Committee Reports > List of Committees > Seanad > 1969 > Select Committee on Statutory Instruments (Appointed 7 July 1965) > Report No. 04 - Statutory Instruments [26]

APPENDIX III.

Rialacháin Óglaigh na hÉireann. Pay and Allowances (Permanent Defence Force) D.F.R. S.3—Amendments. Amendment No. 261.

(i)

An Rúnaí,

An Roinn Cosanta.

I am directed by the Select Committee on Statutory Instruments to state that it is at present considering the undermentioned statutory instrument:—

Rialacháin Óglaigh na hÉireann:—

Pay and Allowances (Permanent Defence Force)

D.F.R. S.3—Amendments. Amendment No. 261.

To assist it in its deliberations the Select Committee wishes you to furnish a memorandum on the circumstances in which deductions are made from Army pay towards compensation for barrack damage caused by children who cannot be identified. In particular the Committee desires to learn if there are specific regulations governing the matter and whether these are analagous to the civil law governing malicious damage claims against local authorities.

Cléireach an Roghchoiste.

16 Samhain, 1967.

(ii)

Cléireach an Roghchoiste

um Ionstraimí Reachtúla,

Seanad Éireann.

With reference to your letter dated 16 Samhain, 1967, requesting a memorandum on the circumstances in which deductions are made from Army pay towards compensations for barrack damage caused by children who cannot be identified, I am directed by An tAire Cosanta to forward herewith the necessary memorandum.

Rúnaí Cúnta.

10 Eanáir, 1968.

Memorandum from the Department of Defence.

Regulations covering deductions from the pay of men of Na Buan Óglaigh in respect of barrack damage caused by unidentified persons, are set out hereunder:—

1. Rialacháin Óglaigh na hÉireann S. 3, paragraph 43.

“43 (1) The following deductions may be made from the pay of a man:—

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(d) the share he is required to contribute as belonging to a unit towards compensation for barrack damage which, after due investigation by a court of inquiry assembled in accordance with the provisions of Defence Force Regulations A5 or by the officer commanding the installation, appears to have been occasioned by the wrongful act or negligence of a person or persons who cannot be identified, belonging to the unit, during the period while such unit was in occupation, provided, however, that, where barrack damage appears to the Officer Commanding the installation to have been occasioned by children of men of a unit, who cannot be identified, such deduction shall be made only from the pay of married men living in married quarters at the barracks, post or camp concerned, who have children living with them.

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(2) When a man is being transferred to the Reserve Defence Force or discharged from the Permanent Defence Force, any allowance, gratuity or grant due to him shall be liable to the deductions prescribed in subparagraph (1) hereof in respect of the pay of such men.

(3) For the purposes of subparagraph (1) (d) hereof the expression “barrack damage” means damage to or loss or destruction of any premises in which men are quartered or billeted or any appurtenances, fixtures, furniture or effects therein or appertaining thereto, and the word “unit” includes any body of men, composite or otherwise”.

2. Rialacháin Óglaigh na hÉireann 6/1926, paragraphs 26 and 27.

“26. The amount of damages or losses assessed against troops at any inspection of barracks will be charged as far as possible against individuals. All accounts not traceable to individuals will be a general charge to be shared amongst the troops concerned on a per capita basis. The amounts assessed against each company, etc., will be published in Part II Orders.

27. The charges shall be notified by the Inspecting Officer on Army Form 18 (in duplicate) in the case of Barrack Services and Army Forms 128 A and B in the case of Engineer damages to the Officer Commanding who will acknowledge its receipt and at once take the necessary steps for settlement of same with the Pay Officer. Arrangements for settlement shall be completed within seven days of the date of certificate of the Inspecting Officer. The original Army Form 18 shall be completed by the Pay Officer and returned to the Officer Commanding the unit to support the “write off” in the Barrack Expense Store Ledger.

In cases where the Court of Injuiry* is unable to fix responsibility of an individual or individuals, the Command Quartermaster will recover from the Funds of the unit responsible, the cost of damages, which he shall forward to the Command Pay Officer who will deal with the matter as in paragraph 28. If no Funds are available the amount in question shall be debited against the pay of each soldier on a pro rata basis”.

All deductions from pay, relating to the recovery of the assessed amount of loss, damage, etc. on a collective basis, are made in accordance with the above regulations.

The amendments to ROE S.3 containing the provisions quoted at 1 above, which were cleared with the Attorney-General, were made under subsection 97 (2) of the Defence Act, 1954, and were laid before each House of the Oireachtas in accordance with that subsection. The Attorney-General has given it as his opinion that deductions of the nature mentioned from soldiers’ pay cannot be regarded as penalties but are non-penal deductions to recoup the amount of damage as defined in sub-paragraph 43 (3) and are more in the nature of a malicious injury compensation rate assessment.

(iii)

An Rúnaí,

An Roinn Cosanta.

I am directed by the Select Committee on Statutory Instruments to refer to the memorandum on deductions from Army pay towards compensation for barrack damage caused by children who cannot be identified which was furnished with Mr. Ó Murchadha’s minute of 10 Eanáir, 1968 [3/12004].

The Committee notes the opinion of the Attorney-General that deductions from soldiers’ pay in respect of damage of the type mentioned are non-penal deductions which “are more in the nature of a malicious injury rate assessment”. As the Committee understands the position, compensation is not recoverable from local authorities for damage caused by children to whose acts the legal presumptions of innocence apply and consequently a malicious injury rate assessment includes no provision for such damage. The Committee would like to know if deductions made from soldiers’ pay differs from a malicious injury rate assessment in that such deductions are made in respect of damage caused by children even if it is not established that the damage constitutes a criminal act on the children’s part.

Cléireach an Roghchoiste.

21 Márta, 1968.

(iv)

Cléíreach an Roghchoiste

um Ionstraimí Reachtúla,

Seanad Éireann.

I am directed by an tAire Cosanta to refer to your minute dated 21 Márta, 1968, regarding deductions from Army pay towards compensation for barrack damage caused by children who cannot be identified.

The Attorney-General has stated that his reference to the above-mentioned deductions being more in the nature of a malicious injury compensation rate assessment than a penalty was intended to illustrate the difference between such deductions and a penalty and that it was not intended to suggest that the comparison was an exact one. He points out that Paragraph 43 (1) (d) of Rialacháin Óglaigh na hÉireann S.3 “is operative only where it appears to the officer commanding an installation that the damage has been occasioned by children who cannot be identified, except to the extent that they are ‘children of men of a unit’. If they are unidentifiable, their ages cannot be ascertained. The legal responsibility of children for crime is that a child under seven is regarded as incapable of crime, children over 14 are regarded as responsible for their acts and capable of crime like any other person, children between seven and fourteen are presumed not capable of intending crime but the presumption can be rebutted by evidence … Awards have frequently been made in respect of injuries to property caused by children over seven years and in some instances where the ages of the children could not be ascertained with certainty.”

The Attorney-General also points out that “the responsibility of married men of the defence forces to suffer deductions under the regulation in question is fixed by it without regard to whether they can be shown to be the parents of the children involved and, also, without regard to whether those involved, being children of men of the unit, could be proved to have committed a crime or a malicious act or not, or to have the capacity to commit a crime. The analogy with a malicious injury rate is not an exact one and the validity of the regulation does not depend on whether it is or not … the liability (for deductions of the nature mentioned) is not a penalty in the sense spoken of in An tAcht Cosanta and Rialacháin Óglaigh na hÉireann.”

Rúnaí Cúnta.

30 Iúil, 1968.

* provided for in paragraph 15 of the Regulations in cases of loss or damage due to theft, fraud, fire or explosion.