Mark Beatty v The Military Judge and The Director of Military Prosecutions

• Jurisdiction: Ireland
• Judge: Mr. Justice Murray
• Judgment Date: 12 March 2021
• Neutral Citation: [2021] IECA 69
• Docket Number: Court of Appeal Record No.: 2014/1131
• Date: 12 March 2021
• Court: Court of Appeal (Ireland)

Between

Mark Beatty

Applicant/Appellant

and

The Military Judge and The Director of Military Prosecutions

Respondents

and

The Human Rights Commission

Notice Party

[2021] IECA 69

Donnelly J.

Ní Raifeartaigh J.

Murray J.

Court of Appeal Record No.: 2014/1131

High Court Record No.: 2013/307 JR

COURT OF APPEAL

CIVIL

Non-party discovery – Documentation – Statutory right – Applicant seeking non-party discovery – Whether the process of discovery is properly used as a vehicle for obtaining documentation to which a party has an independent statutory right

Facts: The applicant, Mr Beatty, on 19 September 2013, applied pursuant to Order 31 Rule 29 Rules of the Superior Courts for non-party discovery against the Court-Martial Administrator (the CMA). The High Court ([2013] IEHC 575) refused the application. The applicant’s appeal to the Court of Appeal raised three questions: first, whether and if so to what extent, the process of discovery is properly used as a vehicle for obtaining documentation to which a party has an independent statutory right and/or the relevance of the fact of such an entitlement to an application for such discovery; second, the extent to which a party is entitled as of right to obtain non-party discovery of a transcript of a judicial or quasi-judicial hearing simply on the basis that he is challenging the outcome of those proceedings; and third, whether in this case the applicant had established that there was a sufficient dispute between the parties to render such transcript discoverable in this action.

Held by Murray J that it was not appropriate in an application of this kind to determine the applicant’s contention that he had a legal right to obtain the Digital Audio Recording from the CMA. Murray J held that the applicant had at all times a viable basis for seeking the transcript of which he sought discovery and he ought to have availed of that mechanism, as he was still free to do via the proposals made by the CMA. It was Murray J’s view that if the applicant wished to obtain the transcript, this was how he should access it; it was not proper to direct non-party discovery of documents that could be obtained by other means. Murray J held that the applicant did not make out a basis for obtaining the non-party discovery sought in his application by simply pointing to the fact that he was challenging a decision of the first respondent, the Military Judge (the MJ), in proceedings of which there was a complete transcript; he must relate the necessity for the transcript to the specific issues in the proceedings. Murray J held that in this case, that required the applicant to identify material and relevant conflicts of fact as between his evidence and that of the respondents such as would justify the necessity for discovery of the transcript and he had failed to discharge that burden. Murray J held that this appeal should be dismissed and the decision of the trial Judge affirmed.

Murray J was of the provisional view that in this case it was appropriate that no order for costs should be made in either Court. He held that, insofar as the applicant was concerned, he had brought an application for non-party discovery which must fail; therefore, there was no question of his obtaining his costs. Murray J held that the applicant may not have had a legally enforceable right as a person involved in proceedings before the MJ to obtain a copy of the transcript of those proceedings, but he did have the right to absolute clarity around the legal route by which this might be made available to him. Murray J held that while the CMA was an independent agency, it had a particular relationship with the actual respondents in the proceedings (they shared legal representation) which rendered the making of no order as to costs less burdensome than might otherwise be the case in an application of this kind.

Appeal dismissed.

NO REDACTION NEEDED

JUDGMENT of Mr. Justice Murray delivered on the 12 ^th day of March 2021

Background

1 . This appeal arises from the application of the applicant pursuant to Order 31 Rule 29 Rules of the Superior Courts (‘RSC’) for non-party discovery against the Court-Martial Administrator (the ‘CMA’). It raises three questions. First, whether and if so to what extent, the process of discovery is properly used as a vehicle for obtaining documentation to which a party has an independent statutory right and/or the relevance of the fact of such an entitlement to an application for such discovery. Second, the extent to which a party is entitled as of right to obtain non-party discovery of a transcript of a judicial or quasi-judicial hearing simply on the basis that he is challenging the outcome of those proceedings. Third, whether in this case the applicant has established that there is a sufficient dispute between the parties to render such transcript discoverable in this action.

