S.I. No. 205/2008 - Court-Martial Rules 2008

Notice of the making of this Statutory Instrument was published in

“Iris Oifigiúil” of 11th July, 2008.

We, the Courts-Martial Rules Committee, constituted pursuant to the provisions of section 240A of the Defence Act 1954 (No. 18 of 1954), in exercise of the powers conferred on us by section 240B of the Defence Act 1954 , and of all other powers enabling us in this behalf, do hereby make the following Rules.

Dated this 28th day of June 2008.

Donagh M c Donagh	Chairperson
Oonagh M c Crann
Patrick A.M c Court
Niall Farrell
Denis M c Fadden
Ann Price
John Spierin	Secretary

I concur in the making of the following Rules.

Dated this 2nd day of July 2008.

WILLIE O DEA

Minister for Defence

S.I. No. 205 of 2008

COURT-MARTIAL RULES 2008

	Part 1 — Preliminary and General
1.	Short title, commencement and application
2.	Interpretation
3.	Representation
	Part 2 — Military Judge
4.	Unavailability of Military Judge
	Part 3 — Duties of Court-Martial Administrator in relation to proceedings before courts-martial
5.	Register of proceedings
6.	Notice of order convening general court-martial or limited court-martial
7.	Delegation of duties
8.	Notice to parties and persons affected
9.	Facilities for trials and hearings
	Part 4 — Trial by summary court-martial
10.	Application of Rules
11.	Procedure at trial by summary court-martial
	Part 5 — Appeals to the summary court-martial
12.	Form and service of appeal
13.	Dismissal of appeal for non-prosecution
14.	Modification of Rules — Appeals to summary court-martial
15.	Order on appeal
	Part 6 — Appeal to the summary court-martial against punishment only
16.	Information to be provided by the respondent
17.	Determining disputes of fact
18.	Evidence on behalf of the appellant
	Part 7 — Appeal to the summary court-martial against a determination or against both determination and punishment
19.	Power of prosecutor on appeal against determination
20.	Appeal to the summary court-martial against a determination or against both determination and punishment
	Part 8 — Referral of question of law in an appeal to the summary court-martial to the Courts-Martial Appeal Court
21.	Request to refer
22.	Procedure on reference
	Part 9 — Legal Aid
23.	Prescribed authority
24.	Applications
	Part 10 — Pre-trial matters
25.	Notice under section 19(1) of the Criminal Law (Insanity) Act 2006
26.	Pre-trial motions
	Part 11 — Constitution of general court-martial or limited court-martial
27.	Assembly of court
28.	Procedure on assembly of court
29.	Inability of person named as member of board to attend
30.	Adjournment for insufficient number of members
	Part 12 — Question of fitness by reason of mental disorder to take trial
31.	Question of fitness by reason of mental disorder to take trial
	Part 13 — Procedure at Trial — Challenge and Swearing
32.	Procedure for challenge of members of board
33.	Swearing of board members
34.	Swearing of board to try several accused
35.	Swearing of other persons
36.	Substitution of solemn declaration for oath
	Part 14 — Procedure at Trial — Prosecution
37.	Arraignment of accused
38.	Separate charge-sheets
39.	Objection by accused to charge
40.	Amendment of charge
41.	Special plea to the jurisdiction or plea in bar
42.	General plea of “Guilty” or “Not Guilty”
43.	Procedure after plea of “Guilty”
44.	Withdrawal of plea of “Not Guilty”
45.	Plea of “Not Guilty”, applications by accused
46.	Case for prosecution
47.	Submission as to case for prosecution
	Part 15 — Procedure at Trial — Defence
48.	Rights of unrepresented accused
49.	Case for the defence — opening address
50.	Witnesses for the defence
51.	Where there are two or more accused
52.	Closing addresses
	Part 16 — Procedure at Trial — Summing Up
53.	Summing-up by military judge
	Part 17 — Procedure at Trial — Finding
54.	Consideration of finding
55.	Form and record of finding
56.	Procedure on finding
57.	Withdrawal of board
	Part 18 — Procedure at Trial — Sentence or disposal
58.	Pre-sentence procedure
59.	Pre-sentence hearing
60.	Forfeiture of seniority of rank and service for purpose of promotion
61.	Pronouncement of sentence
62.	Notification of sentence and any appeal
63.	Suspension of sentence
64.	Special finding under section 203(1)
65.	Procedure under section 225
	Part 19 — General Provisions as to proceedings of court
66.	Seating of members
67.	Continuity of trial
68.	Presence throughout of all members of board
69.	Dissolution by military judge of general court-martial or limited court-martial
	Part 20 — General Provisions as to Witnesses and Evidence
70.	Judicial Notice
71.	Prosecutor’s witnesses
72.	Calling of witness whose evidence is not contained in the summary or abstract
73.	Witnesses required by accused
74.	Procuring attendance of witnesses
75.	Non-attendance of witnesses
76.	Withdrawal of witnesses from court
77.	Evidence on oath
78.	Examination and cross-examination
79.	Recalling witnesses
80.	Exhibits
	Part 21 — Counsel and Defending Officer
81.	Rights of counsel
	Part 22 — Record of Proceedings
82.	Record of proceedings — trial by court-martial
83.	Records — section 187A(3)(b) or (c)
84.	Retention of proceedings
	Part 23 — Miscellaneous
85.	Service or delivery of documents
86.	Sittings and adjournments
87.	Orders
88.	Time
89.	Non-compliance
90.	Where no rule provided
91.	Forms
92.	Mode of address and attire
	Schedule of Forms

