Scariff v Taylor

• Jurisdiction: Ireland
• Judge: MRS. JUSTICE DENHAM,Hamilton C.J.
• Judgment Date: 24 January 1996
• Neutral Citation: 1996 WJSC-SC 2304
• Court: Supreme Court
• Docket Number: [S.C. No. 298 of 1994]
• Date: 24 January 1996

1996 WJSC-SC 2304

THE SUPREME COURT

HAMILTON C.J.

BLAYNEY J.

DENHAM J.

298/94

SCARIFF v. TAYLOR

(JUDICIAL REVIEW)

BETWEEN:

COLMAN SCARIFF

Applicant/Appellant

and

LIEUTENANT COLONEL DAVID TAYLOR AND THE MEMBERSOF LIMITED COURT-MARTIAL OF THE PERMANENT DEFENCE FORCES, COLONEL J.T.M.O'NEILL AND THE MINISTER FOR DEFENCE

Respondents

Citations:

DEFENCE ACT 1954 S169

CRIMINAL JUSTICE ACT 1990 S7

OFFENCES AGAINST THE PERSON ACT 1861 S47

RULES OF PROCEDURE (DEFENCE FORCES) 1954 SI 243/1954 RULE 6(1)

RULES OF PROCEDURE (DEFENCE FORCES) 1954 SI 243/1954 RULE 6(2)

RULES OF PROCEDURE (DEFENCE FORCES) 1954 SI 243/1954 ART 6(3)

RULES OF PROCEDURE (DEFENCE FORCES) 1954 SI 243/1954 RULE 7(1)

RULES OF PROCEDURE (DEFENCE FORCES) 1954 SI 243/1954 RULE 12

RULES OF PROCEDURE (DEFENCE FORCES) 1954 SI 243/1954 RULE 12(9)

HAUGHEY, IN RE 1971 IR 218

HEALY, STATE V DONOGHUE 1976 IR 325

FLANAGAN V UCD 1989 ILRM 469

C V COURT MARTIAL & ORS UNREP FINLAY EX-TEMP 15.2.94

CURRAN V AG UNREP GAVAN-DUFFY 27.2.41

KIELY V MIN FOR SOCIAL WELFARE 1977 IR 267

CONSTITUTION ART 40.3

RUSSELL V DUKE OF NORFOLK 1949 1 AER 109

IRISH FAMILY PLANNING V RYAN 1978 IR 313

DPP, PEOPLE V HEALY 1990 2 IR 73

RULES OF PROCEDURE (DEFENCE FORCES) 1954 SI 243/1954 RULE 6

DEFENCE FORCES (SUMMONING OF CIVILAN WITNESSES) REGS 1954 SI 297/1954

Synopsis:

DEFENCE FORCES

Discipline

Enforcement - Soldier - Misconduct - Allegation - Enquiries - Representation - Prohibition - Trial by court-martial - Charge of commission of a civil offence - Fellow soldier allegedly assaulted - Representation permitted at court-martial - Fair procedures - Special circumstances of members of Defence Forces - Rules of Procedure (Defence Forces) 1954 (S.I. 243/54), rr. 6, 12 - Defence Act, 1954, s. 169 - Constitution of Ireland, 1937, Articles 38, 40 - (298/94 - Supreme Court - 24/1/95)1996 1 I.R. 252

|Scariff v. Taylor|

NATURAL JUSTICE

Fair procedures

Soldier - Misconduct - Allegation - Enquiry - Representation - Prohibition - Trial by court-martial - Charge that soldier committed civil offence - Representation permitted at court-martial - (298/94 - Supreme Court - 24/1/95) [1996] 1 I.R. 252

|Scariff v. Taylor|

1 Judgment delivered on the 24th day of January 1996 by Hamilton C.J. [BLAYNEY CONC]

2 This is an appeal brought by the Applicant/Appellant (hereinafter called the Appellant) against the judgment delivered and order made by Miss Justice Carroll on the 26th day of July 1994, whereby she refused the applications made by the Appellant for relief by way of judicialreview.

3 By order dated the 23rd day of September, 1993 the Appellant had been granted leave by the High Court to apply for certain reliefs, including orders of certiorari, prohibition, injunction and a number of declarations, by way of judicial review. These reliefs are set forth in detail in the said order of the High Court.

4 The grounds upon which the said relief was sought are set forth in the Statement required to ground application for judicial review as required by the Rules of the Superior Courts and the Respondents reply thereto is set forth in the Statement to ground opposition to application for judicial review delivered on their behalf.

5 The facts relevant to the issue before the High Court and the appeal in this case are set forth in the affidavit of the Applicant, the affidavit of Colonel Ghent and the judgment of the High Court and may be summarised as follows:-

6 1. On the 11th day of March 1993, the Applicant waspart of the army escort for the transport of cash.

7 2. A row occurred in one of the army vehicles between the Applicant and a fellow soldier in which it is alleged that the Applicant assaulted the fellow soldier and broke his nose.

