Rules of the Superior Courts (Courts-Martial Appeal Court) 2009

• Jurisdiction: Ireland
• Citation: IR SI 270/2009
• Year: 2009

S.I. No. 270 of 2009

RULES OF THE SUPERIOR COURTS (COURTS-MARTIAL APPEAL COURT) 2009

Notice of the making of this Statutory Instrument was published in

“Iris Oifigiúil” of 24th July, 2009.

We, the Superior Courts Rules Committee, constituted pursuant to the provisions of the Courts of Justice Act 1936 , section 67, by virtue of the powers conferred upon us by the Courts-Martial Appeals Act 1983 , section 23, and of all other powers enabling us in this behalf, do hereby make the following Rules of Court.

Dated this 19th day of February, 2009.

John L. Murray

Richard Johnson

Elizabeth Dunne

Patrick O’Connor

Lyndon McCann

Patrick Groarke

Noel Rubotham

Maeve Kane

I concur in the making of the following Rules of Court.

Dated this 20th day of July, 2009.

DERMOT AHERNMinister for Justice, Equality and Law Reform

S.I. No. 270 of 2009

RULES OF THE SUPERIOR COURTS (COURTS-MARTIAL APPEAL COURT) 2009

1. These Rules shall come into operation on the 20th day of July 2009.

2. Subject to section 3 and Schedule 1 of the Defence (Amendment) Act 2007 , nothing in these Rules shall affect the validity of any step taken or any other thing done in proceedings under the Courts-Martial Appeals Act 1983 initiated before the commencement of these Rules. Any such proceedings shall, subject to the section and Schedule aforesaid and, save where the Courts-Martial Appeal Court in those proceedings otherwise orders, be continued and completed as if these Rules had not been made.

3. These Rules shall be construed together with the Rules of the Superior Courts 1986 to 2009 and may be cited as the Rules of the Superior Courts (Courts-Martial Appeal Court) 2009.

4. The Rules of the Superior Courts are hereby amended:

(i) by the substitution, for Order 86A, of the following:

“Order 86A

The Courts-Martial Appeal Court

I. Preliminary

1. In this Order:

“the Act of 1954” means the Defence Act 1954 ;

“the Act of 1983” means the Courts-Martial Appeals Act 1983 ;

“the Act of 2006” means the Defence (Amendment) Act 2006 ;

“Court” means the Courts-Martial Appeal Court and shall, in relation to any interlocutory application, include the Chief Justice or any Judge of the Supreme Court nominated by the Chief Justice to hear and determine such application;

“Court-Martial Administrator” means the Court-Martial Administrator appointed under Chapter IVA of Part V of the Act of 1954;

“detention barrack” means a building or part of a building which has been declared under section 232 of the Act of 1954 to be a detention barrack;

“Director” means the Director of Military Prosecutions appointed under Chapter IVB of Part V of the Act of 1954;

“exhibit” means any document or thing which has been produced and used in evidence at the trial court-martial, whether it is attached to the proceedings of the court-martial or not;

“legal aid (Courts-Martial Appeal Court) certificate” means a certificate for free legal aid referred to in section 28 of the Act of 1983;

“military judge” means a military judge appointed in accordance with section 184J of the Act of 1954;

“prison” includes a military prison;

“promulgation” means promulgation in accordance with rules for the time being in force made by the Minister for Defence in exercise of the powers conferred on him by section 240 of the Act of 1954;

“prosecutor” means the Director, and includes any prosecuting officer appointed under section 184F(1) of the Act of 1954 and any counsel or solicitor instructed by or representing either;

“the Registrar” means the Registrar of the Courts-Martial Appeal Court;

“trial court-martial” means a court-martial from the conviction, sentence, finding or order of which a person appeals to the Court, or from which a question of law is referred to the Court.

2. The forms set out in Appendix GG shall be used in all cases to which such forms are applicable and the forms referred to in this Order are those set out in such Appendix.

II. Notice of Appeal

3. A person desiring to appeal to the Court shall serve on the Registrar a notice of appeal in the Form No. 1. The notice so served shall answer the question and comply with the requirements set forth on such form.

4. (1) Except as provided in sub-rule (2), every notice of appeal shall be served not later than twenty-one days after the date of the promulgation of the finding and sentence of the trial court-martial.

