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18 1954

DEFENCE ACT, 1954

Chapter IV.

Investigation and Summary Disposition of Charges, Remands for Court-martial and Dispensation with Trial by Court-martial.

Acquittal or conviction to be a bar to summary proceedings.

175. —(1) Where—

(a) a person has been charged with an offence against military law, and

(b) (i) he has been acquitted or convicted of the offence by a civil court, or

(ii) he has been acquitted of the offence by a court-martial, or

(iii) he has been found guilty of the offence by a court-martial and the finding has been confirmed,

he shall not be liable to be dealt with summarily for the offence under this Chapter.

(2) Where—

(a) a person subject to military law is charged with an offence against military law, and

(b) the offence was dealt with under this Chapter either by being dismissed or being dealt with summarily,

he shall not be liable to be dealt with summarily again under this Chapter in respect of that offence.

Charge to be investigated without delay.

176. —The charge against every person taken into service custody shall, without unnecessary delay, be investigated by the proper military authority, and as soon as possible either proceedings shall be taken for punishing him or such person shall be discharged from custody.

Charges against officers.

177. —(1) A charge against a person subject to military law as an officer shall in the first instance be investigated by his commanding officer or, if the Adjutant-General so directs, by such officer as the Adjutant-General may appoint for the purpose.

(2) The officer investigating a charge under subsection (1) of this section shall—

(a) in case the officer charged holds the rank of commandant or lieutenant-commander or any higher commissioned rank, do one of the following things, that is to say:—

(i) dismiss the charge, if in his discretion he considers it should not be proceeded with,

(ii) remand the officer charged for trial by court-martial if he considers the charge should be proceeded with;

(b) in any other case, do one of the following things, that is to say:—

(i) dismiss the charge, if in his discretion he considers it should not be proceeded with,

(ii) subject to regulations made under section 184 refer the charge for trial by an authorised officer,

(iii) remand the officer charged for trial by court-martial if he considers the charge should be proceeded with.

(3) Where an officer (in this subsection referred to as the officer charged) holding the army rank of captain or the naval rank of lieutenant or lower commissioned rank is brought for trial before an authorised officer, the following provisions shall have effect, that is to say:—

(a) the authorised officer—

(i) shall, after hearing the evidence or without hearing the evidence, dismiss the charge, if in his discretion he considers it should not be proceeded with or, where he considers the charge should be proceeded with, remand the officer charged for trial by court-martial, or

(ii) may, after hearing the evidence or, if the officer charged consents to the attendance of witnesses being dispensed with, after reading a summary or abstract of the evidence, deal, subject to paragraph (c) of this subsection, with the case summarily and award one of the following punishments, namely—

(I) a fine not exceeding five pounds,

(II) severe reprimand,

(III) reprimand;

(b) the evidence against the officer charged taken before the authorised officer shall, if the officer charged so demands, be taken on oath, and in that event there shall be administered to each witness the same oath or solemn declaration as that required to be taken by a witness before a court-martial, and for this purpose the authorised officer may administer oaths and solemn declarations;

(c) where the authorised officer proposes to deal with the case summarily under paragraph (a) of this subsection, he shall, if his proposed award is a fine or involves a forfeiture of, or a deduction from pay, or if he proposes to make an order under paragraph (f) of this subsection, ask the officer charged whether he desires to be dealt with summarily or to be tried by court-martial and, if the officer charged elects to be tried by court-martial, the authorised officer shall remand the officer charged for trial by court-martial but otherwise shall proceed to deal with the case summarily;

(d) where the authorised officer remands the officer charged for trial by court-martial under paragraph (a) of this subsection, then, unless the officer charged has elected under paragraph (c) of this subsection to be tried by court-martial, any officer having power to convene a general court-martial may direct that the charge (with such alterations, amendments and additional charges as he thinks fit) be referred back to an authorised officer and thereupon the authorised officer shall either dismiss or, subject to paragraph (c) of this subsection, deal summarily with the charge or charges as so referred back;

(e) where—

(i) the officer charged is remanded for trial by court-martial under paragraph (a) of this subsection and no direction is given under paragraph (d) of this subsection, or

(ii) the officer charged is remanded for trial by court-martial under paragraph (c) of this subsection,

the officer who remanded the officer charged for trial by court-martial shall apply to the authorised convening authority to convene a general court-martial to try the officer charged;

(f) where—

(i) the authorised officer deals with the case summarily, and

(ii) the offence charged occasioned any expense, loss, damage or destruction,

the authorised officer may, in lieu of or in addition to any punishment which he is authorised by paragraph (a) of this subsection to award in respect of the offence, order that there shall be paid by the officer charged, as compensation for the expense, loss, damage or destruction so occasioned, such sum (not exceeding the amount required to make good such expense, loss, damage or destruction or the sum of fifteen pounds, whichever is the less) as the authorised officer may direct.

Disposition of charges against men by commanding officers.

178. —(1) The commanding officer shall, upon investigation being had of a charge against a person subject to military law as a man under his command of having committed an offence against military law, dismiss the charge, if in his discretion he considers it should not be proceeded with, but where he considers the charge should be proceeded with he may remand the accused for trial by court-martial or, where the offender is a member of the Defence Forces, may, subject to this section and to regulations made under section 184, deal with the case summarily.

