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 (Bunreacht na hEireann 1937), 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 law …..”
The Defence Act 1954 (as amended) provides the principle statutory basis for the Court-Martial system, which administers military justice in the Irish Defence Forces. The current military justice system for the Defence Forces came into effect on 1st September 2008 when the Defence (Amendment) Act 2007 came fully into force.
The main purpose of the Court-Martial system is to provide a mechanism for the enforcement of Military Law in the Defence Forces. Military Law consists of a system of rules and regulations contained in the Defence Act 1954 (as amended) (“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, sections 124 to 169A (inclusive) provide for the various offences against Military Law for which persons subject to Military Law may be tried and punished by Courts-Martial. These sections include many offences which are not offences under the ordinary criminal laws of the state e.g. the offence of Insubordinate Behaviour (Section 133). 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. In addition, courts-martial may also hear offences against the ordinary criminal law. Section 169 of the Act provides that any offence against the ordinary criminal law of the State committed by a person who is subject to Military Law is also an offence against Military Law. Military Law applies both within and outside the State and accordingly Courts-Martial may be held anywhere in the world.
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 modernize 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, in particular Article 6 and with international human rights norms. Under the new provisions, a completely new Summary Court-Martial came into existence 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 i.e. Limited Courts-Martial and General Courts-Martial. The Act also provided for a number of new appointments in the Military Justice system, including a Military Judge(s), the Director of Military Prosecutions and the Court-Martial Administrator.
Personnel of The Court-Martial System
The Judge Advocate-General
Appointed by the President, the Judge Advocate-General (JAG) is a practising Barrister- at-Law of at least ten years standing who is not a member of the Defence Forces. The JAG appoints the Court—Martial Administrator. The current JAG is Ms Oonah McCrann, Senior Counsel.
The Court-Martial Administrator
The Defence Amendment Act 2007 made provision for the office of the Court-Martial Administrator (CMA). The warrant provides that any person, who for the time being is performing the duties of Director of Administration, is appointed to be the Court-Martial Administrator. The CMA must hold military rank of not less than Colonel. Acting under the general supervision of the JAG, the CMA and his staff manage and control the administration and business of Courts-Martial, similar to the Courts Service in the civilian court system. The CMA is the convening authority for all Limited and General Courts-Martial, which he will convene from time to time as directed by the Director of Military Prosecutions. The CMA also refers cases to the Summary Court-Martial as directed by the Director of Military Prosecutions. The CMA is independent in the performance of his functions. The current CMA is Colonel Gareth Prendergast.
The Director of Military Prosecutions
The Defence Amendment Act 2007 made provision for the office of the Director of Military Prosecutions (“The Director”). The Director is appointed by the Government. The Director of Military Prosecutions makes the final decision as to whether a case will be prosecuted before a Court-Martial. This mirrors the position in the civilian criminal justice system, where the Director of Public Prosecutions makes the final decision as to whether a case will be prosecuted before a civilian criminal court. The Director is independent in the performance of his functions.
Military Judges are appointed by the President. A Military Judge’s term of office is until retirement. While all Military Judges must hold military rank of not less than Colonel, they only perform judicial functions and have no other military duties. A Military Judge may not be removed except for cause shown. A Military Judge is independent in the performance of his functions. The first ever Military Judge, Colonel Anthony McCourt was appointed on 19th September 2007. Colonel McCourt retired in July 2010. The Defence (Amendment) Act 2011 provides for the designation of a Circuit Court Judge to perform the functions of a military judge in certain circumstances e.g. where a military judge is not available through illness or where no military judge has been appointed.
On 12 September 2012, Colonel Michael Campion was appointed to be a Military Judge.