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24 2007

Defence (Amendment) Act 2007

Chapter 5

Punishments awardable by Courts-martial for Offences against Military Law

Amendment of section 209 of Principal Act (punishments which may be awarded to officers by courts-martial).

57 .— Section 209 of the Principal Act is amended—

(a) by substituting the following for subsection (1):

“(1) Subject to section 192, punishments may be awarded in respect of offences against military law committed by persons subject to military law as officers and convicted by court-martial according to the following scale:

SCALE.

A. Imprisonment for life or any specified period.

B. Dismissal with disgrace from the Defence Forces.

C. Dismissal from the Defence Forces.

D. Where the person convicted is an officer, reduction to any lower commissioned rank.

E. Forfeiture of all seniority of rank or of a specified term of seniority.

F. Reduction to any lower point on the scale of pay for the rank held.

G. (a) In the case of a person subject to military law as an officer under section 118(1)(a), (b) or (c), a fine not exceeding fourteen days’ pay of the person at the most recent rate payable.

(b) In the case of a person subject to military law as an officer under section 118(1)(d) or (e), a fine not exceeding the maximum fine awardable for the time being by a court-martial to an officer holding the rank of second lieutenant who is in receipt of the maximum pay applicable to that rank.

(c) In the case of a person who is not a member of the Defence Forces but who was an officer when the offence was committed, a fine not exceeding an amount equal to fourteen days’ pay at the most recent rate applicable to his former rank.

H. Severe reprimand.

I. Reprimand.”,

(b) by substituting the following for subsection (5):

“(5) (a) Where an officer is sentenced to a term of imprisonment of more than six months, the military judge shall, in addition, sentence him to dismissal with disgrace from the Defence Forces or dismissal from the Defence Forces.

(b) Where an officer is sentenced to a term of imprisonment of six months or less (other than under section 208(2)), the military judge may, in addition, sentence him to dismissal with disgrace from the Defence Forces or dismissal from the Defence Forces or reduction to any lower commissioned rank.”,

(c) by substituting the following for subsection (6A) (inserted by the Defence (Amendment) Act 1987 ):

“(6A) An officer sentenced by a court-martial to reduction in rank may, in addition, be sentenced to—

(a) reduction to any lower point on the scale of pay for that rank and forfeiture of a specified term of seniority or all seniority in respect of the rank to which the officer is sentenced to be reduced, or

(b) to a fine or severe reprimand or reprimand,

or both.”,

(d) by substituting the following for subsection (7):

“(7) An officer sentenced by a court-martial to forfeiture of seniority of rank may, in addition, be sentenced to reduction to any lower point on the scale of pay for the rank held, or to a fine or severe reprimand or reprimand.”,

(e) by inserting the following after subsection (7):

“(7A) An officer sentenced by a court-martial to reduction to a lower point on the scale of pay for the rank held may, in addition, be sentenced to a fine or severe reprimand or reprimand.”,

and

(f) in subsection (8), by substituting “disgrace” for “ignominy”.

Amendment of section 210 of Principal Act (punishments which may be awarded to men by courts-martial).

58 .— Section 210 of the Principal Act is amended—

(a) by substituting the following for subsection (1):

“(1) Subject to section 192, punishments may be awarded in respect of offences against military law committed by persons subject to military law as men and convicted by court-martial according to the following scale:

SCALE.

A. Imprisonment for life or any specified period.

B. Discharge with disgrace from the Defence Forces.

C. Discharge from the Defence Forces.

D. Detention—

(a) in the case of a general court-martial or limited court-martial, for any term not exceeding two years,

(b) in the case of a summary court-martial, for any term not exceeding six months,

with or without forfeiture of all pay or any part thereof.

E. Where the person convicted is a non-commissioned officer, reduction to any lower non-commissioned rank.

F. Forfeiture of all seniority of rank or of a specified term of seniority.

G. Reduction to any lower point on the scale of pay for the rank held.

H. (a) In the case of a person subject to military law as a man under section 119(a) or (b), a fine of an amount not exceeding fourteen days’ pay of the person at the most recent rate payable.

(b) In the case of a person subject to military law as a man under section 119(c) or (d), a fine not exceeding the maximum fine awardable for the time being by a court-martial to a man holding the rank of private of the highest grade who is in receipt of the maximum pay applicable to that rank.

(c) In the case of a person who is not a member of the Defence Forces but who was a non-commissioned officer, private or seaman when the offence was committed, a fine not exceeding an amount equal to fourteen days’ pay at the most recent rate applicable to his former rank.

