Willie O'Dea (Limerick East, Fianna Fail)

The Defence Forces are one of the fundamental pillars of a democratic society. Every member of our Defence Forces has volunteered to serve the State. They undertake to obey all lawful orders issued to them and to submit to the unique code of discipline, an essential part of military life. From time to time they are asked to undertake dangerous and difficult missions on our behalf, both in the State and while engaged in peace support or humanitarian missions abroad. Over many years the Defence Forces have rightly earned the high respect and regard of the people. Around the world Irish military personnel are widely admired for their outstanding commitment and professionalism. Our Defence Forces are highly trained and well equipped. Military personnel have consistently shown the highest standards of courage and discipline in responding to the call of duty.

The ability of the Defence Forces to continue to maintain this high standard demanded of them requires complete clarity with regard to the exercise of command authority whether at home or abroad. For challenges and dangerous missions to succeed, the chain of command must be clear and unambiguous at all times. This is critical to the maintenance of unit cohesion and operational effectiveness. Discipline is of the essence in a military force. Commanding officers are responsible for discipline within their units. They exercise authority primarily through leadership and by inspiring the confidence, loyalty and trust of their subordinates. Officers and non-commissioned officers receive a world class military education which emphasises leadership, teamwork and a sense of responsibility for the welfare of the individual soldier. As a result there is a high standard of discipline and offences are rare.

The Defence Forces, however, must have the ultimate power to enforce discipline through its own unique code of discipline in the military justice system. The disciplinary code must support operational effectiveness and be efficient and effective. Above all, it must be fair to the individual. The primary purpose of the Defence (Amendment) (No. 2) Bill is to modernise the code of discipline by amending and updating the provisions of Part V of the Defence Acts, having due regard to prevailing human rights norms. The Bill provides for new structures, scope, procedures, punishments and appeal processes governing both summary investigations and courts-martial. New measures include the establishment of an independent military prosecuting authority and an independent military judicial office, the appointment of a court-martial administrator, the establishment of a new summary court-martial and the restructuring of general and limited courts-martial.

In modernising the disciplinary provisions of the Defence Acts, regard was had to recent developments in the military law of other common law jurisdictions and in ordinary criminal law. Most importantly, I want to ensure the Irish military disciplinary system is fully compliant with modern European and domestic human rights norms.

Part V of the Defence Act 1954 provides for disciplinary procedures under military law for members of the Defence Forces. Apart from the establishment in 1983 of the Courts-Martial Appeals Court, the introduction of a legal aid scheme and some updating of punishments for breaches of military law, the system has remained largely unchanged since. However, during the past 50 years several important developments have impacted on military law and disciplinary procedures. These include case law decisions of the Irish Courts-Martial Appeal Court; various important statutory developments and case law decisions in criminal law; case law decisions emanating from the European Court of Human Rights, particularly those in respect of Articles 5 and 6 of the European Convention on Human Rights; and significant developments in the military justice systems of other common law jurisdictions.

Specifically, the European Court of Human Rights has benchmarked the independence of military courts by reference to several key indicators including the mode of appointment and terms of office of the court members, protections provided against external influence and the provision of a manifest appearance of independence. It has also stated that to satisfy an impartiality requirement, military courts must be subjectively free of prejudice or bias and must provide sufficient objective guarantees to exclude any legitimate doubt in this matter.

Accordingly, in July 2001, the military authorities established a military law review board to review the adequacy, effectiveness and fairness of the military justice system as laid down in Part V of the Defence Act. Particular regard was had to decisions of the European Court of Human Rights as they related to the administration of military justice. The board reported to the military authorities in April 2002. It recommended amending 76, out of a total of 134 sections, within Part V, all of which were reviewed. The recommendations were fully approved by the Office of the Attorney General in July 2003. It recommended incorporation of the recommendations by appropriate amendment of the Defence Act 1954.

Ireland is an original party to the European Convention on Human Rights since it came into force in 1953 and the convention has been incorporated into Irish law by the European Convention on Human Rights Act 2003, with effect from 31 December 2003. Since then, there is an explicit obligation upon every organ of State to operate in a manner compatible with the convention. Rights under the convention can be pursued primarily and directly before domestic courts.

Pending the introduction of the Bill, non-statutory interim measures were implemented with regard to the summary investigation of offences and the conduct of courts-martial under the Defence Act. These measures were designed to substantially satisfy the requirements of the European Convention on Human Rights in the conduct of military legal proceedings. However, I am now proposing to put in place a comprehensive range of pro-active statutory provisions, aimed to meet with, or exceed, international best practice and human rights norms in this regard. The Bill contains many new arrangements and procedures to achieve that objective. The members of our Defence Forces, who serve our State so loyally both at home and abroad, deserve nothing less than that.

Since the report of the military law review board was submitted, several legal challenges to the old system have been taken to the High Court. I will not refer to any of these cases other than that they will take their course in the normal way. However, I believe the measures which I am now proposing will address any concerns which have been raised by serving personnel in recent times. I also believe the measures contained in the Bill will be welcomed by all members of the Defence Forces. The measures will ensure that the provisions of Part V of the Defence Act relating to summary procedures and courts-martial comply fully with best practice and human rights norms.

