Defence (Amendment) Act 2007 (2007_act_24) | IE

ISB Act 2007-04-21

Schedule 1 Defence (Amendment) Act 2007 Open official source

SCHEDULE 1 Saving and Transitional Provisions

SCHEDULE 1

Saving and Transitional Provisions

Section 3.

Offences committed before commencement of this Act.

1. In the case of an offence committed before the commencement of this Act, the amendments made to the Principal Act by this Act shall not be exercised so as to allow the imposition in respect of the offence of a punishment more severe than that which was applicable when that offence was committed.

Person remanded for trial by court-martial.

2. Without prejudice to section 26(2)(c) of the Interpretation Act 2005, where, before the commencement of this Act, a person has been remanded for trial by court-martial or re-trial (in a case where a re-trial has been ordered by the Courts-Martial Appeal Court) and a court-martial has not yet been convened in accordance with the Principal Act, then, subject to the directions of the Director, the person may, subject to paragraph 1, be tried and punished in like manner as if the person had been remanded for trial or re-trial after the commencement of this Act.

Election for trial by court-martial.

3. (1) Where before the commencement of Chapter 3 of Part 3—

(a) a charge is being dealt with summarily under section 177 or 178, as the case may be, and

(b) the person charged has not yet been asked in accordance with that section, as appropriate, whether the person elects to have the charge disposed of summarily or to be tried by court-martial,

then, section 177B or 178B, as the case may be, of the Principal Act shall have effect as if that section required the authorised officer or commanding officer, as appropriate, to afford the person charged the opportunity of electing for trial by court-martial in relation to the charge before continuing to dispose of it summarily.

(2) Any election for trial by court-martial made before the commencement of Chapter 3 of Part 3 shall be treated on or after that date as if made under section 177B or 178B of the Principal Act, as appropriate.

Appeals to summary court-martial.

4. (1) Sections 178E, 178F and 178G of the Principal Act shall only apply to determinations made, punishments awarded and compensation orders made after the coming into operation of Chapter 3 of Part 3.

(2) Sections 179D and 179E of the Principal Act shall only apply to determinations made, punishments awarded and compensation orders made after the coming into operation of Chapter 3 of Part 3.

Application of section 180 of Principal Act.

5. The repeal of section 180 of the Principal Act by section 4 shall not affect the application of that section to punishments awarded under Chapter IV of Part V of that Act before the commencement of Chapter 3 of Part 3.

ISB Act 2007-04-21

Schedule 2 Defence (Amendment) Act 2007 Open official source

SCHEDULE 2 Amendments to Principal Act

SCHEDULE 2

Amendments to Principal Act

Section 4.

Provision affected

Amendment

(1)

(2)

Section 50

Insert the following subsection after subsection (3): “(4) This section shall not apply to a military judge.”.

Insert the following subsection after subsection (3)

“(4) This section shall not apply to a military judge.”.

Section 81(1)(c)

Substitute “disgrace” for “ignominy”.

Section 126(2)

(a) In paragraph (a), substitute “under the influence of an intoxicant” for “drunk”. (b) In subparagraph (ii), substitute “disgrace” for “ignominy”.

(a) In paragraph (a), substitute “under the influence of an intoxicant” for “drunk”.

(b) In subparagraph (ii), substitute “disgrace” for “ignominy”.

Section 139

Substitute “disgrace” for “ignominy”.

Section 152

Substitute “service aircraft or service aircraft material” for “an aircraft or aircraft material”.

Section 159

(a) In subsection (1)(c), substitute “under the influence of an intoxicant” for “drunk”. (b) Substitute the following for subsection (2): “(2) For the purposes of paragraph (c) of subsection (1) of this section a person shall be deemed to have been under the influence of an intoxicant while driving or attempting to drive a service vehicle if— (a) the officer investigating the charge under Chapter IV of this Part, or (b) the summary court-martial or, in the case of a general court-martial or limited court-martial, the court-martial board, is satisfied that such person was, by reason of the taking by him of an intoxicant, in such a condition that he was incapable of exercising effective control of such vehicle while in motion.”.

(a) In subsection (1)(c), substitute “under the influence of an intoxicant” for “drunk”.

