The High Court has granted Martin Potts leave to seek judicial review of aspects of the Defence Forces’ summary disciplinary process, but has not ruled on whether the process breaches constitutional or European Convention rights.
Mr Justice Clarke’s judgment, delivered on 10 March 2005, said the applicant was before a subordinate officer on a charge of being absent without leave. No investigation of the charge had yet taken place. The available summary penalties included confinement to barracks for up to seven days, a fine equivalent to one day’s pay, or a warning. The judgment noted that a finding of absence without leave would also result in forfeiture of pay for the days of absence.
The applicant argued that the statutory framework denied safeguards required by the European Convention on Human Rights and the Constitution. His claims included that he could be denied representation and a public hearing, and that the statutory process for reviewing summary awards could not operate because no “prescribed military authority” had been designated. The judge found these contentions sufficient to pass the threshold for leave, while stressing that their merits required fuller examination.
The judgment considered the European Court of Human Rights’ approach to deciding whether a military offence amounts to a “criminal charge”, including the nature of the offence and the severity of possible punishment. It said the factors pointed in different directions and that a full hearing was needed to assess how the charge and potential penalties fit that test. On the constitutional claim, the judge said the extent to which a person facing military discipline is entitled to representation also required detailed consideration.
The Minister for Defence argued that the application was premature because the charge had not yet been investigated. The court rejected that objection at the leave stage, finding it arguable that the rules expressly barred representation and left officers without discretion on that point, while the applicant was about to face the process.
The judge refused leave on a separate claim that the commanding officer might appear biased because of command responsibilities or involvement in events. The judgment referred to evidence that, where a commanding officer had prior involvement, the usual practice was to attach the accused to another unit so a different commanding officer could deal with the charge.
The court did not set out the final scope of the judicial review. It directed that the matter be listed again after the parties had considered the judgment, so they could address which reliefs and grounds should proceed, be narrowed or be abandoned.