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  • #31
    Originally posted by hedgehog View Post
    None of the punishments fitted the crime
    That's your opinion.
    FMolloy
    King Monkey
    Last edited by FMolloy; 27 August 2010, 17:26.

    Comment


    • #32
      Originally posted by kermit View Post
      Originally posted by hedgehog View Post
      None of the punishments fitted the crime
      That's your opinion.
      Of course it is Kermit-


      Had you been thinking all along that I was the spokesperson for some organisation,
      FMolloy
      King Monkey
      Last edited by FMolloy; 27 August 2010, 17:26.
      Things fall apart; the centre cannot hold;
      Mere anarchy is loosed upon the world,
      The blood-dimmed tide is loosed, and everywhere***
      The ceremony of innocence is drowned;
      The best lack all conviction, while the worst
      Are full of passionate intensity.

      Comment


      • #33
        Originally posted by paul g View Post

        From my own perspective as a manager, abeit without a law degree, the A wear case would suggest to me that the EAT would agree that if i followed the prcedures, if somebody insulted a manager by using a word like prick, or bitch to their face, if I sacked them, I'd win in a tribunal, or even if i'd lost and the tribunal substituted their opinion that abusing a manager is acceptable, which i doubt, the settlement would be absolute peanuts.

        If A Wear think its inappropriate for a subordinate to post a comment on Bebo that manager a bitch, why should the Df, which is after all a disclipined military force, find it acceptable for a senior officer to call another a prick.

        Again your taking the A Wear case out of context- what is it with you and ladies clothes

        We can go around the houses all day on this one and come up with situation after situation

        all starting with what if-


        It was wrong for a subordinate to call a senior a prick- but it would have been more wrong for a Military Judge to give him 12 months for that utterance.

        The problem is that Military Judges have no experience of real life; I do think the new lad should be give a proper chance- I am only commenting about the lad who is on a massive pension, teaching in Italy- while me you and all the other tax payers have to fund the appeals because of his hang em high attitude.

        but the bottom line is that all sentencing must be proportionate to the crime- thats why TV Licence evasion doesnt carry a mandatory life sentence,

        nor does failure to display a tax disc;
        Things fall apart; the centre cannot hold;
        Mere anarchy is loosed upon the world,
        The blood-dimmed tide is loosed, and everywhere***
        The ceremony of innocence is drowned;
        The best lack all conviction, while the worst
        Are full of passionate intensity.

        Comment


        • #34
          A quick note on proportionality:

          the Soldier is merely a citizen in Uniform we are protected by the same Constitution that we guard- therefore when we are in front of a Court Martial we have the same Constitutional right to fair procedures and trial in due course of the law as a civilian appearing before a civilian Court.

          In 1963 there was a case called Deaton v AG which established that the act of sentencing was an integral part of the administration of Justice therefore -It was held that therefore sentencing must comply with the Constitutional requirements of Justice - fairness and independence.

          In the State (Healy) v Donoghue (1976) Henchy J held that these Constituional imperatives also included the fact that an accused should receive a sentence appropiate to the degree of guilt and relevant circumstances-

          and thats why we dont keel haul a sailor for texting his girlfreind- nor do we fine a female Soldier ten million euro for absences.

          In 1994 in the case of the People (DPP) v WC- Flood J held that

          Quote:
          the selection of the particular punishment to be imposed on an individual offender is subject to the Constitutional principle of proportionality- the puishment must strike a balance

          Keep the word Proportionality in the back of your head-

          a sentence has to be proportionate- you cant send a man to prison for life for not having a TV licence

          nor should you imprison a man for 3 months ad dismiss him from his job for texting his girlfreind

          or imprison a messer for messing .

          No matter how high a standard WE set ourselves

          all sanctions must be proportionate to the act complained off
          Things fall apart; the centre cannot hold;
          Mere anarchy is loosed upon the world,
          The blood-dimmed tide is loosed, and everywhere***
          The ceremony of innocence is drowned;
          The best lack all conviction, while the worst
          Are full of passionate intensity.