2 . The CMA is an officer of the Permanent Defence Forces appointed by warrant of the Judge Advocate General pursuant to the provisions of the Defence Acts 1954 to 2007. He is charged with certain functions in relation to the Court-Martial system in military law. His functions are similar to those undertaken by the Courts Service vis a vis proceedings before the ordinary civil and criminal courts.

3 . As of 2013, the applicant was a non-commissioned officer in the Permanent Defence Forces. On October 12 2012 he was summarily investigated by his Commanding Officer in respect of three alleged offences. One of those charges was dismissed by the Commanding Officer, the other two being found by him to have been proven and a punishment being awarded in the form of a fine of €300. There is an absolute right of appeal to a summary Court-Martial against such a determination and/or the punishment. The applicant availed of that appeal, the hearing of which proceeded before the Military Judge (‘the MJ’) on the 5, 6 and 7 February 2013. The appeal was by way of a complete re-hearing.

4 . One of the charges in question was laid pursuant to s. 168(3)(a)(iii) of the Defence Act 1954, and the other pursuant to s. 133 of the same Act. The charge pursuant to s. 168(3)(a)(iii) (which provides for the offence of conduct to the prejudice of good order and discipline) alleged a failure to produce a sick certificate. That under s. 133 alleged as follows:

‘ that he … did behave in an insubordinate manner when paraded … when given a verbal order did “ask for the confirmation of the order in writing” or words to similar effect’.

5 . At the hearing the prosecutor offered no evidence as to the first charge and that charge was duly quashed. In respect of the second charge, the applicant submitted that the offence was bad in law on a variety of related grounds. These came back in one form or another to the complaint that the charge was void for vagueness, was not sufficiently particularised or that the conduct alleged did not come within the terms of the statutory offence. That submission was rejected by the MJ. The applicant was then arraigned on the single remaining count. He formally denied the charge.

6 . The applicant's solicitor advised the Judge that all of the elements of the charge under s. 133 were conceded as proven and that he did not require any proofs in evidence. However, the prosecutor adopted the position that, notwithstanding the applicant's concession, he should nonetheless call evidence to prove the charge. He says that the plea of not guilty meant that the defence was not conceding the elements of the offence as charged and that it was for the prosecution to proceed with its case as it deemed appropriate. After making an opening address, the prosecutor proceeded to adduce oral evidence.

7 . Three witnesses were called. They gave evidence of the content of Barrack Standing Orders of Cathal Brugha Barracks, of the Unit Standing Orders of the 2nd Cavalry Squadron together with evidence to the effect that the applicant had at the time relevant to the charge been in contravention of ‘ car parking standard operating procedures’. Evidence was given that the applicant had disobeyed a lawful command of a superior officer in not removing his car from a specific location, and that having been so directed the applicant asked if he could have that in writing in a manner that was ‘ demanding, defiant, arrogant’. The evidence was to the effect that the applicant used a tone of irritation in making that request. Evidence was given of a failure of the applicant to knock on a door or to salute and of the view of two witnesses that the applicant was questioning of the authority of the officer. The applicant's solicitor did not cross examine any of these witnesses but objected that the evidence of each was irrelevant and/or inadmissible. The defendant did not give evidence. The determination made by the Commanding Officer was affirmed by the MJ. A fine of €300 was imposed on the applicant.

The request for the transcript

8 . Shortly after the hearing, the applicant's solicitor sought transcripts of the hearing from the CMA. These were refused. The reasons for refusing the transcript were set out in letters from the CMA to the applicant's solicitor of March 8 and March 26. These letters made reference to provisions of the Rules of Procedure (Defence Forces) 2008 (SI 204/2008) (‘RoP’) to which I will return later. For the moment it suffices that in that correspondence the following was said:

• (i) The practice since the enactment of the Defence (Amendment) Act 2007 and the commencement of a new Court-Martial system in September 2008 has been that a Digital Audio Recording (‘DAR’) is made in respect of every case.

• (ii) There is no statutory requirement for a DAR in respect of appeals to the summary Court-Martial.

• (iii) Where it exists in the case of an appeal to a summary Court-Martial ‘ a DAR does not form part of the official records of the case’.

• (iv) It...