Control of Firearms
Cases
Dunne v. Donohoe
, High Court, July 27, 2001, Ó Caoimh J.
JUDGMENT of Mr. Justice Aindrias Ó Caoimh delivered the 27th day of July, 2001 .
1. By Order of this Court made the 17th July, 2000 Mr. Justice Butler granted to the Applicants Martin Dunne and Desmond Crofton, leave to apply by way of an application for Judicial Review for the relief of:
2. I. An Order of Certiorari by way of an application for Judicial Review quashing the Directive of the Second named Respondent (undated but officially announced on June 7th 2000) which directs Superintendents of the Gárda Síochána when issuing/renewing firearm certificates under the Firearms Act, 1925 (as amended) to require the installation of a firearms cabinet and to put in place security measures for the storage of firearms which said facilities are to be inspected by the Gárda Síochána prior to issue or renewal of the certificate.
3. II. An Order (including interim and/or interlocutory order) by way of an application for Judicial Review restraining the Respondents their servants or agents or any person having notice of the making of the Order from enforcing the new Directive and/or refusing to issue or renew firearms certificates by reason of non-compliance with the said Directive pending the determination of the proceedings herein.
4. III. An Order (including interim and/or interlocutory order) by way of an application for Judicial Review directing a stay on the implementation and/or enforcement of the Directive the subject matter of these proceedings pending a determination of the within proceedings.
5. IV. An Order of Certiorari by way of an application for Judicial Review quashing the decision of the First named Respondent to issue a notice to the First named Applicant received on or about the 27th June 2000 requiring him to install a firearms cabinet and/or to provide security arrangements which should then be available for inspection before his Firearms certificate is renewed.
6. V. A Declaration by way of an application for Judicial Review that the notification received by the First named Applicant in or about the 27th day of June 2000 from the First named Respondent requiring him to put in place a gun safe and make it available for inspection prior to the renewal of his firearms certificate is ultra vires the powers of the First named Respondent under the provisions of the Firearms Act, 1925.
7. VI. A Declaration by way of an application for Judicial Review that the First named Respondent and any Garda Superintendent who purports to require compliance with the Directive issued by the Second named Respondent is acting ultra vires his powers under the provisions of the Firearms Act 1925 and has unlawfully fettered his discretion under the Act.
8. VII. A Declaration that the Second named Respondent has no power under the Firearms Act 1925 to direct Superintendents of the Gárda Síochána to refuse to issue or renew firearms certificates in respect of individuals who fail to meet the requirements of a Directive issued by him and that the said Directive is ultra vires without legal basis and has no lawful or binding effect.
9. VIII. A Declaration that the introduction of a new category of persons who shall not be eligible for a firearms certificate and/or the introduction of a requirement to install a gun safe and/or a power for the Gárdai to inspect the private property of applicants for a firearms certificate by way of a Directive from the Second named Respondent constitutes an act of law making contrary to Article 15.2 of the Constitution being measures which are not provided for in the Firearms Act 1925 (as amended) or any other legislation.
10. IX. A Declaration by way of an application for Judicial Review that any requirement imposed by members of the Gárda Síochána that a person’s private dwelling be inspected prior to the issue or renewal or a firearm’s certificate is without lawful basis and infringes the Constitutional and personal rights of the individual to equal and/or privacy and/or inviolability of the dwelling contrary to Articles 40.1 and/or 40.3 and/or 40.5 of the Constitution.
11. X. A Declaration by way of an application for Judicial Review that the decision of the Second named Respondent to issue the said Directive is unreasonable and/or the measures proposed are disproportionate and/or irrational.
12. XI. A Declaration by way of an application for Judicial Review that the Directive issued by the Second named Respondent which the First named Respondent is purporting to implement is unconstitutional by reason of its disproportionate impact on the constitutional rights of the individual including the First named Applicant and all other members of the Second named Applicant.
13. XII. A Declaration by way of an application for Judicial Review that in purporting to introduce a different system for the assessment of applications for firearms in respect of residents (administered by the Gárdai) as distinct from non-residents (administered by the Minister for Justice Equality and Law Reform) the new Directive is discriminatory and results in a discriminatory system being introduced without lawful basis or proper purpose contrary to Article 40.1 of the Constitution.
14. XIII. A Declaration by way of an application for Judicial Review that in providing for a power to assess the suitability of a person who applies for a certificate under the Firearms Act 1925 the Legislature did not distinguish between residents and non-residents and the clear purpose and meaning of Section 4(b) was to permit refusal by reason of the character and conduct of the applicant only the not by reason of his possession of a gun safe which the Superintendent would inspect.
15. XIV. A Declaration by way of an application for Judicial Review that the measures are discriminatory as against non-property owners contrary to Articles 40.1 and 40.3 of the Constitution.
16. XV. A Declaration by way of an application for Judicial Review that in exercise of his powers under the Firearms Act 1925 and having regard to Section 4 of the Act a Superintendent of An Gárda Síochána, including the First named Respondent has power to make an assessment of the suitability of the person having regard to his character and conduct but has no power to refuse to issue a firearms certificate by reason of the security of the premises in which the applicant lives and/or whether or not he has installed a gun safe which has been made available for inspection.
17. XVI. An Order of Mandamus by way of an application for Judicial Review directing the Respondents their servants or agents to rescind in writing their notice to each individual member of the Second named Applicant requiring the installation of all security arrangements prior to the issue/renewal of a firearms certificate.
18. XVII. Such further or other Order as to this Honourable Court shall seem meet.
XVIII. Damages.
XIX. Costs.
19. The grounds upon which this relief was granted are those set out at paragraph E I- XIX inclusive.
1. The First Named Respondent is a person with power under the Firearms Act, 1925 (as amended) to issue or renew firearms certificates in respect of persons in possession of a firearm. The Second Named Respondent is an Assistant Commissioner of An Gárda Síochána, the State’s law enforcement body. The Third Named Respondent is the juristic person answerable at law for the actions of the First and Second Named Respondents, their Servants or agents. The Fourth Named Respondent is Fourth designated the Law Officer of the State designated by the Constitution and is sued in his representative capacity and for the purpose of effecting service.
2. The possession of firearms and other weapons and ammunition is subject to the restrictions contained in the Firearms Act, 1925 (as amended) which provide that for such possession to be lawful it must be authorised by a firearms certificate. Firearms certificates are issued by a Superintendent of the Gárda Síochána for the area in question under Section 3 of the Firearms Act, 1925 (hereinafter “the Act”.
3. Before issuing a firearms certificate under Section 3 of the Act, the Superintendent shall be satisfied in accordance with Section 4(b) of the Act that the person who applies can be permitted to have in his possession, use and carry a firearm or ammunition without danger to the public safety and to the peace, furthermore, a firearms certificate should not be issued by the Superintendent to a person who is declared by the Act to be disentitled to hold a firearms certificate. Section 8 of the Act sets out an exhaustive list of those persons who are disentitled to hold firearms certificate per se.
4. In or about the end of April, 2000 it became known to the Second Named Applicant that the Assistant Gárda Commissioner had issued a Directive to Gárda district officers requiring that in future when granting or renewing firearms certificates, district officers should ensure that the Applicant has a secure firearms cabinet and a satisfactory level of security at his or her dwelling. The Directive required that the storage facilities and security arrangements should be available for inspection before a firearms certificate would issue or be renewed.
5. The introduction of these new measures was announced by Gárda Síochána Press Release on or about the 7th of June 2000 and applicants for new licences around the country were informed that applications for renewal of firearms certificates and first time applicants would not be considered until such time as a secure firearms press was installed and inspected by the Gardai.
6. Superintendents of An Gárda Síochána at various locations around the country, including the First Named Respondent, have issued notices to many members of the Second Named Applicant in purported implementation of the Directive. The First Named Applicant received such a notice from the First Named Respondent on or about the 27th day of June 2000.
7. By purporting to act on foot of the said Directive individual Gárda Superintendents have abdicated their responsibility under the Act and are acting under the dictate of the Second Named Respondent contrary to the requirements of the Firearms Act, 1925 (as amended). The Second Named Respondent has no statutory authority or power to intervene in the manner in which the Superintendent exercises a personal power to determine whether a person is a suitable person to be a holder of a firearm and to be issued with a firearms certificate. The Second Named Respondent has no statutory role whatsoever in the decision making process provided for in the Firearms Act, 1925 regarding the issue of firearms certificates and has acted ultra vires his powers and contrary to the provisions of that Act in issuing the said Directive.
8. The implementation of the said measures are ultra vires the Act in that they purport to extend the category of persons specified by the Legislature as being ineligible for a licence. Under the new measures persons who do not install a firearms cabinet which has been inspected and deemed satisfactory by the Gardai shall not be entitled to a firearms certificate thereby extending the list of persons specified in express terms by the Oireachtas in Section 8 of the Act contrary to Article 15.2 of the Constitution.
9. There is no legal provision, express or implied, in the Act or at common law for a power of inspection of the premises of an applicant for firearms certificates to assess whether it is secure and whether a satisfactory gun cabinet has been installed. Accordingly, the measures proposed by the Second Named Respondent and sought to be implemented by members of An Gárda Síochána are ultra vires the Act and without any legal basis. Furthermore, insofar as the Directive purports to introduce a power of inspection, this constitutes a violation of the person’s equality rights and/or right to inviolability of the dwelling and/or right to privacy and/or personal and/or bodily integrity contrary to Articles 40.5, 40.3 and 40.1 of the Constitution.
10. By providing for a power of inspection by means of an internal Directive the Second Named Respondent has acted in excess of jurisdiction. The said Directive is null and void as contrary to Articles 15.2, 40.1, 40.3 and 40.5 of the Constitution.
11. In purporting to comply with the Directive of the Second Named Respondent, Superintendents around the country, including the First Named Respondent, have allowed their discretion under the Firearms Act, 1925 to be unlawfully fettered. It is ultra vires the powers of the First Named Respondent and other Superintendents around the country in exercising their powers to issue or renew firearms certificates and in particular, the First Named Applicant herein, to install a gun cabinet and make it and his security arrangements available for inspection by members of the Gárda Síochána as there is no legislative basis for a such a power.
