Sheehan v Director of Military Prosecutions

JurisdictionIreland
JudgeMr. Justice Mahon
Judgment Date17 June 2016
Neutral Citation[2016] IECA 184
Docket Number2015/556
CourtCourt of Appeal (Ireland)
Date17 June 2016

[2016] IECA 184

THE COURT OF APPEAL

MILITARY

Mahon J.

2015/556

Sheehan J.

Mahon J.

Edwards J.

IN THE MATTER OF S. 178G(5) OF THE DEFENCE ACTS 1954 TO 2007

BETWEEN
PRIVATE GRAHAM SHEEHAN
APPELLANT
- AND -
THE DIRECTOR OF MILITARY PROSECUTIONS
RESPONDENT

Defence forces – Discipline – Consultative case stated for opinion of Court of Appeal – Right of appeal of Private to summary court martial – Defence Act 1954

Facts: The appellant was a Private in the Defence Forces. He had been charged by summary court martial of being absent without leave. The charge had been found proven, and an appeal was made to his commanding officer. The charge was upheld, and the appellant now sought to bring an appeal to a summary Court Martial under the Defence Act 1954 (as amended). The matter was brought before the Court of Appeal by a consultative case stated for guidance.

Held by Mr Justice Mahon, the other Justices concurring, that the guidance sought would be issued. Commenting generally on the effect of the Defence Act as amended in 2007, it was clear that the Oireachtas had intended that the Defence Act 1954 was art 6 compliant, and that circumstances in which a commanding officer could increase the penalty issued summarily by a subordinate clearly required a right of appeal.

JUDGMENT of the Court delivered on the 17th day of June 2016 by Mr. Justice Mahon
Mr. Justice Mahon
1

This is a consultative case stated by the Military Judge, Colonel Michael Campion, to seek the opinion of this Court in relation to the following questions (in which references to ?the Act? refer to the Defence Act 1954 as amended):

?(1) On the basis of the facts of this case, where a private, in respect of whom under s. 179C of the Defence Acts 1954 to 2007 (hereinafter referred to as ?the Act?), a charge has been disposed of summarily, and a determination has been made and punishment awarded by a subordinate officer, has appealed in the prescribed manner to his commanding officer against the determination or the punishment or both pursuant to s. 179D of the Act, and the commanding officer has heard the appeal pursuant to s. 179E of the Act and made it a determination and awarded a punishment, does the private have the further right to appeal to a summary court martial against the determination made or the punishment awarded or both the determination made and the punishment awarded by the commanding officer?

(2) Am I entitled to find that Private Sheehan is NOT a person in respect of whom,under s. 178C of the Act:-

(a) a charge has been disposed of summarily, and

(b) a determination made and punishment awarded by commanding officer?

(3) Am I entitled to find that Private Sheehan has no right of appeal to the Summary Court Martial under s. 178E(2) of the Act?

(4) On the basis of the facts of this case does the summary court martial have jurisdiction pursuant to s. 187A of the Act to hear an appeal on foot of the Form 1 – Notice of Appeal to the summary court martial dated the 11th April, 2014, signed by Private Sheehan?

Introduction
2

The constitutional basis for the establishment of Military Courts (known as courts martial) for the trial of offences alleged to have been committed by persons subject to military law is Article 38.4.1 of the Constitution, which provides:-

?Military tribunals may be established for the trial of offences against military law alleged to have been committed by persons while subject to military.?

3

The Defence Act 1954 (as amended) provides the statutory basis for the court martial system, and the administration of military justice in the Irish Defence Forces. The current military justice system for the Defence Forces came into effect on the 1st September, 2008, when the Defence (Amendment) Act 2007 came into operation.

4

The main purpose of the courts martial system is to provide a mechanism for the enforcement of military law in the Defence Forces. Military law consists of the system of rules and regulations contained in the Act and regulations, instructions and orders made under the authority of the Act. The main purpose of military law is to regulate the behaviour of military personnel, having regard to the unique requirements and demands of military life, in order to ensure that the required standard of discipline is maintained at all times. Members of the Permanent Defence Force are subject to military law at all times. Chapter II of Part V of the Act of 1954 (as amended) ss. 124 to 169A (inclusive) provides for the various offences against military law for which persons subject to military law may be tried and punished by court martial.