(2) Where the commanding officer deals with a case summarily under this section and the offender is a non-commissioned officer, he may award one of the following punishments—

(a) a fine not exceeding three pounds,

(b) severe reprimand or reprimand.

(3) Where the commanding officer deals with a case summarily under this section and the offender is a private or a seaman, the following provisions shall have effect, that is to say:—

(a) the commanding officer may award one of the following punishments—

(i) detention for any term not exceeding twenty-eight days, subject however where the offence is absence without leave to the following limitations, namely, if the period of absence exceeds seven days, the term of detention awardable shall not exceed the period of absence, and if the period of absence does not exceed seven days, the term of detention awardable shall not exceed seven days,

(ii) a fine not exceeding two pounds,

(iii) confinement to barracks for a term not exceeding fourteen days or, if the offender is employed on a State ship, stoppage of shore leave for a term not exceeding fourteen days,

(iv) a warning;

(b) the commanding officer may at the same time award the offender a fine and confinement to barracks for a term not exceeding fourteen days or, if the offender is a seaman, a fine and stoppage of shore leave for a term not exceeding fourteen days, but, save as provided by subsection (4) of this section, no other combination of punishments.

(4) Where—

(a) a commanding officer deals with a case summarily under this section, and

(b) the offence charged occasioned any expense, loss, damage or destruction,

the commanding officer may, in lieu of or in addition to any punishment which he is authorised by this section to award in respect of the offence, order that there shall be paid by the offender, as compensation for the expense, loss, damage or destruction so occasioned, such sum (not exceeding the amount required to make good such expense, loss, damage or destruction or the sum of ten pounds, whichever is the less) as the commanding officer thinks fit.

(5) Where a commanding officer has power to deal with a case summarily under this section, the evidence against the accused shall, if he so demands, be taken on oath, and in that event there shall be administered to each witness the same oath or solemn declaration as that required to be taken by a witness before a court-martial, and for that purpose a commanding officer may administer oaths and solemn declarations.

(6) Where a commanding officer has power to deal with a case summarily under this section and he considers, after hearing the evidence, that he may so deal with the case, he shall, where the proposed award or finding involves a fine or the forfeiture of or a deduction from pay or where he proposes to make an order under subsection (4) of this section, ask the accused whether he desires to be dealt with summarily or to be tried by court-martial and, if the accused elects to be tried by court-martial, he shall remand him for trial by court-martial but otherwise shall proceed to deal with the case summarily.

(7) Where a commanding officer remands an accused person for trial by court-martial under this section, then, unless the accused has elected under subsection (6) of this section to be tried by court-martial, any officer having power to convene a court-martial may direct that the charge (with such alterations, amendments and additional charges as he thinks fit) shall be referred back to the commanding officer and thereupon the commanding officer shall either dismiss or, subject to subsection (6) of this section, deal summarily with the charge or charges as so referred back.

(8) Where—

(a) a man is remanded for trial by court-martial under subsection (1) of this section and no direction is given under subsection (7) of this section, or

(b) a man is remanded for trial by court-martial under subsection (6) of this section,

the commanding officer shall apply to the authorised convening authority to convene the appropriate court-martial for the trial of the man.

Disposition of charges against privates and seamen by subordinate officers.

179. —(1) A commanding officer may, subject to and in accordance with regulations made under this Chapter, delegate to any officer under his command the power of disposing of charges against privates or seamen who are under the command of such last-mentioned officer, and every officer to whom such power is delegated shall be for the purposes of this section a subordinate officer.

(2) A subordinate officer shall, upon investigation being had of a charge against a private or a seaman, who is a person subject to military law, under his command of having committed an offence against military law, dismiss the charge if in his discretion he considers it should not be proceeded with, but where he considers the charge should be proceeded with he may refer the charge to the commanding officer who shall deal with the case under section 178 or he may himself deal with the case summarily.

(3) Where a subordinate officer deals with a case summarily, under this section, he may award one of the following punishments, that is to say:—

(a) a fine not exceeding one pound,

(b) confinement to barracks for any period not exceeding seven days, or if the offender is employed on a State ship, stoppage of shore leave for a period not exceeding seven days,

(c) a warning.

(4) Where—

(a) a subordinate officer deals with a case summarily under this section, and

(b) the offence charged occasioned any expense, loss, damage or destruction,

the subordinate officer may, in lieu of or in addition to any punishment which he is authorised by this section to award in respect of the offence, order that there shall be paid by the offender, as compensation for the expense, loss, damage or destruction so occasioned, such sum (not exceeding the amount required to make good such expense, loss, damage or destruction or the sum of three pounds, whichever is the less) as the subordinate officer thinks fit.

(5) Where a subordinate officer has power to deal with a case summarily under this section, the evidence against the accused shall, if he so demands, be taken on oath, and in that event there shall be administered to each witness in the case the same oath or solemn declaration as that required to be taken by a witness before a court-martial, and for that purpose a subordinate officer may administer oaths and solemn declarations.