S.I. No. 205 of 2008

COURT-MARTIAL RULES 2008

Part 1 — Preliminary and General

Short title, commencement and application

1.

• (2) These Rules shall come into operation on the 1st day of September 2008.

• (3) These Rules shall apply within and outside the State.

Interpretation

2.

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

“abstract of evidence” means—

• (a) any statement in writing, prepared in accordance with the 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 (pursuant to section 177), as the case may be;

“accused” includes, where the context so requires, an appellant;

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

“board” means a court-martial board pursuant to section 189 or section 190;

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

“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;

“party” includes any accused, appellant and prosecutor;

“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 for the purpose of Part 11 or Part 13 of these Rules;

“proceedings” means any proceedings before a court-martial including any appeal or application under Part V of the Act;

“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 under section 184F(1) and counsel instructed by or representing either;

“Rules of Procedure” means any rules made by the Minister under section 240;

“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 Rules of Procedure, and includes any statement made by the accused and taken down in accordance with those Rules and any further statement of evidence included in the summary of evidence in accordance with those 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) 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.

Representation

3.

Part 2 — Military judge

Unavailability of military judge

4.

• (2) A court-martial adjourned pursuant to this Rule may be dissolved, pursuant to section 193(4) by order in writing:

• (a) by another military judge or,

• (b) if there is no other military judge and if the Court-Martial Administrator, after consultation with the Director, is satisfied that no military judge is likely to be available within a reasonable period, by the Court-Martial Administrator.

• (3) Where a court-martial is dissolved in accordance with this Rule, the accused may be re-tried by another court-martial on the directions of the Director.

Part 3 — Duties of Court-Martial Administrator in relation to proceedings before courts-martial

Register of proceedings

5.

• (2) Each case directed to be tried by court-martial and each appeal to the summary court-martial shall be assigned a unique reference number by the Court-Martial Administrator, referred to in these Rules as the Register Number.

• (3) The Court-Martial Administrator shall include in the Register the service number, rank, name and unit (if any), address, and other particulars of every accused or appellant together with the name, business address, and contact details of their counsel, where known, a record of every order made or direction given in every proceedings and such other particulars as the military judge may direct the Court-Martial Administrator to include from time to time.

• (4) The Court-Martial Administrator shall maintain a calendar of the trials and other hearings scheduled or listed before any court-martial and shall provide copies of that calendar or extracts therefrom to the military judge and every member and person in waiting of any board affected and every other material person requesting same.

• (5) The Court-Martial Administrator shall publish, publicly, notice of the dates, times and places fixed for trials by courts-martial and for other hearings before courts-martial in such manner as he or she considers appropriate.

• (6) The records referred to in this rule may be created and maintained in electronic form, in whole or in part.

Notice of order convening general court-martial or limited court-martial

6.

Delegation of duties

7.

Notice to parties and persons affected

8.

Facilities for trials and hearings

9.

• (2) The Court-Martial Administrator shall ensure the attendance of an interpreter where required.

• (3) The Court-Martial Administrator shall provide, as far as reasonably practicable, suitable accommodation for the court-martial, the parties, any witnesses and other persons attending (including members of the public) at a court-martial.

• (4) The Court-Martial Administrator shall provide any special facility (including any technology) required by the court-martial.

Part 4 — Trial by summary court-martial

Application of Rules

10.

• (2) In the case of a trial before the summary court-martial, any reference in any provision of Parts 9 to 22 to a board shall be deemed to be a reference to the military judge presiding.

• (3) Part 11 (rules 27, 28, 29 and 30) and Part 16 (rule 53) shall not apply in any trial before the summary court-martial.

• (4) Rules 32, 33 and 34 in Part 13, rule 54 in Part 17, and rules 66, 68 and 69 in Part 19 shall not apply in any trial before the summary court-martial.

• (5) Rule 37 in Part 14 shall not apply in any trial before the summary court-martial. On his or her appearance before the summary court-martial, the accused shall have each charge read to him or her and shall be asked how he or she pleads to each charge.

Procedure at trial by summary court-martial

11.

Part 5 — Appeals to the summary court-martial

Form and service of appeal

12.

• (2) The appellant shall give the Notice of Appeal to the Court-Martial Administrator who shall complete the same and give a copy of the notice to:

• (a) the appellant,

• (b) the Director and

• (c) the authorised officer or the commanding officer concerned.

