Allowing outside parties to make applications to military tribunal would undermine their ability to deal with “war or armed rebellion”, a court martial has heard.
The matter was raised during legal argument at a General Court Martial hearing held in McKee Barracks on Thursday. At issue was the right of the media to have a right of audience before a court martial and to challenge the imposition of reporting restrictions on proceedings.
Counsel representing The Irish Times and other media organisations argued the military judge, Colonel Michael Campion, should revise an order banning the reporting of most of the details of a case involving a military officer convicted of sexual assault.
The mid-ranking officer was found guilty by the military tribunal last October of sexually assaulting a female soldier after a social function at a military barracks two years ago. He was cleared of three other counts of the same offence following a six week trial.
Reporting restrictions have been in place throughout the trial and were continued following conviction. The officer is to appear again for a pre-sentencing hearing on February 1st, 2023.
Regarding the media’s right of audience, counsel for The Irish Times Ciaran Lewis SC said the precedent is clear that the press has “absolute right to make applications” due to its important function in society.
On the issue of reporting restrictions, counsel pointed to legislation stating justice must be done in public save for exceptional circumstances.
Reporting restrictions can only be imposed in “limited circumstances” and “great care must be taken to determine what restrictions are applied and if they are necessary.”
Counsel said the imposition of reporting restrictions must be based on evidence. He highlighted a previous civil matter where restrictions were placed on matters related to the Garda Witness Protection Programme but only after evidence was heard on the matter from the Garda Commissioner.
Mr Lewis said he is not aware of any evidence in the current case which, if reported now, would pose a danger to the security of the State or the Defence Forces.
Counsel for the Director of Military Prosecutions Commandant Sean Coffey said he is not opposing the media’s application.
The application was strongly opposed by Feargal Kavanagh SC, who is representing the convicted officer. Mr Kavanagh argued the media have no right of audience before a court martial which he said are in a different category to ordinary criminal courts.
Calling the application a “major distraction” for the defence, counsel said this was a “special court” and nowhere is there precedent for anyone but the defence and prosecution to have a right of audience.
He said the “fundamental and overarching importance” of courts martial mean they have to be able to conduct their business without interruption or challenge.
The military is the preserver of the Constitution and its commander in chief is the President of Ireland, he said. It is therefore of the “utmost importance” its military tribunals can carry out its work without outside challenge.
Allowing the media a right of audience would be “the thin end of the wedge” and would undermine the Court’s Martial ability to deal with “catastrophic” situations such as “war and armed rebellion.”
There are matters which ought to remain within the military and not be published outside of its proceedings, counsel said, adding that if the press want to make an application it should make it in the High Court.
Col Campion declined to rule on the right of audience matter. He continued the reporting restrictions but said he will keep the matter under review and take account of Mr Lewis’ arguments.