          Comment


          • #35
            Originally posted by hedgehog View Post
            Again your taking the A Wear case out of context- what is it with you and ladies clothes

            We can go around the houses all day on this one and come up with situation after situation

            all starting with what if-


            It was wrong for a subordinate to call a senior a prick- but it would have been more wrong for a Military Judge to give him 12 months for that utterance.

            The problem is that Military Judges have no experience of real life; I do think the new lad should be give a proper chance- I am only commenting about the lad who is on a massive pension, teaching in Italy- while me you and all the other tax payers have to fund the appeals because of his hang em high attitude.

            but the bottom line is that all sentencing must be proportionate to the crime- thats why TV Licence evasion doesnt carry a mandatory life sentence,

            nor does failure to display a tax disc;

            No offence, but how many employment tribunal cases have you argued or been to?

            The judges will take into account the nature of the business and what goes on there. For example a manager in a service industry would be more than entitled to sack a member of staff if they used abusive language in front of customers for example.

            A judge cannot get around the fact that the military is a disclipined organisation and higher standards are expected.

            Comment


            • #36
              In the Aware case the insult was on the internet and therefore on the record. Thus proven.

              In the P****k case there is no independent record of the insult - just one word against another. It is the responsibility of the person making the charge to prove the charge and not the responsibility of the defendent to disprove it. One of the basic principles of our laws.

              In the Trooper In The Locker Room case the view could be taken that she was punished twice. A big no no in civil, criminal, employment or any other type of law you want to discuss.

              Could see the DOD having to write a couple of cheques before these cases are over.
              I'm not a number, I'm a free man.
              Who is number 1?

              Comment


              • #37
                Could see the DOD having to write a couple of cheques before these cases are over.

                Your right Prisoner- but it probably wont be directly to the affected-

                However these appeals probably cost a pretty penny or two- and thats money me and you have to

                pay
                Things fall apart; the centre cannot hold;
                Mere anarchy is loosed upon the world,
                The blood-dimmed tide is loosed, and everywhere***
                The ceremony of innocence is drowned;
                The best lack all conviction, while the worst
                Are full of passionate intensity.

                Comment


                • #38
                  Originally posted by hedgehog View Post
                  Had you been thinking all along that I was the spokesperson for some organisation,
                  Yes. I thought you were King of the Gingers and speaking on their behalf!

                  Comment


                  • #39
                    Originally posted by hedgehog View Post
                    Proportionate to the crime-
                    ok then what crime?

                    If I am late for work it is not a crime. There can be no court case and no punishment.
                    Are you going to try and say it is the same in the army?

                    If a civvi refuses to do a job then the worst that can happen is suspension.

                    but for the army

                    from the defence act
                    131.—Every person subject to military law who disobeys a lawful command of a superior officer is guilty of an offence against military law and shall, on conviction by court-martial, be liable to suffer penal servitude or any less punishment awardable by a court-martial.
                    and although the death penalty was abolished in 1990 and the carrying out os said penalty banned by the constitution it has not been removed from the statute books.
                    (In effect you can still be sentanced but the sentance cannot be carried out, how irish is that??)

                    You cannot compare civvi employment law and the Defence forces act.

                    The power to over turn civvi cases lies in higher courts. in the case of military law it lies with the Minister of Defence.

                    In civvi law all citizens are equal but under military law Officers are treated differently to other ranks.
                    Without supplies no army is brave.

                    —Frederick the Great,

                    Instructions to his Generals, 1747

                    Comment


                    • #40
                      Originally posted by hedgehog View Post
                      Your right Prisoner- but it probably wont be directly to the affected-

                      However these appeals probably cost a pretty penny or two- and thats money me and you have to

                      pay
                      I think they'll cost a fortune but there will be no change in the verdict

                      The law after all has nothing to do with justice.

                      Comment


                      • #41
                        Originally posted by luchi View Post
                        ok then what crime?

                        If I am late for work it is not a crime. There can be no court case and no punishment.
                        Are you going to try and say it is the same in the army?

                        If a civvi refuses to do a job then the worst that can happen is suspension.

