Defence (Amendment) Act 2007

Defence (Amendment) Act 2007 Skip to content Disclaimer Feedback Helpdesk Gaeilge Léim go dtí an t-ábhar Séanadh Aiseolas Deasc chabhrach English Gaeilge English Produced by the Office of the Attorney General Táirgthe ag Oifig an Ard-Aighne Home Legislation Acts of the Oireachtas Statutory Instruments Pre-1922 Legislation Constitution External Resources Bills (Houses of the Oireachtas) Iris Oifigiúil / Official Gazette Revised Acts (LRC) Classified List of Legislation (LRC) Translations (acts.ie) Translations (Houses of the Oireachtas) Government Publications for Sale EU Law (EUR-Lex) FAQ Disclaimer Feedback Helpdesk Search Baile Reachtaíocht Achtanna an Oireachtais Ionstraimí Reachtúla Reachtaíocht Réamh-1922 Bunreacht Acmhainní Seachtracha Billí (Tithe an Oireachtais) Iris Oifigiúil Achtanna Athbhreithnithe (CAD) (An Coimisiún um Athchóiriú an Dlí) Liosta Rangaithe Reachtaíochta Aistriúcháin (achtanna.ie) Aistriúcháin (Tithe an Oireachtais) Foilseacháin Rialtais ar Díol Dlí AE (EUR-Lex) CCanna (Ceisteanna Coitianta) Séanadh Aiseolas Deasc chabhrach Cuardach TitleTeideal Year(s) or rangeBliain nó blianta nó raon TypeCineál All Legislation Acts Statutory Instruments Advanced SearchCuardach Casta HomeBaile ActsAchtanna 2007 Defence (Amendment) Act 2007 Defence (Amendment) Act 2007 Permanent Page URL View by SectionAmharc de réir Ailt View Full ActAmharc ar an Acht Iomlán Bill History Stair Bille Commencement, Amendments, SIs made under the Act Tosach Feidhme, Leasuithe, IRí arna ndéanamh faoin Acht Open PDFOscail PDF Print Full ActPriontáil an tAcht Iomlán Number 24 of 2007 DEFENCE (AMENDMENT) ACT 2007 ARRANGEMENT OF SECTIONS PART 1 Preliminary Section 1. Short title, commencement, collective citation and construction. 2. Definition. 3. Saving and transitional provisions. PART 2 Amendments and Repeals Chapter 1 Miscellaneous Amendments to Principal Act 4. Principal Act: repeals and amendments. 5. References to judge advocate in certain Acts and instruments. 6. Amendment of section 2 of Principal Act (interpretation generally). 7. Amendment of section 26 of Principal Act (general regulations in relation to Defence Forces). 8. Amendment of section 61 of Principal Act (transfer of men of Permanent Defence Force enlisted under section 53 from one service corps to another). 9. Amendment of section 114 of Principal Act (redress of wrongs). Chapter 2 Miscellaneous Amendments to other Acts and Instruments 10. References to ignominy in certain Act and instruments. 11. Miscellaneous amendments to other Acts. PART 3 Amendments to Part V of Principal Act Chapter 1 Liability to Military Law 12. Amendment of section 120 of Principal Act (liability to military law in respect of status). 13. Amendment of section 121 of Principal Act (modification of Part V in its application to civilians subject to military law). 14. Amendment of section 123 of Principal Act (time limit for trial of offences). Chapter 2 Offences against Military Law 15. Amendment of section 135 of Principal Act (desertion). 16. Amendment of section 142 of Principal Act (drunkenness). 17. Amendment of section 150 of Principal Act (unauthorised carriage on ships or aircraft). 18. Amendment of section 161 of Principal Act (offences in relation to courts-martial, etc.). 19. Amendment of section 162 of Principal Act (false evidence). Chapter 3 Investigation and Summary Disposal of Charges, Appeals to Summary Court-martial and Remands for Court-martial 20. Insertion of new section: scheduled offences. 21. Amendments to Principal Act consequential on section 20. 22. Amendment of section 177 of Principal Act (charges against officers). 23. Insertion of new sections: notice, right to elect, summary disposal and remand. 24. Amendment of section 178 of Principal Act (disposition of charges against men by commanding officers). 25. Insertion of new sections: notice, right to elect, summary disposal and remand. 26. Insertion of new sections: appeal to summary court-martial, etc. 27. Amendment of section 179 of Principal Act (disposition of charges against privates and seamen by subordinate officers). 28. Insertion of new sections: notice, right to elect and summary disposal. 29. Insertion of new sections: appeal to commanding officer, etc. 30. Insertion of new section: suspension of operation of certain punishments pending appeal. 31. Amendment of section 184 of Principal Act (regulations in relation to investigation and summary disposition of charges). Chapter 4 Courts-martial 32. Insertion of new Chapter: Court-Martial Administrator. 33. Insertion of new Chapter: Director of Military Prosecutions. 34. Insertion of new Chapter: Military Judge. 35. Amendment of section 185 of Principal Act (acquittal or conviction to bar subsequent trial by court-martial). 36. Amendment of section 186 of Principal Act (classes of courts-martial). 37. Amendment of section 187 of Principal Act (convening of courts-martial). 38. Insertion of new section: summary court-martial. 39. Amendment of section 189 of Principal Act (constitution of general courts-martial). 40. Amendment of section 190 of Principal Act (constitution of limited courts-martial). 41. Amendment of section 191 of Principal Act (disqualifications for membership of courts-martial). 42. Amendment of section 192 of Principal Act (jurisdiction of courts-martial). 43. Amendment of section 193 of Principal Act (dissolution of courts-martial). 44. Amendment of section 194 of Principal Act (admission to courts-martial). 45. Amendment of section 195 of Principal Act (divers matters of procedure). 46. Amendment of section 197 of Principal Act (challenges by accused). 47. Insertion of new section: rulings and directions. 48. Amendment of section 198 of Principal Act (voting at courts-martial). 49. Amendment of section 199 of Principal Act (swearing of court). 50. Amendment of section 202 of Principal Act (mental disorder at time of trial). 51. Amendment of section 203 of Principal Act (mental disorder at time of commission of offence). 52. Insertion of new sections: appeals to Courts-Martial Appeal Court. 53. Insertion of new section: effect of certain offences on persons in respect of whom committed. 54. Amendment of section 206 of Principal Act (effective dates of sentences by courts-martial). 55. Amendment of section 207 of Principal Act (summoning and privilege of witnesses at courts-martial). 56. Amendment of section 208 of Principal Act (contempt of court-martial). Chapter 5 Punishments awardable by Courts-martial for Offences against Military Law 57. Amendment of section 209 of Principal Act (punishments which may be awarded to officers by courts-martial). 58. Amendment of section 210 of Principal Act (punishments which may be awarded to men by courts-martial). 59. Amendment of section 211 of Principal Act (one sentence to be awarded in respect of all offences). 60. Insertion of new section: restriction on sentence of imprisonment or detention on person who is not represented. 61. Insertion of new section: suspension of custodial sentences. 62. Insertion of new section: review of certain sentences. 63. Amendment of section 213 of Principal Act (order by court-martial for payment of compensation). 64. Insertion of new section: payment of fine. Chapter 6 Action on Findings and Sentences of Courts-martial 65. Amendment of section 225 of Principal Act (restitution of stolen property). 