(b) Substitute the following for subsection (2)

“(2) For the purposes of paragraph (c) of subsection (1) of this section a person shall be deemed to have been under the influence of an intoxicant while driving or attempting to drive a service vehicle if—

(a) the officer investigating the charge under Chapter IV of this Part, or

(b) the summary court-martial or, in the case of a general court-martial or limited court-martial, the court-martial board,

is satisfied that such person was, by reason of the taking by him of an intoxicant, in such a condition that he was incapable of exercising effective control of such vehicle while in motion.”.

Section 169(3)(g)

Substitute “disgrace” for “ignominy”.

Section 175(1)(b)(iii)

Delete “and the finding has been confirmed”.

Section 183(2)

Substitute “€2,000” for “£100”.

Section 196

(a) In subsection (4), substitute “military judge” for “president of the court-martial”. (b) In subsection (5), substitute “military judge” for “president” in each place where it occurs.

(a) In subsection (4), substitute “military judge” for “president of the court-martial”.

(b) In subsection (5), substitute “military judge” for “president” in each place where it occurs.

Section 200(1)

Delete “president or other”.

Section 204

Delete “shall not require confirmation or be subject to revision and”.

Section 206(2)(a) and (c)

Substitute “disgrace” for “ignominy”.

Section 239(2)

(a) Insert “or air” after “sea” in each place where it occurs. (b) Insert “or aircraft” after “ship” in each place where it occurs.

(a) Insert “or air” after “sea” in each place where it occurs.

(b) Insert “or aircraft” after “ship” in each place where it occurs.

Section 242(1)

Substitute “€2,000” for “£250”.

Section 243(2)(b)

Substitute “€2,000” for “£250”.

Section 244

Substitute “shall be evidence, until the contrary is shown,” for “shall be conclusive evidence”.

Section 245

Substitute “€2,000” for “£250”.

Section 248

(a) Insert “or, where relevant, in proceedings under Chapter IV of this Part” after “civil court”. (b) In paragraphs (e) and (f), substitute “(whether printed or made available by electronic means or otherwise in non-legible form which is capable of being reproduced in permanent legible form)” for “(whether printed or cyclostyled)” in each place where it occurs.

(a) Insert “or, where relevant, in proceedings under Chapter IV of this Part” after “civil court”.

(b) In paragraphs (e) and (f), substitute “(whether printed or made available by electronic means or otherwise in non-legible form which is capable of being reproduced in permanent legible form)” for “(whether printed or cyclostyled)” in each place where it occurs.

Section 249(2)

Substitute “a member of the Reserve Defence Force” for “a man of the Reserve Defence Force”.

Section 250

(a) In subsection (1), substitute “military judge” for “president thereof”. (b) In subsection (2), delete “and the action of the confirming authority thereon”.

(a) In subsection (1), substitute “military judge” for “president thereof”.

(b) In subsection (2), delete “and the action of the confirming authority thereon”.

ISB Act 2007-04-21

Schedule 3 Defence (Amendment) Act 2007 Open official source

SCHEDULE 3 References to Ignominy in certain Act and Instruments

SCHEDULE 3

References to Ignominy in certain Act and Instruments

Section 10.

PART 1

Act

Provision affected

Amendment

(1)

(2)

(3)

Superannuation Act 1887

Section 3 (as amended by the Civil Service Superannuation Regulations 1980 (S.I. No. 188 of 1980))

In subsection (2)(b)(i)(I), substitute “disgrace” for “ignominy”.

PART 2

Instrument

Provision affected

Amendment

(1)

(2)

(3)

Local Government (Superannuation) (Consolidation) Scheme 1998 (S.I. No. 455 of 1998)

Articles 9(1)(j)(I)(A), 33(1)(h)(I)(A), 63(1)(j)(I)(A) and 88(1)(h)(I)(A)

Substitute “disgrace” for “ignominy” in each place where it occurs.

Rules of Procedure (Defence Forces) 1954 (S.I. No. 243 of 1954)

Rule 63(1) (as amended by the Rules of Procedure (Defence Forces) 1987 (S.I. No. 245 of 1987))

In paragraphs (a) and (d) substitute “disgrace” for “ignominy” in each place where it occurs.

Secondary Teachers’ Superannuation (Amendment) Scheme 1954 (S.I. No. 234 of 1954)

Paragraph 11(2)(a)(i) and (b)(i)

Substitute “disgrace” for “ignominy” in each place where it occurs.

National School Teachers’ Superannuation (Amendment) Scheme 1947 (S.I. No. 330 of 1947)

Paragraph 5(6)(a)(i) and (b)(i)

Substitute “disgrace” for “ignominy” in each place where it occurs.