I. Severe reprimand.

J. Reprimand.”,

(b) by deleting subsection (5),

(c) by substituting the following for subsection (6):

“(6) Where a man is sentenced to a term of imprisonment exceeding six months, the military judge shall, in addition, sentence him to discharge with disgrace from the Defence Forces or discharge from the Defence Forces.”,

(d) by substituting the following for subsection (7):

“(7) Where a man is sentenced to a term of imprisonment of six months or less (other than under section 208(2)), the military judge may, in addition, sentence him to discharge with disgrace from the Defence Forces or discharge from the Defence Forces.”,

(e) by substituting the following for subsection (8):

“(8) A non-commissioned officer sentenced by a court-martial to a punishment mentioned at F or G in the Scale to subsection (1) of this section may, in addition, be sentenced to a fine or severe reprimand or reprimand.”,

(f) by inserting the following after subsection (8):

“(8A) A non-commissioned officer sentenced by a court-martial to reduction in rank may, in addition, be sentenced to—

(a) reduction to any lower point on the scale of pay for that rank and forfeiture of a specified term of seniority or all seniority in respect of the rank to which he is sentenced to be reduced, or

(b) to a fine or severe reprimand or reprimand,

or both.”,

and

(g) in subsection (11), by substituting “disgrace” for “ignominy”.

Amendment of section 211 of Principal Act (one sentence to be awarded in respect of all offences).

59 .— The following section is substituted for section 211 of the Principal Act:

“Separate sentence for each offence.

211.— (1) Where a person is convicted by a court-martial of two or more offences, a separate sentence shall be awarded in respect of each offence.

(2) Subject to section 212A, where a person is convicted by a court-martial in respect of two or more offences, any custodial sentences awarded in respect of each such offence shall be served concurrently.”.

Insertion of new section: restriction on sentence of imprisonment or detention on person who is not represented.

60 .— The following section is inserted after section 211 of the Principal Act:

“Restriction on sentence of imprisonment or detention on person who is not represented.

211A.— (1) Subject to subsection (2) of this section, a person convicted by a court-martial of an offence against military law shall not be sentenced to imprisonment or dismissal or discharge with disgrace from the Defence Forces or dismissal or discharge from the Defence Forces where the person has not been represented by counsel (within the meaning of section 196) at some time after he is found guilty and before he is sentenced.

(2) Subsection (1) of this section shall not apply where the person—

(a) pursuant to rules of procedure, having been informed of his right to be represented by counsel and having had the opportunity to arrange such representation, refused or failed to do so, or

(b) has previously been sentenced to imprisonment for an offence under this Act or by a civil court in the State.

(3) For the purposes of subsection (2)(b) of this section—

(a) a previous sentence of imprisonment which has been suspended and has not taken effect is to be disregarded,

(b) ‘sentenced to imprisonment’ does not include a committal for contempt of court under section 208.”.

Insertion of new section: suspension of custodial sentences.

61 .— The following section is inserted after section 212 of the Principal Act:

“Power to suspend sentence.

212A.— (1) In this section—

‘ governor ’ includes, in relation to a military prisoner or a person undergoing detention, a person for the time being performing the functions of governor;

‘ imprisonment ’ includes—

(a) detention in a military prison or detention barrack or in other service custody or in a public prison, as referred to in section 229 of this Act,

(b) detention in Saint Patrick’s Institution,

(c) detention in a place provided under section 2 of the Prisons Act 1970 , and

(d) detention in a place specified under section 3 of the Prisons Act 1972 ,

and ‘ sentence of imprisonment ’ shall be construed accordingly;

‘ mandatory term of imprisonment ’ includes, in relation to an offence, a term of imprisonment awarded by a court-martial under this Act or any other enactment where provision is made that a person who is guilty of the offence concerned shall be liable to a term of imprisonment of not less than such term as is specified in this Act or that enactment.

(2) Where a person is sentenced by a court-martial in respect of an offence to a term of imprisonment (other than a mandatory term of imprisonment) or to detention, the military judge presiding at the court-martial may make an order suspending the execution of the sentence in whole or in part, subject to the person entering into a recognisance to comply with the conditions of, or imposed in relation to, the order.

(3) It shall be a condition of an order under subsection (2) of this section that the person in respect of whom the order is made keep the peace and be of good behaviour during—

(a) the period of suspension of the sentence concerned, or

(b) in the case of an order that suspends a sentence in part only, the period of imprisonment or detention and the period of suspension of the sentence concerned,

and that condition shall be specified in the order concerned.

(4) The military judge may, when making an order under subsection (2) of this section, impose such conditions in relation to the order as he considers—

(a) appropriate having regard to the nature of the offence, and

(b) will reduce the likelihood of the person in respect of whom the order is made committing any other offence,

and any condition imposed in accordance with this subsection shall be specified in that order.

