DATA RULES HALTING the sharing of convictions and a complete lack of law to allow for suspensions in the Defence Forces are part of findings in a new report examining how the military and the State handles serious crime by personnel.

The revealing report by Peter Ward, a senior counsel, was commissioned by the Government in the wake of the Cathal Crotty case. Crotty was a soldier who was convicted of a serious assault on Limerick woman Natasha O’Brien.

The detailed and extensive study looked specifically at Defence Forces members accused of serious crimes. It found that soldiers guilty of criminal offences were not informing their employer, the Defence Forces, that they were before the courts.  

To make the situation even worse there were various instances of civilian authorities, both the Courts Service and Gardaí, not sharing the information because of an interpretation of data protection laws. 

Ward also wrote that information on soldiers who are before civilian courts following garda investigations is not kept in a central location or system. He described the management of this as being “siloed” in various military commands. 

He explained that it is is not regularly provided to the serving Minister for Defence.

The report also sets out how there is no power of suspension in Statute for the military. In other words there is no law that permits a military member be suspended from duty for alleged wrongdoing.

It said that using leave as a fix for this was particularly at variance to accepted customs and practices enshrined in modern human resources management.

“A bespoke system of suspension and/or administrative leave ought to be introduced to ensure that the Defence Forces have a clear legal framework within which they can act to ensure that a member of the Defence Forces does not remain on active service in circumstances where that would be inappropriate pending the outcome of a criminal case and/or an internal process,” the report found. 

Ward said that a review of the current cases provided by the Department of Defence and the Defence Forces, there is no current member of the military convicted of rape or sexual assault in the “civil courts” who is still serving. 

“It is therefore important to record that a summary of the cases has shown that there is not any member of the Defence Forces who continues to serve despite having been convicted of rape or sexual assault in the criminal courts where that process has come to completion,” Ward said. 

‘Rapid response protocol’

The barrister produced 35 recommendations. The key recommendation is around the drafting of new legislation but also the production of a “rapid response protocol”.

This new procedure would assess soldiers charged with offences.

While there is a new protocol between the Defence Forces and the Courts Service around how they share certificates of conviction – there is a need for specific legislation.

The report also looked at the need for clear regulations around the dismissal of personnel of officer rank when convicted of a civil criminal offence. 

It noted that at the moment, due to the fact that they receive a commission, only the President can sack an officer. This practice, Ward said, does not reflect employment law. 

A spokesman for the Representative Association of Commissioned Officers (RACO) welcomed the report and endorse all the recommendations. 

RACO said the Rapid Response Protocol was welcome as it would establish fair procedure “in line with modern employment jurisprudence”.

The representative association said that the use of leave provisions to de facto suspend a military member was being used despite it not being designed for the purpose.  

“We welcome the recommendation for the introduction of a bespoke system of suspension and, or administrative leave to ensure that the Defence Forces have a clear legal framework within which they can act to ensure that a member of the Defence Forces does not remain on active service in circumstances where that would be inappropriate pending the outcome of a criminal case and, or an internal process,” the statement said. 

During the Cathal Crotty case a military Liaison Officer had given evidence to the court on Crotty’s service history.

“We fully agree that the role of the Liaison Officer in providing evidence of character and service to the presiding judge in a criminal trial is questionable in the modern context and should be reconsidered, by limiting the role of the Liaison Officer to one of reporting on the criminal process to the Commanding Officer.

“Implementation of the recommendations will require legislative amendment, and we look forward to full and collaborative consultation with our colleagues in the Department of Defence in this regard,” RACO stated.