ISB Act 2007-04-21

Schedule 4 Defence (Amendment) Act 2007 Open official source

SCHEDULE 4 Miscellaneous Amendments to other Acts

SCHEDULE 4

Miscellaneous Amendments to other Acts

Section 11.

PART 1 Amendments to Courts-Martial Appeals Act 1983

PART 1

Amendments to Courts-Martial Appeals Act 1983

Provision affected

Amendment

(1)

(2)

Section 13

(a) Delete “(when confirmed)”. (b) Renumber the existing provision as subsection (1) of that section. (c) Insert the following subsection: “(2) A person in respect of whom a finding or order of committal is made under section 202 or 203 of the Act of 1954 may appeal that finding or order of committal to the Court.”.

(a) Delete “(when confirmed)”.

(b) Renumber the existing provision as subsection (1) of that section.

(c) Insert the following subsection

“(2) A person in respect of whom a finding or order of committal is made under section 202 or 203 of the Act of 1954 may appeal that finding or order of committal to the Court.”.

Section 17

(a) In subsection (1), substitute “military judge presiding at the court-martial” for “president or the judge-advocate of the court-martial”. (b) Delete subsection (2).

(a) In subsection (1), substitute “military judge presiding at the court-martial” for “president or the judge-advocate of the court-martial”.

(b) Delete subsection (2).

Section 19

Insert “(other than an appeal under sections 203B to 203D (inserted by the Defence (Amendment) Act 2007) of the Act of 1954)” after “If on any appeal”.

New sections

Insert the following sections after section 19: “Appeals (mental disorder at time of trial). 19A.—Where an appeal is made to the Court under section 203B (inserted by the Defence (Amendment) Act 2007) of the Act of 1954 from a finding by a court-martial pursuant to section 202 of that Act, the Court shall, if it allows the appeal, order that the appellant be tried or retried, as the case may be, by court-martial for the offence alleged. Appeals (mental disorder at time of commission of offence). 19B.—(1) A person tried for an offence by court-martial and found not guilty by reason of insanity may appeal to the Court against the finding on all or any of the following grounds: (a) that it was not proved that the person did the act or made the omission in question; (b) that the person was not, at the time when he did the act or made the omission, suffering from a mental disorder of the nature referred to in section 203(1) of the Act of 1954; (c) that the military judge ought to have made a finding in respect of the person that he was unfit to take his trial. (2) If on an appeal to the Court on the ground referred to in subsection (1)(a) of this section, the Court is satisfied that it was not established that the appellant did the act or made the omission in question it shall order that the appellant be acquitted. (3) If, on an appeal to the Court on the ground referred to in subsection (1)(b) of this section, the Court is satisfied that the appellant did the act or made the omission alleged but having considered the evidence or any new evidence relating to the mental condition of the appellant given by a consultant psychiatrist is satisfied that he was not suffering from a mental disorder of the nature referred to in section 203(1) of the Act of 1954, the Court shall substitute a verdict of guilty of the offence charged or of any other offence of which it is satisfied that the person could (by virtue of the charge) and ought to have been convicted, and shall have the like powers of punishing or otherwise dealing with the person as the court-martial concerned would have had if the person had been convicted of the offence in respect of which the verdict of guilty has been so substituted.

Insert the following sections after section 19

“Appeals (mental disorder at time of trial).

19A.—Where an appeal is made to the Court under section 203B (inserted by the Defence (Amendment) Act 2007) of the Act of 1954 from a finding by a court-martial pursuant to section 202 of that Act, the Court shall, if it allows the appeal, order that the appellant be tried or retried, as the case may be, by court-martial for the offence alleged.

Appeals (mental disorder at time of commission of offence).

19B.—(1) A person tried for an offence by court-martial and found not guilty by reason of insanity may appeal to the Court against the finding on all or any of the following grounds

(a) that it was not proved that the person did the act or made the omission in question;

(b) that the person was not, at the time when he did the act or made the omission, suffering from a mental disorder of the nature referred to in section 203(1) of the Act of 1954;

(c) that the military judge ought to have made a finding in respect of the person that he was unfit to take his trial.

(2) If on an appeal to the Court on the ground referred to in subsection (1)(a) of this section, the Court is satisfied that it was not established that the appellant did the act or made the omission in question it shall order that the appellant be acquitted.