66. Amendment of section 226 of Principal Act (right to copy of proceedings of court-martial). Chapter 7 Execution of Sentences 67. Amendment of section 229 of Principal Act (execution of sentence of imprisonment or detention). 68. Amendment of section 231 of Principal Act (duty of governor of prison to receive prisoners). 69. Amendment of section 233 of Principal Act (regulation of military prisons and detention barracks). Chapter 8 Rules of Procedure and Court-martial Rules 70. Amendment of section 240 of Principal Act (rules of procedure). 71. Insertion of new sections: Courts-Martial Rules Committee, etc. SCHEDULE 1 Saving and Transitional Provisions SCHEDULE 2 Amendments to Principal Act SCHEDULE 3 References to Ignominy in certain Act and Instruments SCHEDULE 4 Miscellaneous Amendments to other Acts SCHEDULE 5 Scheduled Offences SCHEDULE 6 Amendments Consequential on Section 20 SCHEDULE 7 Court-Martial Rules Acts Referred to Civil Liability Act 1961 1961, No. 41 Civil Service Regulation Act 1956 1956, No. 46 Courts-Martial Appeals Act 1983 1983, No. 19 Criminal Evidence Act 1992 1992, No. 12 Criminal Justice Act 1990 1990, No. 16 Criminal Justice (Safety of United Nations Workers) Act 2000 2000, No. 16 Criminal Justice (Terrorist Offences) Act 2005 2005, No. 2 Criminal Justice (Theft and Fraud Offences) Act 2001 2001, No. 50 Criminal Justice (United Nations Convention against Torture) Act 2000 2000, No. 11 Criminal Law (Insanity) Act 2006 2006, No. 11 Criminal Law (Rape) (Amendment) Act 1990 1990, No. 32 Criminal Law (Sexual Offences) Act 2006 2006, No. 15 Criminal Procedure Act 1993 1993, No. 40 Defence Act 1954 1954, No. 18 Defence Acts 1954 to 2006 Defence (Amendment) Act 1987 1987, No. 8 Defence (Amendment) Act 2006 2006, No. 20 Geneva Conventions Act 1962 1962, No. 11 International Criminal Court Act 2006 2006, No. 30 Interpretation Act 2005 2005, No. 23 Mental Health Act 2001 2001, No. 25 Ombudsman (Defence Forces) Act 2004 2004, No. 36 Police (Property) Act 1897 60 & 61 Vic., c. 30 Prisons Act 1970 1970, No. 11 Prisons Act 1972 1972, No. 7 Statutory Instruments Act 1947 1947, No. 44 Superannuation Act 1887 50 & 51 Vic., c. 67 Number 24 of 2007 DEFENCE (AMENDMENT) ACT 2007 AN ACT TO PROVIDE FOR THE SUMMARY DISPOSAL OF CHARGES OF OFFENCES AGAINST MILITARY LAW; TO PROVIDE FOR THE ESTABLISHMENT AND JURISDICTION OF THE SUMMARY COURT-MARTIAL; TO PROVIDE FOR THE APPOINTMENT OF THE COURT-MARTIAL ADMINISTRATOR, THE DIRECTOR OF MILITARY PROSECUTIONS AND A MILITARY JUDGE; TO PROVIDE FOR THE CONSTITUTION OF COURTS-MARTIAL AND MEMBERSHIP OF A COURT-MARTIAL BOARD; TO PROVIDE FOR MATTERS OF PROCEDURE BEFORE COURTS-MARTIAL, THE AWARD AND EXECUTION OF PUNISHMENTS BY COURTS-MARTIAL AND THE SUSPENSION OF SENTENCES; TO PROVIDE FOR THE ESTABLISHMENT OF THE COURTS-MARTIAL RULES COMMITTEE AND THE MAKING OF COURT-MARTIAL RULES; AND FOR THOSE AND OTHER PURPOSES TO AMEND AND EXTEND THE DEFENCE ACTS 1954 TO 2006, TO MAKE CONSEQUENTIAL AMENDMENTS TO OTHER ENACTMENTS AND TO PROVIDE FOR RELATED MATTERS. [21st April, 2007] BE IT ENACTED BY THE OIREACHTAS AS FOLLOWS: PART 1 Preliminary Short title, commencement, collective citation and construction. 1.— (1) This Act may be cited as the Defence (Amendment) Act 2007. (2) Subject to subsection (3), this Act shall come into operation on such day or days as the Minister may appoint by order or orders either generally or with reference to any particular purpose or provision and different days may be so appointed for different purposes or different provisions, including the application of sections 4 (2), 10 and 11 to different enactments specified in Schedules 2 , 3 and 4 respectively and to different provisions of those enactments. (3) This Part and sections 6 to 9 , 12 , 14 to 17 , 31 to 34 and 65 shall come into operation on the passing of this Act. (4) The Defence Acts 1954 to 2006 and this Act may be cited together as the Defence Acts 1954 to 2007 and shall be read together as one. Definition. 2.— In this Act “Principal Act” means the Defence Act 1954 . Saving and transitional provisions. 3.— The saving and transitional provisions in Schedule 1 have effect. PART 2 Amendments and Repeals Chapter 1 Miscellaneous Amendments to Principal Act Principal Act: repeals and amendments. 4.— (1) Sections 142A, 180, 188 and 215 to 224 of the Principal Act are repealed. (2) The Principal Act is amended as indicated in Schedule 2 . References to judge advocate in certain Acts and instruments. 5.— Every reference in the Defence Acts 1954 to 2007 or in any instrument made under those Acts to a judge-advocate shall be read as a reference to a military judge. Amendment of section 2 of Principal Act (interpretation generally). 6.— Section 2 of the Principal Act is amended— (a) by inserting the following definitions: “ ‘a day’s pay’ means— (a) in relation to a person who is convicted by a court-martial of an offence against military law or in respect of whom a determination is made or confirmed under Chapter IV of Part V of this Act and who is a member of the Defence Forces, the basic pay, excluding any additional pay or allowance, that is, or would be, payable to that person in respect of the day on which punishment is awarded in respect of the offence, or (b) in relation to a person who is convicted by a court-martial of an offence against military law or in respect of whom a determination is made or confirmed under Chapter IV of Part V of this Act and who is not a member of the Defence Forces but who was a member of the Defence Forces when the offence was committed (not being a person to whom paragraph (c) of this definition applies), the basic pay, excluding any additional pay or allowance, that would be payable to that person in respect of the day on which punishment is awarded in respect of the offence if he were a member of the Defence Forces on that day and his rank and service (or service in rank, if appropriate) were the same as those on the last day of his service in the Defence Forces, or (c) in relation to a person who is convicted by a court-martial of an offence against military law or in respect of whom a determination is made or confirmed under Chapter IV of Part V of this Act and who is not a member of the Defence Forces but who is, or was when the offence was committed, subject to military law as an officer pursuant to section 118(d) or (e) or as a man pursuant to section 119(c) or (d), the basic pay, excluding any additional pay or allowance, that would be payable to an officer in the rank of second lieutenant who is in receipt of the maximum pay applicable to that rank, or to a man in the rank of private of the highest grade who is in receipt of the maximum pay applicable to that rank, as the case may be, in respect of the day on which punishment is awarded in respect of the offence; ‘assisting person’ means in relation to proceedings for an offence under Part V of this Act, subject to the consent of the member concerned, such member of the Defence Forces who is subject to military law as the person charged with the offence may choose for the purposes of providing assistance to that person as provided for in the said Part V; ‘court-martial’, when used without qualification, means a general court-martial, a limited court-martial or a summary court-martial; ‘Court-Martial