The general scheme, as approved in June 2005, contained 141 heads of Bill. However, because of the importance in bringing forward modernising legislation as soon as possible and the complexity and extent of the proposed legislation, it was decided to focus initially on the more urgent amendments to the provisions of Part V. Several other less urgent amendments, which are relatively straightforward, have also been included. I will not detail the remaining proposals to amend the Act which were in the general scheme but not included in the Bill. They will, in due course, contribute to the further improvement of the military justice system. These further proposals are complex in nature and are not yet ready for inclusion in this Bill. Instead, I propose to include them in a separate Bill at a later date. I intend to commence work on preparing the new general scheme of Bill for these deferred amendments in the second half of 2007.

The provisions of the 1954 Act were largely influenced by the Canadian and British systems then in place. The approach taken in this Bill is that which best suits the Defence Forces' needs and resources having due regard to current human rights norms and other common law jurisdictions and systems. A comparative study of the Canadian, British, Australian and other common law systems, as well as careful consideration of human rights norms and the ordinary criminal justice system in Ireland, influenced the formulation of these proposals, which, in some aspects, will be unique to this country.

The primary focus of the Bill is to overhaul radically the procedures for the summary disposal or trial by court martial of offences against military law. The amendments are extensive and time does not permit me to explain every provision in detail. I will focus only on the main provisions. Sections 12 and 14 provide for the revision of the time limits for the bringing of prosecutions. The time limit for the bringing of a charge against a person who has left the Defence Forces is extended from three to six months. For serious offences the present three-year time limit will be increased to six years. For minor disciplinary offences, dealt with summarily, the time limit will be reduced from three years to one year. Time limits for trial by court martial will not apply to civil offences committed while serving outside the State.

Section 13 amends the existing law in regard to a limited range of circumstances in which a civilian may be subject to military law. I propose to extend to them the option of being dealt with summarily, with a right of appeal to a summary court martial. By being dealt with summarily, they are exposed to the possibility of a lesser punishment, which cannot include a custodial sentence. Sections 15 to 19, inclusive, make necessary amendments to five of the offences against military law provided for in the Act.

Section 20 provides for the scheduling of offences of a disciplinary nature which can be dealt with summarily by an authorised, commanding or subordinate officer, as appropriate. These offences are in respect of matters which, although vital to the maintenance of discipline in the military context, are considered suitable for summary disposal. The summary disposal of the potentially more serious disciplinary offences requires the prior consent of the director of military prosecutions.

Sections 22 to 30, inclusive, make extensive amendments to the existing law dealing with the investigation and summary disposal of charges against officers by authorised officers, men by commanding officers and privates and seamen by subordinate officers, respectively. The aim of the summary procedure is to deal fairly and swiftly with minor disciplinary infractions within the unit and to return the member to normal service as soon as possible.

Included in these sections are the provision that a person charged with an offence will have a right to at least 24 hours written notice of the date, time and place at which the charge is to be investigated, a copy of the charge sheet, a list of witnesses and a copy of any available evidence. In every case, a person charged with an offence will have a right to elect for trial by court martial at the outset and an opportunity to obtain legal advice, if required, in that regard. The summary disposal of charges is limited to offences that are disciplinary rather than criminal in nature, that is, scheduled offences. A person charged with an offence, which is being dealt with summarily, will have a right to have an "assisting person"' present at the investigation. The commanding officer's power to award detention will be abolished. Where a charge is dealt with summarily by an authorised or commanding officer, there will be an absolute right of appeal to a new summary court martial, against the determination and-or the punishment awarded. Where a person is remanded for trial by court martial, the case will be referred to the director of military prosecutions for his or her directions.

Section 32 provides for the appointment of a court martial administrator. His or her function will be the management and control of the administration and business of courts martial, the convening of courts martial, on the direction of the director of military prosecutions, and the appointment of members of court martial boards. He or she will be independent in the performance of his or her functions and will not be in the same chain of command as the person charged. The court martial administrator replaces the convening authority. This provision provides a statutory basis for the current practice.

Section 33 provides for the establishment of an independent military prosecuting authority, to be called the director of military prosecutions. He or she will decide, as the Director of Public Prosecutions does in the ordinary criminal legal system, all issues relating to the prosecution of offences before courts martial. He or she will have primary responsibility for the direction and conduct of prosecutions at courts martial.

Section 34 provides for the establishment of an independent military judicial office with the appointment, by an independent authority, of one or more military judges. A military judge will have security of tenure and a judicial role similar to that of a civilian judge. This role replaces that of the existing judge-advocate.

Section 38 provides for the establishment of a new class of court martial called the summary court martial. It will be a permanent court, composed of a military judge sitting alone. The summary court martial will have jurisdiction to deal with less serious cases remanded for trial by court martial, appeals from summary cases and applications for legal aid.