(3) If, on an appeal to the Court on the ground referred to in subsection (1)(b) of this section, the Court is satisfied that the appellant did the act or made the omission alleged but having considered the evidence or any new evidence relating to the mental condition of the appellant given by a consultant psychiatrist is satisfied that he was not suffering from a mental disorder of the nature referred to in section 203(1) of the Act of 1954, the Court shall substitute a verdict of guilty of the offence charged or of any other offence of which it is satisfied that the person could (by virtue of the charge) and ought to have been convicted, and shall have the like powers of punishing or otherwise dealing with the person as the court-martial concerned would have had if the person had been convicted of the offence in respect of which the verdict of guilty has been so substituted.

(4) If, on appeal to the Court on the ground set out at subsection (1)(c) of this section, the Court is satisfied that the appellant ought to have been found unfit to take his trial it shall make a finding to that effect and, in that case the provisions of section 202(1)(b) of the Act of 1954 shall apply. (5) If on appeal to the Court, the Court is satisfied, having considered the evidence or any new evidence relating to the mental condition of the appellant, that he was at the time that the offence alleged was committed suffering from a mental disorder of the nature referred to in section 203(1) of the Act of 1954 and that but for that disorder the appellant would have been found guilty of the offence charged or of another offence of which the person could have been found guilty by virtue of the charge, the Court shall dismiss the appeal. (6) In this section and in section 19C of this Act ‘consultant psychiatrist’ has the same meaning as in the Mental Health Act 2001. Appeals (supplementary provisions). 19C.—(1) Where an appeal is made to the Court against a decision by a court-martial to make or not to make an order of committal under section 202(1)(b) or 203(2) of the Act of 1954, the Court may, having considered the evidence or any new evidence relating to the mental condition of the person charged given by a consultant psychiatrist, make such order, being an order that it was open to the court-martial to make, as it considers appropriate and, without prejudice to the provisions of section 13 of the Criminal Law (Insanity) Act 2006 relating to the review of orders of committal, no further appeal shall lie from an order made on an appeal under this section. (2) Where the Court allows an appeal against a conviction or against a verdict of not guilty by reason of insanity on the ground that the appellant ought to have been found unfit to take his trial, or allows an appeal against a conviction on the ground that the appellant ought to have been found not guilty by reason of insanity, it shall have the same powers to deal with the appellant as the court-martial concerned would have had under section 202 or 203 of the Act of 1954 if it had come to the same conclusion. (3) All ancillary and procedural provisions contained in a statute or an instrument made under statute relating to appeals against convictions, including provisions relating to leave to appeal, shall apply with the necessary modifications to appeals under sections 19A and 19B of this Act and subsection (1) of this section.

(4) If, on appeal to the Court on the ground set out at subsection (1)(c) of this section, the Court is satisfied that the appellant ought to have been found unfit to take his trial it shall make a finding to that effect and, in that case the provisions of section 202(1)(b) of the Act of 1954 shall apply.

(5) If on appeal to the Court, the Court is satisfied, having considered the evidence or any new evidence relating to the mental condition of the appellant, that he was at the time that the offence alleged was committed suffering from a mental disorder of the nature referred to in section 203(1) of the Act of 1954 and that but for that disorder the appellant would have been found guilty of the offence charged or of another offence of which the person could have been found guilty by virtue of the charge, the Court shall dismiss the appeal.

(6) In this section and in section 19C of this Act ‘consultant psychiatrist’ has the same meaning as in the Mental Health Act 2001.

Appeals (supplementary provisions).

19C.—(1) Where an appeal is made to the Court against a decision by a court-martial to make or not to make an order of committal under section 202(1)(b) or 203(2) of the Act of 1954, the Court may, having considered the evidence or any new evidence relating to the mental condition of the person charged given by a consultant psychiatrist, make such order, being an order that it was open to the court-martial to make, as it considers appropriate and, without prejudice to the provisions of section 13 of the Criminal Law (Insanity) Act 2006 relating to the review of orders of committal, no further appeal shall lie from an order made on an appeal under this section.

(2) Where the Court allows an appeal against a conviction or against a verdict of not guilty by reason of insanity on the ground that the appellant ought to have been found unfit to take his trial, or allows an appeal against a conviction on the ground that the appellant ought to have been found not guilty by reason of insanity, it shall have the same powers to deal with the appellant as the court-martial concerned would have had under section 202 or 203 of the Act of 1954 if it had come to the same conclusion.