• (3) As soon as practicable after he or she has received a copy of the notice of appeal, the authorised officer or the commanding officer, as the case may be, shall send to the Court-Martial Administrator copies of:

• (a) the record of the determination under section 177C(5)(a) or 178C(5)(a), as the case may be;

• (b) the punishment awarded;

• (c) any order for compensation made under section 177C(9) or 178C(10);

• (d) any statement in writing of the appellant;

• (e) any other record of the summary investigation, and

• (f) the notice and documents received by the appellant in accordance with section 177A or 178A.

Dismissal of appeal for non-prosecution

13.

Modification of Rules — Appeals to summary court-martial

14.

• (2) Rules 32, 33 and 34 in Part 13, rule 54 in Part 17, and rules 66, 68 and 69 in Part 19 shall not apply in any appeal before the summary court-martial.

• (3) Rules 37 and 38(1) shall not apply in any appeal before the summary court-martial. On his or her appearance before the summary court-martial, the appellant shall have each charge read to him or her and shall be asked whether he or she admits or denies each charge.

• (4) Where an appeal is made against a determination or against both a determination and punishment arising from two or more charge-sheets, each charge-sheet shall be dealt with to an order under section 178G(1) before the next charge-sheet is dealt with by the court.

Order on appeal

15.

Part 6 — Appeals to the summary court-martial against punishment only

Information to be provided by the respondent

16.

• (a) any punishment awarded to the appellant or compensation order made against the appellant under Part V of the Act;

• (b) the offence or offences to which the punishment awarded or compensation order made relates, and

• (c) such other matters as may be relevant to the exercise by the court-martial of its powers under section 178G(3).

• (2) The information referred to in sub-rule (1)(c) shall include information contained in the service records concerning the appellant’s character; age; service; rank; any recognised act of gallantry, distinguished conduct, medals, awards, mentions; marital status; the number in his or her family; the length of time he or she has been under arrest or in confinement on any previous sentence; the period he or she has been in civil or service custody on the present charge or charges; any additional, flying or other pay.

• (3) Evidence on the matters referred to in sub-rule (2) may be given by a witness verifying a statement in Form 2.

Determining disputes of fact

17.

• (2) Where an issue of fact is tried in accordance with sub-rule (1)the military judge may order that evidence be adduced.

Evidence on behalf of the appellant

18.

• (a) give evidence on oath and call witnesses,

• (b) produce to the court any document or written report, and

• (c) address the court,

on any matter relevant to the award of punishment.

• (2) Unless the respondent or the court requires otherwise, any document or report referred to in sub-rule (1)(b) need not be adduced in compliance with the rules of evidence.

• (3) The court may refuse to receive any such document or report at its discretion.

Part 7 — Appeal to the summary court-martial against a determination or against both determination and punishment

Power of prosecutor on appeal against determination

19.

Appeal to the summary court-martial against a determination or against both determination and punishment

20.

• (2) For the purposes of an appeal under this Part:

• (a) any reference to an “accused” or to “defence” shall be deemed to be a reference to an “appellant”;

• (b) any reference to the “prosecutor” or “Director” shall be deemed to be a reference to the “respondent”;

• (c) any reference to “court-martial board” or “board” shall be deemed to be a reference to a “military judge”;

• (d) any reference to a “finding” shall be deemed to be a reference to a “determination”;

• (e) any reference to a “plea of “Guilty”” shall be deemed to be a reference to an “admission of a charge”;

• (f) any reference to a “plea of “Not Guilty”” shall be deemed to be a reference to a “denial of a charge”;

• (g) any reference to a “finding of “Guilty”” shall be deemed to be a reference to a “confirmation of a determination”;

• (h) any reference to a “finding of “Not Guilty”” shall be deemed to be a reference to a “quashing of a determination”;

• (i) any reference to “sentence” shall be deemed to be a reference to a “punishment”;

and cognate words shall be construed accordingly.

Part 8 — Referral of question of law in an appeal to the summary court-martial to the Courts-Martial Appeal Court

Request to refer

21.

Procedure on reference

22.

• (2) A case stated by the summary court-martial shall state the facts found by the summary court-martial, the submissions of the parties (including any authorities relied on by the parties during the course of those submissions) and the question on which the opinion of the Courts-Martial Appeal Court is sought.

• (3)
• (a) The military judge shall sign a case stated within 21 days from the date of the decision to refer.

• (b) The military judge may direct the parties to submit a draft statement of the facts and the questions raised.

• (c) Where there is a dispute between the parties as to the facts, such facts shall be found by the military judge.

• (4) Save where otherwise directed by the military judge or by the Courts-Martial Appeal Court, where the military judge decides of his or her own motion to refer a question to the Courts-Martial Appeal Court, the prosecutor shall be the moving party in the proceedings before the Courts-Martial Appeal Court and where the military judge grants a request to refer a question, the requesting party shall be the moving party in the proceedings before the Courts-Martial Appeal Court.

