No. 19/1983:

COURTS-MARTIAL APPEALS ACT, 1983

ARRANGEMENT OF SECTIONS

PART I

PRELIMINARY AND GENERAL

Section

1. Short title.

2. Commencement of Part III.

3. Definitions.

4. Expenses.

5. Amendment of section 202 of Act of 1954.

6. Amendment of section 203 of Act of 1954.

7. Amendment of section 215 of Act of 1954.

8. Restriction of section 224 of Act of 1954.

PART II

COURTS-MARTIAL APPEAL COURT

9. Establishment and constitution of the Courts-Martial Appeal Court.

10. Court to be a superior court of record, etc.

11. Registrar of the Court.

12. Sittings and procedure of the Court.

13. Right of appeal to the Court.

14. Appeal to the Supreme Court.

15. Interlocutory applications.

16. Consequential orders of the Court.

17. Hearing of appeal by the Court.

18. Jurisdiction of the Court.

19. Finding of guilty but insane.

20. Convictions and sentences of the Court, etc.

21. Postponement of execution of sentence of death.

22. Defence of appeal.

23. Rules of court.

24. Application of Part II

PART III

LEGAL AID

25. Definitions for Part III.

26. Legal aid (preliminary proceedings) certificate.

27. Legal aid (court-martial) certificate.

28. Legal aid (Courts-Martial Appeal Court) certificate.

29. Legal aid (Supreme Court) certificate.

30. Payment of expenses of legal aid.

31. Restriction of section 18.

32. Statement as to means.

33. Regulations.

34. Penalty for false or misleading statements.

ACTS REFERRED TO

Number 19 of 1983

COURTS-MARTIAL APPEALS ACT, 1983

AN ACT TO ESTABLISH A COURTS-MARTIAL APPEAL COURT, TO MAKE PROVISION FOR THE GRANT BY THE STATE OF FREE LEGAL AID IN CERTAIN COURTS-MARTIAL CASES AND TO PROVIDE FOR MATTERS CONNECTED THEREWITH.

[29th June, 1983]

BE IT ENACTED BY THE OIREACHTAS AS FOLLOWS:

PART I PRELIMINARY AND GENERAL

1.—This Act may be cited as the Courts-Martial Appeals Act, 1983 .

2.—Part III of this Act shall come into operation on such day as may be fixed therefor by order of the Minister.

3.—In this Act—

"the Act of 1954" means the Defence Act, 1954 ;

"the Court" means the Courts-Martial Appeal Court established by section 9;

"the Minister" means the Minister for Defence.

4.—The expenses incurred by a Minister of the Government in the administration of this Act shall, to such extent as may be sanctioned by the Minister for Finance, be paid out of moneys provided by the Oireachtas.

5.—Section 202 of the Act of 1954 is hereby amended—

( a ) by the substitution of the following paragraph for paragraphs (b) and (c) of subsection (1):

"( b ) the court-martial shall order that such person be kept in custody in an institution suitable for the detention of such person until such time as he is fit to take his trial or until his release is sooner ordered by the Minister or the High Court, which court shall for that purpose have all the powers which a judge of the Central Criminal Court would have had if the case had been tried before him.", and

( b ) by the substitution of the following subsection for subsection (2):

"(2) A finding under this section shall not require confirmation or be subject to revision.",

and that section, as so amended, is set out in the Table to this section.

TABLE

202.—(1) Where at the trial by court-martial of a person charged with an offence it appears that such person is by reason of insanity unfit to take his trial, the following provisions shall have effect, that is to say:—

( a ) the court-martial shall find specially that fact;

( b ) the court-martial shall order that such person be kept in custody in an institution suitable for the detention of such person until such time as he is fit to take his trial or until his release is sooner ordered by the Minister or the High Court, which court shall for that purpose have all the powers which a judge of the Central Criminal Court would have had if the case had been tried before him.

(2) A finding under this section shall not require confirmation or be subject to revision.

6.—Section 203 of the Act of 1954 is hereby amended—

( a ) by the substitution of the following paragraph for paragraphs (b) and (c) of subsection (1):

"( b ) the court-martial shall order that such person be kept in custody in an institution suitable for the detention of such person until further order of the High Court, which court shall for that purpose have all the powers which a judge of the Central Criminal Court would have had if such person had been tried before him.", and

( b ) by the substitution of the following subsection for subsection (2):

"(2) A finding under this section shall not require confirmation or be subject to revision.",

and that section, as so amended, is set out in the Table to this section.

