S.I. No. 72/1983:

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

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

I, PATRICK COONEY, Minister for Defence, in exercise of the powers conferred on me by section 240 of the Defence Act, 1954 (No. 18 of 1954), hereby make the following rules:

1. (1) These Rules may be cited as the Rules of Procedure (No. 2) (Defence Forces), 1983.

(2) The collective citation "the Rules of Procedure (Defence Forces), 1954 to 1983," shall include these Rules.

2. In these Rules--

"the accused" has the meaning assigned to it by Rule 4;

"the commanding officer" has the meaning assigned to it by Rule 2 (1) of the Principal Rules;

"the Principal Rules" means the Rules of Procedure (Defence Forces), 1954 ( S.I. No. 243 of 1954 );

"the relevant legal officer" has the meaning assigned to it by Rule 3.

3. (1) An officer, who shall for the time being, pursuant to Defence Force Regulations C.S.4, stand designated as a legal officer, appointed by the Deputy Adjutant-General to be a legal officer for the purposes of these Rules (in these Rules referred to as "the relevant legal officer") shall cause the following documents to be served on the accused, namely--

( a ) a copy of the charge sheet (Army Form 117),

( b ) a list of the witnesses whom it is proposed to call on behalf of the prosecution at the trial by court-- martial, should the accused be remanded for such trial, which list shall be in Form 1 contained in the Schedule to these Rules,

( c ) as regards each such witness, a statement of the evidence that is to be given by him at such trial, which statement shall be in Form 2 contained in the said Schedule, and

( d ) in relation to such trial, a list of exhibits (if any) which list shall be in Form 3 contained in the said Schedule.

(2) The relevant legal officer may cause to be served on the accused a further statement of the evidence to be given by any witness a statement of whose evidence has already been so served under this Rule.

(3) The relevant legal officer shall cause to be furnished to the officer who is to conduct an investigation under Rule 4 of these Rules the original charge sheet (Army Form 117) together with a copy of any other document served on the accused under this Rule.

(4) Where a list of exhibits is served on the accused pursuant to the requirements of paragraph (1) of this Rule, the accused shall have the right to inspect all or any one or more of the exhibits to which the list relates.

4. (1) Where a capital charge or a charge of murder is preferred against a person subject to military law (in these Rules referred to as "the accused"), and after the requirements of Rule 3 (1) of these Rules have been complied with, the commanding officer shall cause the person preferring the charge and also the accused to appear before him at a stated time (to be fixed either by Standing Orders or otherwise) at his office or headquarters or other available place, as soon as practicable, with the service record of the accused, and shall there informally investigate the charges.

(2) At an informal investigation under this Rule--

( a ) the accused shall be entitled to present anything he may desire on his own behalf, either in defence or mitigation;

( b ) the person by whom the charge is preferred and the accused shall each be entitled to give evidence on sworn deposition and also to require the attendance at the investigation of any person, whether included in the supplied list of witnesses or not, and to examine him by way of sworn deposition;

( c ) any witness at the investigation may be cross-examined and re-examined on his evidence and his deposition shall be taken down in writing, read over to him and signed by him and by the commanding officer;

( d ) witnesses who are not subject to military law may be summoned in accordance with the Defence Forces (Summoning of Civilian Witnesses) Regulations, 1954 ( S.I. No. 297 of 1954 );

( e ) having considered the matters specified in paragraphs (a) and (b) of Rule 5 of these Rules--

(i) the commanding officer shall as regards the charge, or, as may be appropriate, each of the charges ask the accused if he has anything to say in answer to the charge, and such officer shall caution the accused that he is not obliged to say anything unless he wishes to do so and that whatever he does say will be taken down in writing and, if he is remanded for trial by court-martial, may be given in evidence at such trial,

(ii) whatever the accused says in answer to the commanding officer's question and caution shall be taken down in writing and read over to him and shall be signed by the commanding officer who in taking such statement shall use Form 4 contained in the Schedule to these Rules,

( f ) nothing in this Rule shall prevent the person by whom the charge is preferred from giving in evidence any confession, or other statement made at any time by the accused, which, by virtue of section 201 (1) of the Defence Act, 1954 , is admissible in proceedings before courts-martial as evidence against the accused.