(3) All ancillary and procedural provisions contained in a statute or an instrument made under statute relating to appeals against convictions, including provisions relating to leave to appeal, shall apply with the necessary modifications to appeals under sections 19A and 19B of this Act and subsection (1) of this section.

(4) The powers of the Court in an appeal under section 19A or 19B of this Act or subsection (1) of this section shall include the power to make any such order as may be necessary for the purpose of doing justice in accordance with the provisions of this Act and the Criminal Law (Insanity) Act 2006.”.

Section 22

Substitute “the Director of Military Prosecutions” for “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”.

New sections

Insert the following sections after section 22: “Case stated for the Court on question of law. 22A.—Where an appeal is made to the summary court-martial under section 178E (inserted by the Defence (Amendment) Act 2007) of the Act of 1954, the military judge— (a) shall, if requested by the appellant or the respondent, unless the military judge considers the request frivolous, and (b) may, without request, refer any question of law arising in that appeal to the Court for determination in accordance with this Act. Review of certain sentences. 22B.—(1) An application by the Director of Military Prosecutions under section 212B (inserted by the Defence (Amendment) Act 2007) of the Defence Act 1954 to review a sentence awarded by a court-martial shall be made, on notice given to the convicted person, within 28 days or such longer period not exceeding 56 days as the Court may, on application to it in that behalf, determine, from the day on which the sentence was awarded. (2) On such an application, the Court may either— (a) quash the sentence and in its place award to the convicted person the sentence it considers appropriate, being a sentence which could have been awarded to him by the court-martial concerned, or (b) refuse the application.”.

Insert the following sections after section 22

“Case stated for the Court on question of law.

22A.—Where an appeal is made to the summary court-martial under section 178E (inserted by the Defence (Amendment) Act 2007) of the Act of 1954, the military judge—

(a) shall, if requested by the appellant or the respondent, unless the military judge considers the request frivolous, and

(b) may, without request,

refer any question of law arising in that appeal to the Court for determination in accordance with this Act.

Review of certain sentences.

22B.—(1) An application by the Director of Military Prosecutions under section 212B (inserted by the Defence (Amendment) Act 2007) of the Defence Act 1954 to review a sentence awarded by a court-martial shall be made, on notice given to the convicted person, within 28 days or such longer period not exceeding 56 days as the Court may, on application to it in that behalf, determine, from the day on which the sentence was awarded.

(2) On such an application, the Court may either—

(a) quash the sentence and in its place award to the convicted person the sentence it considers appropriate, being a sentence which could have been awarded to him by the court-martial concerned, or

(b) refuse the application.”.

Section 26

Substitute the following for paragraph (b): “(b) any of the provisions of the Act of 1954 or any instrument made under that Act 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 any such provisions or instrument (or at both such investigation and such taking down of evidence),”.

Substitute the following for paragraph (b)

“(b) any of the provisions of the Act of 1954 or any instrument made under that Act 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 any such provisions or instrument (or at both such investigation and such taking down of evidence),”.

Section 27

(a) In subsection (1)— (i) substitute the following for paragraph (a): “(a) a person (in this section referred to as ‘the accused’)— (i) is, at the direction of the Director of Military Prosecutions, to be tried by court-martial, or (ii) appeals to the summary court-martial pursuant to section 178E (inserted by the Defence (Amendment) Act 2007) of the Act of 1954, and”, and (ii) insert “or of his appeal, as the case may be,” after “the trial”. (b) In subsection (2)(c)(ii)— (i) insert “or appeal, as the case may be” after “set up”, and (ii) insert “or of his appeal, as the case may be” after “trial”.

(a) In subsection (1)—

(i) substitute the following for paragraph (a)

“(a) a person (in this section referred to as ‘the accused’)—

(i) is, at the direction of the Director of Military Prosecutions, to be tried by court-martial, or

(ii) appeals to the summary court-martial pursuant to section 178E (inserted by the Defence (Amendment) Act 2007) of the Act of 1954,

and”,

and

(ii) insert “or of his appeal, as the case may be,” after “the trial”.

(b) In subsection (2)(c)(ii)—

(i) insert “or appeal, as the case may be” after “set up”, and

(ii) insert “or of his appeal, as the case may be” after “trial”.