12. Even were the Second Named Respondent to have legal authority to issue the said Directive under the provision of the Firearms Act 1925 or otherwise (which is denied) the proposed measures as purported to be implemented by the First Named Respondent and other Superintendents are unlawful in that they constitute a disproportionate and/or unreasonable interference with the constitutionality protected equality rights and/or property and/or personal rights of the applicant for a firearms certificate contrary to Articles 40.1, 40.3 and 40.5 of the Constitution accordingly any provision relied upon to permit such interference cannot have survived the enactment of the Constitution and/or is unconstitutional.
13. The measures proposed by way of inspection of the family home wholly undermine the right to privacy and inviolability which the family home enjoys and the special position of the family in the Constitution. Furthermore, the measures discriminate unlawfully against applicants for firearms certificates who are not private property owners and are not in a position to ensure, even if they wished to, compliance with the terms of the Directive.
14. The measures are de facto unreasonable in that they cannot as a matter of practicality and availability supply of gun-safes be complied with in the time frame imposed under the measures. There is an inadequate supply of security cabinets which means that it will be impossible for all firearms certificate holders or first time applicants to comply with the Directive for the purpose of the renewing existing certificates or the first time issue of a new certificate.
15. The measures are also unreasonable as a matter of law and it is clear that the Oireachtas never intended that such measures be introduced when vesting the First Named Respondent and other Superintendents with power to assess the suitability of an applicant for a firearms certificate.
16. The Oireachtas never intended to exclude those persons who did not have a security cabinet and did not make his private dwelling available for inspection by the Gardai from holding a firearms certificate. Express provision is made in Section 8 of the Firearms Act, 1925 for those categories of persons who are excluded from eligibility for a firearms certificate under the Act. Had the Oireachtas intended to exclude the First Named Applicant and other members of the Second Named Applicant on the basis that they did not possess a gun safe it would have expressly provided for such an exclusion. Having regard to the nature of the exclusion and the far reaching implications of the power of inspection provided for in the Directive, express provision by way of legislation is required to give a proper legal basis to the acts now contemplated by the First and Second Named Respondents.
17. The Firearms Act, 1925 was recently amended by the provisions of the Firearms Act 2000 which passed through both houses of the Oireachtas on or about July 2000. This Act provides for a system of Assessment of non-residents applicants for firearms certificates. The new legislation does not provide for gun cabinets to be put in place or for gun safes and other security measures in the applicant’s dwelling to be available for inspection. The Oireachtas did not take the opportunity to provide a legislative basis for the requirement to install a gun safe and to make security arrangements available for inspection in that legislation, despite the fact that these measures were already clearly within the contemplation of the Second Named Respondent herein at the time that the legislation became law.
18. There are no proposals known to the Applicants to require non-residents who apply for a firearms certificate to comply with the security arrangements envisaged by the Directive (process administered by the Minister for Justice, Equality and Law Reform) thereby introducing a discriminatory regime as between residents and non-residents contrary to Article 40.1 of the Constitution being without legitimate justification under the Firearms Act 1925 (as amended) or otherwise.
19. In providing for a power to assess the suitability of a person who applies for a certificate under the Firearms Act, 1925, the Legislature did not distinguish between residents and non-residents and the clear purpose and meaning of Section 4(b) was to permit refusal by reason of the character and conduct of the applicant (separate legislation has recently passed through the Houses of the Oireachtas dealing specifically with the case of non-residents) but this does not affect the manner in which the meaning of S4(b) no falls to be interpreted in the case of residents. The new measures contained in the Directive purport to radically extend the powers of the Gárda Síochána without any legislative basis and are therefore ultra vires and unconstitutional.
20. At the hearing before me it was agreed that two issues arise in these proceedings
Whether the Directive (53/00) is invalid and void. It is submitted that its effect is such that Superintendents are acting under the direction of a third party in the exercise of a judicial discretion. It is submitted that in this regard the directive represents an unlawful fettering of a discretion
Whether the requirements set forth in the directive are in any event ultra vires the powers conferred on a Superintendent under the relevant Section of the Firearms Act as amended.
21. The directive at issue in these proceedings indicates that the number of unlicensed firearms which are being stolen from dwellings and unattended dwellings continues to give cause for concern. Many of the firearms which are stolen are subsequently used in the commission of crime. The directive indicated that in future when granting or renewing Firearm Certificates, District Officers will ensure that the following security arrangements are in place before issuing the Firearm Certificate
With reference to shotguns, the holder of a shotgun or rifle should have the weapon or weapons secured in a properly constructed and locked firearms cabinet.
It was indicated that the cabinet should be of good quality and be secured to a solid wall.
It was indicated that wooden cabinets should not be permitted.
22. In fact a press release at the time indicated that as and from the 1st July, new applicants for firearm certificate would have to install a steel storage cabinet securely bolted to a wall in their dwelling in order to secure the firearm when not in use. It was indicated that existing firearm certificate holders would have to install such a cabinet by the 1st July, 2001. The directive indicated the nature of the cabinet that should be installed and the fixings or fastenings that must be used to secure a firearms cabinet. The directive also indicated measures that should be put in place where the number of firearms held by a person would render steel cabinets not to be suitable and where a gun room was to be used to hold such firearms. The directive which was signed by the second Respondent indicated towards its conclusion that “the above recommendations are aimed at providing a satisfactory level of security for the various categories of firearms. The storage facilities should be available for inspection by a member of An Gárda Síochána at all reasonable times. District Officers should ensure that the above recommendations are strictly adhered to.”
23. It was indicated in the content of the directive that District Officers will ensure that the security arrangements set forth in the directive are in place before issuing the firearm certificate. It was indicated that this directive should be read in conjunction with an earlier circular or directive issued by the Gárda Commissioner.
24. The subject directive was approved by the Minister on the 10th March, 2000
and thereafter a clarification was issued by the second Respondent which indicated as of the
2nd June, 2000 that the Commissioner had directed that with immediate effect no new
25. Firearm Certificate should be issued unless the Applicant had installed a security cabinet for
the storage of the firearm.
26. It is indicated that while the circular in this case containing the directive uses the term ‘recommendation’ it was intended to be mandatory in nature.
27. A Statement of Opposition was filed in these proceedings on about the 24th November, 2000 by the Chief State Solicitor on behalf of the Respondents. The Statement of Opposition pleads that the directive at issue in these proceedings was made by the second named Respondent in the exercise of functions assigned to him by the Commissioner of An Gárda Síochána under Sections 8 and 9 of the Police Forces Amalgamation Act, 1925; by acting in compliance with this directive, individual Gárda Superintendents discharge their responsibilities under the Firearms Act of 1925 according to law; and that the directive is not an unlawful interference in the manner in which a Gárda Superintendent exercises his/her functions under Section 4 (b) of the Firearms Act, 1975 as alleged or at all. Amongst the other matters pleaded in the Statement of Opposition are pleas that the directive neither purports to, nor does in fact, create or grant a power of inspection to An Garda Siochana; that the Commissioner of An Gárda Síochána has a right to have a consistency of approach by Officers of An Gárda Síochána who are mandated by their rank to exercise their functions under legislation and that he has a similar right to have a consistency and fairness of approach with the overriding factors being public safety and duty of care.
THE LAW
Section 2 of the Firearms Act 1925 provides inter alia as follows:-
2.- (1) Subject to the exceptions from this section hereinafter mentioned, it shall not be lawful for any person after the commencement of this Act to have in his possession, use, or carry any firearm or ammunition save insofar as such possession, use, or carriage is authorised by a firearm certificate granted under this Act and for the time being in force.
…………….
(3) This Section shall not apply to any of the following cases and such cases are accordingly excepted from this section, that is to say:-
(a) The possession or carriage of a firearm under and in accordance with the permit issued under this Act and for the time being in force;..
(b) ………..
(c) The possession, use, or carriage of a firearm or ammunition by registered
firearms dealer in the ordinary course of his business as such dealer;….”
Section 3 subsection 1 provides:-
3.- (1) The superintendent of the Gárda Síochána of any district may, subject to the limitations and restrictions imposed by this Act, upon the application of any person residing in such district and upon the payment of such person of a fee (if any) for the time being required by law, granted to such person a firearms certificate.
Subsection 3 of this Section provides that a firearms certificate continues in force until the 31st day of July next after the grant of the certificate. Section 4 of the Act of 1925 provides as follows:-
“4. – Before granting a firearm certificate to any person under this Act, the superintendent of the Gárda Síochána or the Minister (as the case may require) shall be satisfied that such person – (a) has good reason for requiring a firearm in respect of which the certificate is applied for, and (b) can be permitted to have in his possession, use, and carry a firearm or ammunition without danger to the public’s safety or to the peace and (c) is not a person declared by this Act to be dis-entitled to hold a firearm certificate.”
Section 5 of the Act deals with revocation of firearm certificates and provides as follows:-
“5.-The superintendent of the Gárda Síochána of the district in which the holder of a firearm certificate resides may at any time revoke such certificate if he is satisfied that the holder of such certificate:-
has no good reason for requiring the firearm to which the certificate relates, or
is a person who cannot, without danger to the public safety or to the peace, be permitted to have a firearm in his possession, or
is a person who is declared by this Act to be disentitled to hold a firearm certificate, or
where the firearm certificate limits the purposes for which the firearm to which it relates may be used, is using such firearm for purposes not authorised by the certificate.
Section 13 (1) of the Act of 1925 provides for the inspection of the stock of firearms dealer and reads as follows:-
“13 – (1) Any member of An Gárda Síochána may at all reasonable times enter the premises of any registered firearms dealer and there inspect any firearms and ammunition and any material used in the manufacture, repair, test or proof thereof found on such premises.”
Section 21 of the Act provides that a Gárda Síochána may search for and seize certain firearms. Subsections (1) to (3) read as follows:-
21. – (1) Any member of the Gárda Síochána may at all reasonable times enter upon and have free access to the interior of
any premises used in the manufacture, sale, repair, test or proof of firearms or ammunition, or
the premises of any person engaged in the business of carrying goods for reward, or
any warehouse or other premises of any person engaged in the business of warehousing goods for reward, or
any pier, quay, wharf, jetty, dock or dock premises, or
any ship, boat, railway wagon, motor, lorry, cart or other vessel or vehicle used for the conveyance of goods.