(3) Subparagraph (b) of paragraph (2) of this Rule shall not entitle the person by whom the charge is preferred or the accused in an informal investigation under this Rule to require the attendance before the commanding officer of a person or to examine him by way of sworn deposition if it appears to such officer that the person is outside the State and that it is not reasonably practicable to secure his attendance before such officer for examination under this Rule.

(4) Where an investigation is required to be held under this Rule, an investigation shall not be held under Rule 6 of the Principal Rules as regards the charge, or any of the charges, as may be appropriate, to which the investigation under this Rule relates.

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

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

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

( c ) any statement referred to in Rule 4 (2) (e) (ii) of these Rules, and

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

6. Where the accused is remanded under section 177 or 178 of the Defence Act, 1954 , for trial by court-martial, the order of remand shall be in Form 5 contained in the Schedule to these Rules.

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

8. (1) Where the accused has been remanded for trial by court-martial on a capital charge or a charge of murder and an order for such trial has been made, a person by whom, pursuant to section 187 of the Defence Act, 1954 , a general court-martial may be convened shall cause to be served on the accused a list of any further witnesses whom it is proposed to call on behalf of the prosecution at such trial, together with a statement of the evidence that is to be given by each of them, a list of any further exhibits, a statement of any further evidence that is to be given by any witness whose name appears on the list of witnesses already supplied, and also copies of any statement recorded under Rule 4 of these Rules and any deposition taken under that Rule.

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

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

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

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

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

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

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

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

( b ) as regards Rule 17--

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

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

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

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

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

( c ) as regards Rule 18--

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

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

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

( d ) as regards Rule 20--

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

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

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

( e ) as regards Rule 39--

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

(I) for "the summary or abstract of evidence" there were substituted "any statement of evidence served on the accused pursuant to the requirements of paragraph (1) (c) or under paragraph (3) of Rule 3 of the Rules of Procedure (No. 2) (Defence Forces), 1983, any deposition or statement taken at the investigation under Rule 4 of those Rules and any statement of evidence furnished to the judge-advocate under Rule 8 (2) of those Rules" and

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

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

( f ) Rule 82 shall not apply;

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

"(b) a copy of any statement of evidence served on the accused pursuant to the requirements of paragraph (1) (c) or under paragraph (3) of Rule 3 of the Rules of Procedure (No. 2) (Defence Forces), 1983, the originals or certified true copies of any deposition or statement taken at the investigation under Rule 4 of those Rules, and the copy furnished or a certified true copy thereof of any statement of evidence furnished to the judge-advocate under Rule 8 (2) of those Rules;";

( h ) Rule 105 shall be construed and have effect as if for "Rules 11, 12 and 20 of these Rules" there were substituted "Rules 11 and 20 of these Rules, Rule 3 of the Rules of Procedure (Defence Forces), 1983 ( S.I. No. 22 of 1983 ), and Rules 3 and 4 of the Rules of Procedure (No. 2) (Defence Forces), 1983"; and

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

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

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

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

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

SCHEDULE

FORMS

DEFENCE ACT, 1954

Rules of Procedure (No. 2)

(Defence Forces), 1983

LIST OF WITNESSES

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

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

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

by or on behalf of the person by

whom the charge(s) is/are preferred.

DEFENCE ACT, 1954

Rules of Procedure (No. 2)

(Defence Forces), 1983.

STATEMENT OF EVIDENCE

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

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

DEFENCE ACT, 1954

Rules of Procedure (No. 2)

(Defence Forces), 1983.

LIST OF EXHIBITS

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

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

by or on behalf of the relevant

legal officer.

DEFENCE ACT, 1954

Rules of Procedure (No. 2)

(Defence Forces), 1983

STATEMENT OF ACCUSED

*delete where

inapplicable

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

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

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

Commanding Officer

†Where there is more than one charge continue thus

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

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

and so forth.

DEFENCE ACT, 1954

Rules of Procedure (No. 2)

(Defence Forces), 1983

ORDER OF REMAND FOR TRIAL BY

COURT-MARTIAL

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

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

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

Dated this     day of    , 19   .

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

Commanding Officer

*delete if inappropriate

Form 6

FORM OF APPLICATION FOR A COURT-MARTIAL

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

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

(Defence Forces), 1983)

APPLICATION FOR A COURT-MARTIAL

Sir,

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

I enclose the following documents:--

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

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

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

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

To

Signature of Commanding Officer

Form 7

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

Signed

Rank

Appointment

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

PATRICK COONEY,

Minister for Defence.

EXPLANATORY NOTE.

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