finding; provided that a court of inquiry into a traffic accident involving civilian persons or property shall not be required to make any finding fixing responsibility for the accident;

• (d) state whether the evidence is to be taken on oath.

• (2) A convening authority by his or her order convening a court of inquiry may provide for such matters as are referred to in rules 53, 54 and 61.

Attendance of and production of documents by witnesses subject to military law

53.

Attendance of witnesses not subject to military law

54.

Further witnesses

55.

Appointment of new members

56.

Court to continue, unless reduced below legal minimum

57.

• (2) A member of a court of inquiry, other than a medical officer, who has been absent from any part of the taking of the evidence shall take no further part in the proceedings of that court. Where a medical officer is a member of a court of inquiry, such member may take part in the proceedings of that court notwithstanding any absence, but shall take part following any absence only for the purpose of advising the other members on any medical question or matter.

• (3) A medical officer who is a member of a court of inquiry may be excused by the president from attendance at any part of the proceedings of the court of inquiry where the full-time attendance of such medical officer would be impracticable or unreasonable.

Procedure at court of inquiry

58.

• (2) Evidence shall not be taken on oath unless the convening authority has so directed or the court has been convened under section 174.

• (3) Where the evidence is to be taken on oath the witnesses shall be sworn by the president or one of the other members of the court in the same manner and with the same oath as in the case of witnesses at a court-martial, and every member of a court of inquiry is hereby authorised to administer oaths for that purpose.

• (4) The evidence of the witnesses shall be taken down in writing by the president or any other member or by a shorthand writer or recorded by another person authorised to be present to make a record of the proceedings before the court.

• (5) Documents and articles produced and handed into court as evidence shall be lettered alphabetically in the order in which they are handed in, signed by the president and attached to the proceedings. Where any such document or article cannot be conveniently lettered it shall be labelled or otherwise identified and forwarded with the proceedings.

• (6) It is the duty of the court to put such questions to a witness as it may consider necessary for the purpose of testing the truth or accuracy of any evidence he or she has given and otherwise for eliciting the truth. The court should not normally conclude its sittings until all available witnesses have been examined, all relevant documents and articles produced and the fullest possible investigation made into the matter which is the subject of the inquiry.