Judges overturn court martial ruling

An Air Corps officer has won an order overturning a decision to dismiss him from the Defence Forces over allegedly using abusive language to his superior officer.

Commandant Niall Donohoe (48) was found guilty by a court martial in 2010 of calling his superior officer, Lieutenant Colonel Gerry O'Sullivan, an abusive name at Baldonnel on January 30th 2009.

The court martial was told he had said to Lieutenant Colonel O'Sullivan "you're a little prick" of words to that effect after he was given a negative appraisal of his performance.

Commandant Donohoe, who has two children and has 28 years' service, had pleaded not guilty and claimed his comments had been misheard. He had used the words "a little prickly", it was argued.

The court martial ordered Commandant Donohoe's dismissal and said he was fortunate not to get a custodial sentence.

The dismissal was later put on hold pending the outcome of his appeal to the Courts Martial Appeal Court. That appeal was heard last year by the three judge court and the reserved judgment was delivered this evening.

Cdt Donohue, represented by John Rogers SC and Gearoid Humphreys, was in court for the hearing.

Delivering the lengthy judgment, Mr Justice Liam McKechnie - sitting with Mr Justice Brian McGovern and Ms Justice Maureen Clark - found in favour of Cdt Donohoe on grounds related to the composition of the court martial.

Under the Defence Act, a court martial is constitued on the basis of random selection and must include officers above the rank of Captain. One Colonel must also be on the board.

In Cdt Donohoe's case, the six member board selected comprised two Colonels, two Lieutenant Colonels and two Commandants.

Mr Justice McKechnie said the process of random methodology applies at every stage of the selection process, commencing from a list of qualifying officers to the list of six ultimately appointed to the board.

In this case, while all the officers who sat on the court were eligible to do so, it was clear the Court Martial Administator had directed or specified that certain defined ranks of officers would be represented on the Board. The Administator had decided the board should be composed of certain ranks and officers of those ranks. Having made that decision the indidvidual officers so appointed from such ranks were chosen randomly.

The Administrator had acted outside of his powers under the Defence Acts in that he had effectively operated a sub-selection process within the random selection process, the court ruled.

While the Admininstator acted for entirely meritorious reasons and in the belief the board would be more representative in the manner he suggested, the Administrator was not entitled to substitute his own views for the manner of selection as set out by the Oireachtas in the relevant provisions of the Defence Acts as amended and by Rule 27 in particular, the judge said.

If the Administator was permitted to determine a certain number of ranks should be represented, the possibility of having, for example, four other officers from one rank was not available. That was not permissible under the law, the judge added.

As the Board determines a person's guilt or innoncence, and noting the community in question is of military personnel with limited numbers, its composition plays a crucial role in affording to an accused person a trial in due course of law, he said.

Because the Board was not constituted in accordance with law, its decision must be set aside, the court ruled.