The High Court has quashed a Defence Forces commanding officer’s decision to find a private guilty of four disciplinary charges and impose a fine, ruling that the required consent of the Director of Military Prosecutions was obtained at the wrong stage.
Mr Justice Noonan held that the commanding officer had to seek the Director’s consent to summary disposal of a Part II scheduled offence after completing the investigation, which the court found meant hearing the evidence. In this case, consent was recorded before that hearing.
The applicant, Fintan Corr, was assigned to the Military Justice Centre at McKee Barracks in Dublin in September 2012. The judgment said he was accused of briefly leaving his post during a duty period on 16 November. Four charges followed: absence without leave, disobeying a lawful command and two allegations of insubordination. These were allegations, not findings made by the High Court.
The commanding officer, Commandant Manus Ward, conducted a summary investigation on 26 November 2012. According to his affidavit, Corr chose summary disposal rather than trial by court-martial. Ward determined that the disciplinary charges had been proved and imposed a fine of two days’ pay, totalling €158.20. The Director’s consent to summary disposal of the disobeying-a-command charge had been recorded on 22 November, before the investigation.
Corr sought judicial review, arguing that the hearing of evidence was the investigation and that consent should therefore have been sought afterwards. The respondents argued that the investigation took place before the hearing, and that consent was required before the evidence hearing and any determination or punishment, which together formed the summary disposal.
The judge accepted Corr’s interpretation. He said the statutory scheme and rules required the accused to receive advance notice of the investigation, at which evidence was taken, and to be asked whether to elect summary disposal or court-martial. Seeking consent before the evidence was heard could leave the Director considering charges without knowing the evidence and could make consent unnecessary if the accused elected for court-martial.
The court held that the commanding officer’s determination was made without jurisdiction. Because a single penalty covered all four charges, including charges that did not require the Director’s consent, the decision could not be divided. The court granted certiorari quashing the entire decision of 26 November 2012. It did not determine the underlying allegations.