Victor Boyhan (Independent)
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The next matter, in the name of Senator Clonan, relates to the need for the Tánaiste and Minister for Defence to make a statement on the role of the commissioned officers of the Defence Forces during the trials and sentencing hearings of soldiers accused of criminal offences. I will add a general comment. Decisions or judgments of the court cannot be the subject of review or discussion in this House as the House is not a judicial body. I know the Senator will be fully aware of that.

Tom Clonan (Independent)
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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.

Martin Heydon (Kildare South, Fine Gael)
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I thank the Senator for raising this important and topical point, considering recent cases in the media. I am responding on behalf of the Tánaiste and Minister for Defence, who unfortunately cannot be present today. I convey his apologies to the House.

First, I unreservedly state my unequivocal condemnation of assaults. I add my voice to those who have commended the courage and dignity of victims who speak out, particularly in relation to recent cases. Such assault and behaviour has no place in modern society or in the Defence Forces, and being in the Defence Forces is no defence for such acts to be carried out. There is no place for domestic, gender or sexual-based violence anywhere in our society.

My colleague, the Minister for Justice, Deputy Helen McEntee, recently published a targeted 2024 implementation plan for further delivery of "zero tolerance" – the third national strategy on domestic, sexual and gender-based violence. The zero-tolerance strategy is a whole-of-government response to domestic, sexual and gender-based violence, and the 2024 implementation plan contains actions for a wide range of Departments as well as various State bodies.

Regarding specific points raised by the Senator, the process for a military representative in court cases is captured in defence force regulations, namely, DFR A7 paragraphs 55 to 58, which specify that a military representative is required to be present during the trial in a civil court - criminal court - of an accused member of the Defence Forces. The role of that representative, which is also provided for in the regulation, is to assist the court, if called upon, to do so with any queries the court may have in respect of the service record of the accused member. It should be noted that, under paragraph 57 of the regulation, the officer detailed to attend the trial is not required to disclose any information concerning the accused soldier unless required to do so by the court. If required by the court, and again in line with the regulation, the military liaison officer will furnish any information in his or her possession as to the soldier’s character and service, and full particulars of any previous convictions by a civil court or by a court martial for an offence under the Defence Act. The officer detailed to attend civil trial of a soldier will be furnished by the soldier’s commanding officer with a certified copy of the soldier’s record sheet, which is an A.F. 43(a), copies of any other documents in possession of the unit relevant to the soldier’s previous service or conduct or to previous trials or convictions of the soldier by a civil court.

Immediately after the conclusion of the proceedings, the officer attending the trial will prepare a brief but comprehensive report of the trial and findings. This report, together with documents originally furnished, will be transmitted by such officer to the soldier’s commanding officer directly.

As the Senator may also be aware, subject to the provisions of defence force regulation, DFR A10 paragraph 58(m), a person of the Permanent Defence Force may be discharged as a result of conviction by the civil power. The application for discharge will be accompanied by full details of the case together with the individual’s conduct sheet, A.F. 43, and copies of civil convictions.

If the conviction carries sentence of imprisonment or penal servitude and discharge is directed, it will be effected with all convenient speed, the date of discharge determined by the officer in command. If the conviction carries a suspended sentence, the discharge, if directed by the officer in command, will be carried out as soon as possible after the case has been dealt with by the civil power. Of note also, discharges under this subparagraph will not be carried out until it has been ascertained that no appeal against the conviction is pending or, where an appeal has been made, until the appeal has been heard and determined.

Where a member has been convicted of an offence by a civil court, it is assessed at the time that if such activities pertaining to the charge in question represent a serious element of misconduct and disreputable activity, the commanding officer can recommend discharge as a result of conviction by the civil power. In the case of last week’s court ruling, which we are all familiar with, I am advised that this process commenced on Monday and is in train.The Tánaiste has already asked the Defence Forces for a full report on the number of current Defence Force members who have had convictions of gender-based violence and other convictions. This report is expected imminently and will be immediately assessed on receipt for further actions. It would be inappropriate for me to comment while the assessment by the military authorities is ongoing. The Tánaiste has also requested a full report on the circumstances where a member of the Naval Service was kept in service following a conviction last November, as highlighted recently in reports. The same defence regulation in relation to this case is now being applied to this member.

I want to be absolutely clear. The Government has zero tolerance of domestic violence and gender-based violence and does not believe that this behaviour should be tolerated in any way by our Defence Forces.

Tom Clonan (Independent)
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In the context of the commitment to zero tolerance for violence against women, as a matter of priority, the Tánaiste and the Secretary General of the Department of Defence should immediately amend these paragraphs of the Defence Forces Regulation, DFR, A7, in that membership of the Defence Forces, in cases of violence against women, should not be a mitigating factor. It should be an aggravating factor in sentencing and in consideration of offences of that nature.

I again commend Natasha O'Brien on her courage and the manner in which she has spoken out for all women because there is a persistent and profound problem with violence against women in Irish society and throughout our culture. The Defence Forces are in the process of attempting to address that with the statutory inquiry set up last week by the Tánaiste. I ask that there be no delay in this. It also should be noted that the individual concerned bears no responsibility for being instructed or required under military law to carry out his functions. Most of all, justice in regard to that member of the Naval Services and other members of the Defence Forces, as the Minister of State highlighted, under regulation A10, paragraph 59, should be done expeditiously, without any delay.

Martin Heydon (Kildare South, Fine Gael)
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I feel the gravity of the points raised by Senator Clonan. I read exactly the response I received from the Tánaiste in the first response. In regard to the very specific point the Senator raised about the serving member who, under the regulation, is being asked to go in, and how that could be misconstrued as a character reference, by a skilled legal team, that is a valid point that I will bring back to the Tánaiste. It states here that the current provisions in these regulations are being kept under review. I will highlight the points raised by the Senator. Cases such as those referenced here have to inform where changes to regulations are needed. That is an important matter and I thank the Senator for raising it. We will continue to keep a close eye on it.

Victor Boyhan (Independent)
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I thank the Minister of State and Senator Clonan.