Tom Clonan (Independent) | Oireachtas source

I thank the Minister of State for coming in. I am not going to comment on the judgment that was delivered in a recent high-profile case. Instead, I will address the question of the role of commissioned officers. Under Defence Forces regulation A7, paragraphs 55 to 58, they are required to attend court in an observer role but they are not required to disclose any information concerning the accused soldier unless required by the court to do so. These are administrative instructions that come from the Defence Acts and the Department of Defence.

I have spoken to some very senior senior counsel about this. Unfortunately, at a sentencing hearing, this regulation leaves it open to a defence team of highly skilled solicitors and barristers to call upon the officer who is attending court to read from a document called Army form 43(a), or AF 43(a). Under paragraph 56 of this Defence Forces regulation, the officer is required to bring this document to court and if requested by the court, he or she must answer questions in cross-examination. What I am told is that a capable and competent defence team, either during a trial or at a sentencing hearing, will call upon the officer knowing that he or she is required to read from this document. That is why we get a performance appraisal containing language like “exemplary”, “above average” and so on.

I want to be clear that this is not a character reference. If you like, this is a legal loophole that allows those who have either pleaded guilty to a serious criminal offence or are accused of a serious criminal offence to exploit this in order to mobilise some sort of defence for themselves. It has brought an officer, a person who is completely blameless in this regard, unnecessarily under the most unprecedented hostile scrutiny over the last number of days to the extent that he was trending on Twitter, with his name included. This is an individual who has a family. It was completely unfair.

I was struck that notwithstanding the Tánaiste's contribution on Friday, there was no clarification from the Department of Defence that was sufficiently clear. The only clarification I got about this was from the Representative Association for Commissioned Officers, RACO, which is to be commended for looking to the interests of its members in that way. It is within the gift of the Minister to reform this regulation. He can do it. It can be done as an administrative exercise. The requirement in paragraph 56 for the Army form 43(a) to be brought to court and for the officer on cross-examination to be questioned should be deleted immediately. There is no need for it. It is completely irrelevant to a person's charge on a criminal offence to have their performance appraisal read out in court. A soldier, a sailor or an aircrew member can answer questions in cross-examination about their own military service if the court deems that to be relevant.However, this should not be mobilised as a way of mitigating a person’s behaviour, particularly when we are talking about violence against women.

I remind the House of the 1991 trial of soldier in Dublin, Private Sean Courtney, who brutally murdered a young woman, Patricia O’Toole. At that point, soldiers were entitled by regulations to wear uniforms to court. At the stroke of a pen following the case, immediately that practice was ended because it brought everybody into disrepute and was part of a potential miscarriage of justice.

I appeal upon the Minister and civil servants to completely rescind this. I ask the Minister of State to, in his reply, clarify whether soldiers who have been convicted of serious criminal offences, including violence against women, are to be automatically discharged from the Defence Forces.