S.I. No. 72/1983 - Rules of Procedure (No. 2) (Defence Forces), 1983.

1. Original Charge Sheet (Army Form 117) and copy.

2. The copy documents furnished to me pursuant to Rule 3 (3) of the rules of Procedure (No. 2) (Defence Forces), 1983, together with the originals of each of the depositions or statements taken by me pursuant to Rule 4 of the said Rules at the investigation referred to above.

3. Two copies of each of the documents referred to at 2 above.

4. Names of Officers at this Station available as members of the Court-martial.

To

Signature of Commanding Officer

Form 7

Form of Certificate of Conformity with the provisions of Rule 20, Rules of Procedure (Defence Forces), 1954, as amended by Rule 10 of the Rules of Procedure (No. 2) (Defence Forces), 1983, in the case of No............. Rank................... Name...................... Unit.........................an officer/a man awaiting trial by court-martial.

Question

to

Accused.

Do you understand the nature of the charge preffered against you?

A.

............................................................ ................................

Question

to

accused.

Do you wish to interview and instruct for the purpose of your defence

(a) A solicitor, if so, give his name and address?

(b) An officer, if so, give his name, rank and Unit?

(c) Do you wish the convening authority to assign a suitable officer to defend you?

A.

............................................................ ...............................

............................................................ ................................

Question

to

accused.

Do you wish any military witnesses to be summoned in your defence, if so, give their names, ranks and Units?

A.

............................................................ ................................

............................................................ .................................

Question

to

accused.

Do you wish any civilian witnesses to be summoned in your defence, if so, give their names and addresses?

A.

............................................................ .................................

............................................................ .................................

Signature of officer or man ..............................................

I certify that on the ....................... day of ................19......, I served the above-named officer/man with a copy of the charge-sheet (Army Form 366) on which the accused is to be tried and a copy of each deposition or statement taken at the investigation under Rule 4 of the Rules of Procedure (No. 2) (Defence Forces), 1983, and at the same time I put to him the above questions and received the answers recorded above. I also explained /I did not consider it necessary to explain to him his rights under the Rules of Procedure as to preparing his defence and being represented at his trial. I also informed the accused that he must be ready to stand his trial on the ................. day of .........., 19 .............

Signed

Rank

Appointment

GIVEN under my Official Seal, this 10th day of March, 1983.

PATRICK COONEY,

Minister for Defence.

EXPLANATORY NOTE.

These Rules provide for the investigation by a commanding officer of a capital charge or a charge of murder preferred against a person subject to military law.

5. In an investigation under Rule 4 of these Rules the commanding officer shall consider—

(

a

) any copy document furnished to him pursuant to Rule 3 of these Rules and the exhibits to which a copy list of exhibits (if any) so furnished relates,

(

b

) any deposition taken in accordance with Rule 4 of these Rules,

(

c

) any statement referred to in Rule 4 (2) (

e

) (ii) of these Rules, and

(

d

) anything presented or submission made by or on behalf of the accused or any submission made by or on behalf of the person by whom the charges are preferred.

6. Where the accused is remanded under

section 177

or

178

of the

Defence Act, 1954

, for trial by court-martial, the order of remand shall be in Form 5 contained in the Schedule to these Rules.

7. Where an investigation under Rule 4 of these Rules is held, evidence shall not be recorded under Rule 12 of the Principal Rules in relation to the charge, or any of the charges, as may be appropriate, to which the investigation relates.

8. (1) Where the accused has been remanded for trial by court-martial on a capital charge or a charge of murder and an order for such trial has been made, a person by whom, pursuant to

section 187

of the

Defence Act, 1954

, a general court-martial may be convened shall cause to be served on the accused a list of any further witnesses whom it is proposed to call on behalf of the prosecution at such trial, together with a statement of the evidence that is to be given by each of them, a list of any further exhibits, a statement of any further evidence that is to be given by any witness whose name appears on the list of witnesses already supplied, and also copies of any statement recorded under Rule 4 of these Rules and any deposition taken under that Rule.

(2) The person who has caused a document to be served on the accused under paragraph (1) of this Rule shall also cause a copy of such document to be furnished to the judge-advocate of the trial court.

9. (1) A deposition taken under Rule 4 of these Rules may, subject to paragraph (2) of this Rule, be read as evidence at the trial by court-martial of the accused if it is proved that—

(

a

) the deponent is dead or is unable to attend or is prevented from attending to give evidence at such trial, and

(

b

) the deposition was taken in the presence of the accused, and

(

c

) an opportunity was given for the cross-examination and re-examination of the deponent.