(2) Any member of the Gárda Síochána may inspect any firearms or ammunition, or any case, box or package found by him in any place entered by him under the authority or this section or upon or in any public place, and may open any such case, box, or package which he reasonably believes or suspects to contain firearms or ammunition, and may seize any firearms or ammunition found in any such place as aforesaid and which he reasonably believes or suspects are being imported into or exported from Saorstát Eireann or are being or have been removed from one place to another in Saorstát Eireann in contravention of the provisions of this Act.
(3) It shall be the duty of every person having custody or control of any firearms or ammunition in any such place as is mentioned in sub-section (1 )of this Section or upon or in any public place on demand by a member of An Gárda Síochána to afford such member all reasonable facilities for the inspection of such firearms and ammunition and to produce to such member on demand by him any documents in his possession relating to such firearms or ammunition.”
Section 9 of the Firearms Act, 1964 provides for the renewal of a firearm certificate. Subsection (4) of this section provides:-
(4) (a) A firearm certificate granted by a Superintendent may be renewed by a member of the Gárda Síochána not below the rank of Sergeant in the district in which the holder of the certificate resides if and so long as he is authorised in writing by the Superintendent of that district.
(b) The power of renewal conferred by this subsection shall be subject to such reservations (if any) as may be specified in the authority of the Superintendent. (c) That the power of renewal conferred by this subsection shall not enable the member exercising it in any district to refuse to renew any particular firearm certificate unless the Superintendent of that district has authorised him to refuse to renew that particular certificate.
Section 15 of the Act of 1964 amends Section 2 of the Principal Act to provide for categories of persons who are exempt from having a firearm certificate and who are permitted to hold certain firearms under the terms of the Act. Amongst the categories of permit holders catered for under this section are members of a rifle club or gun club, those starting athletic races and those engaged in theatrical productions.
Section 2 subsection 5 of the Act as amended provides as follows
“ 5 (a) The Superintendent of any district may authorise in writing the possession, use or carriage of firearms or ammunition in that district in any of the circumstances specified in paragraphs (d), (e), (f), (g) or (h) of subsection (4) during such period, not exceeding one year as may be specified in the authorisation.
(b) A Superintendent shall not grant an authorisation under this section unless he is satisfied having regard to all the circumstances (including the provision made or to be made for the storage of the firearms and ammunition to which the authorisation (if granted) would related and the supervision of their use) that the possession, use or carriage, as the case may be, of firearms or ammunition in pursuance of the authorisation will not endanger the public safety or the peace.”
Section 8(1) of the Police Forces Amalgamation Act, 1925 provides as follows
“8. -(1) The general direction and control of the amalgamated force shall, subject to regulations made under and continued in force by this Act, be vested in the Commissioner of the amalgamated force who shall be styled and known as Commissioner of the Gárda Síochána.”
28. The Act provides for a Deputy Commissioner to exercise the powers and duties of the Commissioner in certain cases and Section 9 of the same Act provides:-
“9. -(1) The duties of the Deputy Commissioners and Assistant Commissioners shall be to assist the Commissioner in the direction and control of the force and to exercise such functions in that behalf as the Commissioner shall, subject to regulations made or continued in force by this Act, assigned to them respectively.”
Submissions on behalf of the Applicants
29. It was submitted on behalf of the Applicants by May Finlay S.C. that the discretion vested in a Superintendent under sections 3 and 4 of the 1925 Act and Section 9 of the 1964 Act is conferred expressly on a Superintendent in a district where an Applicant resides and that such a person having been conferred with a discretion is obliged to exercise this discretion independently and may not act under the direction and dictation of any other body. What is essentially at issue in these proceedings is whether a Superintendent of the Gárda Síochána exercising the discretion vested by the Act of 1925 and subsection 3 and 4 thereof in particular may be subject to the direction of the Commissioner in the discharge of that function.
30. It is further submitted that the conditions appearing at Section 4 of the Act of 1925 relate to the character of the person applying for a certificate and, insofar as the functions vested in a Superintendent of a district under Sections 3 and 4 of the Act relate to functions to be exercised at a local level, that such a Superintendent is a person who is likely to have personal information relating to an Applicant. With regard to the provisions of Sections 8 and 9 of the Police Forces Amalgamation Act of 1925 it is submitted that these provisions relate to operational matters and do not entitle the Commissioner to issue directions in relation to the exercise by officers designated by law in the discharge of statutory functions.
31. With reference to the fettering of a discretion vested in a Superintendent it is submitted that where the Oireachtas confers a decision making power on a persona designata then that individual must exercise the decision making power conferred upon him/her and it is not permissible for the designated decision maker to exercise power in accordance with the dictates of another body or authority, that a person fails to exercise a discretion where she or he acts on the instructions or dictation of another party or applies an inflexible policy; both of these situations arise on the facts of the instant case in that the Superintendent in whom the discretion is vested does not exercise the discretion as was intended by the legislature but instead applies an inflexible policy or rule which has been derived by another party who has no statutory function in respect of the exercise of the discretion in question and further that the only person vested with a discretion in the exercise of the power to grant a firearm certificate is a Garda Superintendent in an area in which an applicant resides or such other officer expressly provided for by law. No function is given to the Garda Commissioner or the Assistant Commissioner regarding the exercise of this discretion.
32. The power vested in the Superintendent to grant a certificate is subject to his being satisfied as to the requirements of Section 4 of the Act of 1925. The exercise of a discretion by acting on the dictation of another person such as the Commissioner constitutes the fettering of a discretion. By acting in accordance with the directive of the second named Respondent the first named Respondent, and other Garda Superintendents around the country neutralise the discretion which was the intention of the legislature to create thereby rendering the exercise of that discretion invalid.
33. Counsel has adopted a Statement of Law set forth by Hillary Delaney in a recently published book, ‘Judicial Review of Administrative Action-A Comparative Analysis’ published by Roundhall, Sweet and Maxwell in Dublin 2001 where at p. 101 of the text the author states as follows:-
“Where a discretionary power is vested in a particular individual or body, it must bring its own discretion to bear on the case and the power must not be exercised under the dictation of another authority. So it must act in a genuinely independent manner and not feel constrained to act in accordance with a direction from an outside hand or authority. The exercise of discretion may successfully be challenged even where the authority mistakenly believes it must act on the basis of a direction, so it is the state of mind of the body in which the discretionary power is vested which is the determining factor: Equally where the outside authority has not actually sought to impose its will, the decision may be questioned provided that the body exercising the power felt constrained to act in a certain way.”
34. In support of her submissions counsel for the Applicants has referred this Court to the decision in the case of Murphy -v- Dublin Corporation [1972] I.R. 213 dealing with a persona designata and to the judgment of the Supreme Court in the case of McLoughlin -v- Minister for Social Welfare [1958] I.R. 1. In this latter case the appeals officer dealing with the Social Welfare matter indicated that was bound to adhere to a direction given by the Minister for Finance. At page 27 of the report O’Daly J. as he then was, indicated that the action of the Appeals Officer to adhere to a direction purported to have been given to him by the Minister for Finance was an abdication by him of his duty as an appeals officer. He stated that the duty is laid upon him by the Oireachtas and he is required to perform it as between the parties that appear before him freely and fairly as becomes anyone who is called upon to decide on matters of right or obligation. In light of this statement of principle for the exercise of the discretion vested in Garda Superintendent in Section 4 of the 1925 Act to be proper the Garda Superintendent must act in a genuinely independent manner and not feel constrained to act in accordance with any direction from an outside or higher authority. With regard to Section 8 of the Police Forces Amalgamation Act, 1925 this relates to the authority of the Commissioner with regard to operation matters and has no application to the exercise of a legislative function such as that provided for in Section 4 of the Act of 1925.
35. Counsel further referred this Court to the decision of the Kings Bench division in Simms Motor Units Limited -v- Minister of Labour [1946] 2 All ER 201. Here the Court invalidated a reinstatement order made under wartime labour regulations by a national service officer who was empowered to direct reinstatement of workers dismissed for misconduct, in circumstances where the officer was acting under directions from the Minister in circumstances where the officer was a statutory authority in his own right and should have exercised his personal discretion. The Court held that the Minister had no power to lay down any rule however reasonable in the form of directions to the officer concerned.
36. In light of the submissions that have been made in this regard it is submitted on behalf of the Applicants that they are entitled to an order of Certiorari quashing the directive as being an unlawful interference by a third party with the exercise of the discretion of a Superintendent in regard to applications made or to be made by them.
Statutory Construction And Vires .
37. Without prejudice to the foregoing and independent of it, it is submitted on behalf of the Applicants that the imposition of a condition requiring the provision of a gun safe and for its inspection by the Gárdai as a precondition to the issue or renewal of a firearm certificate is ultra vires the powers conferred on Superintendents by the Firearms Act, 1925 – 2000. The delegation of functions must derive from the provisions of the Act and with regard to the policy of storage of firearms; it also must be derived from express provisions of the legislation. The provisions of the Firearms Act, 1925 as amended, relevant to these proceedings, provide no legal basis for the policy of imposing requirements regarding the storage of firearms as a precondition to the grant of a firearm. The relevant sections should be given their ordinary meaning and in doing so it is submitted that the Acts do not contemplate the imposition of conditions on the storage of firearms by individual Applicants for firearm certificates. Accordingly, it is ultra vires the powers of a Superintendent to impose mandatory conditions on the issue or renewal of a firearm certificates in circumstance where this was not contemplated by the Oireachtas.
38. By reference to the authority of Cityview Press Limited -v- An Chomhairle Oiliúna [1980] I.R. 381, it is for the legislature to determine the policy in relation to the issue of firearm certificates and it is not a matter for a Superintendent of An Garda Siochana to determine policy which is a matter reserved to the Houses of the Oireachtas. Counsel further referred this Court to the decision of the Supreme Court in the case of O’Neill -v- Minister for Agriculture [1998] 1 I.R. 539 which again examined the power of the Minister to make regulations under an Act. Reference was made in that case to the Cityview Press case where O’Higgins CJ indicated that the test is whether that which is challenged as an unauthorised delegation of parliamentary power is more than a mere giving effect to principles and policies which are contained in the statute itself.
39. Further reference was made to passages of the judgment of Murphy J in this case at p. 554 where he states as follows:-
“Insofar as the question of ultra vires is concerned, clearly the requirement is to look at the legislation with a view to identifying the principles and the policies laid down by the Oireachtas for achieving the identified purpose of the legislation. The exercise should reveal both the scope of the Minister’s power and the limitations placed on it.”
