A soldier was able remain in the Defence Forces while in prison for sexual assault after the court authorities refused to hand over details of his offences to the military due to “data protection” concerns.
The case was highlighted in a report commissioned by Government to examine dismissal procedures for soldiers convicted in the civilian courts.
The report, by senior counsel Peter Ward, found various instances of information on criminal convictions held by civilian authorities not being shared with the Defence Forces. In some cases, this significantly delayed the discharge process.
The report was commissioned in the wake of the controversy over Cathal Crotty, an Army private who was spared jail last June after beating a woman, Natasha O’Brien, unconscious.
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It subsequently emerged that 68 serving soldiers had been convicted of crimes or were before the civilian courts charged with offences.
Five of these cases related to allegations or convictions for rape or sexual assault, 24 for assault, five for domestic incidents or breach of a barring order and two for money laundering.
As of August 2024, 19 of these cases had been completed while seven were under appeal. The remaining 43 were ongoing.
In “many cases”, the Courts Service was unable to provide certificates of conviction to the Defence Forces to facilitate the discharge process, the report stated. It cited GDPR concerns as the reason.
In one case, a serving soldier, termed Soldier 1, was charged with sexual offences in 2022. He was convicted the following year and sentenced to prison seven months later.
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The Defence Forces attempted to obtain a certificate of conviction from the Courts Service in order to process his dismissal but was told this would not be possible “due to data protection”. A request to the Garda was also unsuccessful.
As a result the soldier was able to avoid discharge for 13 months after conviction and six months following the imposition of the prison term. Eventually the Defence Forces moved to dismiss him without the relevant certificate, a process which has since been completed.
In another case, Soldier 2 was charged in the civilian courts with six counts of sexual assault of a child. The Defence Forces tried and failed to obtain a copy of the charge sheet.
Soldier 2 was later convicted on a number of counts and given a suspended sentence. It took another two months for a certificate of conviction to be handed over to the military. He was put on leave following his conviction. He has not yet been dismissed as he has lodged an appeal against his conviction.
The report also identifies several cases of soldiers failing to inform their commanding officers about their convictions in the civilian courts.
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Last year, military authorities became aware of a soldier charged with two road traffic offences. During the trial process, the Defence Forces became aware for the first time that he had already been disqualified from driving on three previous occasions. A discharge process is ongoing.
The report noted that information on soldiers who are before the civilian courts is not kept in a central location and is not regularly provided to the Minister for Defence. Instead the information is “siloed” in various military commands.
Mr Ward made 35 recommendations, including the drafting of a “rapid response protocol” for assessing and processing soldiers charged with offences.
He noted that since last June a protocol has been agreed between the military and Courts Service regarding the disclosure of certificates of conviction, but said this should be underpinned by legislation.
The report also called for clear regulations regarding the dismissal of commissioned officers convicted of an offence. It noted that only the President can dismiss an officer and that there is no record of this having occurred in recent times. This “does not reflect modern employment law”, Mr Ward wrote.
A system allowing soldiers to be suspended from duty pending the conclusion of criminal cases should also be introduced. Currently there is no legal provision for the suspension of soldiers. Since June, a number have instead been put “on leave”.
Tánaiste and Minister for Defence Micheál Martin said he accepts the report’s recommendations but warned they will require significant legislative change.
“I wish again to make it absolutely clear that the transformational agenda under way in the Defence Forces will continue,” he said.
“The publication of this report today demonstrates the continued commitment to a zero-tolerance approach to any criminal activity, and to build on the work already done to address gaps in the Defence Forces’ structures in the handling of such cases.”