Administrator’ means the Court-Martial Administrator appointed under Chapter IVA of Part V of this Act; ‘court-martial rules’ means rules made under section 240B with respect to courts-martial; ‘Director’ means the Director of Military Prosecutions appointed under Chapter IVB of Part V of this Act; ‘document’ includes— (a) a map, plan, graph, drawing, photograph or record, or (b) a reproduction in permanent legible form, by a computer or other means (including enlarging), of information in non-legible form; ‘intoxicant’ includes any alcohol, drug, solvent or any other substance or combination of substances; ‘military judge’ means a military judge appointed under Chapter IVC of Part V of this Act; ‘scheduled offence’, for the purposes of Part V of this Act, shall have the meaning assigned to it by section 176A;”, (b) in the definition of “prescribed”, in paragraph (a), by substituting “(other than Chapters IV and X or in the case of any matter or thing referred to in Part V as prescribed by court-martial rules)” for “(except Chapters IV and X)”, (c) in the definition of “service” by inserting “or any other matter” after “property”, (d) by deleting the definition of “steal”, (e) by substituting the following for the definition of “superior officer”: “ ‘superior officer’ includes— (a) when used in relation to a member of the Permanent Defence Force, an officer or non-commissioned officer of the Permanent Defence Force of equal or higher rank who is authorised, in relation to that member, by or under this Act or by custom of the service, to exercise authority over that member, (b) when used in relation to a member of the Reserve Defence Force, an officer or non-commissioned officer of the Permanent Defence Force or of the Reserve Defence Force, of equal or higher rank, who is authorised, in relation to that member, by or under this Act or by custom of the service, to exercise authority over that member;”, and (f) by inserting the following after subsection (3): “(4) In this Act, a reference to stealing shall be construed as a reference to theft within the meaning of section 2 of the Criminal Justice (Theft and Fraud Offences) Act 2001 .”. Amendment of section 26 of Principal Act (general regulations in relation to Defence Forces). 7.— Section 26 of the Principal Act is amended— (a) by renumbering the existing provision as subsection (1) of that section, and (b) by inserting the following subsection: “(2) Regulations under this section may— (a) contain such incidental, supplementary and consequential provisions as appear to the Minister to be necessary or expedient for the purposes of the regulations or for giving full effect to this Act, (b) apply either generally or by reference to a specified category or categories of persons.”. Amendment of section 61 of Principal Act (transfer of men of Permanent Defence Force enlisted under section 53 from one service corps to another). 8.— Section 61 of the Principal Act is amended in subsection (1) by substituting “who were enlisted under section 53 before the commencement of section 8 of the Defence (Amendment) Act 2007” for “enlisted under section 53”. Amendment of section 114 of Principal Act (redress of wrongs). 9.— Section 114 of the Principal Act is amended by inserting the following after subsection (4): “(5) This section shall not apply to— (a) any determination made, punishment awarded or compensation order made under section 177C, 178C or 179C, or (b) the decision of a summary court-martial under section 178G following an appeal under section 178E.”. Chapter 2 Miscellaneous Amendments to other Acts and Instruments References to ignominy in certain Act and instruments. 10.— (1) The Act specified in Part 1 of Schedule 3 is amended as indicated in that Schedule. (2) The instruments specified in Part 2 of Schedule 3 are amended as indicated in that Schedule. (3) Every reference in any Act or in any instrument made under any Act (other than an Act or instrument to which subsection (1) or (2) relates) to ignominy, as it applies to dismissal or discharge (however expressed) from the Defence Forces, shall be read as a reference to disgrace. Miscellaneous amendments to other Acts. 11.— The Acts specified in Schedule 4 are amended as indicated in that Schedule. PART 3 Amendments to Part V of Principal Act Chapter 1 Liability to Military Law Amendment of section 120 of Principal Act (liability to military law in respect of status). 12.— Section 120 of the Principal Act is amended— (a) by substituting the following for subsection (2): “(2) Where— (a) an offence (other than that of mutiny, desertion, fraudulent enlistment or a civil offence committed by a person subject to military law while he was on active service outside the State or while he was despatched for service outside the State for any purpose specified in section 3 of the Defence (Amendment) Act 2006 ) against military law triable by court-martial under this Act has been committed by any person while subject to military law, and (b) such person has since commission of the offence ceased to be subject to military law, that person may not be tried for the offence unless he is charged with the offence in accordance with this Act within six months beginning on the date on which he ceased to be so subject, but nothing in this subsection shall be construed as affecting the jurisdiction of a civil court where the offence is triable by that court as well as by court-martial.”, and (b) by substituting the following for subsection (3): “(3) Where a person subject to military law is sentenced by a court-martial to a term of imprisonment or detention and is in service custody, this Act shall apply to the person during the term of that sentence, notwithstanding that the person is discharged or dismissed from the Defence Forces or has otherwise ceased to be subject to military law, and the person may be kept, removed, imprisoned, made to undergo detention and punished accordingly as if the person continued to be subject to military law.”. Amendment of section 121 of Principal Act (modification of Part V in its application to civilians subject to military law). 13.— The following section is substituted for section 121 of the Principal Act: “Modification of Part V in its application to civilians subject to military law. 121.— In the application of this Part to persons who do not belong to the Defence Forces, the following modifications shall be made: (a) where an offence against military law has been committed by any person subject to military law who does not belong to the Defence Forces and the person is remanded for trial by court-martial under this Act, that person may be tried by such class of court-martial as the Director directs and, on conviction, dealt with and punished accordingly; (b) any person subject to military law who does not belong to the Defence Forces shall, for the purpose of this Part, be deemed to be under the command of the prescribed officer, and that person, subject to the right to elect to be tried by court-martial pursuant to section 177B or 178B, as appropriate, may, with the prior consent of the Director, be dealt with summarily and punished under Chapter IV of this Part, according to whether the person is subject to military law as an officer or as a man.”. Amendment of section 123 of Principal Act (time limit for trial of offences). 