40. It is submitted, with regard to the instant case, that a principle and policy to be derived from the legislation is that it was intended that the Superintendent of each District would make the initial decision whether to grant a certificate. In doing so he had to be satisfied of the three matters referred to in Section 4 of the 1925 Act. The requirement that an Applicant install a gun safe which is available for inspection in a private property as a precondition to a renewal of a firearm certificate is a new policy which would require a legislative basis and could not have been contemplated by the Oireachtas as being a permissible construction of the powers granted in Section 4 of the Act of 1925. It is submitted that none of the provisions of the Act touch on a storage provision by an individual.
41. The relevant portion of Section 4 is that at (b) which is that the Superintendent be satisfied that the Applicant can be “permitted to have in his possession, use, and carry a firearm or ammunition without danger to the public’s safety or to the peace”. The issue arises whether this provision could potentially authorise a Superintendent to have regard to storage provision for any firearm. One cannot construe the Firearms Act to find in any place a provision enabling a Superintendent to exercise a discretion under Sections 3 and 4 and in doing so to have regard to storage arrangements. It is submitted that there is nothing in the Act authorising the imposition of such a precondition. Counsel refers this Court to the provisions of Section 2(5)(b) of the Act of 1925 as inserted by Section 15 of the Act of 1964 insofar as it provides a contrasting provision to that at issue in the instant case. In the case of authorisations under the Act it is provided:
“A superintendent shall not grant an authorisation under the section unless he is satisfied having regard to all the circumstances (including the provision made or to be made for the storage of the firearm and/or ammunition to which the authorisation (if granted) would relate and it is a provision of their use) that the possession, use or carriage, as the case may be, of firearms or ammunition in pursuance of the authorisation will not endanger the public’s safety or the peace.”
42. Furthermore, under the provisions of Section 6 of the Firearms and Offensive Weapons Act, 1990 dealing with an authorisation to hold a defective firearm without a firearm certificate it is provided in subsection (2) thereof:-
“The superintendent of the district where the holder of an authorisation under this Section resides may, at any time, attach to the authorisation any conditions, whether as regards safe custody or otherwise, which he considers necessary and may at any time revoke the authorisation”.
43. It is submitted that the Oireachtas when amending other provisions of the Firearms legislation did not see fit to amend Section 4 of the 1925 Act to indicate an intention on the part of the Houses of the Oireachtas that the Superintendent have regard to storage arrangements in the exercise of his discretion under Section 4, and that it cannot be disputed that the directive at issue in these proceedings is a matter of policy; that it would be necessary for the Oireachtas to implement such a policy by either imposing conditions or enabling conditions to be made by a Superintendent, and that this is an overall policy consideration that had to be determined by the Oireachtas. With reference to Section 4 that section does not enable a precondition to be imposed by a Superintendent such as set out in the impugned directive. It is submitted further that the provisions of paragraph (b) of Section 4 are directed to the persons and the character of the persons that they be reliable persons to use a firearm and to have a firearm in their possession without danger to the public’s safety or to the peace. Ms. Finlay asks rhetorically: Did the Oireachtas indicate in any way that a Superintendent could impose a condition not expressly referred to either as a condition of issuing a Certificate or in the Certificate itself ? It is submitted that nothing in Sections 3 or 4 of the Principal Act authorised any express conditions of the nature in these proceedings, in contrast to the position as indicated in Section 2 subsection (5)(d) of the Act as inserted by Section 15 of the Act of 1964 and Section 6 of the Act 1990 previously referred to herein. Under the terms of the Firearms (Firearm Certificate Non Residence) Act of 2000 a person issuing a firearm certificate to a non resident is expressly authorised in Section 2(10) of the Act to “attach such conditions, if any as he or she considers necessary, to a firearm certificate granted to a person under this section.” If the Oireachtas anticipated that such a condition could be imposed, one would have expected that a Superintendent would be entitled to revoke any such grant for breach of any such condition. However, no such power exists.
44. With regard to other aspects of the impugned directive and in particular that portion which indicates that a Superintendent should be entitled to inspect a gun safe in a house, it is submitted that this represents an invasion of the right to privacy arising under Article 40 Section 3 and the inviolability of the dwelling protected by Article 40 Section 5 of the Constitution. The requirement to install a gun safe and to make such safe available for inspection clearly brings the protection of these fundamental rights into question. It is submitted, given that the measures contemplated by the directive potentially impact on constitutionally protected rights and freedoms, it could not have been the intention of the legislature to permit the Gárda Síochána to determine the balance between these fundamental rights without providing a legislative basis and an appropriate framework to guide and exercise such extensive powers. No provision in the Firearms Act can be construed as authorising or permitting a member of the Gárda to enter a home to inspect the storage facility for a firearm. Specific provision is made for inspection and search of dealers premises under the terms of Section 13 of the Act of 1925 and other places under the provisions of subsection 3 of Section 21 of the same Act.
Submissions on behalf of the Respondents
45. On behalf of the Respondents Mr. Senan Allen Senior Counsel has referred this Court to the terms of other circulars previously issued by the Commissioner with regard to firearms. These are circulars issued in 1989 and 1991. They relate to firearms and heavy calibre rifles. Earlier directives indicated the need for a gun press or safe and that they should be emphasised. Furthermore more recent directives contained advice to be given to holders of firearm certificates.
46. It is submitted that the impugned directive in this case involves the central exercise of a power used for an operational matter by the Gárda Síochána, that the control of firearms is quintessentially an operational police matter, that the issue in these proceedings is whether in the context of Section 4 paragraph (b) a Superintendent is entitled to go beyond the personal character of an applicant for a firearm certificate; that the enquiry by a Superintendent in the context of Section 4 of the Act involves an investigation beyond merely the character of the Applicant; that considerations of public safety arise and in this context the absence of a secure facility within which to store the firearm is a relevant consideration. Even if a decision was to be taken by a local Superintendent of his own volition he should be entitled to have regard to the facility within which to store a firearm. In this regard that he would have been entitled to have an approach that a gun safe in principle is what should be provided for. The section contemplates objective requirements as well as subjective requirements such as those relating to the character of the Applicant and that it is unduly artificial to separate objective and social requirements in the context of Section 4 of the Act. The same requirements can be imposed by a Superintendent as part of his assessment of the individual requirements of a particular Applicant and if the Superintendent takes the view that a gun safe is required the Applicant must then abide by that Superintendent’s assessment rather than his own assessment of what is required. The requirements for a certificate are directed to the weapon as well as to the holder and that they are not restricted to the personal characteristics of the Applicant for the certificate. In this regard Counsel referred this Court to the provisions of Section 3(4) of the Act of 1925 as inserted by Section 16 of the Act of 1964 which reads as follows:-
“4 Every Firearm Certificate shall be in the prescribed form and shall operate and be expressed to authorise the person to whom it is granted –
To have in his possession, use and carry the particular firearm described in the Certificate, and
To use ammunition in the firearm and to have in his possession at any one time and carry so much ammunition for the firearm as shall be specified in the Certificate”.
47. Counsel submitted that the expressio unius principal does not apply in this case insofar as the statutory provisions relied upon to demonstrate a distinction between the situation facing Applicants for firearms certificates and firearm dealers have no application. The express terms in relation to dealers cannot apply to exclude the possibility of the situation of certificate holders being construed as including like powers. With regard to Section 21 of the Principal Act, the power of inspection there relates to the firearms rather than the place itself. It is submitted therefore that it is directed to fundamentally different circumstances. It is not something to be used in reference to certificate holders.
48. Counsel point out that under the terms of the 1925 Act as initially enacted there was no provision for a renewal of a Certificate but that this was introduced in the terms of the 1964 Act. What is set out in Section 4 paragraph (b) represents at one and the same time the minimum and the maximum of what the Superintendent must address his mind to.
49. With reference to Section 15 of the 1964 Act pertaining to authorised persons, this category is of a wholly different class or category to certificate holders. Further in relation to this class of authorised persons it is to be noted that under the terms of Section 2(5)(d) a Superintendent may impose in relation to the grant of an authorisation under the section such conditions (if any) as he considers necessary to prevent danger to the public and where a condition is imposed, it shall be specified in the authorisation. This provision indicates that a Superintendent may impose conditions in relation to the grant of an authorisation. In regard to Section 2(5)(b) as inserted by Section 15 of the Act of 1964, the reference to having regard to “all the circumstances (including the provision to be made for the storage of the firearms and ammunition to which the authorisation (if granted) would relate and the supervision of their use)” does not add anything to section 4 paragraph (b) but mirrors the provisions of Section 4 paragraph (b) which relates to certificate holders. The words in brackets appearing in Section 2(5)(b) relate to considerations of public safety which are already embraced in Section 4 (b).
50. It is submitted with regard to authorisations that in all cases considerations of public safety include supervision and use of firearms. With regard to the inclusion of a power to impose conditions contained in section 2(5)(d) of the Act as inserted by section 15 of the Act of 1964, if section 4 does not allow the imposition of conditions then the Superintendent must be satisfied that the Applicant can have firearms without danger to the public. It is further submitted that overemphasis has been placed on the words ‘use and carry’in paragraph (b) of Section 4 rather than the word ‘possession’ appearing in the section. The Court and a Superintendent must have regard to the use of the word ‘possession’ appearing in this section in reference to a certificate holder. It is submitted that a Certificate holder would be continuously in possession of a firearm though not necessary in charge of his firearm at all times. Possession is something different to use and carrying of a firearm and includes considerations of storage.
51. With regard to the question of entry to a dwelling house, what the directive is addressing is that either an assurance be given or if necessary that this matter be addressed by the Applicant demonstrating an ability to keep the firearm safely. The storage facility inspection is a practical application of the requirement that the Superintendent be satisfied that the person seeking a firearm certificate can be permitted to have it in his possession, use and carry a firearm or ammunition without danger to the public’s safety or to the peace. This type of requirement of having an adequate storage facility is no different to a requirement that the component parts of a gun be held separately. With regard to inspection it is submitted that this would be consequent upon a power of appointment.