(2) Except in the case of the deponent's death, a deposition taken under Rule 4 of these Rules on the application of the person by whom the charges are preferred shall not be read unless the accused consents.

10. Where a capital charge or a charge of murder is preferred against a person subject to military law, the Principal Rules shall apply to the proceedings subject to the following modifications (which are in addition to those provided for by Rules 4 (4) and 7 of these Rules)

(

a

) Rule 5 shall be construed and have effect as if "or other officer who should cause the summary or abstract of evidence to be taken or prepared," were deleted;

(

b

) as regards Rule 17—

(i) paragraph (1) shall be construed and have effect as if—

(I) for "As soon as the summary of evidence (other than a summary of evidence taken pursuant to Rule 7) or the abstract of evidence has been taken or prepared" there were substituted "On the completion of the investigation under the Rules of Procedure (No. 2) (Defence Forces), 1983,", and

(II) "(or the officer who caused the abstract of evidence to be prepared)" were omitted;

(ii) paragraph (2) shall be construed and have effect as if for everything in the paragraph after "officer shall" there were substituted "apply in writing without delay to have the proper court-martial convened in the manner specified in paragraph (1).";

(iii) paragraph (3) shall be construed and have effect as if the reference therein to the form prescribed in Appendix III were a reference to Form 6 contained in the Schedule to these Rules;

(

c

) as regards Rule 18—

(i) paragraph (1) shall be construed and have effect as if all the words in the paragraph after "the release of the accused" were omitted;

(ii) paragraph (3) shall be construed and have effect as if both of the provisos thereto were deleted;

(iii) paragraph (5) shall be construed and have effect as if for "the original summary or abstract of evidence" there were substituted "the documents, other than the charge sheet (Army Form 117), which were furnished under Rule 3 (3) of the Rules of Procedure (No. 2) (Defence Forces), 1983, to the officer referred to in that Rule and also the original of any deposition or statement taken by that officer in accordance with Rule 4 of those Rules";

(

d

) as regards Rule 20—

(i) paragraph (1) shall be construed and have effect as if for "True copies of the charge-sheet and summary of abstract of evidence" there were substituted "True copies of the charge-sheet (Army Form 366) on which the accused is to be tried and of each deposition or statement taken at the investigation under Rule 4 of the Rules of procedure (No. 2) (Defence Forces), 1983,"

(ii) paragraph (3) shall be construed and have effect as if "and the summary or abstract of evidence" were deleted; and

(iii) paragraph (4) shall be construed and have effect as if the references therein to the form prescribed in Appendix V were a reference to Form 7 contained in the Schedule to these Rules;

(

e

) as regards Rule 39—

(i) paragraph (2) shall be construed and have effect as if—

(I) for "the summary or abstract of evidence" there were substituted "any statement of evidence served on the accused pursuant to the requirements of paragraph (1) (

c

) or under paragraph (3) of Rule 3 of the Rules of Procedure (No. 2) (Defence Forces), 1983, any deposition or statement taken at the investigation under Rule 4 of those Rules and any statement of evidence furnished to the judge-advocate under Rule 8 (2) of those Rules" and

(II) "or if there is no such summary or abstract the court shall take and record sufficient evidence to enable them to determine the sentence and the confirming authority to know all the circumstances connected with the offence" were omitted;

(ii) paragraph (3) shall be construed and have effect as if for "evidence has been so taken or the summary or abstract of evidence has been read, as the case may be" there were substituted "each deposition or statement referred to in paragraph (2) of this Rule has been read";

(

f

) Rule 82 shall not apply;

(

g

) as regards Rule 97, paragraph (6) shall be construed and have effect as if the following subparagraph were substituted for subparagraph (

b

)

"(

b

) a copy of any statement of evidence served on the accused pursuant to the requirements of paragraph (1) (

c

) or under paragraph (3) of Rule 3 of the Rules of Procedure (No. 2) (Defence Forces), 1983, the originals or certified true copies of any deposition or statement taken at the investigation under Rule 4 of those Rules, and the copy furnished or a certified true copy thereof of any statement of evidence furnished to the judge-advocate under Rule 8 (2) of those Rules;";

(

h

) Rule 105 shall be construed and have effect as if for "Rules 11, 12 and 20 of these Rules" there were substituted "Rules 11 and 20 of these Rules, Rule 3 of the Rules of Procedure (Defence Forces), 1983 (

S.I. No. 22 of 1983

), and Rules 3 and 4 of the Rules of Procedure (No. 2) (Defence Forces), 1983"; and

(

i

) as regards Appendix XI, both of the references therein to the summary of evidence shall be construed as a reference to the following documents, namely, the documents, other than the charge-sheet (Army Form 117), furnished under Rule 3 (3) of these Rules to the officer referred to in the said Rule 3, each deposition or statement taken by such officer in accordance with these Rules and any statement of evidence furnished to the judge-advocate under Rule 8 (2) of these Rules.

