Taoiseach Simon Harris "threw the Defence Forces under the bus" with his comments after a serving soldier was sentenced for the assault of a woman in Limerick, according to an employment lawyer and former army officer.
Cathal Crotty pleaded guilty to assaulting Natasha O’Brien in 2022, and was handed a fully suspended sentence, prompting public outcry.
Following the case, the Taoiseach said: “There are people in the Defence Forces who clearly knew this was happening, why did they do nothing? These are very serious questions and as Taoiseach I am not satisfied in relation to this, I am not satisfied at all.”
Barry Crushell is an employment law solicitor and former army officer, who served with the United Nations on multiple deployments.
In an interview with BreakingNews.ie, Mr Crushell pointed out that regulations prevent the Defence Forces from taking action against an individual before the criminal/civil courts before a case has concluded.
With this in mind, he argued that the criticism from Mr Harris and other politicians was unfair.
"It feels as if Harris deliberately threw the Defence Forces under the bus."
"The outcry, in particular from Harris, has not gone down well within the Defence Forces or among its former members. It feels as if Harris deliberately threw the Defence Forces under the bus.
"He will be well aware the Defence Forces has no power to suspend Crotty. The Defence Forces could not intervene at an earlier stage because to do so might have prejudiced the criminal case."
He also said criticism of the commanding officer who attended the court case was unfair, as an appraisal report is different to a character reference.
"Concerning the Crotty case, what has caused a lot of consternation within the ranks of the Defence Forces, particularly among officers, is that the commandant who was instructed to attend that criminal case was required to provide a most recent performance appraisal to the judge.
"Having done so, that performance appraisal was misconstrued by many members of the press as constituting a character reference when it was not. It was simply a reading of Crotty's previous performance appraisal. It was described as a character reference, which was wrong.
"Defence Forces regulations, which are drafted by politicians, provide that an officer will attend the court proceedings and provide such a statement if requested to do so."
Tánaiste and Minister for Defence Micheál Martin had suggested a practice called "local leave" could be used for suspension, but Mr Crushell said this was not what the procedure was for.
"In relation to the issue of suspending Crotty pending an investigation, Micheál Martin has spoken about individuals being placed on 'local leave'. Local leave was provided for in the regulations, but it was never intended to constitute an alternative to suspension. In an ordinary workplace, an employer can suspend an employee if conduct is bordering, or actually, criminal in nature.
"The Defence Forces is one of the most highly regulated workplace environments in the State. In circumstances where an individual is being placed on trial in the criminal courts, what typically arises is the Defence Forces will hold off any internal process or sanction until such time as the civil/criminal proceedings have concluded.
"In this instance, the calls to use local leave is an ad hoc request. Local leave is intended to provide a discretionary power to officers, when a request is made for leave in exceptional circumstances. A typical example would be a soldier attending a funeral, a medical appointment, or some other unforeseen family event.
"It was never intended to constitute an alternative to a power to suspend, which is entirely different. I would question the validity of a commanding officer placing a soldier on long-term local leave as an alternative to suspension, primarily because of their being called forward for a criminal trial."
When Mr Harris was challenged on his comments by army representative associations and Independent TD Cathal Berry, who served in the Army Ranger Wing, he defended his position.
“I don’t need anybody to explain this to me or write me long tweets to tell me I don’t understand this, I understand it very well," Mr Harris said.
“There are already regulations in place. I think that within the parameters of what’s already there, it is entirely possible to have an effective dismissal of anybody convicted of a serious crime, but I also think that we have to go further than that."
On this, Mr Crushell said: "I think at the outset, that initial knee-jerk reaction might have been justified. The difficulty is Harris continued the furore over this issue, having been informed by the representative associations and Cathal Berry, doubled down on his assertion that he was unhappy with the way this matter had been managed by the Defence Forces.
"That was despite being informed of the limitations the Defence Forces had to take the actions he would have otherwise desired."
He added: "We've got a full-time minister for justice, but not for defence, it's a junior role that has been passed from politician to politician without any of them giving it what most members believe it deserves.
"If the Defence Forces need to be reformed, so be it, members are willing to engage in that reform and make it a better place for all personnel concerned.
"Every member of the Defence Forces abhors the actions of Crotty and has huge sympathy for Natasha O'Brien. What they don't want is for the Defence Forces to be made a scapegoat for incidents like this, when in reality they were effectively powerless to do what politicians, and the general staff, would have liked to have done in any event."