Part 9 — Legal Aid

Prescribed authority

23.

Applications

24.

• (2) Where a military judge is the prescribed authority for any legal aid certificate, an application for any such legal aid certificate may be made in person and without notice at any sitting of the summary court-martial.

Part 10 — Pre-trial matters

Notice under section 19(1) of the Criminal Law (Insanity) Act 2006

25.

• (2) A copy of the notice together with proof of service of the notice shall be lodged with the Court-Martial Administrator.

Pre-trial motions

26.

• (2) Any such matter shall be brought before the military judge by way of notice of motion.

• (3) Any such notice of motion shall be lodged with the Court-Martial Administrator and thereafter served on any relevant party. The return date on the said motion shall be not less than four days from the date of issue of the motion.

Part 11 — Constitution of general court-martial or limited court-martial

Assembly of court

27.

Procedure on assembly of court

28.

• (a) the name of the military judge presiding;

• (b) the order convening the court;

• (c) the names and ranks of the members of the board and the names and ranks of the persons in waiting;

• (d) the name and rank (where appropriate) of the prosecutor, and

• (e) the certificate under section 192(4)(b), where applicable.

Inability of person named as member of board to attend

29.

• (2) Where there are no eligible persons in waiting the military judge shall adjourn the proceedings for the purpose of having replacement members appointed unless the military judge decides that it is inexpedient so to adjourn and the court may then proceed, if not reduced in number below the required minimum.

Adjournment for insufficient number of members

30.

• (2) Where the court adjourns for the purpose of appointing replacement members, the Court-Martial Administrator may dissolve the court in accordance with section 193(2) and convene another court.

Part 12 — Question of fitness by reason of mental disorder to take trial

Question of fitness by reason of mental disorder to take trial

31.

• (2)
• (a) Where the court-martial makes an order pursuant to section 202(1)(b) of the Act or section 4(5)(c) of the Criminal Law (Insanity) Act 2006 , the warrant of committal shall be in Form 6.

• (b) Where the clinical director of the designated centre concerned forms the opinion in relation to the accused that the accused is no longer unfit to take his or her trial for an offence, the clinical director shall immediately notify the Director of this opinion pursuant to section 13(3)(a) or (b) of the Criminal Law (Insanity) Act 2006 by notification in writing in Form 7, which notice shall be sent by electronic mail and by registered post to the Director.

• (c) As soon as practicable after receipt of such a notice, the Director shall issue such directions to the Court-Martial Administrator as are appropriate having regard to section 13 of the Criminal Law (Insanity) Act 2006 .

• (d) As specified in such directions, the Court-Martial Administrator shall make an order convening a court-martial (or, as the case may be, fixing a time for the accused to be brought before the summary court-martial) and shall send a copy of that order to the clinical director, the prosecutor and the accused.

• (e) When the accused is brought before the court-martial, it may hear and determine any application by the prosecutor or the accused and may make any order pursuant to section 13(3)(a) or (b) of the Criminal Law (Insanity) Act 2006 as it thinks proper.

Part 13 — Procedure at Trial — Challenge and Swearing

Procedure for challenge of members of board

32.

• (2) Where there is more than one such objection, each objection shall be dealt with separately.

• (3) When such an objection is allowed, that person shall immediately retire and take no further part in the proceedings.

• (4) When a person objected to retires, the vacancy shall be filled by one of the persons in waiting being appointed by the military judge to serve in the place of the retiring person. Where there is no person in waiting available, the court shall proceed in accordance with rule 30.

Swearing of board members

33.

• (2) The oath shall be administered to the members of the board by the military judge.

Swearing of board to try several accused

34.

• (2) Each accused shall have the right to object to the members of the board and shall be asked separately whether he or she objects to any member.

• (3) In the case of several accused to be tried separately on unrelated charges, upon one of those accused objecting to a member the military judge may determine that objection or adjourn the proceedings relating to that accused and swear the members of the board for the trial of the other accused.

• (4) In the case of several accused to be tried separately, the court, when sworn, shall proceed with the trial of one accused and take the trial or trials of the other accused in succession.

Swearing of other persons

35.

• (2) Before a person is sworn under this rule, the accused shall be informed of the person who is proposed to be sworn, and may object to the person for cause shown and if the military judge decides that the objection is reasonable, that person shall not be sworn.

Substitution of solemn declaration for oath

36.

• (2) The declaration shall be made before the military judge or the Court-Martial Administrator.

Part 14 — Procedure at Trial — Prosecution

Arraignment of accused

37.

Separate charge-sheets

38.

• (2) The trials upon the several charge-sheets shall be in such order as the Director may direct.

• (3) Notwithstanding the provisions of this rule, the military judge may direct that a charge-sheet be severed or that charge-sheets be consolidated, where the same is in the interests of justice.