TABLE

203.—(1) Where at the trial by court-martial of a person charged with an offence it appears that such person did the act or made the omission charged, but was insane at the time when he did the said act or made the said omission, the following provisions shall have effect, that is to say:—

( a ) the court-martial shall find specially that the accused was guilty of the act or omission charged but was insane at the time he did the act or made the omission;

( b ) the court-martial shall order that such person be kept in custody in an institution suitable for the detention of such person until further order of the High Court, which court shall for that purpose have all the powers which a judge of the Central Criminal Court would have had if such person had been tried before him.

(2) A finding under this section shall not require confirmation or be subject to revision.

7.—Section 215 of the Act of 1954 is hereby amended by the substitution for "Subject to section 204," of "Subject to sections 202 to 204," and that section, as so amended, is set out in the Table to this section.

TABLE

215.—Subject to sections 202 to 204, the finding and sentence of a court-martial shall not be valid except in so far as the same may be confirmed by a confirming authority under this Chapter.

8.—Section 224 of the Act of 1954 (quashing of finding of court-martial) shall not have effect in relation to the finding or sentence of a court-martial against which the person convicted may, by virtue of an order under section 24 of this Act, appeal to the Court.

PART II COURTS-MARTIAL APPEAL COURT

9.—(1) A Court of Appeal, which shall he called An Chúirt Achormhairc Armchúirteanna (The Courts-Martial Appeal Court) and is referred to in this Act as "the Court", is hereby established.

(2) For the purpose of hearing and determining any particular appeal cognisable by the Court, the Court shall be summoned in accordance with directions to be given by the Chief Justice, and the Court shall be duly constituted if it consists of not less than three judges—

( a ) of whom one shall be either—

(i) the Chief Justice or

(ii) an ordinary judge of the Supreme Court nominated by the Chief Justice, and

( b ) of whom the other two shall be either—

(i) two ordinary judges of the High Court nominated by the Chief Justice, or

(ii) the President of the High Court, if nominated by the Chief Justice and willing to act, and one ordinary judge of the High Court nominated by the Chief Justice,

but any other available judge or judges of the Supreme Court or the High Court may, at the request of the Chief Justice, attend as a member or members of the Court.

10.—The Court shall be a superior court of record and shall, for the purposes and subject to the provisions of this Part of this Act, have full power to determine any questions necessary to be determined for the purpose of doing justice in the case before it.

11.—(1) The Registrar of the Supreme Court shall act as Registrar of the Court and shall perform and fulfil in relation to the Court all such duties and functions as are usually performed and fulfilled by the registrar of a court, and shall also have and exercise such powers and authorities and perform and fulfil such duties and functions as shall from time to time be assigned to him by statute or by rule of court under section 23 of this Act.

(2) The Registrar of the Supreme Court shall be subject to the directions of the Chief Justice in regard to all matters relating to the conduct of that part of the business of the Court which is for the time being required by law to be transacted by or before one or more of the judges of the Court.

(3) The business of the Court (except such business as is for the time being required by law to be transacted by or before one or more of the judges of the Court) shall be transacted in the Office of the Registrar of the Supreme Court.

12.—(1) The Court shall sit in Dublin except in cases where the Chief Justice gives special directions that it shall sit elsewhere.

(2) The President of the Court shall be such member present as shall be entitled to precedence over the other members, and the determination of all questions before the Court shall be according to the opinion of the majority of the members present but, unless the Court directs to the contrary, the judgment of the Court shall be pronounced by the President of the Court, or by such other member of the Court as the President directs, and no judgment with respect to the determination of any question shall be separately pronounced by any other member of the Court.

13.—A person convicted by a court-martial may appeal to the Court against the finding or sentence (when confirmed) of the court-martial or against both such finding and such sentence.

14.—(1) The determination by the Court of any appeal or other matter which it has power to determine shall be final, and no appeal shall lie from the Court to the Supreme Court, unless the Court or the Attorney General shall certify that the decision involves a point of law of exceptional public importance and that it is desirable in the public interest that an appeal by the person convicted should be taken to the Supreme Court, in which case an appeal may be brought by him to the Supreme Court, the decision of which shall be final and conclusive.

