Lack of representation at informal preliminary military inquiry not unfair

Colman Scariff (applicant/ appellant) v Lieutenant Colonel David Taylor and the members of Limited Court Martial of the Permanent Defence Forces, Colonel J. T. M. O'Neill and the Minister for Defence (respondents).

Judicial Review Court martial Fair procedures Constitutional rights whether there is a right to legal representation at a preliminary investigation to a court martial Jurisdiction of the courts in relation to courts martial offences Against the Person Act 1861 (24-25 Vict. c 100) Defence Act 1954 to 1990 (No 6), section 169 Criminal Justice Act 1990 (No 16), sections 7 and 47 Rules of Procedure (Defence Forces) 1954, (51 No 243), rules 6. 7, 12.

The Supreme Court (before the Chief Justice, Mr Justice Hamilton Mr Justice Blayney and Mrs Justice Den ham) judgment delivered 24 January 1996.

IN an informal investigation preliminary to a court martial, the fact that the appellant was not entitled to legal representation did not render the procedure unfair or cause an injustice.

The Supreme Court so held in dismissing the appellant's appeal.

James Connolly SC and Geri Silke BL for the applicant/ appellant Erwan Mill Arden SC and Eanna Mulloy BL for the respondents.

THE CHIEF JUSTICE said that this was an appeal brought by the applicant/ appellant (the appellant) against an order of the High Court refusing him relief by way of judicial review.

The appellant had been part of an army escort for the transport of cash. A row occurred in one of the army vehicles between the appellant and a fellow soldier in which it was alleged that the appellant assaulted the fellow soldier and broke his nose.

The Chief Justice said that the appellant was subsequently brought before a limited court martial on a charge of committing a civil offence, namely, assault occasioning actual bodily harm.

The Chief Justice said that the procedure to be adopted in the investigation of charges against members of the Defence Forces was set forth in the Rules of Procedure (Defence Forces) 1954 (SI 243/1954).

He said that the appellant complained that he was not informed that he could require or demand that the evidence of the witnesses against him be sworn. He also complained that he was deprived of his alleged right to counsel or a representative to appear for him, and that by reason of being so deprived of counsel or a representative he was unable to exercise his right to cross examine the witnesses against him.

The Chief Justice said that having completed the informal investigation, the commanding officer may decide to dismiss the charges and if he does not do so, he can refer the matter for trial. In this case, the commanding officer decided to refer the matter for trial before a limited court martial and directed a summary of evidence to be taken in accordance with the rules of procedure.

At the taking of the summary of evidence, the appellant requested that he be legally represented, hut, in accordance with the rules of procedure, was refused representation. The Chief Justice said that the court was informed by counsel for the respondents that such sworn testimony is not made available to the court martial when an accused person pleads not guilty.

At the hearing by the court martial, counsel on behalf of the appellant contended that the court did not have jurisdiction to hear the charges preferred against him because of the unfairness of the preliminary procedures. The court overruled these submissions and decided to proceed with the trial.

The appellant was granted leave by the High Court to seek relief by way of judicial review.

The Chief Justice said that at the hearing before the court martial, the appellant was entitled to legal representation and was afforded such representation, and no complaint was made with regard to representation before the actual court martial. The appellant's complaint was in respect of the denial to him of representation at the informal investigation and at the taking of the sworn evidence.

The Chief Justice said that the learned trial judge held that there was no ground for quashing the orders of the court martial, and the appellant's claim for relief was dismissed. In the High Court it was held that different considerations apply to the army as a disciplined body, and that the initial informal inquiry is inquisitorial, rather than adversarial.

In considering the jurisdiction of the court, the Chief Justice referred to the cases of C v The Court Martial and Others (Supreme Court, unreported, 15 February 1994) and Curran v A.G. (High Court, unreported, 27 February 1941). He said that the court can and should pay a particular respect to the fundamental importance under the Constitution and under a structure of society of the disciplinary machinery and disciplinary codes of the Defence Forces, and is only entitled to intervene therein when such intervention is necessary to do justice to a member of the Defence Forces in relation to any particular proceedings or position in which he finds himself.

The Chief Justice went on to say that in the informal investigation, the commanding officer had a discretion which was quasi judicial, namely, deciding whether or not the evidence disclosed was sufficient to justify a return for trial, and if not, in dismissing the charge. In the execution of such investigation and in the exercise of the discretion to dismiss the charge, the first named respondent, who was the commanding officer, was obliged to act in a fair and proper manner, and in accordance with fair procedures.

The Chief Justice went on to say that what constituted fair procedures depended on the nature of the inquiry being conducted by him. He then referred to Kiely v The Minister for Social Welfare [1977] IR 26 7.

The Chief Justice asked whether the failure of representation at the preliminary stages of the investigation of the charges against the appellant meant that the appellant might not get a fair hearing or a fair result, or cause an injustice to the appellant, and in his opinion it did neither. He said that the appellant was not in peril of conviction of the charge laid against him as a result of the findings made on the preliminary informal investigation and the taking of sworn evidence and also, the evidence was not placed before the court martial because of his not guilty plea.

The Chief Justice said that at the hearing before the court martial the appellant is entitled to legal representation and to the benefit of fair procedures. He said that there is no reason to assume that the court martial would be conducted other than in accordance with fair procedures and the requirements of constitutional justice. In addition, the Chief Justice pointed out that the appellant has a right of appeal from the findings of the court martial to the Court Martial Appeal Court.

Therefore, the Chief Justice was satisfied that the judgment of the learned trial judge was correct and he dismissed the appeal.

MRS JUSTICE DENHAM, in concurring with the judgment of the Chief Justice, summarised the facts of the case, and said that she was satisfied that cases such as In Re Haughey [1971] IR 217, insofar as they apply to the right to legal representation, do not apply to the preliminary proceeding to the court martial, but rather to the court martial itself.

Mrs Justice Denham said that the right of reasonable access to a solicitor was recognised by the Supreme Court in People (DPP) v Healy [1990] 2 IR 73. That constitutional right is initially primarily to inform the accused of his rights relative to the making of statements. However, Mrs Justice Denham said that the reference to statements is to those which may be used as evidence in court. Therefore, she went on to say that it ho relevance to the facts of Mrs Justice Denham said that balance the factors in this case there was not an absence of fair procedure so as to prejudice the appellant. He said that there is a presumption hat the court martial will act constitutionally, and the appellant had not made out a case that he won't be prejudiced or that the court in dial would act unconstitutionally, that the appellant's constitutional rights would be infringed.

Mrs Justice Denhan pointed out that the relief sought was a discretionary remedy an there being no grounds established shed, there were no grounds upon which the relief might be granted.

Mrs Justice Denham so held on dismissing the appeal.

MR JUSTICE BLAYNEY concurred with the judgments delivered by the Chief Justice and Mrs Justice Den ham.

Solicitors Leonard Silke & Co (Galway) for the applicant/ appellant Chief State Solicitor for the respondents, Elizabeth Maguire Barrister