Fettering of Discretion
52. While it has been argued that the Superintendent is a persona designata , in fact he does not have any function independent of his position as a member of the force. The exercise of functions in the force contemplates accountability. In this regard counsel for the Respondent relies upon Sections 8 and 9 of the Police Forces Amalgamation Act of 1925. It is submitted that this contemplates direction and control in relation to firearms which is quintessentially an operational matter, that this is something beyond personal management functions and that the control of firearms is a matter for the Gárda Síochána. While the District Officer has a role under Section 4, the real issue is the extent of the role and public safety must be assessed by reference to the policy of the Oireachtas. It is submitted that an issue arises as to whether the local policy is to be set by an individual or whether the Commissioner has an entitlement to set a general policy in relation to the matters to be exercised under the terms of Section 4 of the Act. The Superintendent makes an administrative decision at a local level and that this is not inconsistent with the entitlement of the Gárda Commissioner to set national objective standards and to see that they are implemented. There is no imperative in the Firearms Act such that it be construed as entitling or requiring a Superintendent to set a policy on safety at the local level.
53. While it is conceded that there is nothing in the Act expressly entitling the Commissioner to set general safety policy or standards it is submitted that the Act is silent as to where the policy is to be defined and that it has to be construed in harmony with the Police Forces Amalgamation Act of 1925. If this means that either the Commissioner is not entitled to have a view regarding public safety requirements or, if he is entitled to have such a view, that District Officers may have their own different views, such that an administrative role given by Section 4 might be exercised at variance with the express policy of the Commissioner, this is not the construction that fits in with the provisions of the Police Force Amalgamation Act of 1925.
54. Circulars represent a central policy where that policy has not been fixed previously. Public safety involves an objective standard decided by the Commissioner.
55. It is submitted that the McLoughlin and the Simms cases referred to by counsel for the Applicant are distinguishable from the instant case and that the discretion in the McLoughlin case was wider than the discretion in the instant case.
56. It is submitted that the onus is on the Applicant to satisfy the Superintendent that public safety will not be endangered and that the setting of standards is something separate from the ability of an Applicant to satisfy those particular standards. The McLoughlin and Simms cases involved disputes inter partes , where there was a prima facie entitlement to the relief which was sought. In the instant case that there is not a prima facie right to a firearms certificate. Contrary to the submission of counsel for the Applicant the Commissioner is not deciding principles or policies as contemplated in the O’Neill case. It is submitted that the objective is one of promoting public safety and this is the end to which the particular measure in the form of the impugned directive is directed and further that the action of the Commissioner in the instant case was a bona fide exercise of his power. Counsel says by reference to the decision of Kelly J in the case of Mishra -v- Minister for Justice [1996] 1 I.R. 189 where Kelly J. stated at 207 that nothing in his judgment “should be construed as in any way suggesting how the application should be reconsidered as to its merits. That is entirely a matter for the Minister. Neither should it be construed as suggesting that there is any impropriety on the part of the Minister in having in place a policy or set of rules to guide but not govern in an absolute way the implementation of the discretion given to her”, that this statement supports the action of the Commissioner in the instant case.
57. Further reference has been made to the decision of the High Court in the case of the State (Rajan) -v- Minister for Industry and Commerce [1988] I.L.R.M. 231 where at 240 Barron J addressed the erroneous belief of the Controller of Patents in relation to his control over examiners within the Patents Office. He indicated in that case that the examination was a statutory function and there was nothing in the relevant statutory powers giving the Controller such a right either as persona designata or as head of the Patent Office. In the instant case counsel submits that the Superintendent is deployed by the Commissioner although appointed by the Minister and that he exercises a dual role both statutory and operational.
58. Ms. Finlay in reply to the submissions of counsel for the Respondents, said that nothing in the sections expressly stated that the powers had to be exercised independently. However, it must have been clear that the legislative intention was one entitling the Superintendent to define policy independent of the Commissioner. The Superintendent is the persona designata under the Act. With regard to Section 8 of the Police Forces Amalgamation Act of 1925 this was not intended to give control over functions expressly conferred on Superintendents by the legislation. A decision making power involved the exercise of a discretion and that at law the exercise of a discretion must be exercised independently by a persona designata . In the instant case the action of the Commissioner overrides the overall provisions of the Firearm Acts themselves. It amounts to a specific repeal of the Act by non-legislative means. With regard to the nature of the Directive this is clearly considered to be binding and this has not been contradicted in this particular case. The conditions contained in the Directive amount to a mandatory precondition to grant or renew a certificate. It is indicative of the fact that one will not be granted a certificate unless the particular conditions laid down by the Commissioner are satisfied.
59. With regard to the Rajan case relied upon by counsel for the Respondent, this in fact supports the Applicant’s case insofar as it relates to the exercise of a function under a statutory scheme and that this should be done independently. It is submitted that in the Rajan case there was in fact a closer connection between the Controller and the Examiner than there is in the instant case between the Commissioner and the Superintendent. Nevertheless, Barron J said that in the absence of anything in the section entitling the Controller to examine applications and to make rulings in the form of directions to the applicants without them being heard, the functions of an Examiner as a person to whom applications are referred under the provisions of Section 11 of the Patent Act and those of the Controller are separate and distinct. The High Court, in that case, held that the proper construction of the sections in that case did not give the Controller the powers which he claimed. It is submitted by Counsel that the Rajan case follows the decision in the McLoughlin case previously referred to herein. In the context of the Firearms Act what the Superintendent has to decide in the context of section 3 and 4 is the entitlement of an Applicant to a firearms certificate and, if section 4 is satisfied, that the Applicant is entitled to a certificate. By reference to section 3(1) of the 1925 Act the power vested in the Superintendent under the Act is only subject to the limitations and restrictions imposed by the Act itself.
60. With regard to the vires argument the Commissioner sought to impose two mandatory preconditions to a renewal, one relating to a firearms cabinet being installed in each house and secondly, one permitting inspection in the house itself. What is at issue in these proceedings is whether the Commissioner is entitled to impose such a general precondition. Even if the Superintendent can enquire of a person what proposed arrangements as to storage they have, in the instant case what one is involved with is a general precondition to all applicants. Counsel again referred to the express provisions in the legislation dealing with storage facilities, in submitting that, insofar as the Superintendent is concerned, he is looking at the personal attributes of the Applicant rather than the storage facilities. That the Superintendent is only entitled to have regard to the circumstances of an individual Applicant in reaching any decision under the Act and not to any precondition sought. Further, with reference to Article 40 Section 5 of the Constitution, if the Houses of the Oireachtas intended an inspection one would have to find express provision when stating this in the legislation. The Commissioner and by extension the Superintendent cannot require an entitlement or precondition that inspection be effected in the house. There is no legislative basis for this. If this is the intention of the Oireachtas, it would need express legislative provision to be enacted. The so called expressio unius principle referred to in the Third Edition of Benion ‘Statutory Interpretation’ (Butterworths 1997) at paragraph 390 to 395 (to express one thing is to exclude another) is itself an aspect of the principle expressum facit cessare tacitum . Insofar as express powers of search are given in Section 21(3) and it excludes dwelling houses, it is suggested that the fact they are not included in these express powers of search is indi cative of the policy as intended by the Oireachtas.
61. With particular reference to how Section 4 of the Act of 1925 should be construed, a further principle of statutory interpretation should be referred to and this is that referred to at paragraph 396 of Benion under the title of ‘Implication by Oblique Reference’. Benion states at this paragraph “uncertainty in one part of the proposition maybe resolved by implication from what’s said in another part, even thought that other part is not directly referring you to the first part. Accordingly account is to be taken of a meaning of one provision in an Act that logically if obliquely rises from what is said elsewhere in the Act. Equally an express statement in an enactment may carry oblique implications respecting the legal meaning of other acts or enacted rules of law.” Applying this principle of Statutory Interpretation it is submitted by Ms. Finlay that it is permissible to take into account what is contained in Section 2(5) of the Act and to note that it is to be contrasted with the provisions of Section 4 itself, insofar as it extends to considerations of the place where a firearm is to be held.
Conclusions
62. What is not in issue in these proceedings is the fact that the impugned directive was intended to bind Superintendents in the exercise of their statutory function under the provisions of Sections 3 and 4 of the Act of 1925. What is in issue is whether this purpose was something that was enabled by the provisions of sections 8 and 9 of the Police Forces Amalgamation Act of 1925.
63. I am satisfied that the provision of section 8 of the Police Forces Amalgamation Act of 1925 apply only to operational matters and I am also satisfied that the function of a Superintendent, as outlined in the Act of 1925 are not mere operational matters but are functions vested in Superintendents of An Garda Siochana in each district in circumstances where they are persona designata . Accordingly I am satisfied that the impugned directive is invalid and void insofar as it has the effect of fettering the discretion of a Superintendent in the exercise of the functions under Sections 3 and 4 of the Act of 1925.
64. With reference to the question as to what is incumbent under the provisions of Section 4 of the Act of 1925 and in particular paragraph (b) thereof and whether it enables a Superintendent of An Garda Siochana to impose as a precondition to the issue of a certificate matters such as those contained in the impugned directive in this case, I believe that if the Act intended that such might be imposed by way of precondition that it would have expressly so stated. I am further satisfied insofar as Section 2(5) of the Act as inserted by the provisions of Section 15 of the Act of 1964 is concerned, that the contrast in wording gives some light as to how one should construe Section 4 of the Act and it is in this light I believe that Section 4 does not entitle a Superintendent to impose conditions such as might otherwise be imposed had similar wording been used in Section 4 to those appearing on Section 2(5) of the Act. I am of the belief that it was not permissible to imposed a fixed precondition to an application of the nature applied in this case by the impugned directive such as would preclude a Superintendent from considering a case on its merits where something of equivalent safety was provided by the certificate holder or Applicant for a certificate.
65. In light of my conclusions on the particular facts of this case in relation to the particular issues addressed to me by the parties and sought to be addressed by me, it is strictly speaking not necessary to address further the general entitlement of a Superintendent of An Gárda Síochána in regard to Section 4 paragraph (b) of the Act of 1925. However, I am of the opinion that the provisions of the paragraph are such as to not to restrict the ambit to consideration as to the personal attributes of an applicant for a firearms certificate but may relate to the circumstances in which he or she may have a firearm in his or her possession without danger to the public’s safety or to the peace.
