C. v Convening Authority

CourtCourts-Martial Appeal Court
Judgment Date01 January 1998
Date01 January 1998
Docket Number[No. 3 C.M. of 1994]

Courts-Martial Appeal Court

[No. 3 C.M. of 1994]
Re. C.
The Convening Authority

Cases mentioned in this report:-

R.. v. MillarUNK [1983] Crim.L.R. 622.

Re Gunner BuckleyIR [1998] 2 I.R. 454.

Constitution - Privacy - Military law - Defence Forces - Whether prohibiting sexual activity in home between members of differing rank an unconstitutional invasion of right of privacy.

Military law - Scope - Defence Forces - Whether activity when off-duty beyond reach of military law - Defence Act, 1954, (No. 18), s. 119.

Military law - Criminal offence - Mens rea - Whether requisite mens rea for offence - Defence Act, 1954, (No. 18), s. 168(1).

Appeal from a court-martial.

The facts and relevant statutory provisions are summarised in the headnote and are set out more fully in the judgment of the Court,infra.

The appellant's hearing before a limited court-martial took place at Collins Barracks on the 3rd, 7th, 8th, 9th and 10th March, 1994, on which last date he was convicted of an offence contrary to s. 168(1) of the Defence Act, 1954 and his sentence was that of a severe reprimand and £100 fine. The appellant's conviction was confirmed on the 28th July, 1994, and promulgated on the 5th August, 1994.

Pursuant to s. 13 of the Courts-Martial Appeal Act, 1983, he appealed to the Courts-Martial Appeal Court by way of notice of appeal dated the 18th August, 1994.

The appeal was heard by the Courts-Martial Appeal Court (O'Flaherty, O'Hanlon and Geoghegan JJ.) on the 5th December, 1994.

Section 168(1) of the Defence Act, 1954 states:-

"Every person subject to military law who commits any act, conduct, disorder or neglect to the prejudice of good order and discipline is guilty of an offence against military law . . ."

Sub-section 3 of the same section reads:-

"(a) the contravention (by act or omission) by any person of -

  1. (i) any of the provisions of this Act, or

  2. (ii) any regulations, orders or instructions published for the general information and guidance of that portion of the Defence Forces to which that person belongs to or to which he is attached, or

  3. (iii) any general, garrison, unit, station, standing or local orders,

is an act, conduct, disorder or neglect to the prejudice of good order and discipline; . . ."

The appellant, a member of the Defence Forces, was charged before a court-martial with, inter alia,an offence contrary to s. 168(1) of the Defence Act, 1954. The behaviour complained of was that the appellant had engaged in homosexual conduct with a bandsman soldier to whom he was greatly superior in age, rank and length of service. The conduct occurred in the appellant's bedroom while they were both off-duty. Afterwards the bandsman confessed what had happened to his superiors. He later applied for a discharge from the army, which was granted. The appellant was convicted by a court-martial of the charge.

The appellant appealed to the Courts-Martial Appeal Court. It was submitted on behalf of the appellant that there was no evidence before the court-martial that the necessary mens reaexisted in the mind of the appellant and that acts done by the appellant in his home with a consenting adult while both were off-duty, were beyond the reach of military law and protected by a constitutional right to privacy.

Held by the Courts-Martial Appeal Court (O'Flaherty, O'Hanlon and Geoghegan JJ.), in dismissing the appeal, 1, that an army code which prohibited consensual casual sexual activity between a company quartermaster sergeant and a private within the same unit, in the former's private home was not an unlawful or unconstitutional invasion of...

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