Sections 39 and 40 provide for the restructuring of general and limited courts martial. These courts martial will consist of a military judge and a court martial board. The military judge will preside over the trial, as a civilian judge does in the ordinary courts. He or she will determine all legal issues and decide sentence. Military judges will neither be involved in nor have a vote in the deliberations of the board. The board will make findings of fact, as a jury does, and will have no role in sentencing. Where the accused is not an officer, a senior non-commissioned officer may be a member of the board. Section 41 expands the list of persons who may not be members of a court martial board.

Section 42 provides for the general jurisdiction of the new summary court martial. It also amends the existing jurisdiction for limited and general courts martial. Specified serious offences are excluded from the jurisdiction of both the summary and limited courts martial in all circumstances. When exercising its original jurisdiction, the maximum punishment that can be awarded by the summary court martial will be six months imprisonment. When acting as an appeal court, a summary court martial cannot award a custodial punishment or any punishment greater than that which could have been awarded at the summary investigation. The jurisdiction of the general court martial is amended to include a case of rape or aggravated sexual assault, where the person in respect of whom the offence was committed is, or was at the time, subject to military law. This jurisdiction is conditional on the consent of both that person and the DPP.

Sections 43 to 47, inclusive, deal with matters of procedure at courts martial. Section 48 amends the existing law, which requires a simple majority for decisions of a court martial. I am proposing a new requirement of a two thirds majority of a court martial board to make a finding of guilty. If less than two-thirds of the court martial board vote for a guilty finding on any charge, the accused shall be acquitted of that charge.

Sections 50 to 52, inclusive, deal with necessary amendments to the existing provisions regarding issues as to the mental state of an accused person either at the time of the commission of an offence or at the time of trial. Section 53 makes new provision for victim impact statements in the case of certain offences of a sexual or violent nature. Sections 54 to 56, inclusive, deal with further procedural amendments.

Sections 57 and 58 make adjustments and additions to the scale of punishments awardable at court martial, including new monetary provisions. The existing mandatory requirement on a court martial to sentence an officer to dismissal, when it awards him or her imprisonment, has been limited to situations where the term of imprisonment awarded exceeds six months. In line with this, the term of imprisonment, above which a court martial must also sentence an enlisted person to discharge from the Defence Forces, has been reduced from two years to six months.

Section 60 makes new provision that a person cannot be sentenced, by a court martial, to imprisonment, or dismissal or discharge, if that person has not had legal representation at some time after the finding of guilt and prior to sentencing. This is a useful additional safeguard, in circumstances where a person charged is represented during the trial, at his or her own request, by a military officer, who may not have any legal background or training. This section also stipulates circumstances where this provision will not apply, including where a person specifically declines to be legally represented.

Section 61 makes provision for the suspension, by a military judge, of custodial sentences, with or without conditions attached, other than in the case of a mandatory term of imprisonment. This effectively replaces and expands the existing law, which provides for the suspension of custodial sentences, for enlisted personnel only, by a specified "superior authority", which is obviously no longer appropriate.

Section 62 makes new provision that, in certain circumstances, the director of military prosecutions, similar to the DPP, can appeal unduly lenient sentences to the courts martial appeal court. Sections 63 and 64 modify existing provisions regarding compensation orders and fines. Sections 65 to 69, inclusive, deal with post-trial matters, including the implementation of a custodial sentence.

Section 70 modifies existing provisions relating to rules of procedure. Section 71 provides for the establishment of a new courts-martial rules committee whose function is to make court-martial rules, governing the practice, pleadings and procedures generally of courts-martial on a similar basis to the Circuit Court rules committee. In the existing Act, the power to makes these rules is vested in the Minister under section 240.

The Bill contains a number of Schedules which deal with such matters as transitional provisions and miscellaneous amendments to other statutes. The Bill also provides, through the repeal of sections 215 to 222, inclusive, of the existing Act, for the abolition of the processes of confirmation, revision, mitigation and remission of the findings and sentences of courts-martial. Since the introduction of the court-martial appeals court, there is no requirement for the continued retention of these processes.

In addition to the disciplinary-type provisions I have described, section 8 amends section 61 of the existing Act to provide for greater flexibility in the transfer between service corps of personnel enlisted into the Permanent Defence Force after the commencement date of this section. Currently, personnel who have served more than ten years in one service corps can only be transferred to another service corps in particular circumstances.

Although matters relating to discipline are outside the scope of the representative functions of the associations, both RACO and PDFORRA have been fully briefed on the contents of the Bill and have welcomed the measures contained therein. PDFORRA has specifically stated that the new right of appeal to the summary court-martial is a major step forward.

I am very pleased to submit this legislation for the consideration of this House. The changes to the Defence Act are both necessary and desirable to ensure that the military law justice system is expeditious and fair to the individual, contributes significantly to the maintenance of discipline within the Defence Forces, complies with the Constitution and, most importantly, to ensure that the provisions of Part V of the Defence Act relating to summary procedures and courts-martial are fully compliant with prevailing human rights norms. I look forward to hearing the views and contributions of Senators in their deliberations. I commend the Bill to the House.