14.— Section 123 of the Principal Act is amended— (a) by substituting the following for subsection (1): “(1) Subject to subsection (1A), a person subject to military law shall not be charged with an offence (other than that of mutiny, desertion, fraudulent enlistment or a civil offence committed by a person subject to military law while he was on active service outside the State or while he was despatched for service outside the State for any purpose specified in section 3 of the Defence (Amendment) Act 2006 ) against military law triable by court-martial under this Act after the end of six years beginning with the date of commission of the offence.”, and (b) by inserting the following after subsection (1): “(1A) Proceedings for the summary disposal of a scheduled offence under Chapter IV of this Part may be commenced— (a) at any time within 12 months from the date on which the offence was committed, or (b) at any time within 12 months from the date on which evidence sufficient, in the opinion of the person by whom the proceedings are initiated, to justify the proceedings comes to that person’s knowledge, whichever is the later, but no such proceedings shall be commenced later than 3 years from the date on which the offence concerned was committed. (1B) In calculating a period referred to in subsection (1) or (1A) of this section there shall not be included any period during which the person is certified by his commanding officer as being— (a) on active service, (b) despatched for service outside the State for any purpose specified in section 3 of the Defence (Amendment) Act 2006 , (c) otherwise engaged in any other essential operational duties within or outside the State, (d) absent without leave, or (e) unavailable for investigation due to illness.”. Chapter 2 Offences against Military Law Amendment of section 135 of Principal Act (desertion). 15.— Section 135(2)(a) of the Principal Act is amended in subparagraph (i) by inserting “(which, for the purpose of this section, includes, but is not limited to, active service or service with a contingent or as a member despatched for service outside the State for any purpose specified in section 3 of the Defence (Amendment) Act 2006 )” after “important service”. Amendment of section 142 of Principal Act (drunkenness). 16.— The following section is substituted for section 142 of the Principal Act: “Prohibition on being under the influence of an intoxicant. 142.— (1) Every person subject to military law who, whether on duty or not on duty, due to his or her being under the influence of an intoxicant— (a) is unfit to be entrusted with any duty that the person is or may be required to perform, or (b) behaves in a disorderly manner or in any manner likely to bring discredit on the Defence Forces, is guilty of an offence against military law and shall, 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, on conviction by court-martial, be liable to suffer— (i) in the case of an officer, dismissal from the Defence Forces or any less punishment awardable by a court-martial, or (ii) in the case of a man, where the offence is committed on active service or on duty, imprisonment for any term not exceeding two years or any less punishment awardable by a court-martial, or (iii) in the case of a man, where the offence is committed otherwise than on active service or on duty, detention for a period not exceeding ninety days or any less punishment awardable by a court-martial. (2) In any proceedings for an offence under this section, evidence given by a person subject to military law of his opinion that another such person was, at the material time, under the influence of an intoxicant shall, without more, be evidence, until the contrary is proved, of intoxication. (3) In any proceedings for an offence under this section it shall be a defence for the person charged with the offence to prove that the intoxicant concerned was administered by, or taken in accordance with the directions of, a registered medical practitioner or a registered dentist (or both so administered and taken).”. Amendment of section 150 of Principal Act (unauthorised carriage on ships or aircraft). 17.— The following section is substituted for section 150 of the Principal Act: “Unauthorised carriage on ships or aircraft. 150.— Every person subject to military law who knowingly consigns, takes or receives on board, or allows to be carried on board, a State ship or service aircraft, or a ship or aircraft used for any purpose by the Defence Forces, persons, goods or merchandise that the person is not authorised to consign, take or receive on board is guilty of an offence against military law and shall, where a charge under this section is disposed of summarily under section 177C or 178C, as the case may be, be liable to suffer any punishment awardable thereunder or, on conviction by court-martial, be liable to suffer imprisonment for any term not exceeding two years or any less punishment awardable by a court-martial.”. Amendment of section 161 of Principal Act (offences in relation to courts-martial, etc.). 18.— Section 161 of the Principal Act is amended— (a) in subsection (1), by substituting the following for paragraphs (b) and (c): “(b) an officer, pursuant to section 177, investigating a charge of an offence for which a person would be required on conviction to be sentenced to imprisonment for life, (c) a commanding officer, pursuant to section 178, investigating a charge of an offence for which a person would be required on conviction to be sentenced to imprisonment for life,”, (b) in subsection (2)— (i) by inserting the following after paragraph (e): “(ea) who communicates with the Director, a member of his staff (including a prosecuting officer), a member of a court-martial board, a military judge or a witness in any proceedings under this Act for the purpose of influencing, directly or indirectly, any decision relating to the performance of their functions, including, as appropriate, a decision to withdraw or not to institute such proceedings or any particular charge in such proceedings or the conduct or trial of any such proceedings, or (eb) who fails, refuses or neglects to comply with a direction of the military judge under section 195, or (ec) who, by act or omission, obstructs or hinders a service tribunal in the performance of its functions, or”, and (ii) by substituting the following for paragraph (f): “(f) who does or omits to do any other thing, which, if the service tribunal were a civil court having power to commit for contempt, would be contempt of that court,”, and (c) by inserting the following after subsection (2): “(3) If the Director, a member of his staff (including a prosecuting officer), a member of a court-martial board, a military judge or a witness in any proceedings under this Act is of the opinion that a communication is in breach of subsection (2)(ea) of this section, it shall be the duty of that person not to entertain the communication further. (4) (a) In the case of the Director or a member of his staff, subsection (2)(ea) of this section does not apply to— (i) communications made by a person who is a complainant in proceedings for, or has been charged with, an offence under this Act or believes that he is likely to be charged with an offence under this Act, or (ii) communications made by a person involved in the matter either personally or as legal or medical adviser to a person involved in the matter or as a social worker or a member of the family of a person involved in the matter. (b) In this subsection ‘member of the family’ means spouse, parent, grandparent, step-parent, child (including a step-child or an adopted child), grandchild, brother, sister, half-brother, half-sister, aunt, uncle, niece or nephew of the person concerned; ‘ spouse ’ means each person of a couple in relation to the other; ‘ couple ’ means a married couple or a man and woman who are not married to each other but are cohabiting as husband and wife. (5) Subsection (2) of this section shall apply in relation to the summary disposal of charges under section 177C, 178C or 179C, as the case may be, as it applies to a service tribunal and for the purposes of such application references in the said subsection (2) to a service tribunal shall be construed as references to the summary disposal of charges under section 177C, 178C or 179C, as the case may be.”