66. In conclusion I wish to state that this Court expresses no concluded view as to how far a Superintendent may go in the context of the exercise of his powers under Section 4(b) of the Act of 1925 other than indicating that he may not impose preconditions of the nature sought to be imposed by the Commissioner in this case and the Commissioner is not entitled to interfere with a Superintendent in the exercise of his functions under the Act.
Dunne v Donohoe, unreported, High Court, July 27, 2001; [2002] 2 I.R. 533
JUDGMENT delivered the 1st day of May, 2002, by Keane C.J. [Nem Diss.]
1. The possession and use of firearms is regulated by a number of statutes, of which the most important in the context of the present proceedings are the Firearms Acts of 1925 and 1964 (hereafter “the 1925 Act” and “the 1964 Act” respectively). The 1925 Act prohibits the possession or use of firearms except where a certificate is granted to the person concerned under the provisions of the Act by the Superintendent of An Garda Síochána of the district in which the person resides.
2. The present proceedings are the result of a directive entitled “Security Arrangements for Licensed Firearms” (“Directive 53/00”) issued by the second named respondent, an assistant commissioner of An Garda Síochána, to each officer, inspector and station of An Garda Síochána on 15th March 2000. The directive purported to require certain security arrangements to be in place before firearm certificates were issued: in particular, the holders of firearms were required to keep them when not in use in a properly constructed and locked firearms cabinet. Wooden cabinets were not permitted and the keys of the cabinet were to be separately stored. Those requirements were of general application: in the case of rifles in excess of .22 calibre, there were more stringent requirements.
3. This was the last of a series of circulars from Garda headquarters dating from November 1989 relating to the holding of firearms and which were said to be prompted by a growing concern on the part of the garda as to the incidence of larcenies of such weapons from private premises and motor vehicles.
4. In these proceedings, the legal validity of these requirements is challenged by the first and second named applicant. The first applicant is the administrator/director of the second applicant which is the largest voluntary organisation in Ireland involved inter alia in game shooting, its membership being made up of the members of 885 gun clubs throughout the country. They were granted leave by the High Court to institute proceedings by way of judicial review, claiming a number of reliefs in the form of certiorari, injunction and declarations in respect of Directive 53/00 on various grounds.
5. A statement of opposition having been filed on behalf of the respondents/appellants, the substantive proceedings came on for hearing before Ó Caoimh J. He concluded that the applicants were entitled to orders of certiorari quashing Directive 53/00 and the decision of the first named respondent (the superintendent of the district in which the first applicant resides) requiring him to install a firearms cabinet and/or to provide security arrangements which should be available for inspection before his firearm certificate was renewed.
6. Those reliefs were granted by the learned High Court judge on two grounds:
that the directive was void insofar as it had the effect of fettering the discretion of a superintendent in the exercise of the relevant functions under the 1925 Act;
that a superintendent was not empowered to impose a fixed precondition requiring every applicant for a firearm certificate to keep the firearms in a locked firearms cabinet constructed in accordance with the requirements of the directive.
7. From that order and judgment, the appellants have appealed to this court.
8. Before considering the submissions of the parties, I should refer to the statutory provisions in more detail. The long title to the 1925 Act describes it as
“An Act to place restrictions on the possession of firearms and other weapons and ammunition, and for that and other purposes, to amend the law relating to firearms and other weapons and ammunition.”
9. Section 2(1) provides that, subject to specified exceptions, it is not to be lawful for any person to possess, use or carry any firearm or ammunition except as authorised by a firearm certificate granted under the Act and in force. The possession, use or carriage of firearms, save in the excepted cases, without a certificate is an offence punishable under the provisions of the Act.
10. Section 3(1) provides that
“The superintendent of the Garda Síochána of any district may, subject to the limitations and restrictions imposed by this Act, upon the application of any person residing in such district and upon the payment by such a person of the fee (if any) for the time being required by law, grant to such person a firearm certificate.”
11. I should note at this point that, in the case of persons not ordinarily resident in Ireland, a firearm certificate may be granted by the Minister for Justice, Equality and Law Reform under s. 3(2).
12. Section 4 provides that
“Before granting a firearm certificate to any person under this Act the superintendent of the Garda Síochána or the Minister (as the case may require) shall be satisfied that such a person –
has a good reason for requiring the firearm in respect of which the certificate is applied for, and
can be permitted to have in his possession, use and carry a firearm or ammunition without danger to the public safety or to the peace, and
is not a person declared by this Act to be disentitled to hold a firearm certificate.”
13. The categories of persons disentitled to hold a firearm certificate are set out in s.8, as amended by s.17(b) of the 1964 Act as follows:
“(a) any person under the age of 16 years,
(b) any person of intemperate habits,
(c) any person of unsound mind,
(d) any person who had been sentenced by a court in the State to penal servitude or to imprisonment for any term which has not expired or has expired within 5 years previously for a crime in the course of which a firearm was used or a firearm or an imitation firearm was produced for the apparent purpose of intimidating any person or a threat to use a firearm against any person or property was made, and
(e) any person who has been sentenced by any court in the State to penal servitude or to imprisonment for any term of not less than three months which has not expired or has expired within 5 years previously for a crime consisting of or including an assault on any person, and
(f) any person who is subject to the supervision of the police, and
(g) any person who is bound by a recognisance to keep the peace or be of good behaviour, a condition of which is that such person shall not have in his possession, or use or carry any firearm or ammunition.”
14. Section 5 of the 1925 Act empowers the superintendent of the Garda Síochána of the district in which the holder of a firearm certificate resides to revoke the certificate at any time if he is satisfied that the holder
has no good reason for requiring the firearm or
is a person who cannot, without danger to the public safety or to the peace, be permitted to have a firearm in his possession, or
is a person disentitled under the Act to hold a firearm certificate, or
where the certificate limits the purposes for which it may be used, is using it for purposes not authorised by the certificate.
15. The renewal of firearm certificates is dealt with by s.9 of the 1964 Act: they may be renewed by a member of the Garda Síochána not below the rank of a sergeant in the district in which the holder resides if he is so authorised in writing by the superintendent of the district. However, the member concerned cannot refuse to renew a particular firearm certificate unless he is so authorised by the superintendent of the district.
16. The exemptions from the requirements of s.2 as to the holding of a certificate are set out in s.s.(4) which was inserted by s.15 of the 1964 Act. While for the purposes of this judgment it is unnecessary to set them out in detail, the exemptions extend to the possession, use or carriage of firearms or ammunition by
registered firearms dealers and their employees;
employees of persons engaged in warehousing goods for reward;
auctioneers;
members of authorised rifle or gun clubs while engaged in competition or target practice at an authorised range;
persons operating or using ranges or shooting galleries in amusement halls or funfairs, carnivals or the like where authorised;
persons taking part in theatrical performances, rehearsals or filming where authorised;
starting athletic races by an authorised person;
persons using firearms or blank ammunition provided by the Minister for Defence in ceremonies, where authorised.
17. The power to grant authorisations for the purposes of these provisions is also vested in the superintendent. Section 2(5)(b) of the Act of 1925, also inserted by s.15 of the 1964 Act provides that
“A superintendent shall not grant an authorisation under this section unless he is satisfied having regard to all the circumstances (including the provision made or to be made for the storage of the firearms and ammunition to which the authorisation (if granted) would relate and the supervision of their use) that the possession, use or carriage, as the case may be of firearms or ammunition in pursuance of the authorisation will not endanger the public safety or the peace.”
18. Finally, s.8(1) of the Police Forces (Amalgamation) Act, 1925 under which the Dublin Metropolitan Police and the Garda Síochána were amalgamated, provided that
“The general direction and control of the amalgamated force shall, subject to regulations made under or continued in force by this Act, be vested in the commissioner of the amalgamated force who shall be styled and known as the Commissioner of the Garda Síochána.”
19. Directive 53/00 provided inter alia as follows:
“In future, when granting or renewing firearm certificates, district officers will ensure that the following security arrangements are in place before issuing the firearm certificate –
Shotguns and rifles up to .22 calibre –
The holder of a shotgun or rifle should have the
weapon(s) secured in a properly constructed and locked
firearms cabinet.
The cabinet should be of good quality and be secured to a
solid wall. Wooden cabinets should not be permitted.
The keys of the cabinet must be stored securely away from
same ….”
“The above recommendations are aimed at providing a satisfactory level of security for the various categories of firearms. The storage facilities should be available for inspection by a member of An Garda Síochána at all reasonable times.
District officers should ensure that the above recommendations are strictly adhered to.”
20. On behalf of the appellants, Mr. Senan Allen SC submitted that the control of firearms was quintessentially an operational policing matter and the fact that the power to regulate the possession of firearms was statutory in origin did not make their control any less an operational matter. As such, it was capable of being regulated in accordance with directions made under the Police Forces (Amalgamation) Act, 1925, unless a contrary intention was to be found in the 1925 and 1964 Acts.
21. Mr. Allen submitted that the High Court judge had erred in law in concluding that, because a licensing function was conferred on Garda superintendents as personae designatae , the power in question could be exercised at their absolute discretion.
22. Mr. Allen further submitted that, while the intention of the 1925 and 1964 Acts was that the function of issuing firearm certificates was to be exercised at local level by senior officers of the Gardaí, there was nothing in the Acts which expressly, or by necessary implication, conferred on the superintendents a role or function independent of their position as officers of an Garda Síochána or of the established hierarchical structure of a disciplined force.
23. Mr. Allen submitted that while part of the rationale of conferring the licensing jurisdiction on the superintendent of the district was to facilitate inquiries as to the identity and character of an applicant and the relevance of local conditions and local needs, it did not follow that the Oireachtas was removing from the Commissioner any power to ensure minimum acceptable standards of public safety. That conclusion would not be consistent with the structure of the police force as clearly and unambiguously required by the Oireachtas. He submitted that the decisions in the State (Rajan) -v- Minister for Industry and Commerce [1998] ILRM 231 and McLoughlin -v- Minister for Social Welfare [1958] IR1, relied on by the respondents, related to entirely different statutory regimes and had no application to the circumstances of the present case. He also cited in support of his arguments the decision of Kelly J in Mishra -v- Minister for Justice [1996] 1IR 189.
