The Supreme Court has rejected claims that a former officer in the Defence Forces could not be appointed as Defence Forces Ombudsman or that the position cannot be part-time.
A former Army corporal, Patrick Gorman, and the Permanent Defence Forces Other Ranks Association (PDFORRA) had appealed against a 2013 High Court decision dismissing their proceedings over the appointment in 2012 of Patrick Anthony McCourt as part time Defence Forces Ombudsman (DFO).
Since the case was heard, Corporal Gorman and Mr McCourt have both retired and Alan Mahon, former judge of the Court of Appeal, was appointed DFO last year on a full-time basis.
Despite those developments, the Supreme Court said it would decide the issues raised because they concern the members of the Defence Forces; because the respondents — the Defence Forces Ombudsmen, the Government, Ireland and the Atorney General — considered it was appropriate to do so; and it was also appropriate in the interests of justice.
Mr Justice Seamus Noonan, giving the three judge court’s judgment on Wednesday, noted Mr Gorman had in 2010 made a complaint to his commanding officer concerning actions of his platoon commander while Mr Gorman was serving overseas with the 102nd Battalion in Chad.
The complaint is currently awaiting consideration before the DFO, the judge said.
Mr McCourt, the judge noted, was a former officer of the Defence Forces, having joined in 1963. He qualified as a barrister in 1980 and held various legal positions in the Defence Forces. He was Judge Advocate in 2001 and the first Military Judge in 2007.
He retired from the Defence Forces in 2010 and was appointed in 2012 as DFO on a part time basis for three days a week.
Mr Justice Noonan dismissed arguments that section 2.9 of the Ombudsman Defence Forces Act 2004, which states the DFO “shall not be a member of the Defence Forces”, meant former members cannot hold the position of DFO.
A member of something is different from a past member and any reasonable person reading section 2.9 would conclude it referred only to current serving members, the judge said. A serving member would be still subject to a chain of command and might, for example, have to adjudicate on complaints concerning superior officers and it was "obvious" this would be considered undesirable by the Oireachtas, he said.
The same considerations do not apply to former members who, on one view, might be thought to be “well suited” to adjudicating on complaints given their familiarity and experience with the day to day workings of the Defence Forces.
He rejected arguments that a former officer would not be viewed as independent by enlisted members of the forces. There was “no evidence” to support that and the respondents had advanced evidence to the contrary, including that no claims of bias or apparent bias were levelled at Mr McCourt during his 12 years as Judge Advocate and Military Judge.
The judge also dismissed arguments the 2004 Act requires the position of DFO should be a full-time one. The applicants had said Mr McCourt’s predecessor between 2005 and 2012 had been a full-time DFO but, since then, there had been a significant decrease in the number of matters referred to the DFO.
The High Court had found the reduced hours should not impact upon the DFO’s ability to investigate and determine complaints as in the past.
Mr Justice Noonan said there was no evidence that holding the post for three days a week had compromised Mr McCourt’s independence or impartiality.
As matters stand, there is “no basis” for the contention the office of DFO “must” be a full time one, he held.