• (4) In the case of the finding on any one or more of the charges in the several charge-sheets being “Guilty”, the court shall proceed in accordance with rules 58 to 61 as if all such charges in the different charge-sheets had been contained in one charge-sheet and proceed to sentence accordingly.

• (5) Where the Director has directed that, in the event of the conviction of an accused upon a charge in any charge-sheet, he or she need not be tried upon any other charge-sheet, on being so informed the court shall proceed in accordance with sub-rule (4).

• (6) Where a charge-sheet contains more than one charge, the accused may apply to be tried separately in respect of any charge or charges in that charge-sheet, before pleading, on the ground that he or she will be embarrassed in his or her defence if not so separately tried; and in such a case, unless it thinks it unreasonable, the court shall arraign and try the accused in like manner as if the Director had inserted the said charge or charges in different charge-sheets.

• (7) Where the accused pleads “Guilty” to a charge in a charge-sheet, and the prosecutor does not proceed with the other charges in that charge sheet, the court shall proceed to try the accused on the charges in the next charge-sheet before it proceeds in accordance with rule 43.

Objection by accused to charge

39.

• (2) The military judge shall hear any submissions made on this issue in the absence of the board.

• (3) Where the objection is disallowed, the trial shall proceed.

• (4) Where the objection is allowed and there are other charges before the court against the accused, the court shall proceed on the other charges.

Amendment of charge

40.

• (a) a mistake in the name or description of the accused, or

• (b) a mistake which is attributable to a clerical error or omission,

the military judge may amend the charge-sheet.

• (2) Where on the trial of any charge it appears on application being made to the military judge, at any time before the board retires to consider its finding on the charge, that in the interests of justice any addition, omission or alteration in the charge is required, the military judge may amend the charge and order the trial to proceed with the amended charge after due notice to the accused or may adjourn or, where appropriate, dissolve the court-martial under section 193(3).

Special plea to the jurisdiction or plea in bar

41.

• (a) offer a special plea to the jurisdiction of the court; or

• (b) offer a plea in bar of trial.

• (2) Where such a plea is allowed, the court shall make no further order.

• (3) Where such a plea is not allowed, the court shall proceed with the trial.

General plea of “Guilty” or “Not Guilty”

42.

• (2) Where an accused enters a “Guilty” plea, that plea shall be recorded as the finding of the court, subject to the acceptance of the plea by the prosecutor. Before such finding is recorded, where an accused is not represented by counsel the military judge shall ascertain that the accused understands the nature of the charge to which he or she has entered a “Guilty” plea. The military judge shall inform the accused of the general effect of that plea and of the meaning of the charge to which the accused has entered such a plea and of the procedure which will ensue from that plea of “Guilty”. The military judge shall advise the accused to withdraw that plea if it appears to the military judge that the accused ought to plead “Not Guilty”.

• (3) Where an accused pleads “Guilty” to any one of two or more charges laid in the alternative, the prosecutor may enter a nolle prosequi in respect of such alternative charge or charges.

Procedure after plea of “Guilty”

43.

• (2) The board shall withdraw after the recording of the plea of “Guilty” on a charge, if the trial does not proceed on any other charges. The prosecutor shall address the court on the facts of the case. The court may receive such evidence or submissions as it considers necessary or appropriate and may adjourn for that purpose.

• (3) The court shall then proceed in accordance with rule 58.

• (4) Where a plea of “Guilty” is recorded and the trial proceeds with respect to other charges in the same charge-sheet, the proceedings under sub-rules (2) and (3) shall take place when the findings on the other charges in the same charge-sheet are recorded.

Withdrawal of plea of “Not Guilty”

44.

Plea of “Not Guilty”, applications by accused

45.

Case for prosecution

46.

Submission as to case for prosecution

47.

• (b) Where the application is allowed, the military judge shall direct the board to acquit the accused of the material charge.

• (c) Where the application is refused the trial shall proceed.

• (2) Where the military judge is satisfied, at the close of the case for the prosecution, that the prosecution has not established a prima facie case against the accused, he or she shall direct the board that the accused be acquitted upon the material charge and proceed with the trial on any outstanding charge or charges.

Part 15 — Procedure at Trial — Defence

Rights of unrepresented accused

48.

• (a) that the accused may give evidence on oath, and in such case may be liable to cross-examination;

• (b) that the accused may call witnesses both as to fact and as to character.

• (2) Where the accused intends to call witnesses as to character, the military judge shall advise him or her of the effect of so doing.

Case for the defence — opening address

49.

Witnesses for the defence

50.

Where there are two or more accused

51.

• (2) The prosecutor may make only one opening address.

• (3) The military judge shall decide the order in which the accused are to call their evidence and to make their closing addresses having afforded the prosecutor and each of the accused the opportunity of making submissions.

• (4) Where evidence other than his or her own is adduced by one of the accused, the evidence on the part of all the accused persons shall be adduced before rebutting evidence, if any.