24. As to the second ground on which the High Court judge had found in favour of the respondents, Mr. Allen submitted that the High Court judge had accepted that, in considering the circumstances in which an applicant for a firearm certificate could have a firearm in his or her possession without danger to the public safety of peace, a Garda Superintendent could take account of the conditions under which those firearms were stored and that this finding by him had not been the subject of any notice to vary. Mr. Allen submitted that it followed that a decision of a Garda Superintendent to require all applicants for firearm certificates in his district to have a gun safe in which to store their weapons was one which was permitted under the 1925 Act. Hence, even if the appellants’ argument that the exercise by garda superintendents of their licensing power under the 1925 Act could not be fettered by a directive such as Directive 53/00, a superintendent was nonetheless entitled to decide, in the independent exercise of his statutory functions, that the requirements of public safety in his district generally, or in the particular area in which the applicant resided, would require the application of a more stringent standard or perhaps could not be met at all. He submitted that sensitive security issues of this nature could not be determined in an ad hoc manner, not merely differing from district to district but even from applicant to applicant.
25. On behalf of the respondents, Ms. Mary Finlay SC submitted that it was noteworthy that it was not contested on behalf of the appellants that, as found by the learned High Court judge, Directive 53/00 was mandatory in its terms and intended to be binding on superintendents. The general provisions in s.s. 8 and 9 of the Police Forces (Amalgamation) Act 1925 could not be construed as derogating from or amending the express provisions of the Firearms Acts 1925 – 2000.
26. She further submitted that the superintendent is a persona designata in whom a discretion is vested under s.s. 3 and 4 of the Firearms Act 1925 in relation to the granting of firearm certificates and under s.9 of the 1964 Act in relation to renewals, subject to the power of delegation in respect of the latter function. It was impermissible for a superintendent to exercise such a discretion by acting on the instructions of any other party, including the Commissioner or Assistant Commissioner, or adopting a rigid policy not expressly authorised by the relevant statutes.
27. Ms. Finlay further submitted that the qualification “general” in s. 8 of the Police Forces ( Amalgamation) Act 1925 emphasised that the Commissioner’s directive authority was not intended to extend to the exercise of a garda’s power in individual cases, citing in support observations of Professor Dermot Walsh in The Irish Police: A Legal and Constitutional Perspective (Dublin 1998) at p.70.
28. She further submitted that the learned High Court judge was correct in interpreting s.8 of that Act as applying only to operational matters and in concluding that the licensing function of superintendent under the 1925 Act and the 1964 Act is not such an operational matter, involving as it does the exercise of a regulatory power conferred by the Oireachtas on designated persons. This was borne out by the fact that, in the case of non-residents, the function was assigned to the Minister for Justice, Equality and Law Reform. It could not be said that the latter was exercising a power which related to an operational policing matter and it followed that the same considerations applied to a superintendent who was exercising a statutory power couched in almost identical language.
29. She further submitted that, where the Oireachtas confers a decision-making power on a persona designata , that individual alone may exercise the power and it is not permissible for him or her to exercise it in accordance with the dictates of another body of authority. She cited in support the decision of this court in Murphy -v- Dublin Corporation [1972] IR 215, the State (McLoughlin) -v- Minister for Social Welfare and the State (Rajan) -v- Minister for Industry and Commerce.
30. Ms. Finlay submitted that, on the facts of this case, strictly speaking the second issue did not arise, as it was not in dispute that the first named appellant was at all material times acting in accordance with the directive of the second named appellant. Without prejudice to that submission, she said that the imposition of a condition requiring the construction of a gun safe and its inspection by the gardaí as a precondition to the issue or renewal of a firearm certificate was ultra vires the powers conferred on superintendents by the Firearms Act 1925 – 2000.
31. She further submitted that to construe the relevant provisions of the 1925 Act as conferring a power on a superintendent to impose preconditions of this nature would be inconsistent with the provisions of the Constitution under which the sole and exclusive power of making laws for the State was vested in the Oireachtas, citing in support the decisions of this court in Cityview Press Limited -v- An Comhairle Oiliuna [1980] IR 381, Cassidy -v- Minister for Industry and Commerce [1978] IR 297 and O’Neill -v- The Minister for Agriculture [1998] 1IR 539. In requiring the instalment by citizens of gun safes which would be available for inspection, it was inconsistent with the provisions of the 1925 Act which conferred powers of search in respect of certain other types of premises, but not in respect of private dwellings: the application of the expressio unius principle would preclude the existence of any implied power on the part of Garda Superintendents to conduct inspections of private dwelling houses. It was also inconsistent with the right to the inviolability of the dwelling protected by Article 40.5 of the Constitution.
Conclusion
32. In considering the submissions advanced on behalf of the parties in this case, it should be noted, at the outset, in relation to the first issue, that the power conferred by s.3 of the 1925 Act on garda superintendents to grant firearm certificates is one of a wide range of powers in various areas conferred by legislation: one could instance the Betting Act 1931, the Public Dance halls Act, 1935, the Gaming and Lotteries Act, 1956 and the Intoxicating Liquor Acts. One is entitled to assume that in all such instances the Oireachtas decided that the power should be exercised by a senior garda officer in a particular locality for what seemed to them (the Oireachtas) good reasons, but they would, of course, have been perfectly entitled to confer the power in question on another body, such as a court of local and limited jurisdiction, a local authority or some other state agency.
33. It follows, in my view, that the learned High Court judge was correct in holding that the power conferred on garda superintendents by s.2 of the 1925 Act was conferred on him as a persona designata and that, accordingly, it vested in him a discretion which he could not abdicate to anyone else. Accordingly, while he can only exercise that discretion within any relevant statutory limitations, he cannot be required to exercise it in any particular manner by any other body or authority.
34. That conclusion is supported by the decision of the former Supreme Court in McLoughlin -v- the Minister for Social Welfare [1955] IR 1. In that case, an appeals officer in the Department of Social Welfare had purported to determine a question which came before him as to whether the appellant was in the employment of the Civil Service of the Government by reference to a minute from the Minister for Finance directing him so to hold. O’Dalaigh J., as he then was, characterised that view of his function as
“An abdication by him from his duty as an appeals officer.”
35. Similarly, in the State (Rajan) -v- The Minister for Industry and Commerce and Others , the High Court (Barron J), found to be erroneous a belief of the Controller of Patents, Designs and Trademarks that he had a general power of control over examiners in his department. Acting on that belief, the Controller, who was endeavouring to deal with arrears of work existing in his office, directed the examiners to allow certain applications through with limited investigation and, in certain cases, without any investigation whatsoever. Having cited the decision in McLoughlin, Barron J went on to say that
“the examination is a statutory function and there is nothing in the relevant statutory powers giving [the controller] such a right either as persona designata or as head of the patent office.”
36. Since I am satisfied that the learned High Court judge was correct in so holding, the second issue, strictly speaking, does not arise: it is acknowledged that the first named appellant, in requiring the first named applicant to instal a gun safe and have it available for inspection as a condition of having his firearm certificate renewed, was acting in compliance with Directive 53/00. However, even if he could be regarded as having exercised an independent judgment in the matter, I am satisfied that a superintendent who imposed a precondition in the case of all applications for the grant or renewal of firearm certificates that the applicant should, at the least, instal a gun safe and have it available for inspection, would be acting ultra vires the provisions of the 1925 and 1964 Acts.
37. That legislation empowers the superintendent to grant the firearm certificate where he is satisfied as to three matters i.e., that the person has a good reason for requiring the firearm, can be permitted to possess, use and carry it without danger to the public safety or to the peace and is not one of the persons disentitled by the statute to hold a firearm certificate. For a superintendent to add, in effect, a fourth condition, by requiring every applicant to provide a gun safe which would be available for inspection by the gardaí, would be to place the applicants in the same position as if, in the case of that particular district, the Oireachtas had so prescribed by primary or secondary legislation. Neither the Commissioner nor the district officers have been empowered by the legislature to impose such preconditions. (See, in this connection, the judgment of Murphy J in this court in O’Neill -v- The Minister for Agriculture.)
38. At the end of his judgment, the learned High Court judge said
“I am of the opinion that the provisions of [s.4(b)] of the 1925 Act are such as not to restrict the ambit to consideration as to the personal attributes of an applicant for a firearm certificate but may relate to the circumstances in which he/she may have a firearm in his/her possession without danger to the public safety or to the peace… I wish to state that this court expresses no concluded view as to how far a superintendent may go in the context of the exercise of his powers under s.4(b) of the Act of 1925 other than indicating that he may not impose preconditions of the nature sought to be imposed by the commissioner in this case and the commissioner is not entitled to interfere with the superintendent in the exercise of his functions under the Act.”
39. That passage, admittedly obiter, would appear to suggest that, in the view of the learned High Court judge, it would be open to a superintendent, in the circumstances of a particular case, to stipulate that the holder of one or more firearms could be required, as a condition of being granted a licence, or obtaining a renewal of a licence, to keep the firearm or firearms, when not in use, locked in a firearms cabinet. No notice to vary was served in respect of that passage, and understandably so, since this did not form any part of the reasoning by which the learned High Court judge arrived at his decision. It is, accordingly, unnecessary to express any view as to the circumstances in which the imposition of such a condition might constitute the appropriate exercise of a discretion vested in a superintendent under the 1925 Act or the implementation of a policy by him of an inflexible and rigid nature which would be inconsistent with the proper exercise of that discretion.
40. I would dismiss the appeal and affirm the order of the High Court.
Goodison -v- Sheahan
[2008] IEHC 127 (02 May 2008)
High Court Record Number: 2006 299 JR
Date of Delivery: 02 May 2008
Court: High Court
Composition of Court: Peart J.
Judgment by: Peart J.
Status of Judgment: Approved
Judgment of Mr Justice Michael Peart delivered on the 2nd day of May 2008:
The applicant describes himself in his grounding affidavit herein as a long term recreational shooting enthusiast, and states that for over thirty years he has held firearm certificates issued to him in respect of two double barrel shotguns, and one rifle of .220 inches, pursuant to the provisions of s. 3 of the Firearms Act, 1925, as amended (“the Act”), and has never been refused an application for such a certificate until the 7th October 2005 when his application for a firearm certificate in respect of a Glock 9mm semi-automatic pistol was refused by letter of that date for the reasons set forth therein.