(2) In the case of a person convicted by a court-martial while serving outside the State with an International United Nations Force (as defined in section 1(1) of the Defence (Amendment) (No. 2) Act 1960 ), or while despatched for service outside the State for any purpose specified in section 3 of the Act of 2006, a notice of appeal shall be served not later than thirty days after the date of the promulgation mentioned in sub-rule (1).

5. When the Registrar receives a notice of appeal, he shall give notice thereof, in the Form No. 2, to the Director, the Court-Martial Administrator, the Deputy Chief of Staff (Support) of the Defence Forces and also, if the appellant is in a prison or detention barrack or if the operation of his sentence has been suspended or if he has been released on bail:-

to the Governor of such prison or detention barrack, as the case may be, and

to the Secretary General of the Department of Defence;

provided that the Registrar shall not be required to give such notice to the Governor of a prison or detention barrack if the appellant’s notice of appeal has been forwarded to the Registrar by such Governor.

III. Application for Review of Sentence

6. (1) An application by the Director to the Court under section 212B of the Act of 1954 and in accordance with section 22B of the Act of 1983 to review a sentence awarded by a court-martial shall be initiated by serving on the Registrar a notice of review in the Form No. 3. A copy of the notice so served shall be served on the convicted person and on the Court-Martial Administrator.

(2) The procedure on such an application shall follow, as nearly as may be, the procedure on an application by the Director of Public Prosecutions to the Court of Criminal Appeal under section 2(1) of the Criminal Justice Act 1993 to review a sentence imposed by a sentencing court on conviction of a person on indictment.

IV. Reference of a Question of Law

7. (1) Where a question of law is referred to the Court by the summary court-martial under section 178G(5) of the Act of 1954 or section 22A of the Act of 1983, the Court-Martial Administrator (or other officer duly authorised for that purpose by the summary court-martial) shall, as soon as the reference containing the question has been settled and signed by the military judge, indorse thereon the name of the party (if any) who requested the reference; the name of the party who is to have carriage thereof, and the names and addresses of the solicitors (if any) for the parties. The Court-Martial Administrator or such officer shall, within seven days of such signature, lodge the original of such reference together with such other documents or materials as are prescribed in that regard by any Courts-Martial Rules for the time being in force, with the Registrar, who shall set down the same for hearing before the Court. As soon as the necessary papers are in order and ready, the reference shall come on to be heard according to its order in the list, unless the Court otherwise directs. The Court-Martial Administrator or such officer shall, immediately following lodgment of the reference, serve notice of such signing and lodgment by registered post on every party who appeared upon the hearing of the appeal before the summary court-martial in respect of which the question is referred.

(2) After service of the notice of signing and lodgment, any interested party may obtain, on application to the Registrar, one or more copies of the reference and any other documents or materials lodged with it.

(3) The party having carriage of the reference shall, within twenty-one days after the service of the notice of signing and lodgment, lodge with the Registrar three copies of the reference, and of any other documents or materials lodged with it.

V. Enlargement of Time for Appealing

8. (1) The Court shall have power to enlarge the time appointed for doing any act or taking any proceeding upon such terms (if any) as the justice of the case may require, and any such enlargement may be ordered notwithstanding that the application for the same is not made until after the expiration of the time appointed.

(2) An application to the Court for an enlargement of time within which notice of appeal may be served shall be in the Form No. 4.

(3) The form of application shall, in addition to specifying the grounds of such application, also specify the grounds on which the applicant proposes to base his appeal.

VI. Appeal where Fine is Imposed

9. (1) Where a person has, on his conviction, been sentenced to a fine, the person lawfully authorised to receive such fine shall, on receiving the same, retain it until the determination of any appeal in relation thereto.

(2) An appellant who has been sentenced to a fine and has paid the same in accordance with such sentence shall, if an appeal by him is successful, be entitled, subject to any order of the Court, to the return of the sum so paid by him.

VII. Suspension of Orders of Trial Court-Martial Pending Appeal

10. Where, on the conviction of a person, the trial court-martial directs, pursuant to section 213 of the Act of 1954, the payment by that person of a sum as compensation for any personal injury, expense, loss, damage or destruction occasioned by the offence of which he was convicted, the operation of such direction shall be suspended until the expiration of twenty-one clear days, or in any case to which rule 4(2) applies, thirty clear days after the date of promulgation of the finding and...