• (5) Where the same counsel or defending officer represents two or more accused, he or she may make only one closing address.

• (6) The board shall not retire to deliberate on its findings in relation to any of the charges until the close of the evidence for all the accused and after closing addresses.

Closing addresses

52.

• (2) The closing address for the defence shall be made after that for the prosecution.

• (3) Where two or more accused are represented by the same counsel or defending officer, he or she may make only one closing address.

• (4) Where the accused is not represented by counsel or a defending officer and does not call any witness (other than a witness as to character), the prosecutor shall not make a closing address, except with the leave of the military judge.

Part 16 — Procedure at Trial — Summing Up

Summing-up by military judge

53.

Part 17 — Procedure at Trial — Finding

Consideration of finding

54.

• (2) After the board has retired, where a party requisitions the military judge on any matter arising under rule 53, and where the court accedes to such requisition, the board shall be recalled and re-directed on any such matter.

• (3) During its deliberation, the board shall not separate until the decision on the finding has been reached, unless the military judge directs otherwise.

• (4) Where the board requires further direction on the law during its deliberation, it shall suspend its deliberation to seek and be given further direction by the military judge in open court.

• (5) The finding of the board shall be given orally on each charge by a member of the board appointed by the board for that purpose.

Form and record of finding

55.

• (2) Where the board is of opinion as regards any charge that the facts proved do not disclose the offence charged or any offence of which the accused might under the Act be found guilty on the charge as laid, the board shall acquit him or her of that charge.

• (3) Where the board is of opinion as regards any charge that the facts which it finds to be proved in evidence differ materially from the facts alleged in the statement of particulars in the charge, but are nevertheless sufficient to prove the offence stated in the charge, it may record a finding of “Guilty”, provided that the difference is not so material as to have prejudiced the accused in his or her defence.

• (4) In any case where a court is empowered by section 205 to find the accused guilty of an offence other than that charged, or of committing an offence in circumstances involving a lesser degree of punishment, where the military judge is satisfied of the justice of such course and where the Director concurs, the military judge may accept and record a plea of guilty of such other offence, or of the offence involving such lesser degree of punishment.

• (5) In this rule, reference to the board shall, where the context so admits, include, in the case of a summary court-martial, reference to the military judge.

Procedure on finding

56.

Withdrawal of board

57.

Part 18 — Procedure at Trial — Sentence or disposal

Pre-sentence procedure

58.

• (2) Where a military judge considers that the provisions of section 211A may apply, or in any other circumstances he or she deems appropriate, he or she may inform the accused of the provisions of section 211A.

Pre-sentence hearing

59.

• (2) Evidence on the matters referred to in sub-rule (1) may be given by a witness verifying a statement in Form 2 and identifying the accused as the person referred to in that summary.

• (3) The accused, his or her counsel or defending officer, may cross-examine any witness referred to in sub-rule (2) and may call witnesses to rebut any such evidence. Where the accused so requests, the service books or a duly certified copy of the material entries therein shall be produced; and if the accused alleges that the summary is in any respect not in accordance with the service books or such certified copy as the case may be, the court shall compare the summary with those books or copy and, if it finds it is not in accordance therewith, shall cause the summary to be corrected accordingly.

• (4) Evidence on the part of the prosecutor upon the matters referred to in sub-rule (1) shall not be given by a member of the board.

• (5) In the case of an offence to which section 205A applies, the court may hear any evidence it has ordered or any submission it has directed pursuant to that section.

• (6) The accused may then call witnesses as to character.

• (7) When the evidence on the matters referred to in sub-rule (1) and, where applicable, sub-rules (5) and (6), has been adduced, the accused or his or her counsel or defending officer may address the court thereon and in mitigation of punishment.

Forfeiture of seniority of rank and service for purpose of promotion

60.

Pronouncement of sentence

61.

Notification of sentence and any appeal

62.

• (2) The Court-Martial Administrator shall notify the proper military authority of an appeal by any such person from a finding or sentence of a court-martial.

Suspension of sentence

63.

• (2) An application under section 212A(11)(b) by the Director to fix a date for the hearing of an application for an order revoking an order under section 212A(2) shall be by written notice of application in Form 11, except where the court-martial otherwise directs.

• (3) On the hearing of the application to fix a date, the court-martial where it grants the application, shall fix a date upon which the application shall be made returnable and the Court-Martial Administrator shall notify the parties in the form prescribed by Rules of Procedure.

• (4) Where a person who is not imprisoned or detained fails to appear before the court-martial in answer to a notice issued to and notifying him or her of the fixing of a date in accordance with the preceding sub-rule, the court-martial may make an order for the arrest of such person in Form 12.

• (5) Where the court-martial makes an order under section 212A(9) or 212A(15) revoking an order made under section 212A(2), the court-martial shall make the appropriate order for committal.

Special finding under section 203(1)

64.