                        but for the army

                        from the defence act


                        and although the death penalty was abolished in 1990 and the carrying out os said penalty banned by the constitution it has not been removed from the statute books.
                        (In effect you can still be sentanced but the sentance cannot be carried out, how irish is that??)

                        You cannot compare civvi employment law and the Defence forces act.

                        The power to over turn civvi cases lies in higher courts. in the case of military law it lies with the Minister of Defence.

                        In civvi law all citizens are equal but under military law Officers are treated differently to other ranks.
                        Your slightly wrong in everything you say there Luichi

                        just as we dont have a death penalty anymore- nor do we have penal servitude
                        Last edited by hedgehog; 27 August 2010, 16:36.
                        Things fall apart; the centre cannot hold;
                        Mere anarchy is loosed upon the world,
                        The blood-dimmed tide is loosed, and everywhere***
                        The ceremony of innocence is drowned;
                        The best lack all conviction, while the worst
                        Are full of passionate intensity.

                        Comment


                        • #42
                          The initial power to overturn a Court Matrial sentence lies with the Courts Martial Appeal Court, which is a division of the High Court, just like the Central Criminal Court, Court of Criminal Appeal, etc.

                          The Executive (ie the gov.) have no direct input. I can't see how the Minister can get involved.
                          I'm not a number, I'm a free man.
                          Who is number 1?

                          Comment


                          • #43
                            Originally posted by hedgehog View Post
                            Your slightly wrong in everything you say there Luichi

                            just as we dont have a death penalty anymore- nor do we have penal servitude
                            that was a fast edit.

                            what happened?

                            As I said, its on the statute there is nothing wrong in that.

                            The fact that it is not used is a totally different argument.

                            Originally posted by The Prisoner View Post
                            The initial power to overturn a Court Matrial sentence lies with the Courts Martial Appeal Court, which is a division of the High Court, just like the Central Criminal Court, Court of Criminal Appeal, etc.

                            The Executive (ie the gov.) have no direct input. I can't see how the Minister can get involved.
                            The power of the minister and the government to intervene, granted in the 1954 act was not repealed by either the 83 nor the 07 acts and is therefor still valid but how far this extends I don't know. Its probably an oversight.

                            The CMAC consists of a judge of the Supreme Court and two High Court Judges and sits in the Four Courts in Dublin. It is still considered a military court. with one exception its decisions are final.

                            the exception is where the apeal is based on a point of law. in this case that means point of military law. in such cases apeals go directly to the supreme court.
                            Without supplies no army is brave.

                            —Frederick the Great,

                            Instructions to his Generals, 1747

                            Comment


                            • #44
                              The Phoenix article also talked about the salaries being paid to the officers in the legal section. It went on to claim that the DF was investing more money & resources in the legal section than in parts of G2, stating that this showed where DF priorities lie.
                              "The dolphins were monkeys that didn't like the land, walked back to the water, went back from the sand."

                              Comment


                              • #45
                                that was a fast edit.

                                what happened?

                                Thanks- Manners got the better of me.




                                As I said, its on the statute there is nothing wrong in that.

                                It may be on a version of the act you are talking about- but if you look at the act abolishing death penalties - Penal servitude- felony distinctions etc you will find a section amending all acts that contain such provisions,

                                this saves a fortune by not having to reprint every single piece of legislation that needs to be changed,

                                if you go to your library and ask for a copy of the Consolidated elgislation for X year you will find it- also a much quicker way is ask your freindly Garda for a look at their book-


                                I dont know where you got that the CMAC is a Military COurt- it is a civilian COurt specifically set up for oversight on Military Trials- they dont report to anyone Military, there is no military components to it/


                                Again you are semi right with the CMAC being a Court of Last resort- however its decisions like every other Higher Court can be appealed to Europe-


                                The other mechanism is simply a case stated mechanism.

                                The Minister nor the Government cannot interfere in any way with the running of Military Courts/
                                Things fall apart; the centre cannot hold;
                                Mere anarchy is loosed upon the world,
                                The blood-dimmed tide is loosed, and everywhere***
                                The ceremony of innocence is drowned;
                                The best lack all conviction, while the worst
                                Are full of passionate intensity.

                                Comment

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