Rules of Procedure (No. 2) (Defence Forces) 1983

JurisdictionIreland
CitationIR SI 72/1983
Year1983

S.I. No. 72 of 1983.

RULES OF PROCEDURE (No. 2) (DEFENCE FORCES), 1983.

I, PATRICK COONEY, Minister for Defence, in exercise of the powers conferred on me by section 240 of the Defence Act, 1954 (No. 18 of 1954), hereby make the following rules:

1. (1) These Rules may be cited as the Rules of Procedure (No. 2) (Defence Forces), 1983.

(2) The collective citation "the Rules of Procedure (Defence Forces), 1954 to 1983," shall include these Rules.

2. In these Rules—

"the accused" has the meaning assigned to it by Rule 4;

"the commanding officer" has the meaning assigned to it by Rule 2 (1) of the Principal Rules;

"the Principal Rules" means the Rules of Procedure (Defence Forces), 1954 ( S.I. No. 243 of 1954 );

"the relevant legal officer" has the meaning assigned to it by Rule 3.

3. (1) An officer, who shall for the time being, pursuant to Defence Force Regulations C.S.4, stand designated as a legal officer, appointed by the Deputy Adjutant-General to be a legal officer for the purposes of these Rules (in these Rules referred to as "the relevant legal officer") shall cause the following documents to be served on the accused, namely—

( a ) a copy of the charge sheet (Army Form 117),

( b ) a list of the witnesses whom it is proposed to call on behalf of the prosecution at the trial by court— martial, should the accused be remanded for such trial, which list shall be in Form 1 contained in the Schedule to these Rules,

( c ) as regards each such witness, a statement of the evidence that is to be given by him at such trial, which statement shall be in Form 2 contained in the said Schedule, and

( d ) in relation to such trial, a list of exhibits (if any) which list shall be in Form 3 contained in the said Schedule.

(2) The relevant legal officer may cause to be served on the accused a further statement of the evidence to be given by any witness a statement of whose evidence has already been so served under this Rule.

(3) The relevant legal officer shall cause to be furnished to the officer who is to conduct an investigation under Rule 4 of these Rules the original charge sheet (Army Form 117) together with a copy of any other document served on the accused under this Rule.

(4) Where a list of exhibits is served on the accused pursuant to the requirements of paragraph (1) of this Rule, the accused shall have the right to inspect all or any one or more of the exhibits to which the list relates.

4. (1) Where a capital charge or a charge of murder is preferred against a person subject to military law (in these Rules referred to as "the accused"), and after the requirements of Rule 3 (1) of these Rules have been complied with, the commanding officer shall cause the person preferring the charge and also the accused to appear before him at a stated time (to be fixed either by Standing Orders or otherwise) at his office or headquarters or other available place, as soon as practicable, with the service record of the accused, and shall there informally investigate the charges.

(2) At an informal investigation under this Rule—

( a ) the accused shall be entitled to present anything he may desire on his own behalf, either in defence or mitigation;

( b ) the person by whom the charge is preferred and the accused shall each be entitled to give evidence on sworn deposition and also to require the attendance at the investigation of any person, whether included in the supplied list of witnesses or not, and to examine him by way of sworn deposition;

( c ) any witness at the investigation may be cross-examined and re-examined on his evidence and his deposition shall be taken down in writing, read over to him and signed by him and by the commanding officer;

( d ) witnesses who are not subject to military law may be summoned in accordance with the Defence Forces (Summoning of Civilian Witnesses) Regulations, 1954 ( S.I. No. 297 of 1954 );

( e ) having considered the matters specified in paragraphs (a) and (b) of Rule 5 of these Rules—

(i) the commanding officer shall as regards the charge, or, as may be appropriate, each of the charges ask the accused if he has anything to say in answer to the charge, and such officer shall caution the accused that he is not obliged to say anything unless he wishes to do so and that whatever he does say will be taken down in writing and, if he is remanded for trial by court-martial, may be given in evidence at such trial,

(ii) whatever the accused says in answer to the commanding officer's question and caution shall be taken down in writing and read over to him and shall be signed by the commanding officer who in taking such statement shall use Form 4 contained in the Schedule to these Rules,

( f ) nothing in this Rule shall prevent the person by whom the charge is preferred from giving in evidence any confession, or other statement made at any time by the accused, which, by virtue of section 201 (1) of the Defence Act, 1954 , is admissible in proceedings before courts-martial as evidence against the accused.

(3) Subparagraph (b) of paragraph (2) of this Rule shall not entitle the person by whom the charge is preferred or the accused in an informal investigation under this Rule to require the attendance before the commanding officer of a person or to examine him by way of sworn deposition if it appears to such officer that the person is outside the State and that it is not reasonably practicable to secure his attendance before such officer for examination under this Rule.

(4) Where an investigation is required to be held under this Rule, an investigation shall not be held under Rule 6 of the Principal Rules as regards the charge, or any of the charges, as may be appropriate, to which the investigation under this Rule relates.

5. In an investigation under Rule 4 of these Rules the commanding officer shall consider—

( a ) any copy document furnished to him pursuant to Rule 3 of these Rules and the exhibits to which a copy list of exhibits (if any) so furnished relates,

( b ) any deposition taken in accordance with Rule 4 of these Rules,

( c ) any statement referred to in Rule 4 (2) (e) (ii) of these Rules, and

( d ) anything presented or submission made by or on behalf of the accused or any submission made by or on behalf of the person by whom the charges are preferred.

6. Where the accused is remanded under section 177 or 178 of the Defence Act, 1954 , for trial by court-martial, the order of remand shall be in Form 5 contained in the Schedule to these Rules.

7. Where an investigation under Rule 4 of these Rules is held, evidence shall not be recorded under Rule 12 of the Principal Rules in relation to the charge, or any of the charges, as may be appropriate, to which the investigation relates.

8. (1) Where the accused has been remanded for trial by court-martial on a capital charge or a charge of murder and an order for such trial has been made, a person by whom, pursuant to section 187 of the Defence Act, 1954 , a general court-martial may be convened shall cause to be served on the accused a list of any further witnesses whom it is proposed to call on behalf of the prosecution at such trial, together with a statement of the evidence that is to be given by each of them, a list of any further exhibits, a statement of any further evidence that is to be given by any witness whose name appears on the list of witnesses already supplied, and also copies of any statement recorded under Rule 4 of these Rules and any deposition taken under that Rule.

(2) The person who has caused a document to be served on the accused under paragraph (1) of this Rule shall also cause a copy of such document to be furnished to the judge-advocate of the trial court.

9. (1) A deposition taken under Rule 4 of these Rules may, subject to paragraph (2) of this Rule, be read as evidence at the trial by court-martial of the accused if it is proved that—

( a ) the deponent is dead or is unable to attend or is prevented from attending to give evidence at such trial, and

( b ) the deposition was taken in the presence of the accused, and

( c ) an opportunity was given for the cross-examination and re-examination of the deponent.

(2) Except in the case of the deponent's death, a deposition taken under Rule 4 of these Rules on the application of the person by whom the charges are preferred shall not be read unless the accused consents.

10. Where a capital charge or a charge of murder is preferred against a person subject to military law, the Principal Rules shall apply to the proceedings subject to the following modifications (which are in addition to those...

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