New section

Insert the following section after section 27: “Legal aid (case stated) certificate. 27A.—(1) Where— (a) a person appeals to the summary court-martial under section 178E (inserted by the Defence (Amendment) Act 2007) of the Act of 1954 and the military judge before whom the appeal is heard refers a question of law arising in the proceedings to the Court pursuant to section 22A of this Act, and (b) a certificate for free legal aid (in this Part of this Act referred to as ‘a legal aid (case stated) certificate’) is granted in respect of the person by the prescribed authority or under subsection (3) of this section, the person shall be entitled to free legal aid in the preparation and conduct of his case in relation to the case stated 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 (case stated) certificate shall be granted in respect of the person concerned if (but only if)— (a) application is made therefor, (b) it appears to the prescribed authority that the means of the person are insufficient to enable him to obtain legal aid, and (c) it appears to the prescribed authority that, by reason of the serious nature of the offence with which the person is charged or of exceptional circumstances, it is essential in the interests of justice that a legal aid (case stated) certificate should be granted in respect of the person. (3) Where, in relation to a case stated, a person is refused a legal aid (case stated) 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 person are insufficient to enable him to obtain legal aid, and

Insert the following section after section 27

“Legal aid (case stated) certificate.

27A.—(1) Where—

(a) a person appeals to the summary court-martial under section 178E (inserted by the Defence (Amendment) Act 2007) of the Act of 1954 and the military judge before whom the appeal is heard refers a question of law arising in the proceedings to the Court pursuant to section 22A of this Act, and

(b) a certificate for free legal aid (in this Part of this Act referred to as ‘a legal aid (case stated) certificate’) is granted in respect of the person by the prescribed authority or under subsection (3) of this section,

the person shall be entitled to free legal aid in the preparation and conduct of his case in relation to the case stated 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 (case stated) certificate shall be granted in respect of the person concerned if (but only if)—

(a) application is made therefor,

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

(c) it appears to the prescribed authority that, by reason of the serious nature of the offence with which the person is charged or of exceptional circumstances, it is essential in the interests of justice that a legal aid (case stated) certificate should be granted in respect of the person.

(3) Where, in relation to a case stated, a person is refused a legal aid (case stated) 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 person are insufficient to enable him to obtain legal aid, and

(ii) it appears to the Court that, by reason of the serious nature of the offence with which the person is charged or of exceptional circumstances, it is essential in the interests of justice that a legal aid (case stated) certificate should be granted in respect of the person.

Section 28(1)

(a) Substitute the following for paragraph (a): “(a) a person (in this section referred to as ‘the accused’)— (i) is convicted by a court-martial, or (ii) is found to be unfit to take his trial pursuant to section 202 of the Act of 1954, or (iii) is found not guilty by reason of insanity pursuant to section 203 of the Act of 1954, and”. (b) Insert “or against a decision by a court-martial to make or not to make an order of committal under section 202(1)(b) or section 203(2) of the Act of 1954” after “and such sentence”.

(a) Substitute the following for paragraph (a)

“(a) a person (in this section referred to as ‘the accused’)—

(i) is convicted by a court-martial, or

(ii) is found to be unfit to take his trial pursuant to section 202 of the Act of 1954, or

(iii) is found not guilty by reason of insanity pursuant to section 203 of the Act of 1954,

and”.

(b) Insert “or against a decision by a court-martial to make or not to make an order of committal under section 202(1)(b) or section 203(2) of the Act of 1954” after “and such sentence”.

Section 34

In subsection (1), substitute “€2,000” for “£100”.

PART 2 Amendments to Defence (Amendment) Act 1987

PART 2

Amendments to Defence (Amendment) Act 1987

Provision affected

Amendment

(1)

(2)

Section 8

(a) In subsection (1), substitute “military judge presiding at” for “president of”. (b) Substitute the following for subsection (3): “(3) For the purposes of subsection (1) of this section— (a) subsection (3) of section 207 of the Principal Act shall apply as it applies for the purposes of the said section 207, and (b) references to the military judge shall be construed as including references to such officer.”. (c) In subsection (4), substitute “€2,000” for “£100”.

(a) In subsection (1), substitute “military judge presiding at” for “president of”.

(b) Substitute the following for subsection (3)

“(3) For the purposes of subsection (1) of this section—

(a) subsection (3) of section 207 of the Principal Act shall apply as it applies for the purposes of the said section 207, and

(b) references to the military judge shall be construed as including references to such officer.”.

(c) In subsection (4), substitute “€2,000” for “£100”.

PART 3 Amendment to Criminal Evidence Act 1992

PART 3

Amendment to Criminal Evidence Act 1992

Provision affected

Amendment

(1)

(2)

Section 1

In subsection (4)(b)(iii) substitute “Chapter IV of Part V” for “section 177 or 178 (as amended by section 3 of the Defence (Amendment) Act 1987)”.