(5) In addition to any condition imposed under subsection (4) of this section, the military judge may, when making an order under subsection (2) of this section consisting of the suspension in part of a sentence of imprisonment or detention, impose any one or more of the following conditions in relation to that order:

(a) that the person cooperate with such support services, and to such extent, as may be specified by the military judge;

(b) that the person undergo such—

(i) treatment for addiction,

(ii) course of education, training or therapy,

(iii) psychological counselling or other treatment,

as may be approved by the military judge.

(6) A condition imposed under subsection (5) of this section shall be specified in the order concerned.

(7) Where an order is made under subsection (2) of this section, a copy of the order shall be given by the Court-Martial Administrator—

(a) to the commanding officer of the person to whom the order applies and the Provost Marshal, or

(b) in the case of an order consisting of the suspension of a sentence of imprisonment or detention in part only, to the persons referred to in paragraph (a) of this subsection, to the governor of the prison or detention barrack to which the person is committed and to such other person, authority or support services as the military judge may direct having regard to the conditions (if any) imposed under subsection (5) of this section.

(8) (a) Where a person to whom an order under subsection (2) of this section applies is, during the period of suspension of the sentence concerned, convicted by a court-martial of an offence, the military judge presiding at the court-martial before which proceedings for the offence were brought shall, after imposing sentence for that offence, remand the person in custody or otherwise to appear before a court-martial of the same class as that which made the order.

(b) Where a person is remanded pursuant to paragraph (a) of this subsection, the Court-Martial Administrator shall, subject to the directions of the Director—

(i) refer the matter to the summary court-martial, or

(ii) convene a general court-martial or limited court-martial, as specified in the direction, but without a court-martial board,

to deal with the matter.

(9) (a) A summary court-martial or the military judge presiding at a general court-martial or limited court-martial, as the case may be, to which a person is remanded under subsection (8) of this section shall revoke the order unless the military judge considers that revocation of that order would be unjust in all the circumstances of the case.

(b) Where the military judge revokes that order, the person shall be required to serve the entire of the sentence of imprisonment or detention originally awarded, or such part of the sentence as the military judge considers just having regard to all the circumstances of the case, less any period of that sentence already served and any period spent in custody (other than a period during which the person was serving a sentence of imprisonment or detention in respect of an offence referred to in subsection (8) of this section) pending revocation of the said order.

(10) Notwithstanding the provisions of section 211 or of any other section of this Act, a sentence (other than a sentence consisting of imprisonment for life) awarded—

(a) in respect of an offence committed by a person to whom an order under subsection (2) of this section applies, and

(b) during the period of suspension of sentence to which that order applies,

shall not commence until the expiration of any period of imprisonment or detention that the person is required to serve of the sentence referred to in paragraph (b) of this subsection either by virtue of the order under subsection (2) or a revocation under subsection (9) of this section.

(11) Where the Provost Marshal or, as the case may be, the governor of the prison or detention barrack to which a person was committed has reasonable grounds for believing that a person to whom an order under this section applies has contravened a condition referred to in the order he shall refer the matter to the Director who may—

(a) subject to the court-martial being of the same class as that which made the order, direct the Court-Martial Administrator to—

(i) refer the matter to the summary court-martial, or

(ii) convene a general court-martial or limited court-martial, as specified in his direction, but without a court-martial board,

and

(b) apply in the prescribed manner to that court-martial to fix a date for the hearing of an application for an order revoking the order under subsection (2) of this section.

(12) Where a date for the hearing of an application referred to in subsection (11) of this section is fixed, the person in respect of whom the application will be made, or where that person is in prison or a detention barrack, the governor of the prison or detention barrack, shall be notified in writing in the prescribed manner, and the notice shall require the person to attend at the hearing, or require the said governor to produce the person before the court-martial, on the date and at the time specified in the notice.

(13) A notice under subsection (12) of this section shall be addressed to the person concerned by name, and may be given to the person in the prescribed manner.

(14) If a person who is not in prison or a detention barrack fails to appear before the court-martial in accordance with a requirement contained in a notice under subsection (12) of this section, the military judge presiding at the court-martial concerned may make an order for the arrest of the person.

(15) The military judge presiding at the court-martial shall, where he is satisfied that a person to whom an order under subsection (1) of this section applies has contravened a condition of the order, revoke the order unless he considers that revocation of that order would be unjust in all of the circumstances of the case, and where the military judge revokes that order, the person shall be required to serve the entire of the sentence originally awarded, or such part of the sentence as the military judge considers just having regard to all of the circumstances of the case, less any period of that sentence already served in prison or in a detention barrack and any period spent in custody pending the revocation of the order.

