S.I. No. 202/1983 - Rules of Procedure (No. 3) (Defence Forces), 1983.

S.I. No. 202 of 1983.

RULES OF PROCEDURE (No. 3) (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. 3) (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 No. 2 Rules of 1983" means the Rules of Procedure (No. 2) (Defence Forces), 1983 ( S.I. No. 72 of 1983 );

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

3. Where pursuant to Rule 3 (1) of the Rules of Procedure (Defence Forces), 1983 ( S.I. No. 22 of 1983 ), as amended by Rule II of the No. 2 Rules of 1983, an accused person is entitled to be represented by counsel or by a solicitor at the investigation of a charge pursuant to the No. 2 Rules of 1983, his commanding officer shall, prior to the commencement of such investigation, inform him that he may, if he so wishes, apply for legal aid.

4. The officer by whom, pursuant to Rule 20 of the Principal Rules, the documents referred to in paragraph (1) of that Rule are delivered to an accused person shall, at the same time as such person is supplied with the said documents, inform him that he may, if he so wishes, apply for legal aid.

5. The Principal Rules are hereby amended by—

( a ) the substitution of the following rule for Rule 60:

"Petition against sentence (other than sentence of death).

60. (1) Where a person has been sentenced by a court to suffer any punishment (other than death), subject to paragraph (4) of this Rule, a petition against such sentence may be presented by or on behalf of such person.

(2) A petition under paragraph (1) of this Rule shall be presented to a superior authority (other than the Minister) for the purposes of section 221 of the Act:

Provided that a superior authority who has confirmed the findings and sentence of the court-martial in the case to which the petition relates may not consider the petition.

(3) Where as regards a petition presented under paragraph (1) of this Rule a person is not satisfied with the decision thereon he may present a further petition to the Minister.

(4) A petition presented under paragraph (1) of this Rule shall not be presented until after the expiration of the period during which an appeal may be taken to the Courts-Martial Appeal Court as regards the proceedings to which the petition relates, and in case such an appeal is taken the petition shall not be presented until—

( a ) the appeal is withdrawn, or

( b ) the appeal is determined by such court, or

( c ) in case there is an appeal as regards the said proceedings to the Supreme Court (other than an appeal taken by virtue of section 14 (2) of the Courts-Martial Appeals Act, 1983 (No. 19 of 1983)), the appeal to the Supreme court is either determined or withdrawn.

(5) A person to whom a petition under this Rule is duly presented shall, as soon as may be, give his decision thereon and cause such decision to be communicated to the petitioner.

(6) A petition under this Rule shall be in the form prescribed in Appendix VIII to these Rules and shall be signed by the petitioner.";

( b ) the substitution of the following rule for Rule 61:

"Petition against sentence of death.

61. (1) A petition against sentence by or on behalf of a person who has been sentenced by a court to suffer death shall be presented to the Government.

(2) Paragraphs (4) and (5) of Rule 60 of these Rules shall, with the necessary modifications, apply in relation to a petition described in paragraph (1) of this Rule.";

( c ) the substitution of the following rule for Rule 62:

"Provisions as to finding of insanity and custody of insane person.

62. (1) Where a court finds either that the accused is unfit, by reason of insanity to take his trial, or that he was guilty of the act or omission charged but was insane at the time when he did the act or made the omission, the president shall date and sign the finding, and the proceedings shall be signed by the judge-advocate (whose signature shall authenticate the whole of the proceedings).

(2) An order which a court-martial is required to make under section 202, as amended by section 5 of the Courts-Martial Appeals Act, 1983 , or section 203, as amended by section 6 of the last-mentioned Act, of the Act shall be—

( a ) in case the order is required to be made under the said section 202, in the form prescribed in Appendix VIII A to these Rules,

( b ) in case the order is required to be made under the said section 203, in the form prescribed in Appendix VIII B to these Rules.";

( d ) the substitution of the following rule for Rule 63:

"Effective date of certain sentences.