5

These sections include many offences which are not offences under the ordinary criminal laws of the State. In effect this means that persons subject to military law, as well as being subject to the ordinary criminal law of the State, may be tried, convicted and sentenced by court martial for a wide range of what are known as military offences.

6

The effect of the Defence (Amendment) Act 2007 was to completely overhaul the military justice system in the Irish Defence Forces. The changes were required in order to modernise the old system and to ensure that the revised military justice system is fully compliant, not only with the Constitution, but also with the requirements of the European Convention on Human Rights (ECHR), in particular Article 6 and with international human rights norms. Under the new provisions, summary courts martial were introduced for the first time and changes were also made to the composition and jurisdiction of the two other types of courts martial, which had also existed in the old system ie. limited courts martial and general courts martial.

The legitimus contradictor
7

At a directions hearing in this case on the 4th May, 2016, Birmingham J. directed that counsel be instructed to act aslegitimus contradictor at the hearing of this consultative case stated, and to prepare and submit written submissions. Mr. Dowling BL was appointed legitimus contradictor and his extensive written and oral submissions have been most helpful to this Court, as indeed have been those of Mr. Farrell S.C. on behalf of the Director of Military Prosecutions.

Background facts
8

On the 18th February, 2014, Private Sheehan, a member of the Defence Forces (7th Infantry Battalion) was charged with one offence of being absent without leave contrary to s. 137(1) of the Act.

9

A summary investigation of the charge was conducted on the 20th March, 2014, by Commandant Crowley, Company Commander of B Company, 7th Infantry Battalion, pursuant to s. 179C. In conducting the summary investigation, Commandant Crowley was acting as, and discharging the functions of, a subordinate officer to whom the power of disposing of charges against privates under the command of the commanding officer had had been delegated by Lieutenant Colonel McGuinness, the Commanding Officer of the 7th Infantry Battalion, as provided for in s. 179.

10

The subordinate officer proceeded to dispose of the charge summarily pursuant to s. 179C(5). He made a determination that the charge was proven and awarded a punishment of a fine of a sum equivalent of one day's pay (with an automatic forfeiture of seventeen days pay).

11

Private Sheehan appealed the determination and punishment to his commanding officer pursuant to s. 179D(2). His commanding officer heard the appeal pursuant to s. 179E on the 4th April, 2014, by way of a rehearing of the charge and a reappraisal of the punishment. The commanding officer made a determination that the charge was proven and awarded a punishment of a fine of an amount equivalent to one day's pay at the applicable rate pursuant to s. 178C(5)(b)(i)(III) (with automatic forfeiture of seventeen days pay). This fine was similar to that originally imposed by the subordinate officer.

12

On the 11th April, 2014, Private Sheehan's commanding officer entered a notation on the record of punishment awarded on s. 4 of the summary charge sheet as follows:-

?Remanded for trial by court martial, person charged so elects.?

13

Private Sheehan duly completed a Form 1 Notice of Appeal to a summary court martial dated the 11th April, 2014. This form is provided for in rule 12(1) of the Court Martial Rules 2008, in the event of an appeal under s. 178E of the Act. The Form 1 Notice of Appeal to a summary court martial was submitted by letter dated the 25th April, 2014, to the Courts Martial Administrator and was received by the Courts Martial Administrator on the 8th April, 2014. The Military Judge reviewed the summary charge sheet and notice of appeal, and directed the Courts Martial Administrator as follows:-

?Section 3 of the summary charge sheet indicates that there was a summary investigation by a subordinate officer, who made a determination and awarded a punishment on the 20th March, 2014. Section 4 of the summary charge sheet indicates that there was an appeal subsequently heard by the commanding officer who made determination and awarded a punishment on the 4th April, 2014. Section 4 of the summary charge sheet further contains a subsequent notation dated the 11th April, 2014, by the commanding officer – remanded for trial by court martial, person charged so elects.

There had been a summary disposal of the charge by a sub ordinate officer under s. 179C. There was an appeal to the commanding officer under s. 179D against the determination made and the punishment awarded in the summary disposal.

There is no further right of appeal to the summary court martial nor is there a right of election to trial by court martial after the hearing of the appeal by the commanding officer.

In those circumstances the notice of appeal is not valid and the summary court martial has no jurisdiction to hear an appeal in this matter.?

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