(16) The revocation of an order under subsection (9) or (15) of this section shall for the purposes of this Act and the Courts-Martial Appeals Act 1983 be deemed to be a sentence of a court-martial.”.

Insertion of new section: review of certain sentences.

62 .— The following section is inserted after section 212A (inserted by section 61 ) of the Principal Act:

“Review of certain sentences.

212B.— (1) If it appears to the Director that a sentence awarded by a court-martial, on conviction of a person for an offence in respect of which punishment for a term of imprisonment of two years or for any longer period is awardable by the court-martial, is unduly lenient, the Director may apply to the Courts-Martial Appeal Court to review the sentence in accordance with section 22B (inserted by the Defence (Amendment) Act 2007) of the Courts-Martial Appeals Act 1983 and rules of court made under that Act.

(2) Section 161(2)(ea) (which prohibits certain communications in relation to proceedings before a service tribunal) shall apply, with any necessary modifications, to communications made to the persons mentioned in that section for the purpose of influencing the making of a decision in relation to an application under this section as it applies to those communications made for the purposes specified in that provision.”.

Amendment of section 213 of Principal Act (order by court-martial for payment of compensation).

63 .— The following section is substituted for section 213 of the Principal Act:

“Order for payment of compensation.

213.— (1) Where—

(a) a person subject to military law is convicted by a court-martial of an offence against military law, and

(b) the offence occasioned any personal injury, expense or loss or destruction of, or damage to, any property,

the military judge presiding at the court-martial may, instead of or in addition to any other punishment which he is authorised by this Act to award in respect of the offence, order that there shall be paid by the person convicted compensation for the personal injury, expense, loss, damage or destruction so occasioned to any person (in this Act referred to as the ‘ injured party ’) who has suffered such personal injury, expense, loss, damage or destruction.

(2) The compensation payable under this section shall be of such amount as the military judge considers appropriate, having regard to any evidence and to any representations that are made by or on behalf of the convicted person, the injured party or the Director and, subject to the relevant maximum amounts specified in subsection (3) of this section, shall not exceed the amount of the damages that, in the opinion of the military judge, the injured party would be entitled to recover in a civil action against the convicted person in respect of the injury, expense, loss, damage or destruction concerned.

(3) In this section ‘ relevant maximum amount ’ means—

(a) in the case of a compensation order made by a summary court-martial, €10,000,

(b) in the case of a compensation order made by the military judge presiding at a limited court-martial, €20,000,

(c) in the case of a compensation order made by the military judge presiding at a general court-martial, €100,000.

(4) Where the commission of the offence by the convicted person involved the taking of property out of the possession of the injured party and the property has been recovered, any loss occurring to the injured party by reason of the property being damaged while out of his possession shall be treated for the purposes of subsection (1) of this section as having resulted from the offence, irrespective of how the damage was caused or who caused it.

(5) In determining whether to make an order under this section against a person, and in determining the amount of the compensation, the military judge shall have regard to the person’s means so far as they appear or are known to the military judge and for that purpose the military judge may require the convicted person to give evidence as to his means and financial commitments.

(6) An order under this section may provide for payment of the compensation by such instalments and at such times as the military judge considers reasonable in all the circumstances.

(7) Where the military judge considers that—

(a) it would be appropriate both to award a fine under section 209 or 210, as the case may be, and to make an order under this section, but

(b) the convicted person has insufficient means to pay both an appropriate fine and appropriate compensation,

the military judge may, if he is satisfied that the means are sufficient to justify doing so, make an order under this section and if he is satisfied that it is appropriate to do so having regard to the means that would remain after compliance with the order, award a fine.

(8) This section is without prejudice to any other enactment which provides for the payment of compensation by a person convicted of an offence or otherwise proved to have committed an offence.

(9) For the purposes of this section—

(a) in a case where death has resulted from an offence specified in subsection (1) of this section—

‘ loss ’ means any matter (including mental distress resulting from the death and funeral expenses) for which damages could be awarded in respect of the death by virtue of Part V of the Civil Liability Act 1961 ;

‘ injured party ’ includes a dependant (within the meaning of the said Part V) of the deceased person concerned,

(b) in a case where service property is the subject of an order under this section, ‘injured party’ includes the Minister.

(10) An order under this section shall, for the purposes of this Act and the Courts-Martial Appeals Act 1983 , be deemed to be a sentence of a court-martial.”.

Insertion of new section: payment of fine.

64 .— The following section is inserted after section 213 of the Principal Act:

“Payment of fine.

213A.— (1) Where a person subject to military law is convicted by a court-martial and is sentenced to a fine, the fine shall be a stated amount.

(2) The terms of payment of a fine referred to in subsection (1) of this section are, subject to the provisions of this Act, at the discretion of the military judge who awards the fine.”.