Defence Act 1954

Jurisdiction of courts-martial.

192

192. F229 [ (1) Subject to and in accordance with the provisions of this Act, a general court-martial, limited court-martial or summary court-martial shall, in addition to any other powers conferred on it by this Act, have jurisdiction to try and punish any person for an offence against military law committed by the person while subject to military law as an officer or as a man. ]

F230 [ (1A) In this section relevant offence means

( a ) the offence of treason or murder, or

( b ) an offence under section 3 , as amended, of the Geneva Conventions Act 1962 or an offence under section 7 (genocide, crimes against humanity and war crimes) or 8 (ancillary offences) of the International Criminal Court Act 2006 , or

( c ) manslaughter, rape, rape under section 4 (within the meaning of the Criminal Law (Rape) (Amendment) Act 1990 ) or aggravated sexual assault (within the meaning of the Criminal Law (Rape) (Amendment) Act 1990 ), or

( d ) an offence under the Criminal Justice (United Nations Convention against Torture) Act 2000 , or

( e ) an offence under the Criminal Justice (Safety of United Nations Workers) Act 2000 , or

( f ) an offence under the Criminal Justice (Terrorist Offences) Act 2005 .

(1B) A summary court-martial shall not have jurisdiction

( a ) to try any person who is for the time being an officer holding the army rank of lieutenant colonel or the equivalent naval rank or higher commissioned rank,

( b ) to try any person for a relevant offence,

( c ) to award to any person any sentence greater than imprisonment for a term of six months, or

( d ) in the case of an appeal under section 178E, to award any punishment greater than that awardable on summary disposal of the matter under section 177C or 178C, as appropriate. ]

F231 [ (2) A limited court-martial shall not have jurisdiction

( a ) to try any person for any offence against military law committed by the person while subject to military law as an officer,

( b ) to try any person who is for the time being an officer or a man of the army rank of battalion quarter-master sergeant or the equivalent naval rank or of any higher non-commissioned rank,

( c ) to try any person for a relevant offence, or

( d ) to award to any person any sentence greater than imprisonment for a term of two years. ]

F232 [ (3) Subject to subsection (3A) of this section, a general court-martial shall not have jurisdiction to try any person subject to military law for a relevant offence unless the offence was committed while the person was on active service or while the person was despatched for service outside the State for any purpose specified in section 3 of the Defence (Amendment) Act 2006 . ]

F233 [ (3A) In the case of rape, rape under section 4 (within the meaning of the Criminal Law (Rape) (Amendment) Act 1990 ) or aggravated sexual assault (within the meaning of the Criminal Law (Rape) (Amendment) Act 1990 ), where the offence was committed by a person subject to military law who was neither on active service nor despatched for service outside the State for any purpose specified in section 3 of the Defence (Amendment) Act 2006 when the offence was committed, a general court-martial may try any person subject to military law on a charge of having committed that offence where

( a ) the person in respect of whom the offence was committed is, or was when the offence was committed, subject to military law, and has consented in writing to the trial of the offence by court-martial, and

( b ) the Director of Public Prosecutions has given his prior consent. ]

(4) ( a) The Minister, with the concurrence of the Minister for Justice, may make regulations with regard to the exercise of the jurisdiction conferred on courts-martial by section 169 and may in particular by the regulations provide that the exercise of such jurisdiction shall depend on the consent of such civil authority as may be specified in the regulations.

( b) A certificate under the hand of F234 [ the Director certifying that as respects the trial of a civil offence ] the consent referred to in paragraph ( a) of this subsection has been obtained shall be prima facie evidence of that fact.

Annotations:

Amendments:

F229

Substituted (1.09.2008) by Defence (Amendment) Act 2007 (24/2007), s. 42(a), S.I. No. 254 of 2008.

F230

Inserted (1.09.2008) by Defence (Amendment) Act 2007 (24/2007), s. 42(b), S.I. No. 254 of 2008.

F231

Substituted (1.09.2008) by Defence (Amendment) Act 2007 (24/2007), s. 42(c), S.I. No. 254 of 2008.

F232

Substituted (1.09.2008) by Defence (Amendment) Act 2007 (24/2007), s. 42(d), S.I. No. 254 of 2008.

F233

Inserted (1.09.2008) by Defence (Amendment) Act 2007 (24/2007), s. 42(e), S.I. No. 254 of 2008.