63. (1) Subject to section 20 (2) of the Courts-Martial Appeals Act, 1983 , each of the following sentences, namely,

( a ) dismissal with ignominy from the Defence Forces;

( b ) dismissal from the Defence Forces;

( c ) discharge with ignominy from the Defence Forces;

( d ) discharge from the Defence Forces;

( e ) reduction to a lower non-commissioned army rank or to a lower non-commissioned naval rank;

shall take effect on and from such date as may be fixed therefor by the Adjutant-General who, in fixing such date, shall, subject to paragraph (2) of this Rule, act without delay.

(2) ( a ) Paragraph (4) of Rule 60 of these Rules shall, with the necessary modifications, apply to the fixing of a date under this Rule as it applies to the presentation of a petition under that Rule.

( b ) Where, before a date is fixed under this Rule in relation to a sentence, a petition is presented under Rule 60 of these Rules against the sentence, the Adjutant-General shall in so fixing the date have regard to the petition."; and

(e) the substitution of the following Appendices for Appendix VIII:

"APPENDIX VIII

FORM OF PETITION AGAINST SENTENCE OF A COURT-MARTIAL.

(Rule 60, Rules of Procedure (Defence Forces), 1954).
Particulars of Petitioner.
(No., Rank, Name, Unit) ............................................................ .........................................................
Type of Court-martial (General or Limited) ............................................................ ............................................................ ....
Place at which held ............................................................ ............................................................ ....
Date held: ............................................................ ............................................................ ..................
(Above particulars to be completed by Petitioner's Unit)
To:¹
Sir, I present this petition against the sentence of the above Court-martial. The following are the grounds of my Petition.
Date: .............................................	............................................................ ........................
	Signature of Petitioner.
¹If the petition is being presented pursuant to Rule 60 (2) of the above Rules, it is to be addressed to a superior authority (other than the Minister for Defence) for the purposes of section 221 of the Defence Act, 1954 . If it is being presented pursuant to Rule 60 (3) of the said Rules, it is to be addressed to the Minister for Defence.

APPENDIX VIII A

Form of Order referred to in Rule 62 (2) (a) of the Rules of Procedure (Defence Forces), 1954.

WHEREAS (No.)		(Rank)
(Name)
of the		(Unit)
was at a Limited/General Court-Martial held at
on the day of , 19 , charged with the offence/offences set out on the (copy) attached charge-sheet/sheets
AND WHEREAS the Court found that the above-named was by reason of insanity unfit to take his trial the Court DOTH ORDER that the above-named be kept in custody in (an institution suitable for the detention of such person) until such time as he is fit to take his trial or until his release is sooner ordered by the Minister for Defence or the High Court.
Dated this .................	day of ............................................,		19 ........................
	............................................................ .....................................
President of the aforesaid Court-Martial.

APPENDIX VIII B

Form of Order referred to in Rule 62 (2) (b) of the Rules of Procedure (Defence Forces), 1954.

WHEREAS (No.)			(Rank)
(Name)
of the			(Unit)
was at a Limited/General Court-Martial held at
on the	day of ,			19 ,
charged with the offence/offences set out on the (copy) attached charge-sheet/sheets
AND WHEREAS the Court found that the above-named was guilty of the act(s)/omission(s) charged but was insane at the time he did the act(s)/made the omission(s) the Court DOTH ORDER that the above-named be kept in custody in (an institution suitable for the detention of such person) until further order of the High Court.
Dated this ................................		day of ..........................................,		19 .........................
	............................................................ .......................................
President of the aforesaid Court-Martial."

GIVEN under my Official Seal, this 15th day of July, 1983.

PATRICK COONEY.

EXPLANATORY NOTE.

These Rules provide that an accused person shall, in certain circumstances, be informed that he may apply for free legal aid. They also provide for the abolition of petitions against the findings of courts-martial; for new arrangements in regard to findings of insanity, and for the fixing of the effective date of certain sentences.