C. v Convening Authority

• Jurisdiction: Ireland
• Court: Courts-Martial Appeal Court
• Date: 01 January 1998
• Docket Number: [No. 3 C.M. of 1994]

Re. C.

C.

Appellant

and

The Convening Authority

Respondent

[No. 3 C.M. of 1994]

Courts-Martial Appeal Court

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).

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 -

• (i) any of the provisions of this Act, or

• (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

• (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 any alleged right of privacy.

2. That proof of mens reawas a necessary element of this particular charge. The age, seniority of rank, length of service of the appellant together with the disparity in age between the appellant and the soldier were enough to ground a finding by the court-martial of the requisitemens rea.There was certainly sufficient evidence to show that the appellant was aware or should have been aware that the conduct complained of was contrary to section 168(1).

3. That, in deciding whether an accused person had engaged in conduct to the prejudice of good order and discipline, the court-martial was entitled to avail of its own service experience and knowledge. The consequences for the parties involved were also material.

Re Gunner Buckley [1998] 2 I.R. 454 followed.

4. That the appellant and the bandsman remained at all times subject to military law pursuant to s. 119 of the Defence Act, 1954, notwithstanding that the subject-matter of the charge took place in the appellant's home with the consent of his adult partner when both were off-duty.

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