• (2) Where a court-martial makes an order pursuant to section 203(2) of the Act or section 5(2) of the Criminal Law (Insanity) Act 2006 , the warrant of committal shall be in Form 13.

• (3) Where a court-martial makes an order pursuant to section 5(3)(a) of the Criminal Law (Insanity) Act 2006 , the warrant of committal and direction shall be in Form 14.

• (4) An application for an order pursuant to section 5(3)(b) of the Criminal Law (Insanity) Act 2006 may be made, unless the court-martial otherwise directs or permits, on two days’ notice in writing to the material parties in Form 15 at a sitting of the court-martial convened for that purpose.

Procedure under section 225

65.

• (2) Where an application is made under sub-rule (1), the military judge may adjourn the proceedings to allow any party to appear before him.

• (3) Where the military judge adjourns the proceedings in accordance with sub-rule (2), he or she may direct the prosecutor or the Court-Martial Administrator to give notice of the adjourned date to any person.

• (4) The order of the court granting an application for, or making, an order under section 225 shall be in Form 17.

Part 19 — General Provisions as to proceedings of court

Seating of members

66.

Continuity of trial

67.

Presence throughout of all members of board

68.

• (2) No member shall be added to a board after it has been sworn.

Dissolution by military judge of general court-martial or limited court-martial

69.

Part 20 — General Provisions as to Witnesses and Evidence

Judicial notice

70.

Prosecutor’s witnesses

71.

Calling of witness whose evidence is not contained in the summary or abstract

72.

• (2) Such notice shall indicate the nature of the evidence which such witness will give and where his or her evidence has been reduced to writing, a copy of such evidence shall be given to the accused.

• (3) Where a witness is called without such notice or copy of the evidence being given, the court may, on the application of the accused, adjourn the trial for the service of such notice and/ or copy of the evidence, as the case may be.

Witnesses required by accused

73.

Procuring attendance of witnesses

74.

• (2) The commanding officer of a person remanded for trial by court-martial may summon a witness who is not subject to military law to attend the taking of a written summary of evidence: (a) as a witness and/or (b) to produce any document, record or thing.

• (3) The Court-Martial Administrator, or the military judge after the assembly of the court-martial, may summon any witness who is not subject to military law, upon request being made for that purpose by the prosecutor or the accused, to (a) attend as a witness and/or (b) attend and produce any document, record or thing.

• (4) The summons for the purposes of sub-rules (2) and (3) shall be in Form 20 and shall be served on the witness either personally or by registered post to his or her last known or most usual place of abode by or on behalf of the person issuing the summons.

• (5) On the service of any witness summons, the person serving same shall pay or tender to the person served such sum of money as is specified from time to time by the Court-Martial Administrator as a reasonable advance against the cost of attendance of a witness.

• (6) Any witness who is subject to military law shall be ordered to attend by the proper military authority.

• (7) The person requiring the attendance of a witness shall have primary liability for the reasonable costs of any such witness, subject to any subsequent order or direction of the court-martial.

• (8) Where the Court-Martial Administrator is of the opinion that an offence may have been committed contrary to section 208, he or she shall so certify and shall notify the Director.

Non-attendance of witnesses

75.

Withdrawal of witnesses from court

76.

Evidence on oath

77.

Examination and cross-examination

78.

Recalling witnesses

79.

Exhibits

80.

• (2) Each exhibit or a label attached to it shall be signed by the Court-Martial Administrator.

• (3) Each exhibit shall be dealt with as directed by the military judge.

• (4) In this rule, an “exhibit” includes any record, document, other property, matter or thing connected with the proceedings which is produced as such during the trial.

Part 21 — Counsel and Defending Officer

Rights of counsel

81.

Part 22 — Record of Proceedings

Record of proceedings– Trial by court-martial

82.

• (2) The record in sub-rule (1) shall include the following matters:

• (a) the original or a certified copy of the direction of the Director to convene a general court-martial or limited court-martial or to refer the charge for trial by the summary court-martial;

• (b) the original or a certified copy of an order convening the court and of any further order in that regard;

• (c) the original or a certified copy of any summons to the accused to appear before the summary court-martial;

• (d) the original or a certified copy of any summary or abstract of evidence;

• (e) the original or a certified copy of the charge sheet;

• (f) a list of witnesses for the prosecution and defence;

• (g) a list of exhibits;

• (h) any order of the court;

• (i) any order or sentence of the military judge.

• (3) The evidence shall be recorded using any means suitable for the making or production of a record within the meaning of section 33(3) of the Courts of Justice Act 1924 , as substituted by section 7 of the Criminal Justice (Miscellaneous Provisions) Act 1997 .

• (4) The Court-Martial Administrator shall submit the record of the proceedings of the trial to the military judge for his or her signature, where necessary.

Records — section 187A(3) (b) or (c)

83.

• (2) The documents referred to in rule 12(3) shall be kept with the record of the decisions of the court.

Retention of proceedings

84.

Part 23 —Miscellaneous

Service or delivery of documents

85.