. Amendment of section 162 of Principal Act (false evidence). 19.— The following section is substituted for section 162 of the Principal Act: “False evidence. 162.— Every person subject to military law who, when examined on oath or solemn declaration before— (a) a service tribunal within the meaning of section 161, (b) an authorised officer investigating a charge under section 177C, (c) a commanding officer investigating a charge under section 178C, or (d) a subordinate officer investigating a charge under section 179C, knowingly gives false evidence is guilty of an offence against military law and shall, on conviction by court-martial, be liable to suffer imprisonment for any term not exceeding two years or any less punishment awardable by a court-martial.”. Chapter 3 Investigation and Summary Disposal of Charges, Appeals to Summary Court-martial and Remands for Court-martial Insertion of new section: scheduled offences. 20.— (1) The following section is inserted after section 176 of the Principal Act: “Scheduled offences. 176A.— An offence of a disciplinary nature under any of the provisions of this Act specified in the Eleventh Schedule to this Act shall be a scheduled offence for the purposes of this Part of this Act.”. (2) The Schedule set out in Schedule 5 is inserted after the Tenth Schedule to the Principal Act. Amendments to Principal Act consequential on section 20 . 21.— The Principal Act is amended as indicated in Schedule 6 . Amendment of section 177 of Principal Act (charges against officers). 22.— The following section is substituted for section 177 of the Principal Act: “Charges against officers and other specified persons. 177.— (1) A charge against a person subject to military law— (a) as an officer, or (b) as a non-commissioned officer in the rank of sergeant major or battalion quarter-master sergeant or their equivalent naval ranks, shall, subject to the giving of a notice under section 177A, in accordance with regulations made under section 184, be investigated by the person’s commanding officer or, if the Deputy Chief of Staff (Support) so directs, by such officer as the Deputy Chief of Staff (Support) may appoint for the purpose. (2) (a) Where a person is charged with a scheduled offence, the officer investigating the charge under subsection (1) of this section shall— (i) where the person charged holds the rank of lieutenant colonel or commander or any higher commissioned rank— (I) subject to paragraph (b) of this subsection, dismiss the charge if, in his discretion, he considers that it should not be proceeded with, or (II) remand the person charged for trial by court-martial if he considers that the charge should be proceeded with, (ii) in any other case— (I) subject to paragraph (b) of this subsection, dismiss the charge if, in his discretion, he considers that it should not be proceeded with, or (II) remand the person charged for trial by court-martial if he considers that the charge should be proceeded with, or (III) subject to this section and to regulations made under section 184, refer the charge for summary investigation by an authorised officer. (b) In the case of a charge against a person for a scheduled offence specified in Part II of the Eleventh Schedule to this Act, dismissal of the charge under subparagraph (i)(I) or (ii)(I) of paragraph (a) of this subsection or referral of the charge for summary investigation by an authorised officer under subparagraph (ii)(III) of the said paragraph (a) shall be subject to the prior consent of the Director and where the Director refuses consent in any such case the person charged shall be remanded for trial by court-martial. (3) (a) Where a person is charged with an offence other than a scheduled offence, the officer investigating the charge under subsection (1) of this section shall— (i) subject to the prior consent of the Director, dismiss the charge if the officer considers that it should not be proceeded with, or (ii) remand the person for trial by court-martial. (b) Where the Director refuses consent to the dismissal of the charge concerned, the person charged shall be remanded for trial by court-martial. (4) Where a person is remanded under this section for trial by court-martial, the matter shall be referred to the Director for his directions. (5) Where a person is charged with an offence for which the person would be required on conviction to be sentenced to imprisonment for life and the charge is investigated under this section, the person may, if he so wishes, be represented by counsel (within the meaning of section 196) or by an officer subject to military law.”. Insertion of new sections: notice, right to elect, summary disposal and remand. 23.— The following sections are inserted after section 177 of the Principal Act: “Notice. 177A.— Where a charge against a person subject to military law is— (a) to be investigated under section 177 by the person’s commanding officer or an officer appointed for that purpose by the Deputy Chief of Staff (Support), or (b) referred to an authorised officer for summary investigation under section 177(2)(a)(ii)(III), the person charged shall be entitled to receive, in the prescribed manner, at least 24 hours before the charge is to be so investigated— (i) written notice in the prescribed form of the date on which and the time and place at which the charge is to be so investigated, and (ii) a copy of the charge sheet containing particulars of the offence concerned, a list of the witnesses who will be giving evidence against the person and, where available, an abstract of the evidence to be given against the person and a copy of any witness statements. Right to elect for trial by court-martial. 177B.