PART 4 Amendments to Ombudsman (Defence Forces) Act 2004

PART 4

Amendments to Ombudsman (Defence Forces) Act 2004

Provision affected

Amendment

(1)

(2)

Section 5(1)

(a) In paragraph (b), substitute “Chapter IV of Part V of the Act of 1954” for “section 179”. (b) In paragraph (e), substitute the following for subparagraph (i): “(i) involving the exercise of the right or power referred to in Article 13.6 of the Constitution or the remission of any forfeiture or punishment awarded under Chapter IV of Part V of the Act of 1954, by a court-martial or by the Courts-Martial Appeal Court, or”.

(a) In paragraph (b), substitute “Chapter IV of Part V of the Act of 1954” for “section 179”.

(b) In paragraph (e), substitute the following for subparagraph (i)

“(i) involving the exercise of the right or power referred to in Article 13.6 of the Constitution or the remission of any forfeiture or punishment awarded under Chapter IV of Part V of the Act of 1954, by a court-martial or by the Courts-Martial Appeal Court, or”.

PART 5 Amendments to Criminal Law (Insanity) Act 2006

PART 5

Amendments to Criminal Law (Insanity) Act 2006

Provision affected

Amendment

(1)

(2)

Section 13

(a) Substitute the following for subsection (3)(b): “(b) Where the clinical director of a designated centre forms the opinion in relation to a patient detained pursuant to section 202 of the Defence Act 1954, that the patient is no longer unfit to take his or her trial he or she shall forthwith notify the Director of Military Prosecutions (within the meaning of that Act) of this opinion and the Director of Military Prosecutions may direct— (i) that the matter be referred to the summary court-martial or that the Court-Martial Administrator convene a general court-martial or limited court-martial, as specified in the direction, and (ii) that the person be brought before such court-martial as soon as may be to be dealt with as the court-martial considers proper.”. (b) Substitute the following for subsection (8)(a): “(a) if, having heard evidence relating to the mental condition of the patient given by the consultant psychiatrist responsible for his or her care or treatment, the Review Board determines that he or she is no longer unfit to be tried by reason of mental disorder or to participate in proceedings referred to in section 4 it shall order that the patient be brought before the court which committed him or her to the designated centre to be dealt with as that court thinks proper or in the case of a patient detained pursuant to section 202 of the Defence Act 1954, it shall notify the Director of Military Prosecutions (within the meaning of that Act) and the Director of Military Prosecutions may direct— (i) that the matter be referred to the summary court-martial or that the Court-Martial Administrator convene a general court-martial or limited court-martial, as specified in the direction, and (ii) that the person be brought before such court-martial as soon as may be to be dealt with as the court-martial considers proper.”.

(a) Substitute the following for subsection (3)(b)

“(b) Where the clinical director of a designated centre forms the opinion in relation to a patient detained pursuant to section 202 of the Defence Act 1954, that the patient is no longer unfit to take his or her trial he or she shall forthwith notify the Director of Military Prosecutions (within the meaning of that Act) of this opinion and the Director of Military Prosecutions may direct—

(i) that the matter be referred to the summary court-martial or that the Court-Martial Administrator convene a general court-martial or limited court-martial, as specified in the direction, and

(ii) that the person be brought before such court-martial as soon as may be to be dealt with as the court-martial considers proper.”.

(b) Substitute the following for subsection (8)(a)

“(a) if, having heard evidence relating to the mental condition of the patient given by the consultant psychiatrist responsible for his or her care or treatment, the Review Board determines that he or she is no longer unfit to be tried by reason of mental disorder or to participate in proceedings referred to in section 4 it shall order that the patient be brought before the court which committed him or her to the designated centre to be dealt with as that court thinks proper or in the case of a patient detained pursuant to section 202 of the Defence Act 1954, it shall notify the Director of Military Prosecutions (within the meaning of that Act) and the Director of Military Prosecutions may direct—

(i) that the matter be referred to the summary court-martial or that the Court-Martial Administrator convene a general court-martial or limited court-martial, as specified in the direction, and

(ii) that the person be brought before such court-martial as soon as may be to be dealt with as the court-martial considers proper.”.