F234

Substituted (1.09.2008) by Defence (Amendment) Act 2007 (24/2007), s. 42(f), S.I. No. 254 of 2008.

Modifications (not altering text):

C52

Application of subs. (4) restricted (21.12.1960) by Defence (Amendment) (No. 2) Act 1960 (44/1960), s. 4(5), commenced on enactment, as amended (12.07.2006) by Defence (Amendment) Act 2006 (20/2006) ss. 2 (non-textual amendment) and 9(c) (textual amendment), commenced on enactment.

Amendments of the Principal Act.

4.— ...

(5) Regulations made under subsection (4) of section 192 of the Principal Act and providing that the exercise of the jurisdiction conferred on courts-martial by section 169 of the Principal Act shall depend on the consent of a civil authority specified in the regulations shall not apply in relation to the exercise of that jurisdiction by a court-martial for the trial of a member of the Permanent Defence Force for an offence committed by him while serving outside the State with an International United Nations Force [or for any purpose specified in section 3 of the Defence (Amendment) Act 2006 ].

...

Defence (Amendment) Act 2006 (20/2006):

Application of certain provisions of Act of 1960 and Principal Act.

2.— (1) Sections 2, 4 and 6 of the Act of 1960 shall apply and have effect as if each reference in any of those sections to an International United Nations Force were a reference to an International United Nations Force as defined in section 1 of this Act.

(2) The provisions of the Principal Act specified in section 4 of the Act of 1960 as amended by this Act shall apply and have effect as if each reference in those provisions to an International United Nations Force were a reference to an International United Nations Force as defined in section 1 of this Act.

Editorial Notes:

E43

Power pursuant to section exercised (1.01.1955) by Defence (Civil Authority with respect to Courts-Martial) Regulations 1954 (S.I. No. 250 of 1954).

E44

Previous affecting provision: subss. (2) and (3) amended (31.10.2006) by International Criminal Court Act 2006 (30/2006), s. 66 and sch. 3, para. 1(b), commenced on enactment; subss. (2) and (3) substituted as per F-notes above.

E45

Previous affecting provision: subs. (3) amended (12.07.2006) by Defence (Amendment) Act 2006 (20/2006), s. 7, commenced on enactment; subs. (3) substituted as per F-notes above.

E46

Previous affecting provision: subss. (2) and (3) amended (8.03.2005) by Criminal Justice (Terrorist Offences) Act 2005 (2/2005), s. 56(b) and (c), commenced on enactment; subss. (2) and (3) substituted as per F-notes above.

E47

Previous affecting provision: subss. (2) and (3) amended (28.06.2000) by Criminal Justice (Safety of United Nations Workers) Act 2000 (16/2000), s. 6(b), commenced on enactment; subss. (2) and (3) substituted as per F-notes above.

E48

Previous affecting provision: subss. (2) and (3) amended (14.06.2000) by Criminal Justice (United Nations Convention Against Torture) Act 2000 (11/2000), s. 6(b), commenced on enactment; subss. (2) and (3) substituted as per F-notes above.

E49

Previous affecting provision: subs. (2) amended (22.07.1997) by Criminal Law Act 1997 (14/1997), s. 14 and sch. 2, para. 7, commenced as per s. 1; subs. (2) substituted as per F-note above.

E50

Previous affecting provision: term “International United Nations Force” interpreted (1.07.1993) by Defence (Amendment) Act 1993 (18/1993), s. 3(2), commenced on enactment; repealed (12.07.2006) by Defence (Amendment) Act 2006 (20/2006), s. 12 and sch., commenced on enactment.

E51

Previous affecting provision: subs. (3) amended (18.01.1991) by Criminal (Rape) (Amendment) Act 1990 (32/1990), s. 19(b), commenced as per s. 22(3); subs. (3) substituted as per F-note above.

E52

Previous affecting provision: subs. (2) amended (11.07.1990) by Criminal Justice Act 1990 (16/1990), s. 7 and sch. 1, para. 4(h), commenced on enactment; subs. (2) substituted as per F-note above.

E53

Previous affecting provision: subss. (2) and (3) amended (18.12.1973) by Genocide Act 1973 (28/1973), s. 5, commenced on enactment; subss. (2) and (3) substituted as per F-notes above.