(2) Where, on a question of law, an appeal to the Court is decided in favour of the appellant, the respondent to the appeal may, without prejudice to the decision in favour of the appellant, refer the question of law to the Supreme Court for determination.

(3) The statement of the question of law to be referred to the Supreme Court under subsection (2) of this section shall be settled by the Attorney General.

(4) The Supreme Court shall assign counsel to argue in support of the decision referred to in subsection (2) of this section.

15.—Where a person convicted by a court-martial appeals to the Court, any interlocutory application in relation to the appeal may be heard and determined, by the Chief Justice or by any judge of the Supreme Court nominated by the Chief Justice for that purpose.

16.—Where a person convicted by a court-martial gives notice of appeal to the Court, the Court shall have power to make all consequential orders it may think fit, including—

( a ) in the case of an appellant who is a member of the Defence Forces, an order suspending the operation of a sentence of penal servitude, imprisonment or detention pending the determination of the appeal, and

( b ) in the case of an appellant who is not a member of the Defence Forces, an order admitting the appellant to bail on such terms as the Court thinks proper pending the determination of the appeal.

17.—(1) An appeal to the Court shall be heard and determined by the Court on the proceedings of the trial of the appellant, with power to the Court to hear new or additional evidence and to refer any matter for report by the president or the judge-advocate of the court-martial by which the appellant was tried.

(2) Where the Court is satisfied that the obtaining of a report from the president of the court-martial is impracticable or would involve undue delay, it may refer the matter for report by any other member of the court-martial.

18.—(1) The Court shall have jurisdiction to affirm or to reverse the conviction in whole or in part, and to remit, or to reduce, or to increase or otherwise vary the sentence, and generally to make such order, including any order as to costs, as may be necessary for the purpose of doing justice in the case before the Court.

(2) The Court may, notwithstanding that it is of opinion that a point raised in an appeal might be decided in favour of the appellant, dismiss the appeal if it considers that no miscarriage of justice has actually occurred.

(3) Where the Court reverses a conviction in whole, the Court shall have jurisdiction to make an order authorising the person in respect of whom the conviction was obtained to be re-tried for the same offence as that which was the subject of the conviction and shall order that the costs of the appeal and of the new trial of the accused person shall be paid by the State, unless the Court shall be of opinion that the necessity for the appeal and the new trial has been caused or contributed to by the defence.

(4) Whenever an order for a re-trial is made under this section, the person in respect of whose conviction the order was made may, notwithstanding anything in the Act of 1954 or any rule of law, be again charged and tried and, if found guilty, sentenced for the offence which was the subject of the conviction.

19.—If on any appeal it appears to the Court that, although the appellant did the act or made the omission charged against him, he was insane at the time when the act was done or the omission was made so as not to be responsible according to law for the act or omission, the Court may quash the sentence passed at the trial and order the appellant to be kept in custody in like manner as if the case had been determined by the Court of Criminal Appeal on appeal from a conviction on indictment.

20.—(1) Where on any appeal the Court substitutes a conviction of a different offence or substitutes a different sentence, that conviction or sentence shall, for the purposes of the Defence Acts, 1954 to 1979, and any instrument made thereunder, be deemed to be a duly confirmed finding or sentence of a court-martial.

(2) Notwithstanding section 206 of the Act of 1954, the Court may by order provide for the date on which a sentence substituted by it, or passed by a court-martial and not varied by the Court, shall commence or take effect.

21.—In the case of a sentence of death passed by a court-martial—

( a ) the sentence shall not in any case be executed until after the expiration of the time within which notice of appeal to the Court may be given in accordance with rules of court, and

( b ) if such notice is so given, the appeal shall be heard and determined with as much expedition as practicable, and the sentence shall not be executed until after the determination of the appeal.

22.—The defence of an appeal under this Part of this Act shall be undertaken by the person who convened the court-martial by which the appellant was tried or by his successor in office duly empowered to convene courts-martial.

23.—The Superior Courts Rules Committee shall, with the concurrence of the Minister for Justice, make rules of court for the purposes of this Part of this Act.

24.—The provisions of this Part of this Act shall have effect in relation to convictions by courts-martial of which the findings are or were promulgated on or after such day (whether before or after the passing of this Act) as the Minister may fix by order under this section.