— (1) Before disposing of a charge summarily under section 177C, the authorised officer shall, in the prescribed manner— (a) ask the person charged whether he elects to have the charge disposed of summarily by the authorised officer or to be tried by court-martial, and (b) inform the person charged that he may obtain legal advice regarding the matter of the election and, where the person wishes to obtain such legal advice, that the hearing shall be adjourned for such period as the authorised officer considers reasonable (which period shall not in any case be less than 48 hours). (2) Where the person charged elects to be tried by court-martial, whether or not the person obtains legal advice, the authorised officer shall remand the person charged for trial by court-martial and shall refer the charge to the Director for his directions but otherwise shall proceed to dispose of the charge summarily under section 177C and may do so then and there. (3) Where two or more charges are brought against the person concerned, an election for trial by court-martial in respect of any of the charges shall take effect as an election in respect of all of them. Summary disposal by authorised officer. 177C.— (1) This section applies where the person charged elects under section 177B to have the charge disposed of summarily by the authorised officer. (2) The authorised officer may, subject to subsection (5) of this section, dismiss the charge at any stage of the hearing. (3) If the authorised officer determines that the charge has not been proved he shall dismiss the charge. (4) The authorised officer may, after hearing the evidence or without hearing the evidence, remand the person charged for trial by court-martial and, in that case, shall refer the matter to the Director for his directions. (5) After hearing the evidence or, if the person charged consents to the attendance of witnesses being dispensed with and admits the offence charged, after reading a summary or abstract of the evidence, where the authorised officer makes a determination that the charge has been proved, he shall— (a) record the determination, and (b) subject to subsection (6) of this section— (i) in the case of a person subject to military law as an officer pursuant to section 118(a), (b) or (c) or as a non-commissioned officer in the rank of sergeant major or battalion quarter-master sergeant or their equivalent naval ranks, award one of the following punishments: (I) reduction on the applicable scale of pay of the person by one increment from a specified date for a specified period not exceeding one year; (II) deferral for a specified period not exceeding one year of the next increment due to the person on the applicable scale of pay of that person; (III) a fine not exceeding an amount equal to seven days’ pay of the person at the most recent applicable rate; (IV) severe reprimand; (V) reprimand, (ii) in the case of a person subject to military law as an officer pursuant to section 118(d) or (e), award one of the following punishments: (I) a fine not exceeding an amount equal to seven days’ pay of the person at the most recent applicable rate; (II) severe reprimand; (III) reprimand. (6) Where the authorised officer records a determination that two or more charges against the person have been proved, he shall award a single punishment in accordance with subsection (5) of this section in respect of the charges taken together. (7) The person charged may have an assisting person present at but not participating in the hearing before the authorised officer. (8) The evidence against the person charged taken before the authorised officer shall, if the person 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 or solemn declarations. (9) Where the authorised officer makes a determination under this section that a charge has been proved and the offence charged occasioned any personal injury, expense or loss or destruction of, or damage to, any property, the authorised officer may, instead 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 person charged, as compensation for the personal injury, expense, loss, damage or destruction so occasioned, to any person who has suffered such personal injury, expense, loss, damage or destruction, such sum as the authorised officer may direct not exceeding the lesser of— (a) the amount required to make good such personal injury, expense, loss, damage or destruction, or (b) subject to subsection (10) of this section, an amount equal to twenty-eight days’ pay of the person charged. (10) A compensation order under subsection (9) of this section may provide for payment of the compensation by such instalments and at such times as the authorised officer shall in all the circumstances consider reasonable subject to a maximum deduction of seven days’ pay in any one calendar month. Remand for trial by court-martial. 177D.— (1) Where the person charged is remanded for trial by court-martial under section 177(2)(a)(ii)(II) or 177C and the matter is referred to the Director for his directions, the Director may direct that the charge (with such alterations, amendments, additions, substitutions and additional charges as he thinks fit) be referred back to an authorised officer and the authorised officer shall either dismiss or, subject to the right to elect to be tried by court-martial pursuant to section 177B, dispose of the charge or charges so referred back summarily in accordance with section 177C. (2) Where the person charged— (a) is remanded for trial by court-martial under section 177(2)(a)(ii)(II) or 177C and no direction is given under subsection (1) of this section, or (b) is remanded for trial by court-martial under section 177 (other than under section 177(2)(a)(ii)(II)) or 177B, the Director may— (i) subject to section 192, in respect of the charge concerned (with such alterations, amendments, additions, substitutions and additional charges as he thinks fit)— (I) direct that the matter be referred for trial by summary court-martial, or (II) direct that the Court-Martial Administrator convene a general court-martial or limited court-martial, as specified in his direction, to try the person charged, or (ii) withdraw the charge.”. Amendment of section 178 of Principal Act (disposition of charges against men by commanding officers). 24.— The following section is substituted for section 178 of the Principal Act: “Charges against men. 178.— (1) This section and sections 178A to 178D apply to the summary disposal by a commanding officer of a charge against a person subject to military law as a man other than a sergeant major or battalion quarter-master sergeant or their equivalent naval ranks. (2) (a) Where a person referred to in subsection (1) of this section is charged with a scheduled offence, the commanding officer investigating the charge (including a charge referred to the commanding officer under section 179(2)(b) or 179B) shall— (i) subject to paragraph (b) of this subsection, dismiss the charge if, in his discretion, he considers that it should not be proceeded with, or (ii) remand the person for trial by court-martial if he considers that the charge should be proceeded with, or (iii) subject to this section and to regulations made under section 184, deal with the charge summarily. (b) In the case of a charge against a person referred to in subsection (1) of this section for a scheduled offence specified in Part II of the Eleventh Schedule to this Act, dismissal of the charge under subparagraph (i) of paragraph (a) of this subsection or the decision to dispose of the charge summarily under subparagraph (iii) of the said paragraph (a) shall be subject to the prior consent of the Director and where the Director refuses consent in any such case the person shall be remanded for trial by court-martial. (3) (a) Where a person is charged with an offence other than a scheduled offence, the commanding officer investigating the charge shall— (i) subject to the prior consent of the Director, dismiss the charge if he considers that it should not be proceeded with, or (ii) remand the person for trial by court-martial. (b) Where the Director refuses consent to the dismissal of the charge concerned, the person charged shall be remanded for trial by court-martial. (4) Where a person is remanded under this section for trial by court-martial, the matter shall be referred to the Director for his directions. (5) Where a person referred to in subsection (1) of this section is charged with an offence for which the person would be required on conviction to be sentenced to imprisonment for life and the charge is investigated under this section, the person may, if he so wishes, be represented by counsel (within the meaning of section 196) or by an officer subject to military law.”