High Court of Ireland Decisions

1. This is an Application for Judicial Review made pursuant to leave granted by Mr. Justice Smyth by Order of the 14th July, 1997. The reliefs sought include an Order of Certiorari directing the Respondents to send up to the High Court for the purposes of being quashed the proceedings and findings of the Court of Inquiry purported to have been held under the Defence Act, 1954 on the 26th August, 1996 and/or 2nd September, 1996, a Declaration that the Applicant continues to be a member of the Permanent Defence Forces, a Declaration that the Applicant is not absent without leave or other sufficient cause, an Inquiry as to damages and an Order restraining the Respondents from taking any action on foot of the finding of the said Court of Inquiry. The grounds upon which these reliefs are sought are as follows:-

2. The Court of Inquiry was for the purpose of investigating and recording the absence without leave or other sufficient cause from the Applicant's duty in the Defence Forces and the deficiency of any arms, ammunition, equipment, instruments, service, necessaries and clothing. The Applicant concedes that he did not have leave but makes the case that there was sufficient cause for his absence from duty by reason of injuries and illness. That is the background and context of all the Applicant's grounds for relief.

3. The statement of opposition is largely a traverse but it is alleged in it that the Applicant by being a member of the army had consented to the holding of Courts of Inquiry in the manner prescribed in the rules of procedure established under the Defence Forces Act, 1954 and that in those circumstances the Applicant is estopped from alleging that the provisions of the said regulations are in breach of his rights to natural or constitutional justice. Two matters are admitted in the Statement of Opposition, i.e. that the Applicant was not informed of the holding of the Court of Inquiry and that the Applicant is currently a member of the Permanent Defence Forces holding the rank of Private.

4. In my view, the basic complaint of the Applicant is well founded. He is entitled to succeed on ground (c) above, apart from any other ground, and that being so all the other grounds pale into insignificance. At the stage that the Court of Inquiry was established and purported to carry out its work, the Applicant's address and whereabouts was well known to the army authorities and the Applicant's solicitors were already in correspondence with the army authorities in relation to the Applicant's position. No notice of the Inquiry of any kind was given to the Applicant or his solicitors nor was any opportunity offered to the Applicant of putting any evidence before the Inquiry as to whether there might be sufficient cause for his absence. The Applicant has at all material times maintained that there was sufficient cause. There is nothing in the Defence Act or Defence Regulations which absolves the army authorities from the normal rules of constitutional and natural justice and indeed if there was the constitutionality of any such provision would be in question. I cannot accept that by enlisting for the army the Applicant in some way waived his rights to constitutional and natural justice and is now estopped from invoking those rights.

5. I realise that the army authorities to some extent regard the Court of Inquiry as an evidence gathering exercise rather than a court of trial such as, for instance, a Court Martial. But the findings of the Court of Inquiry can have serious consequences. Quite apart from the findings of such a Court of Inquiry having a prima facie evidential effect in a future Court Martial, it is provided in Section 174(3)(b)(iii) of the Defence Act, 1954 that a record on foot of such an Inquiry declaring that a member of the forces was absent without leave or without sufficient cause shall, if such man does not afterwards surrender or is not apprehended, have the legal effect of a conviction by Court Martial for desertion.

6. I think that I should at this point make it clear that I would be of the view that if a member of the Defence Forces was absent without leave, without leaving any address and could not be reasonably located, a Court of Inquiry can proceed in his absence and without giving him an opportunity to give evidence. In such a case the solider has waived his rights by implication but it is entirely different if the whereabouts of the member of the forces is known to the army authorities and of course all the more so if he is in active discussions with the army in connection with his absence. Having regard to the views which I have expressed, I must obviously make the Order of Certiorari. But I do accept that the grounds (a) and (b) are also well founded. I do not think that ground (d) really arises as nothing turns on any question of estoppel. Nor would I be prepared to accept ground (e) because it is not for this Court to make a finding that the Applicant was absent from duty by reason of illnesses and by inference finding that he was absent for good reason. That is a matter for the properly constituted Court of Inquiry carrying out its functions in a proper way under the Defence Act, 1954.

7. Counsel for the Applicant drew my attention to interesting distinctions between the old Army Act, 1881 and the Defence Act, 1954 and regulations made thereunder but I do not find it necessary to go into these particular arguments.

8. I will grant the Order of Certiorari as sought and I will also make a Declaration that the Applicant continues to be a member of the Permanent Defence Forces. I will not for the reasons which I have indicated make a Declaration that the Applicant is not absent without leave or other sufficient cause. Such a Declaration would not be appropriate as I am merely concerned not with the facts but with the procedures. I do not know if damages are still being pursued. I am making no finding at this stage as to whether the Applicant would be entitled to any damages and if it is sought to pursue the matter I will adjourn the question of an Inquiry as to damages generally with liberty to re-enter. Even if the Applicant was, prima facie, entitled to such an Inquiry it would be inappropriate for the Court to embark on it pending any new Court of Inquiry established by the Army if it is intended to hold one.