Mr. Justice Alan Mahon:

I thank the Cathaoirleach and the members of the committee for the invitation to appear before the committee. The 2021 annual report provides a breakdown of the types of complaints referred to me and investigated by me in that year. In 2021, 36 reports were produced, including one preliminary report and one supplemental report. The figure, therefore, represents 35 complete investigations - the original document submitted to the committee contained a typographical error that said 24. The correct figure is 35 completed investigations. The comparable figure for 2020 was 25 and there was a similar total for 2022.

I emphasise that simply comparing one year’s figures with another does not tell the full story. Some investigations require many weeks of intensive work, while others may only take a couple of weeks to conclude. For example, in 2022 one particular report took almost 12 weeks, spread over a couple of months, to complete. The complaint from a single complainant in reality involved more than 20 complaints, many involving completely separate facts and information. That completed report ran to 50 pages and was the largest produced by me in the past five years.

Also, in the first six months of this year I have produced 24 reports to date, almost the same number as for the whole of 2022. This suggests that the total for this year may exceed the 2021 total. This reflects the fact that complaint referrals for this current year, and this would include referrals from the tail end of last year, have so far been unusually high. Why this is so is difficult to say. Possibly a clearer picture as to the reasons may emerge when this year is looked at as a whole. One possible contributing factor for this high number is the publication of the independent review group report earlier this year, and the attendant publicity that both pre-dated and post-dated its publication. However, I believe it is noteworthy that there has been a slow, albeit not significant, increase in what might be described as interpersonal complaints, including bullying and inappropriate behaviour. In 2022 there were eight complaints that were classed as interpersonal, and this year I expect the figure to increase again, but not significantly so. In 2021 the figure was three. Again, it should be stated, particularly in the context of the publicity arising in relation to the lead-up to the independent review group report and its findings, that in my almost five years as ODF, I have only had one new complaint of alleged sexual misbehaviour – in effect a sexual assault allegation - during those five years. That was from a male. However, because it far exceeded the 12-month limitation period, under section 6 of the 2004 Act, in which a complaint must be referred to the ODF for investigation I was unable to investigate it. I have noticed over the past couple of years a shift, albeit a very slight increase, in what might be described as gender-related complaints, including issues relating to course participation and promotion opportunities associated with maternity leave, for example. In general terms, however, complaints from female members of the Defence Forces do not appear significantly disproportionate to their overall numbers in the Defence Forces.

On the 12-month limitation period for referring a complaint to my office, I have suggested to the Minister that consideration be given to extending this perhaps to two years. The 2004 Act affords me no discretion to enlarge the limitation period, even in the most extenuating circumstances. In an effort to reduce the likelihood of would-be complainants falling foul of the 12-month period my office has, in conjunction with the Department and the Defence Forces, introduced measures to reduce that likelihood and I believe this has significantly reduced the numbers failing to meet this deadline. An individual now lodging a complaint through the internal Defence Forces grievance management process, often referred to as the section 117 route and which is still the preferred route, now receives warnings from both the Defence Forces and my office that the 12-month period for referring his or her complaint to the ODF is strict and needs to be kept an eye on. I am aware that these measures have helped to save some referrals from rejection on time grounds. Importantly, a letter now issues from my office approximately three months prior to the expiry of the 12-month limitation period, warning the individual that he or she must refer the complaint to my office within this remaining three-month period if an investigation by my office is required. Of course, those who decide to directly refer their complaint to the ODF – this category includes all former members of the Defence Forces – continue to run a greater risk of failing to meet this 12-month deadline as they do not, for obvious reasons, receive a timely reminder of the expiry of the 12-month limitation period.

To date, 2023 has seen a notable increase in the number of direct referrals from serving members of complaints to my office. This, I believe, is probably explained by the fact that there has been an increased awareness of the entitlement to directly refer. Directly referred cases impose an additional workload on my office as a lot of information, which would otherwise become available on transfer to my office of the Defence Forces' internal investigative file, has to be sourced from scratch before a full investigation can begin. Nonetheless, the wait time for an outcome and a full report remains usually a matter of weeks from the time when full information is available.

The committee will be aware that the only significant power I have, as ODF, under the 2004 Act is to make recommendations to the Minister for Defence. Recommendations are not made in every case. In 2021, for example, I made 15 recommendations – with some cases having more than one recommendation. In 2022 I made 18 recommendations to the Minister. Of the 15 recommendations made in 2021, eight have been accepted by the Minister and none have been rejected to date. In relation to the 18 recommendations made in 2022, seven have been accepted by the Minister and none have been rejected so far. In general terms, the vast majority of recommendations are accepted by the Minister. In 2021, approximately 35% of complaints actually referred to me were upheld or partially upheld, compared to approximately 25% the previous year. The comparable figure for 2022 is approximately 41%. These figures do not, however, take account of the larger number of complaints that were resolved internally within the Defence Forces before there was any referral to my office.

It remains my strong view that it is important for the Defence Forces to maintain its own internal grievance management system as I believe that most complaints are capable of resolution at that level, and are in fact resolved at that level. I also believe that most Defence Forces members prefer to have complaints resolved internally where reasonably possible, but to also have the option to engage the services of the ODF when preferred or where required. That concludes my opening statement.