. Insertion of new sections: notice, right to elect, summary disposal and remand. 25.— The following sections are inserted after section 178 of the Principal Act: “Notice. 178A.— Where a charge against a person referred to in section 178(1) is to be investigated by a commanding officer, the person charged shall be entitled to receive, in the prescribed manner, at least 24 hours before the charge is to be so investigated— (a) written notice in the prescribed form of the date on which and the time and place at which the charge is to be so investigated, and (b) a copy of the charge sheet containing particulars of the offence concerned, a list of the witnesses who will be giving evidence against the person and copies of any available evidence to be given against the person and of any witness statements. Right to elect for trial by court-martial. 178B.— (1) Before disposing of a charge summarily under section 178C, the commanding officer shall, in the prescribed manner— (a) ask the person charged whether he elects to have the charge disposed of summarily by the commanding officer or to be tried by court-martial, and (b) inform the person charged that he may obtain legal advice regarding the matter of the election and, where the person wishes to obtain such legal advice, that the hearing shall be adjourned for such period as the commanding officer considers reasonable (which period shall not in any case be less than 48 hours). (2) Where the person charged elects to be tried by court-martial, whether or not the person obtains legal advice, the commanding officer shall remand the person for trial by court-martial and shall refer the charge to the Director for his directions but otherwise shall proceed to dispose of the charge summarily under section 178C and may do so then and there. (3) Where two or more charges are brought against the person concerned, an election for trial by court-martial in respect of any of the charges shall take effect as an election in respect of all of them. Summary disposal by commanding officer. 178C.— (1) This section applies where the person charged elects under section 178B to have the charge disposed of summarily by the commanding officer and, in the case of a scheduled offence specified in Part II of the Eleventh Schedule to this Act, the Director has consented to the charge being disposed of summarily. (2) The commanding officer may, subject to subsection (5) of this section, dismiss the charge at any stage of the hearing. (3) If the commanding officer determines that the charge has not been proved he shall dismiss the charge. (4) The commanding officer may, after hearing the evidence or without hearing the evidence, remand the person charged for trial by court-martial and, in that case, shall refer the matter to the Director for his directions. (5) After hearing the evidence or, if the person charged consents to the attendance of witnesses being dispensed with and admits the offence charged, having considered the available evidence, where the commanding officer makes a determination that the charge has been proved, he shall— (a) record the determination, and (b) subject to subsection (7) of this section— (i) in the case of a non-commissioned officer, award one of the following punishments: (I) reduction on the applicable scale of pay of the person by one increment from a specified date for a specified period not exceeding one year; (II) deferral for a specified period not exceeding one year of the next increment due to the person on the applicable scale of pay of that person; (III) a fine not exceeding an amount equal to seven days’ pay of the person at the most recent applicable rate; (IV) severe reprimand; (V) reprimand, (ii) in the case of a private or a seaman, award one or, subject to subsection (6) of this section, a combination of the following punishments: (I) reduction on the applicable scale of pay of the person by one increment from a specified date for a specified period not exceeding one year; (II) deferral for a specified period not exceeding one year of the next increment due to the person on the applicable scale of pay of the person; (III) a fine not exceeding an amount equal to seven days’ pay of the person at the most recent applicable rate; (IV) stoppage of local leave or shore leave, as the case may be, for a period or periods not exceeding a total of fourteen days, as may be prescribed under section 184; (V) additional duties as may be prescribed under section 184; (VI) a warning, (iii) in the case of a person subject to military law as a man pursuant to section 119(c) or (d), award one of the following punishments: (I) a fine not exceeding an amount equal to seven days’ pay of the person at the most recent applicable rate; (II) a warning. (6) Where the person charged is a private or seaman, save as provided for by subsection (10) of this section, only the following combinations of punishments may be awarded by a commanding officer: (a) in the case where the commanding officer awards a fine under subparagraph (ii)(III) of paragraph (b) of subsection (5) of this section, he may also award— (i) stoppage of local leave or shore leave under subparagraph (ii)(IV) of the said paragraph (b), or (ii) additional duties under subparagraph (ii)(V) of the said paragraph (b); or (b) in the case where the commanding officer awards stoppage of local leave or shore leave under subparagraph (ii)(IV) of paragraph (b) of subsection (5) of this section, he may also award additional duties under subparagraph (ii)(V) of the said paragraph (b). (7) Where the commanding officer records a determination that two or more charges against the person have been proved, he shall award a single punishment or combination of punishments in accordance with subsections (5) and (6) of this section in respect of the charges taken together. (8) The person charged may have an assisting person present at but not participating in the hearing before the commanding officer. (9) The evidence against the person charged taken before the commanding officer shall, if the person 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 commanding officer may administer oaths or solemn declarations. (10) Where the commanding officer makes a determination under this section that a charge has been proved and the offence charged occasioned any personal injury, expense, or loss or destruction of, or damage to, any property, the commanding officer may, instead 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 person charged, as compensation for the personal injury, expense, loss, damage or destruction so occasioned, to any person who has suffered such personal injury, expense, loss, damage or destruction, such sum as the commanding officer may direct not exceeding the lesser of— (a) the amount required to make good such personal injury, expense, loss, damage or destruction, or (b) subject to subsection (11) of this section, an amount equal to twenty-eight days’ pay of the person charged. (11) A compensation order under subsection (10) of this section may provide for payment of the compensation by such instalments and at such times as the commanding officer shall in all the circumstances consider reasonable subject to a maximum deduction of seven days’ pay in any one calendar month. Remand for trial by court-martial. 