The establishment of a dedicated Garda unit to investigate complaints of sexual assault within the Defence Forces has been widely welcomed but lawyers caution there may be legal obstacles to some investigations and prosecutions.
Defence Force members have always had the same right as every citizen to have alleged crimes investigated by the Garda. Defence Force members have gone to gardaí with complaints over the years, some of which have led to prosecutions in the civilian courts. A lawyer who regularly acts for Defence Force members said some resulted in convictions and some in acquittals.
Karina Molloy of the Women of Honour group said going to the Garda with a complaint was “not actively encouraged” within the Defence Forces and she “absolutely welcomed” the establishment of the dedicated unit announced this week by Garda Commissioner Drew Harris.
The unit was established before the recent publication of an independent report setting out allegations of sexual misconduct, bullying and discrimination within the Irish military. It will oversee fresh Garda investigations into allegations of sexual assault by serving and former members of the Defence Forces and is reviewing files related to 26 complaints made to the Garda, some dating back decades. The Commissioner said gardaí will be seeking to establish if there are “predators” within the Defence Forces involved in multiple offences.
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Ms Molloy told The Irish Times she expects the setting up of the unit will encourage more complaints, including from male Defence Force members, and that 26 represents the “tip of the iceberg”.
Some experienced criminal lawyers have cautioned that investigation of some complaints dating back years could prove complex and may also present prosecutorial difficulties.
“There may be a difficulty where a complaint was made to the Garda and nothing was done about it,” a solicitor with decades of experience of criminal cases said. “If the complainant looks to have that investigated now, that raises issues including prosecutorial delay. If a complaint was dealt with by the military courts, and the complainant is unhappy with the result, there may be issues around double jeopardy if they want it reopened and pursued.”
If a complaint goes back several decades, the complainant may find, when they get their file, there may be nothing on it, another lawyer said.
If an investigation into a historic complaint leads to a decision to prosecute, an accused has the option of pursuing judicial review proceedings aimed at preventing their prosecution on grounds they cannot get a fair trial due to delay or unavailability of witnesses, he noted. The courts are increasingly rejecting such applications in favour of having such issues addressed at the trial itself.
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Delay arguments rarely succeed when it comes to historic sexual abuse/rape prosecutions because those cases invariably depend on whether the jury believes the complainant or the accused, a senior criminal barrister said. “It’s all about credibility.”
No statute of limitations applies to prosecutions for rape or sexual assault, the barrister noted. If a complaint was investigated by the Defence Forces and no one was brought to trial, there is nothing to prevent a Garda investigation into the complaint and gardaí could look to see what material was before the military, he said.
Another experienced criminal solicitor considered there is an issue about the ability of the Garda to investigate complaints of rape/sexual assaults in other jurisdictions during an overseas posting. Commissioner Harris referred this week to a 2004 law which might confer such jurisdiction but acknowledged the issue of jurisdiction required further investigation and it may be necessary to seek additional powers.
The solicitor said the Criminal Justice (Joint Investigation) Teams Act 2004, appeared to have been enacted with a view to tackling the activities of organised crime gangs operating in different countries. “It deals with transnational offences such as drug crime and offences that involve more than one jurisdiction.”
In his view, the Act does not create an extraterritorial jurisdiction and was not designed to permit a Garda investigation of an alleged sexual assault involving an Irish citizen in, for example, a barracks in Lebanon.
A criminal barrister said his understanding is, if an Irish citizen commits a rape abroad, they can be prosecuted for it here but there may be an issue of jurisdiction related to investigations concerning crimes against Irish soldiers engaged on United Nations peacekeeping duty.
For example, the death of Private Sean Rooney in Lebanon last December following an attack on a UN vehicle is the subject of three separate investigations – by the UN interim force in Lebanon, the Lebanese authorities and the Irish Defence Forces, he said. Seven people were charged by a Lebanese military tribunal last January in connection with the attack.
Several lawyers considered the option of a civil action for damages over alleged rape/sexual assault would be unavailable to many potential complainants because of the two-year time limit, which can be extended to six years in certain circumstances, for bringing such cases.
The issues confronting the new Garda unit are complex and much remains to be teased out, the lawyers said. “I think this will encourage a change in the Defence Forces’ culture, it’s pushing home the message that people will be held accountable for sexual misconduct and bad behaviour and the days of keeping it ‘in house’ are over,” one said. “That’s a good thing.”
