A soldier has won his High Court challenge over being disciplined after being deemed absent without leave from his post when he went to get a sandwich.
Mr Justice Seamus Noonan quashed four convictions received by Private Fintan Corr, stationed at McKee barracks, Dublin, following a summary investigation conducted by his Commanding Officer.
Pvt Corr was convicted of disobeying a lawful command of a superior officer to remain at the Military Justice Centre at McKee Barracks from 9am until 12.30pm on November 16th 2012.
He was also convicted of being absent without leave for 25 minutes from his post between 12.05pm and 12.30pm and of two counts of behaving in an insubordinate manner towards a superior officer.
Private Corr, who the court was told had an excellent record as a soldier since he joined in 2006, said he was told to be outside the Military Justice Centre by a superior officer and to stay there at all times.
He believed he had liberty to leave but to be available at short notice.
Around 12.05pm he left the centre to get a sandwich and thought this was an appropriate time as the court rose at 12.30pm.
He said the canteen opened at 12.18pm and he was back at the Military Centre at 12.22pm.
He did not think there would be a problem but later had a conversation with his superior who, he said, verbally abused him for leaving his post.
Some days later, Pte Corr was charged and brought before his commanding officer who asked him if he wished to have the charges disposed of summarily or by way of court martial.
Pte Corr said he did not know the seriousness of the charges, elected to have the matter dealt with summarily and was convicted.
In his High Court proceedings against the Director of Military Prosecutions, the Minister for Defence, the State and Commanding Officer of McKee Barracks, Pte Corr claimed the convictions were unfair and unreasonable and the disciplinary process was procedurally flawed.
It was claimed the CO acted in excess of jurisdiction in how he dealt with the matter.
The respondents denied the claims. The Human Rights Commission was a notice party to the proceedings.
In his judgment, Mr Justice Noonan said he was satisfied from the evidence the determination of the CO was made without jurisdiction, must be set aside and all the convictions quashed.
It was absolutely clear, under military law, the consent of the Director of Military Prosecutions to deal with certain offences summarily must be obtained after completion of the investigation, the judge said.
The respondent had submitted the consent of the DMP must precede the taking of the evidence but that would give rise to “an illogical result”, the judge said. It would mean the DMP would be asked to consent to summary disposal of charges about which he could know nothing about.
Such consent could be entirely irrelevant if the person charged opted for court martial, he added.
It was accepted the courts should be slow to interfere with matters of military law but in this case, there was a clear want of jurisdiction, he ruled.