• (2) Wherever a military judge is satisfied upon ex parte application made in that behalf, that, for good cause shown, service of a document cannot be effected in a manner or in any manner prescribed by these Rules, he or she may make an order for substituted or other service or for the substitution for service of notice by advertisement or otherwise. Particulars of such order shall be endorsed on the original and each copy of the document to be served.

• (3) A court-martial may deem the service of any document in any proceedings to be good and effective service, even though not served in a manner prescribed by these Rules.

• (4) A person who serves a document shall either prove the service by evidence given orally before the court-martial or make a statutory declaration as to service, before a commissioner for oaths or practising solicitor, in Form 21 or endorsed on the original or a copy of the document.

Sittings and adjournments

86.

• (2) A court-martial shall not sit on Saturday, Sunday, Christmas Day, St. Patrick’s Day or Good Friday unless, in the opinion of the military judge, it is necessary to do so.

• (3) A military judge presiding at a general court-martial or limited court-martial, in the absence of the board, may hear and determine—

• (a) any application in connection with the court-martial concerned, including any application made ex parte, and the same may be heard and determined in the absence of the board;

• (b) any matter in connection with the court-martial concerned in respect of which directions may be given;

• (c) any application for an order under section 212A(9) or section 212A(15), or

• (d) any other application in connection with the court-martial concerned which he or she decides may be heard at that sitting, where he or she is satisfied that every party affected by such application is on notice of the making of it and has a reasonable opportunity to appear and be heard on that application.

• (4) Where it appears to the military judge necessary in the interests of justice, proceedings may be adjourned from time to time.

• (5) Where a hearing is adjourned and the time and place for the hearing to resume is not fixed by the military judge at the adjourned hearing, the Court-Martial Administrator shall notify the parties in writing of the time and place for the resumed hearing.

• (6) In the absence or unavailability of the military judge or the Court-Martial Administrator, the senior officer present may adjourn or extend any adjournment of the court for a period not exceeding fourteen days.

• (7) Whenever the Court-Martial Administrator considers that it would be impracticable for any reason to hold a sitting of a court-martial at a time and place ordered and of which notice has been given, he or she may, with the consent of the military judge, by order annul or vary the order previously made in that behalf and give such notice of that annulment or variation as may in the circumstances be practicable.

Orders

87.

• (2) An order of the military judge for the committal of a person to a place of detention or prison shall be in Form 22 or 23 as the case requires.

Time

88.

Non-compliance

89.

Where no rule provided

90.

Forms

91.

• (2) The military judge may determine that the omission, for stated reasons, of any such Form, or deviation therefrom, shall not render any act or thing invalid by reason only of such omission or deviation.

Mode of address and attire

92.

• (2) A military judge shall during a sitting of a court-martial wear the appropriate military attire and a black Irish poplin gown of uniform make and material.

• (3) When appearing before a court-martial, counsel who is not a member of the Defence Forces may wear the like attire as worn in a civil court.

• (4) When appearing before a court-martial, members of the Defence Forces shall wear the appropriate military attire.

SCHEDULE OF FORMS

Form 1

Register Number:

DEFENCE ACT 1954, SECTION 178E

COURT-MARTIAL RULES 2008, rule 12(1)

NOTICE OF APPEAL TO THE SUMMARY COURT-MARTIAL

No. ........................ Rank............... Name...............................................................

Unit............................ Appellant

Director of Military Prosecutions Respondent

TAKE NOTICE that the above-named appellant, of

intends to appeal to the Summary Court-Martial from the

determination /punishment/* determination and punishment

given on the .... day of ..................20...... by .................................... as Authorised Officer / Commanding Officer at....................................................

whereby (give details of determination and/or punishment) —

The grounds of appeal are —

Dated this.......... day of...................... 20....

Signed

Appellant/Solicitor for Appellant

To the Court-Martial Administrator

at..........................................................

And to the Director of Military Prosecutions

at..........................................................

And to .....................................

Authorised Officer / Commanding Officer

The following to be completed by the Court-Martial Administrator

The above appeal will be listed for hearing at the sitting of the Summary Court-Martial to be held at ....................................on the ....day of .............20... at ...........hours.

Dated this.......... day of...................... 20...

Signed

Court-Martial Administrator

*Delete where inapplicable

Form 2

Register Number:

DEFENCE ACT 1954, PART V

COURT-MARTIAL RULES 2008, rules 16(3) and 59(2)

STATEMENT AS TO CHARACTER AND PARTICULARS OF SERVICE OF APPELLANT OR ACCUSED

No. ........... Rank .................... Name............................................................................

Unit............................... Appellant

Director of Military Prosecutions Respondent

Or

No. .................. Rank ............................. Name...................................................

Unit............................... Accused

• (1) The following is a true extract of the disciplinary entries in the Record Sheet, A.F. 43(a) of the appellant/accused (if no such entries, same to be stated) and in the service books of his/her unit.