Defence (Amendment) Act 2007
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Insertion of new Chapter: Director of Military Prosecutions. |
33.— The following Chapter is inserted after Chapter IVA (inserted by section 32 ) of Part V of the Principal Act: | |
“Chapter IVB | ||
Director of Military Prosecutions | ||
Appointment of Director of Military Prosecutions. | ||
184C.— (1) Subject to this Chapter, the Government shall appoint an officer of the Permanent Defence Force to be the Director of Military Prosecutions (in this Act referred to as the ‘Director’). | ||
(2) Subject to this Chapter, an officer who is a practising barrister or practising solicitor of not less than 10 years standing shall be qualified for appointment as the Director. | ||
(3) For the purposes of this section service for any period in a position in the full-time service of the State (including as a member of the Permanent Defence Force and as a civil servant within the meaning of the Civil Service Regulation Act 1956 ) for which qualification as a barrister or solicitor was a requirement shall be deemed to be practice as a barrister or a solicitor, as the case may be, for that period and an officer, while holding that position, shall be deemed to be a practising barrister or a practising solicitor, as the case may be. | ||
(4) The Director shall not be below the army rank of colonel or the equivalent naval rank. | ||
Committee. | ||
184D.— (1) For the purpose of identifying officers and informing the Minister of their suitability for appointment as Director, there shall be established a committee consisting of— | ||
(a) the Chief of Staff, | ||
(b) a Judge of the High Court, nominated by the President of the High Court, and | ||
(c) the Director of Public Prosecutions. | ||
(2) (a) In the case of the person specified in subsection (1)(b) of this section signifying at any time unwillingness or inability to act for any period as a member of the committee, the President of the High Court may nominate any other available Judge of the High Court to be a member of the committee in place of that person for that period. | ||
(b) In the case of the Director of Public Prosecutions signifying at any time unwillingness or inability to act for any period as a member of the committee, the Minister may, after consultation with the Attorney General, appoint as a member of the committee in place of the Director of Public Prosecutions, for that period, a practising barrister nominated by the General Council of the Bar of Ireland or a practising solicitor nominated by the Law Society of Ireland. | ||
(3) The committee may adopt such procedures as it considers appropriate to carry out its functions under this section. | ||
(4) The committee shall, whenever so requested by the Minister, select an officer or officers for appointment under section 184C and shall inform the Minister of the selection made and of his or their suitability for the appointment. | ||
(5) The Government shall not appoint an officer to be the Director unless the officer was selected or amongst those selected by the committee pursuant to a request under subsection (4) of this section in relation to that appointment, but— | ||
(a) if the committee is unable to select a suitable officer pursuant to a particular request under that subsection, or | ||
(b) if the Government decide not to appoint to be the Director the officer or any of the officers selected by the committee pursuant to a particular request under that subsection, | ||
then either— | ||
(i) the Government shall appoint an officer to be the Director who was selected or amongst those selected by the committee pursuant to a previous request (if any) under that subsection in relation to that appointment, or | ||
(ii) the Minister shall make a further request to the committee under that subsection and the Government shall appoint an officer to be the Director who was selected or amongst those selected by the committee pursuant to that request or pursuant to another request under that subsection in relation to that appointment. | ||
(6) All proceedings of the committee and all communications to the committee shall be confidential and shall not be disclosed except for the purposes of this Chapter. | ||
Terms and conditions of appointment. | ||
184E.— (1) Subject to this Chapter, the Director shall hold and vacate office on the terms and conditions determined by the Minister with the consent of the Minister for Finance. | ||
(2) The Director shall be independent in the performance of his functions. | ||
(3) The Director shall neither report on, nor be the subject of any report in respect of, the performance of his functions under this Act. | ||
(4) The Attorney General, the Director of Public Prosecutions and the Director may consult together from time to time in relation to matters pertaining to the functions of the Director. | ||
Prosecuting officers. | ||
184F.— (1) The Director may appoint officers to be prosecuting officers. | ||
(2) An officer shall not be appointed as a prosecuting officer unless, at the date of appointment under subsection (1) of this section, the officer is a barrister or solicitor. | ||
(3) A prosecuting officer shall hold and vacate office in accordance with the terms of his appointment. | ||
(4) A prosecuting officer may, unless the Director otherwise directs, exercise any function of the Director. | ||
Prosecution of offences. | ||
184G.— (1) This section applies where a charge has been referred to the Director under any of the provisions of this Act. | ||
(2) When a charge for an offence under this Act is referred to the Director he may exercise any of the powers conferred on him by any of the provisions of this Act. | ||
(3) Where the Director directs that a specified offence or offences be tried by court-martial, he shall also decide the class of court-martial that is to try the offence or offences concerned and shall direct the Court-Martial Administrator accordingly. | ||