(6) Where a subordinate officer has power to deal with a case summarily under this section and he considers, after hearing the evidence, that he may so deal with the case, he shall, where the proposed award or finding involves a fine or the forfeiture of or a deduction from pay or where he proposes to make an order under subsection (4) of this section, ask the accused whether he desires to be dealt with summarily or to have the case referred to the commanding officer and, if the accused elects to have the case referred to the commanding officer, he shall refer the case to the commanding officer but otherwise shall proceed to deal with the case summarily.

Revision of summary awards.

180. —The following provisions shall have effect in relation to any award of punishment (including an order for payment of compensation) made under this Chapter by an authorised officer, a commanding officer or a subordinate officer, that is to say:—

(a) if such punishment appears to the prescribed military authority to be wholly illegal, he shall direct the award to be cancelled and the entry thereof in the records of the accused to be expunged;

(b) if such punishment appears to the prescribed military authority to be in excess of the punishment authorised by law for the offence, he shall vary the punishment so that it shall not be in excess of the punishment authorised by law, and the entry thereof in the records of the accused shall be varied accordingly;

(c) if such punishment appears to the prescribed military authority to be too severe having regard to all the circumstances of the case, he may, within two years from the date of the award, remit the whole or any part of the punishment and such remission shall be entered in the records of the accused.

Trial of accused without preliminary investigation.

181. —(1) Where an offence against military law is alleged to have been committed by a person subject to military law and a court of inquiry has been held in respect of matters relating to the alleged offence, an officer having power to convene a court-martial may, if satisfied that there is prima facie evidence of the commission of such offence, order such person to be tried by court-martial without any previous investigation of the charge against such person.

(2) Where a person is ordered to be tried by court-martial under subsection (1) of this section, a statement of the evidence of the witnesses proposed to be called for the prosecution at the trial and a copy of the proceedings and findings of the court of inquiry shall be delivered to him before the trial.

Confession of desertion or fraudulent enlistment.

182. —(1) Where a man of the Permanent Defence Force or a man of the Reserve Defence Force called out on permanent service signs a confession that he has been guilty of the offence of desertion or of fraudulent enlistment, a prescribed military authority may by order dispense with his trial by court-martial, and may by such order or a subsequent order do any one or more of the following things, that is to say:—

(a) reduce him, if he holds a non-commissioned army rank, to any lower non-commissioned army rank or, if he holds a non-commissioned naval rank, to any lower non-commissioned naval rank;

(b) forfeit in the prescribed manner his seniority of rank;

(c) in case any expense, loss, damage or destruction is occasioned by the commission of such offence, direct that there shall be paid by him as compensation for such expense, loss, damage or destruction such sum (not exceeding the amount required to make good such expense, loss, damage or destruction) as may be specified in such order.

(2) When a man of the Permanent Defence Force or a man of the Reserve Defence Force called out on permanent service signs a confession that he has been guilty of the offence of desertion or fraudulent enlistment and evidence of the truth or falsehood of such confession cannot then be conveniently obtained, the record of such confession signed by the commanding officer of the man shall be entered in the service books, and such man shall continue to do duty in the service corps in which he may then be serving or to which he may be transferred until he is discharged or, if he is a man of the Permanent Defence Force, is transferred to the Reserve Defence Force or until legal proof can be obtained of the truth or falsehood of such confession.

Summoning of civilian witnesses before authorised officers and commanding officers.

183. —(1) Every person not subject to military law required to give evidence before an authorised officer or a commanding officer investigating a charge under this Chapter may be summoned or ordered in the prescribed manner to attend as a witness before the authorised officer or the commanding officer.

(2) If any person not subject to military law on being duly summoned or ordered to attend as a witness before an authorised officer or a commanding officer and after payment or tender of the reasonable expenses of his attendance makes default in attending, he shall be guilty of an offence under this section and shall be liable on summary conviction thereof to a fine not exceeding five pounds.

Regulations in relation to investigation and summary disposition of charges.

184. —(1) For the purposes of this Chapter, the Minister may make regulations, not inconsistent with this Act, in relation to all or any of the following matters, that is to say:—

(a) the officers in whom are to be vested the powers and duties of authorised officers and commanding officers under this Chapter and the officers in whom may be vested by delegation the powers and duties of subordinate officers under this Chapter,

(b) the offences that may be summarily dealt with after reference to superior authority,

(c) the offences that may be summarily dealt with without reference to superior authority,

(d) the delegation to a subordinate officer of power to deal summarily with a case,

(e) the reference back by officers having power to convene courts-martial of charges for summary disposal,

(f) the time from which summary awards take effect and the manner in which they are to be carried out,

(g) any person, matter or thing referred to in this Chapter as prescribed,

(h) any other matter or thing necessary for carrying this Chapter into effect.

(2) Every regulation made under this section shall be laid before each House of the Oireachtas as soon as may be after such regulation is made and, if a resolution annulling such regulation is passed by either House of the Oireachtas within the next subsequent twenty-one days on which that House has sat after such regulation has been laid before it, such regulation shall be annulled accordingly, but without prejudice to the validity of anything previously done under such regulation.