11. Rule 3 (1) of the Rules of Procedure (Defence Forces), 1983 is hereby amended by the substitution of the following for subparagraph (

a

)

"(

a

) as regards the investigation of the charge pursuant to Rule 4 of the Rules of Procedure (No. 2) (Defence Forces), 1983—

(i) the person may, if he so wishes, be represented by counsel or by a solicitor or by an officer subject to military law,

(ii) the person by whom the charge is preferred may, if he so wishes, be represented by counsel or by a solicitor or by an officer subject to military law, and".

SCHEDULE

FORMS

Form 1

Rule 3

DEFENCE ACT, 1954

Rules of Procedure (No. 2)

(Defence Forces), 1983

LIST OF WITNESSES

.................................................. Accused

The following is a list of the witnesses whom it is proposed to call at the trial by court-martial, should the above-named accused be remanded for such trial.

No.

Rank

Name

Address

Dated this

day of

, 19

Signed ................................................

by or on behalf of the person by

whom the charge(s) is/are preferred.

Form 2

Rule 3

DEFENCE ACT, 1954

Rules of Procedure (No. 2)

(Defence Forces), 1983.

STATEMENT OF EVIDENCE

................................................ Accused

Statement of the evidence that is to be given by ............................................................

Form 3

Rule 3

DEFENCE ACT, 1954

Rules of Procedure (No. 2)

(Defence Forces), 1983.

LIST OF EXHIBITS

...................................... Accused

Number or other identifying mark on exhibit

Description of exhibit

Dated this

day of

, 19

Signed .........................................

by or on behalf of the relevant

legal officer.

Form 4

Rule 4

DEFENCE ACT, 1954

Rules of Procedure (No. 2)

(Defence Forces), 1983

STATEMENT OF ACCUSED

*delete where

inapplicable

............................................. Accused

The accused, having been asked by me as regards the charge/each of the charges preferred against him* if he had anything to say in answer thereto and having been cautioned by me as follows "You are not obliged to say anything unless you wish to do so, and whatever you do say will be taken down in writing and, if you are remanded for trial by court-martial, may be given in evidence at your trial", said;†

The above statement which was read over to the accused was made before

me this

day of

, 19

Signed.....................................

Commanding Officer

†Where there is more than one charge continue thus

As regards charge No. ,............................................................ ...........

As regards charge No. , ............................................................ .............

and so forth.

Form 5

Rule 6

DEFENCE ACT, 1954

Rules of Procedure (No. 2)

(Defence Forces), 1983

ORDER OF REMAND FOR TRIAL BY

COURT-MARTIAL

.................................. Accused

I being of opinion that there is a sufficient case to put the above-named accused on trial for the charge/charges* numbered ................................................. in the charge sheet (Army Form 117) and with which the accused has been charged ORDER that the accused be remanded for trial by court-martial on the aforesaid charge/charges*

*(AND I FURTHER ORDER that the charge/charges* numbered.................... in such charge sheet be dismissed.)

Dated this day of , 19 .

Signed ......................................

Commanding Officer

*delete if inappropriate

Form 6

FORM OF APPLICATION FOR A COURT-MARTIAL

(Rule 17 (3) Rules of Procedure (Defence Forces), 1954,

as amended by Rule 10 of the Rules of Procedure (No. 2)

(Defence Forces), 1983)

STATION

DATE

APPLICATION FOR A COURT-MARTIAL

Sir,

I submit

Charge

against No.

of the

Unit, under my Command, and request that a Court-martial may be assembled for his trial at

The case was investigated by me under Rule 4 of the Rules of Procedure (No. 2) (Defence Forces), 1983.

The accused is now under

His general character is

arrest at

I enclose the following documents:—

S.I. No. 72 of 1983.

RULES OF PROCEDURE (No. 2) (DEFENCE FORCES), 1983.

I, PATRICK COONEY, Minister for Defence, in exercise of the powers conferred on me by

section 240

of the

Defence Act, 1954

(No. 18 of 1954), hereby make the following rules