8 3. The Applicant was subsequently brought before a limited Court Martial on the 21st day of September 1993 on a charge of committing a civil offence contrary to Section 169 of the Defence Act, 1954 to 1990as amended by Section 7 of the Criminal Justice Act, 1990, namely, assault occasioning actual bodily harm contrary to Section 47 of the Offences Against the Person Act, 1861.

9 4. The Applicant had been charged initially with another offence which concerned prejudicing the security of the cash under the Army escort but this was later dropped.

10 5. The procedure to be adopted in the investigation of charges against members of the Defence Forces is set forth in the Rules of Procedure (Defence Forces) 1954 (Statutory Instrument No. 243 of1954).

11 Rule 6(1) of the said Statutory Order provides that:-

"The commanding officer shall cause the person preferring the charges, together with allavailable witnesses mentioned on the charge sheet, and also the accused and any available witnesses desired by the accused, and any other available witnesses of whom he may learn, 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, within 24 hours (where practicable) of receipt by him of the charges, with all available evidence, including the service record of the accused and shall there informally investigate the charges. No counsel or representative shall (save in capital cases) be allowed to appear for the accused or for the prosecution. At such investigation full opportunity shall be given to the accused to cross-examine the witnesses whose statements are unfavourable to him, or to present anything he may desire on his own behalf, either in defence or mitigation, and all available witnesses requested by the accused shall be called and examined. Witnesses who are not subject to military law may be summoned in accordance with the Defence Forces (summoning of civilian witnesses) Regulations,1954."

12 Section 6(2) provides that:-

"Upon such informal investigation, the Commanding Officer in his discretion considersthat the charge should not be proceeded with he shall dismiss thecharge."

13 Article 6(3) provides that:-

"in case the accused is a person subject to military law as a man, the witnesses against him shall, if he so demands besworn."

14 The Appellant's complaint with regard to this procedure is that:-

15 (a) he was not informed that he could require or demand that the evidence of the witnesses against him be sworn;

16 (b) that he was deprived of his alleged right to Counsel or a representative to appear for him, and

17 (c) by reason of being so deprived of Counsel or a representative he was unable to exercise his right to cross-examine the witnesses againsthim.

18 Having completed the informal investigation, the Commanding Officer may decide to dismiss the charges and if he does not do so, he can refer the matter for trial.

19 In this particular case, the Commanding Officer did not decide to dismiss the charges against the Appellantbut to refer the matter for trial before a limited Court Martial and directed a summary of evidence to be taken in accordance with the provisions of Rule 7(1).

20 Rule 12 of the Rules of Procedure requires that the witnesses give their evidence on oath which is taken down in writing in the presence of the accused and permits the accused to cross-examine any witness. There is the same prohibition against legal representation as in Rule 6.

21 Rule 12(9) provides:-

"no counsel or representative shall (save in capital cases) be allowed to appear for the accused or for the prosecution at the taking of the summary."

22 The said summary of evidence was taken by second Lieutenant Purcell on the 29th day of April, 1993, the 18th day of June 1993 and the 22nd day of June 1993.

23 At the taking of the summary of evidence, the Appellant requested that he be legally represented on these dates but was refusedrepresentation.

24 With regard to the taking of the summary ofevidence, the Appellant complains that

25 (a) he was deprived of his alleged right to counsel or a representative to appear for him, and

26 (b) by reason of being so deprived of counsel or a representative he was unable to exercise effectively his right to cross-examine the witnesses against him.

27 The Court was informed by Counsel for the Respondents that such sworn testimony is not made available to the Court Martial when an accused person pleads not guilty.

28 The next step in the procedures is for the commanding officer without delay to apply in writing to have the proper Court Martial convened by a person having authority to convene. The convening authority must satisfy himself on various matters including that the evidence is sufficient to justify a trial by court martial and if he is so satisfied he may settle the charge sheet.

29 At this stage, the charge relating to the transportof cash was dropped and the court martial was convened for the 21st September 1993 by order dated the 10th September 1993 made by Col. J.T.M. O'Neill, the second named Respondent.

30 At the hearing of the 21st September 1993, counsel on behalf of the Appellant made representations that the court did not have jurisdiction to hear the charges preferred against him because of the unfairness of the preliminary procedures.

31 The Court over-ruled these submissions and decided to proceed with thetrial.

32 The Court then read over the charge to the Appellant and he pleaded not guilty to the charge.

33 An order adjourning the court martial until the 28th day of September 1993 was then made.

34 By Order dated the 23rd day of September, 1993 the Appellant was granted leave by the High Court to seek relief by way of judicial review and the proceedings before the Court were adjourned.

35 At the hearing before the Court Martial, theAppellant was and is entitled to legal representation and was afforded such representation.

36 No complaint is made with regard to representation before the actual hearing of the Court Martial; the Appellant's complaint was in respect of the denial to him of representation,...