PART III LEGAL AID

25.—In this Part of this Act—

"legal aid certificate" means a legal aid (preliminary proceedings) certificate, a legal aid (court-martial) certificate, a legal aid (Courts-Martial Appeal Court) certificate or a legal aid (Supreme Court) certificate;

"the prescribed authority" means the person prescribed by regulations under section 33 of this Act to be the prescribed authority for the purposes of this Part of this Act.

26.—Where—

( a ) a person (in this section referred to as "the accused") is charged with an offence against military law, and

( b ) rules made by the Minister under section 240 of the Act of 1954 permit the accused to be represented by counsel or by a solicitor at the investigation of the charge or the taking down of the evidence pursuant to such rules (or at both such investigation and such taking down of evidence),

then, if it appears to the prescribed authority—

(i) that the means of the accused are insufficient to enable him to obtain legal aid, and

(ii) that by reason of the gravity of the charge or of exceptional circumstances it is essential in the interests of justice that he should have legal aid at the investigation of the charge or the taking down of the evidence (or at both such investigation and such taking down of evidence),

the prescribed authority shall, on application being made to him in that behalf, grant in respect of the accused a certificate for free legal aid (in this Part of this Act referred to as "a legal aid (preliminary proceedings) certificate") and thereupon the accused shall be entitled to such aid and to have a solicitor and (where he is charged with a capital offence or murder and the prescribed authority thinks fit) counsel assigned to him for such investigation or such taking down of evidence (or both such investigation and such taking down of evidence) in such manner as may be prescribed by regulations under section 33 of this Act.

27.—(1) Where—

( a ) an order is made for the trial by court-martial of a person (in this section referred to as "the accused"), and

( b ) a certificate for free legal aid (in this Part of this Act referred to as "a legal aid (court-martial) certificate") is granted in respect of the accused by the prescribed authority,

the accused shall be entitled to free legal aid in the preparation and conduct of his defence at the trial and to have a solicitor and (where the prescribed authority thinks fit) counsel assigned to him for that purpose in such manner as may be prescribed by regulations under section 33 of this Act.

(2) A legal aid (court-martial) certificate shall be granted in respect of the accused if (but only if)—

( a ) application is made therefor,

( b ) it appears to the prescribed authority that the means of the accused are insufficient to enable him to obtain legal aid, and

( c ) either—

(i) the trial is on a capital charge or a charge of murder, or

(ii) it appears to the prescribed authority that, having regard to all the circumstances of the case (including the nature of such defence, if any, as may have been set up), it is essential in the interests of justice that the accused should have legal aid in the preparation and conduct of his defence at the trial.

28.—(1) Where—

( a ) a person (in this section referred to as "the accused") is convicted by a court-martial, and

( b ) a certificate for free legal aid (in this Part of this Act referred to as "a legal aid (Courts-Martial Appeal Court) certificate") is granted in respect of the accused by the prescribed authority or under subsection (3) of this section,

the accused shall be entitled to free legal aid in the preparation and conduct of an appeal against the finding or sentence of the court-martial or against both such finding and such sentence and to have a solicitor and counsel assigned to him for that purpose in such manner as may be prescribed by regulations under section 33 of this Act.

(2) A legal aid (Courts-Martial Appeal Court) certificate shall be granted in respect of the accused if (but only if)—

( a ) application is made therefor,

( b ) it appears to the prescribed authority that the means of the accused are insufficient to enable him to obtain legal aid, and

( c ) either—

(i) the conviction is of a capital offence or murder, or

(ii) it appears to the prescribed authority that, by reason of the serious nature of the offence or of exceptional circumstances, it is essential in the interests of justice that the accused should have legal aid in the preparation and conduct of an appeal.

(3) Where the accused is refused a legal aid (Courts-Martial Appeal Court) certificate by the prescribed authority, he may apply for the certificate to the Court either—

( a ) by letter addressed to the registrar of the Court setting out the facts of the case and the grounds of the application, or

( b ) to the Court itself,

and the Court shall grant the certificate if (but only if)—

(i) it appears to the Court that the means of the accused are insufficient to enable him to obtain legal aid, and

(ii) either—

(I) the conviction is of a capital offence or murder, or

(II) it appears to the Court that, by reason of the serious nature of the offence or of exceptional circumstances, it is essential in the interests of justice that the accused should have legal aid in the preparation and conduct of an appeal.