ISB Act 2007-04-21

Schedule 5 Defence (Amendment) Act 2007 Open official source

SCHEDULE 5 Scheduled Offences

SCHEDULE 5

Scheduled Offences

Section 20.

“ELEVENTH SCHEDULE

Scheduled Offences for the Purposes of Part V of this Act

PART I

Offences of a Disciplinary Nature Which may be Disposed of Summarily Under Section 177C, 178C or 179C

Provision of Principal Act

Offence

(1)

(2)

Section 133

Insubordinate behaviour

Section 134

Disorders

Section 137

Absence without leave

Section 138

False statement in respect of leave

Section 142

Prohibition on being under the influence of an intoxicant

Section 160

Unauthorised use of service vehicles

Section 168

Conduct to the prejudice of good order and discipline

PART II

Offences of a Disciplinary Nature Which may be Disposed of Summarily Under Section 177C or 178C Subject to Prior Consent of Director

Provision of Principal Act

Offence

(1)

(2)

Section 131

Disobedience to superior officer

Section 136

Connivance at desertion

Section 141

False accusation against officer or man

Section 144

Dilatory conduct in regard to trials

Section 145

Negligent or wilful interference with lawful custody

Section 147

Obstruction of officer or man carrying out police duties

Section 150

Unauthorised carriage on ships or aircraft

Section 157

Destruction, loss or improper disposal of property

Section 159

Negligent or furious driving of service vehicles

Section 164

Fraudulent enlistment

Section 165

General offences in relation to enlistment

Section 166

Negligent performance of duties

Section 167

Offences in relation to documents

”.

ISB Act 2007-04-21

Schedule 6 Defence (Amendment) Act 2007 Open official source

SCHEDULE 6 Amendments Consequential on Section 20

SCHEDULE 6

Amendments Consequential on Section 20

Section 21.

Provision of Principal Act affected

Amendment

(1)

(2)

Sections 131, 133, 134, 136, 137(1), 138, 141, 144, 145, 147, 157, 159(1), 160, 164(1), 165, 166, 167 and 168(1).

Insert “where a charge under this section is disposed of summarily under section 177C, 178C or 179C, as the case may be, be liable to suffer any punishment awardable thereunder or,” after “shall,”.

ISB Act 2007-04-21

Schedule 7 Defence (Amendment) Act 2007 Open official source

SCHEDULE 7 Court-Martial Rules

SCHEDULE 7

Court-Martial Rules

Section 71.

“TWELFTH SCHEDULE

Court-Martial Rules

Matters in respect of which the Courts-Martial Rules Committee may make court-martial rules.

1. The pleading, practice and procedure generally in all proceedings before courts-martial.

2. Assignment of cases by the Chief Military Judge (if any).

3. Sittings of courts-martial, including the days, times and place of sitting and any changes thereto.

4. Oaths and affirmations for members of the court-martial board, witnesses and other persons and the person or persons who may administer such oaths and affirmations.

5. Procedures for the making of objections to, and the replacement of, members of a court-martial board.

6. Procuring the attendance of witnesses and other persons and the production of documents and other things, including provision in relation to—

(a) the payment of expenses to persons summoned to attend a court-martial,

(b) the making of orders for the arrest of persons.

7. The making of records of the proceedings of courts-martial.

8. The order of and manner in which submissions may be made by the Director or by or on behalf of the accused in all proceedings before a court-martial.

9. The alteration, amendment, addition and substitution of charges.

10. Adjournment of proceedings before a court-martial.

11. The procedure for the dissolution by a military judge of a general court-martial or limited court-martial.

12. Forms of orders to be made by a military judge including in relation to sentences of imprisonment or detention or any other punishment which may be awarded.

13. Procedures for making application for legal aid.

14. The entry into, taking of and form of recognisance for the purposes of suspending sentences under section 212A.

15. Procedures for making application to a court-martial under section 212A(11) to fix a date for hearing for the purposes of that provision.

16. Procedures for the making of applications for restitution of stolen property under section 225.

17. The practice and procedure for the bringing and hearing of appeals by, and other related proceedings before, the summary court-martial.

18. The procedure for referral under section 178G(5) of questions of law arising on an appeal under section 178E to the Courts-Martial Appeal Court for determination.

19. Any other matter or thing expedient or necessary for the purposes of carrying into effect the provisions of this Act relating to the pleading, practice and procedure generally in all proceedings before courts-martial under this Act.”.

Defence (Amendment) Act 2007

Table of Provisions (7)

Statutory Text (7 Articles)

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