(4) Where a direction has been given by the Director for the trial by court-martial of a person accused of an offence against military law, the offence shall be taken to be prosecuted at the suit of the Director who shall be responsible for the conduct of all prosecutions at court-martial, and accordingly the Director shall have, in respect of that offence, in addition to any other powers conferred on him by or under this Act, powers similar to those conferred by law on the Director of Public Prosecutions in respect of offences triable on indictment before a civil court. | ||
Removal of Director from office. | ||
184H.— (1) Subject to section 184I, the Director may be removed from office by the Government but only for stated reasons, including because— | ||
(a) he has become incapable, through ill-health, either physical or mental, of effectively performing the functions of the office, | ||
(b) he has failed to perform the functions of the office with due diligence and effectiveness, | ||
(c) he has engaged in conduct that brings discredit on the office or that may prejudice the proper performance of the functions of the office, or | ||
(d) his removal from office would, in the Government’s opinion, be in the best interests of the Defence Forces. | ||
(2) On notifying the Director under section 184I(1) that the Government intends to consider removing him from office, the Government may immediately suspend the Director from duty. | ||
(3) The suspension from duty continues until the Government makes a decision in relation to the matter under consideration, but only if there is no undue delay in taking steps under section 184I or in making that decision. | ||
Steps to be taken before removal of Director. | ||
184I.— (1) Before considering the Director’s removal from office under section 184H the Government shall— | ||
(a) notify the Director that the Government intends to consider the matter and include in the notice a statement of their reasons for doing so, and | ||
(b) give the Director an opportunity to make representations as to why he ought not to be removed from office. | ||
(2) The Government may, if they consider it necessary or appropriate to do so, appoint a Judge of the High Court nominated by the President of the High Court to— | ||
(a) hold an inquiry into any matter giving rise to a notification under subsection (1) of this section, and | ||
(b) report to the Government on the findings of the inquiry. | ||
(3) A Judge of the High Court appointed under this section to hold an inquiry may do one or more of the following: | ||
(a) direct a person, by notice delivered to the person, to provide any information that is specified in the notice and is required for the purposes of the inquiry; | ||
(b) direct any person, by notice delivered to the person, to produce at the time and place specified in the notice a document specified in the notice that is relevant to the inquiry and is in the person’s power or control; | ||
(c) summon witnesses to attend the inquiry; | ||
(d) direct a witness to answer a question put to the witness at the inquiry; | ||
(e) give any other direction that appears to the Judge appointed under this section to be necessary, just and reasonable for the purposes of the inquiry; | ||
(f) administer oaths and affirmations to witnesses and examine witnesses attending the inquiry. | ||
(4) A person whose evidence has been, is being, or is to be given before an inquiry under this section, or who produces or sends a document to the inquiry pursuant to a summons or direction, as the case may be, under subsection (3) of this section or who is required by such a summons or direction to give evidence or produce a document to the inquiry or to attend before the inquiry and there to give evidence or produce a document, shall be entitled to the same privileges and immunities as if the person were a witness before the High Court. | ||
(5) If a person fails or refuses to comply with or disobeys a summons or direction under subsection (3) of this section, the High Court may, on application by the Judge appointed under this section— | ||
(a) order the person in relation to whom the application was made to comply with the direction or, in the case of a summons, to attend the inquiry, and | ||
(b) make such other (if any) order as it considers necessary and just to enable the direction to have full effect or, in the case of a summons, to ensure the attendance at the inquiry. | ||
(6) A person who— | ||
(a) is notified under subsection (3) of this section and who, without lawful excuse, refuses or fails to comply with a direction under paragraph (a) or (b) of that subsection, | ||
(b) fails, without lawful excuse, to attend an inquiry in response to a summons under subsection (3)(c) of this section, | ||
(c) refuses to answer a question that the Judge of the High Court conducting the inquiry may legally direct the person to answer, or | ||
(d) does or omits to do in relation to the inquiry any other thing the doing or omission of which would, if the inquiry had been a proceeding in the High Court, have been contempt of that Court, | ||
is guilty of an offence and is liable on summary conviction to a fine not exceeding €3,000 or to imprisonment for a term not exceeding 6 months or both. | ||
(7) If an inquiry is held, the Government shall— | ||
(a) consider the report on the findings of the inquiry, | ||
(b) make a copy of the report available to the Director whose removal from office is the subject of the report, and | ||
(c) give the Director an opportunity to make representations relating to the report. | ||
(8) As soon as practicable after the Director is removed from office under section 184H, the Minister shall cause a statement of the reasons for the removal to be laid before each House of the Oireachtas.”. |