29.—(1) Where—

( a ) a person (in this section referred to as "the accused") is charged with an offence against military law,

( b ) an appeal is brought to the Supreme Court from a determination of the Court in relation to the offence or the punishment (if any) imposed in respect thereof, and

( c ) a certificate for free legal aid (in this Part of this Act referred to as "a legal aid (Supreme Court) certificate") is granted in respect of the accused by the Court or under subsection (3) of this section,

the accused shall be entitled to free legal aid in the preparation and conduct of his case in relation to the appeal and to have a solicitor and counsel assigned to him for that purpose in such manner as may be prescribed by regulations under section 33 of this Act.

(2) A legal aid (Supreme Court) certificate shall be granted if (but only if)—

( a ) application is made therefor, and

( b ) it appears to the Court that the means of the accused are insufficient to enable him to obtain legal aid.

(3) Where the accused is refused a legal aid (Supreme Court) certificate by the Court, he may apply for the certificate to the Supreme Court either—

( a ) by letter addressed to the registrar of the Supreme Court setting out the facts of the case and the grounds of the application, or

( b ) to the Supreme Court itself,

and the Supreme Court shall grant the certificate if (but only if) it 5 appears to that court that the means of the accused are insufficient to enable him to obtain legal aid.

30.—(1) Where a legal aid (preliminary proceedings) certificate has been granted in respect of a person, any fees, costs or other expenses properly incurred in preparing and conducting the person's case in relation to the proceedings to which the certificate relates shall, subject to regulations under section 33 of this Act, be paid out of moneys provided by the Oireachtas.

(2) Where a legal aid (court-martial) certificate has been granted in respect of a person, any fees, costs or other expenses properly incurred in preparing and conducting the defence to which the certificate relates shall, subject to regulations under section 33 of this Act, be paid out of moneys provided by the Oireachtas.

(3) Where a legal aid (Courts-Martial Appeal Court) certificate or a legal aid (Supreme Court) certificate has been granted in respect of a person, any fees, costs or other expenses properly incurred in preparing and conducting the person's case in relation to the appeal to which the certificate relates shall, subject to regulations under section 33 of this Act, be paid out of moneys provided by the Oireachtas.

31.—(1) Where a legal aid (preliminary proceedings) certificate or a legal aid (court-martial) certificate has been granted in respect of a person, the Court shall not have jurisdiction under section 18 of this Act to award costs to the person in respect of proceedings in relation to which the certificate applies.

(2) Where a legal aid (Courts-Martial Appeal Court) certificate has been granted in respect of a person, the Court shall not have jurisdiction under section 18 of this Act to award costs to the person in respect of court proceedings in relation to which the certificate applies.

32.—Before a person is granted a legal aid certificate he may be required by the prescribed authority, the court or the judge, as the case may be, granting the certificate to furnish a written statement in such form as may be prescribed by the Minister by regulations under section 33 of this Act about matters relevant for determining whether his means are insufficient to enable him to obtain legal aid.

33.—(1) The Minister may make regulations for carrying this Part of this Act into effect and the regulations may, in particular, prescribe—

( a ) the form of legal aid certificates,

( b ) the rates or scales of payment of any fees, costs or other expenses payable out of moneys provided by the Oireachtas pursuant to such certificates, and

( c ) the manner in which solicitors and counsel are to be assigned pursuant to such certificates.

(2) Regulations under this section in relation to the matters specified in paragraph (b) of subsection (1) of this section shall not be made without the consent of the Minister for Finance.

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

34.—(1) A person who, for the purpose of obtaining free legal aid under this Part of this Act, whether for himself or some other person knowingly makes a false statement or false representation either verbally or in writing or knowingly conceals any material fact shall be guilty of an offence and shall be liable on summary conviction to a fine not exceeding £100 or to imprisonment for a term not exceeding six months or to both.

(2) Upon conviction of a person of an offence under this section, the court by which the person is convicted may, if in the circumstances of the case the court so thinks fit, order the person to pay to the Minister the whole or part (as the court considers appropriate) of any sum paid under section 30 of this Act in respect of the free legal aid in relation to which the offence was committed, and any sum paid to the Minister pursuant to this section shall be paid into or disposed of for the benefit of the Exchequer in accordance with the directions of the Minister for Finance.