178D.— (1) Where the person charged is remanded for trial by court-martial under section 178(2)(a)(ii) or 178C and the matter is referred to the Director for his directions, the Director may direct that the charge (with such alterations, amendments, additions, substitutions and additional charges as he thinks fit) be referred back to the commanding officer and the commanding officer shall either dismiss or, subject to the right to elect to be tried by court-martial pursuant to section 178B, dispose of the charge or charges so referred back summarily in accordance with section 178C. (2) Where the person charged— (a) is remanded for trial by court-martial under section 178(2)(a)(ii) or 178C and no direction is given under subsection (1) of this section, or (b) is remanded for trial by court-martial under section 178 (other than under section 178(2)(a)(ii)) or 178B, the Director may— (i) subject to section 192, in respect of the charge concerned (with such alterations, amendments, additions, substitutions and additional charges as he thinks fit)— (I) direct that the matter be referred for trial by summary court-martial, or (II) direct that the Court-Martial Administrator convene a general court-martial or limited court-martial, as specified in his direction, to try the person charged, or (ii) withdraw the charge.”. Insertion of new sections: appeal to summary court-martial, etc. 26.— The following sections are inserted after section 178D (inserted by section 25 ) of the Principal Act: “Appeal to summary court-martial. 178E.— (1) This section and sections 178F and 178G shall apply in relation to a compensation order made under section 177C or 178C as they apply to a punishment awarded under the said section 177C or 178C, as the case may be, and for the purpose of such application references in this section and sections 178F and 178G to a punishment shall be construed as references to a compensation order. (2) A person in respect of whom, under section 177C or 178C— (a) a charge has been disposed of summarily, and (b) a determination made and punishment awarded by an authorised officer or commanding officer, as the case may be, may appeal in the manner prescribed by court-martial rules to the summary court-martial against the determination or the punishment or both the determination and the punishment. (3) An appeal under this section shall be brought— (a) within seven days beginning with the date on which the punishment was awarded (‘the initial period’), or (b) within such longer period as the summary court-martial may allow by leave given before the end of the initial period. (4) The respondent to an appeal under this section shall be the Director. Hearing of appeal by summary court-martial. 178F.— (1) An appeal under section 178E against a determination shall be by way of— (a) a rehearing of the charge, and (b) except where section 178G(2) applies, a rehearing as regards punishment. (2) An appeal under section 178E against punishment shall be by way of a rehearing as regards punishment. (3) The appellant may, if he so wishes, be represented at the hearing of the appeal by counsel (within the meaning of section 196) or by an officer subject to military law. Powers of summary court-martial. 178G.— (1) At a rehearing of the charge concerned under section 178F, the summary court-martial may confirm or quash the determination concerned. (2) Where the summary court-martial quashes a determination, or where there is more than one determination, every determination, made in respect of the appellant, the summary court-martial shall quash the punishment which relates to that determination or, as the case may be, those determinations. (3) At a rehearing as regards punishment under section 178F, the summary court-martial may— (a) confirm the punishment awarded, (b) quash that punishment, or (c) substitute any other punishment which it would have been within the powers of the authorised officer or commanding officer, as the case may be, who heard the charge against the appellant summarily, to award. (4) Where the summary court-martial substitutes a punishment under subsection (3)(c) of this section, the substituted punishment shall take effect on and from the date on which the original punishment was awarded or such other date as the military judge may order. (5) Where an appeal is made to the summary court-martial under section 178E, 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 Courts-Martial Appeal Court for determination in accordance with the Courts-Martial Appeals Act 1983 .”. Amendment of section 179 of Principal Act (disposition of charges against privates and seamen by subordinate officers). 27.— The following section is substituted for section 179 of the Principal Act: “Charges against privates and seamen. 179.— (1) A commanding officer may, in accordance with regulations made under section 184, delegate to any officer under his command the power of disposing of charges against privates or seamen under the command of the commanding officer in respect of any of the scheduled offences specified in Part I of the Eleventh Schedule to this Act and every officer to whom such power is delegated shall, for the purposes of this section, be a subordinate officer. (2) A subordinate officer investigating a charge against a private or seaman, who is subject to military law, of having committed any of the offences referred to in subsection (1) of this section shall— (a) dismiss the charge if, in his discretion, he considers that it should not be proceeded with, or (b) where the subordinate officer considers that the charge should be proceeded with, refer the charge to the commanding officer who shall deal with the charge in accordance with sections 178 to 178D, or (c) subject to this section and in accordance with regulations made under section 184, deal with the charge summarily.”. Insertion of new sections: notice, right to elect and summary disposal. 28.— The following sections are inserted after section 179 of the Principal Act: “Notice. 179A.— Where a subordinate officer proposes to investigate a charge against a private or seaman in respect of any of the offences referred to in section 179(1), the private or seaman shall be entitled to receive, in the prescribed manner, at least 24 hours before the charge is to be so investigated— (a) written notice in the prescribed form of the date on which and the time and place at which the charge is to be so investigated, and (b) a copy of the charge sheet containing particulars of the offence concerned, a list of …