That decision to refuse him a firearm certificate in respect of that particular weapon is the subject of the present application, wherein he seeks an order of Certiorari quashing that decision, as well as a declaration that the decision is ultra vires and without any basis in law. Leave to seek these reliefs by way of judicial review was granted to the applicant by order of the High Court dated 13th March 2006.
The relevant statutory provisions:
Before dealing with other relevant facts and the legal submissions of the parties I will set out certain relevant provisions contained in the Act.
Section 3 (1) empowers a superintendent to grant a firearm certificate and provides as follows:
(1) The Superintendent of the Garda Siochána of any district may, subject to the limitations and restrictions imposed by this Act, upon the application of any person residing in such district and upon the payment by such person of the fee (if any) for the time being required by law, grant to such person a firearm certificate.
There are a number of other subsections in s. 3, but none are relevant on the present application.
Section 4 provides for three matters of which such a superintendent must be satisfied before granting a firearm certificate:
4. Before granting a firearm certificate to any person under this Act the superintendent of the Garda Siochána ……… shall be satisfied that such person –
(a) has a good reason for requiring the firearm in respect of which the certificate is applied for, and
(b) can be permitted to have in his possession, use, and carry a firearm or ammunition without danger to the public safety or to the peace, and
(c) is not a person declared by this Act to be disentitled to hold a firearm certificate.
A consideration of paragraphs (a) and (b) of s. 4 are central to the present application, since they circumscribe the bases on which the superintendent could, as in this case, make a decision to refuse the firearm certificate applied for by the applicant. Paragraph (c) has no relevance to this applicant.
A power to revoke a firearm certificate appears in Section 5 of the Act which provides:
5. The superintendent of the Garda Siochána of the district in which the holder of a firearm certificate resides may at any time revoke such certificate if he is satisfied that the holder of such certificate –
(a) has no good reason for requiring the firearm to which the certificate relates, or
(b) is a person who cannot, without danger to the public safety or to the peace, be permitted to have a firearm in his possession, or
(c) is a person who is declared by this Act to be disentitled to hold a firearm certificate, or
(d) where the firearm certificate limits the purpose for which the firearm to which it relates may be used, is using such firearm for purposes not authorised by the certificate.
Factual background:
On about the 6th October 2004, the application made a written application for a firearm certificate for the Glock 9mm pistol already referred to which he had purchased from an authorised dealer but had not yet taken possession of pending the granting of the certificate. While he had already been granted certificates for two shot guns and a rifle, he had never applied for a certificate for a pistol because, according to his grounding affidavit, there had been a long-standing fixed but non-statutory policy that a certificate would not be granted for a pistol. He states that this policy emanated from the Minister for Justice, Equality and Law Reform and was directed to all superintendents with regard to the exercise of their discretion under s. 3 of the Act.
He has exhibited a number of letters received in recent years by other applicants (with their consent) from a number of different Garda superintendents who have refused certificates for pistols based on such a policy. He has exhibited also a letter dated 10th April 2002 from the Department of Justice, Equality and Law Reform which described the policy as follows:
“The policy regarding the licensing of firearms is that, following a Government Decision in 1972, the Garda Siochána only licence sporting firearms, i.e. shotguns having barrels of not less than 24 inches in length, unrifled air guns and rifled firearms of a calibre not exceeding .22 inches. Crossbows, which were classified as firearms in 1990 are also licensed. A further Government Decision in 1993 replaced this policy to allow for the licensing of bolt action rifles of a calibre up to .270 for the purpose of deer hunting and target shooting only.
The policy is not set out in a statutory instrument.”
The applicant avers that this policy no longer exists as a result of a number of court challenges by unsuccessful applicants for such certificates. According to his affidavit, a situation now exists where some superintendents around the country, in the exercise of their discretion, have commenced issuing such certificates in respect of firearms which exceed .22 calibre.
The applicant states that he was glad to see the reversal of what had been a rigid policy of not issuing certificates for such weapons, since it opened up the possibility for him that he could compete and participate in a sport which he loves, and he set about the purchase of such a weapon for use in target practice and for competitive use at gun clubs. He also states that the reversal of this policy has led to a proliferation of pistol shooting in the State, and that there are now a number of new pistol clubs and frequent competitive events. It is not disputed on this application that the applicant is a bona fide recreational shooting enthusiast.
Having submitted his application to his local Garda station for a certificate for the Glock 9 mm pistol. According to the first replying affidavit filed by the respondent the application was “processed” by a Garda Killeen, and the applicant states that he was informed by Garda Killeen that it would be necessary for his gun cabinet to be inspected.
This inspection took place in October 2004 when Sgt. Tim Cronin came to the applicant’s home for that purpose. It was apparently indicated to him on that inspection that he would need to install a new cabinet for the purposes of his pending application, and he duly purchased a suitable cabinet and installed it in his home. This new cabinet was inspected by Sgt. Cronin, and, according to the applicant’s affidavit, Sgt. Cronin was satisfied with it and informed the applicant that the certificate would issue in two to three weeks time. The respondent disputes this, and states that the applicant misunderstood the advice by Sgt Cronin that he would need to install a new cabinet. In his said replying affidavit the respondent states that he has been told by Sgt. Cronin that he did not tell the applicant that if such a new cabinet was installed the firearms certificate would issue, and that in any event Sgt. Cronin would not have had any authority to make such a statement.
The applicant states that after a few months had passed he contacted Gda. Killeen to ask why the certificate had not yet issued, and that in answer he was told that the application had not in fact been submitted as “it would not have been the right time to do so” and that the application would have been refused. The applicant then requested a letter of refusal, but it was indicated to him that the application would be sent to Ballybricken Garda Station in Waterford City where, it would appear from the letter of refusal which issued on the 7th October 2005, the respondent is the superintendent. The applicant states that about two weeks after his said conversation with Gda. Killeen, the latter called to his home and informed the applicant that the application had passed and that it would take about two weeks for the certificate to issue from Dublin. However, it appears that after a further two weeks, Gda Killeen contacted the applicant and informed him that the certificate had been “recalled” as it had issued by mistake. On hearing this, the applicant requested a meeting with the respondent.
The respondent deals with this “mistake” in his said replying affidavit, and states that following the submission of the applicant’s application “it was returned to Garda Killeen informing him that the application had been approved. This was in error”, and that Garda Killeen being unaware of the error informed the applicant that it had been approved. He states that as soon as that error was discovered Garda Killeen was so informed, and that it was in those circumstances that he contacted the applicant to inform him that it had been a mistake to inform him that the certificate had been issued. The respondent states that it not correct to characterise that contact by Garda Killeen as informing the applicant that the certificate had been recalled, and that in fact the certificate had never in fact been issued. The respondent goes on to state that he told Garda Killeen that he (the respondent) needed to meet the applicant in order to discuss the application.
That meeting took place on the 29th September 2005. The applicant states that at that meeting he explained that he wanted the pistol so that he could participate in target shooting and that he was a member of the South East Pistol Club, and that he wanted to be able to participate in all club events including club competitions and competitions with other clubs. The applicant states that at this meeting the respondent told him that he “had his mind made up not to grant the certificate” but that he would give the applicant a chance to put his case to him, and told him that he would think it over and see the applicant again in about a week’s time. The applicant states that he returned to the superintendent about a week later, but was informed on that occasion that the respondent was too busy to see him, and that having made a number of further unsuccessful attempts to speak to the respondent, a letter of refusal finally issued on the 7th October 2005.
The respondent disagrees with the applicant’s version of these events. In his said replying affidavit, the respondent rejects the claim made by the applicant that at the outset of the meeting he indicated that he had his mind made up in relation to the application. He describes the purpose of the meeting as being to allow the respondent to obtain further information from the applicant as to his reasons for “wanting the particular firearm the subject of the application”. He states that he needed this further information so that he could consider the application submitted and make a properly informed decision, and that he is obliged to have as much information as possible when considering an application “for a particular firearm”, and that having met the applicant and obtained as much information as possible, he then made the decision to refuse to issue a certificate “on the grounds set out in his letter of refusal. I will set out the terms of that refusal, but before doing so will refer to the fact that in his said affidavit the respondent denies that, as alleged by the applicant, the real reason for refusing to issue the certificate was “the type of firearm in question”, and he states that the reasons for his refusal are clearly set forth in his letter of refusal.
The letter of refusal:
The body of this letter of refusal states:
“I have considered the application carefully and I am of opinion that I should not issue a Certificate under the Firearms Acts by virtue of the following:
· I am not satisfied that you have good reason for acquiring the firearm.
· I am not satisfied that the type of firearm in question can be used without danger to public safety.
I have taken particular note of the following:
· The Glock 9mm Pistol is of military/police design/style.
· It is not a genuine target calibre.
· Half of this firearm is of plastic for lightness to carry for ease in combat shooting.
· It has safety of (sic) the trigger and thus not designed for target shooting.
· Its of high capacity.
This decision does not prevent you from making further representation to me in relation to the refusal to grant the said firearm certificate should you so desire. Nor, does it prevent you from making an application for a .22 inch rim fire pistol which is specifically used in target shooting.”
The applicant in his grounding affidavit states that in his view this letter evidences that the real reason for refusal is the type of firearm in question and not any of the considerations identified in s. 4 of the Act. He states that he gave the respondent ample reason for acquiring the firearm in question, and that it is “nonsensical” to suggest that it cannot be used without danger to the public when other firearms in his possession and for which he was issued certificates can be so used without danger to the public. He submits that “the firearm is as safe or as dangerous as the person who has control over it”, and that if he can possess three firearms without danger to the public safety, he fails to see why he is not equally capable of possessing an additional firearm more suited for target use. He proceeds to take issue with the characterization of the Glock pistol as a military or police style firearm, even though some military and police undoubtedly use them, and does not accept that this means that it is exclusively suited to such use. He has exhibited some material in relation to the use of the Glock 9mm pistol supporting the use of the Glock as a competition pistol. He also disputes that it does not have a genuine target calibre, and does not understand on what basis the respondent has reached that conclusion.
He also derides the respondent’s rejection of his application having had regard to the fact that the pistol has a safety mechanism on the trigger, and the suggestion that this pistol is “of high capacity” simply because it is a higher calibre. In that regard he states that at the meeting which he had with the respondent, the latter seemed “genuinely surprised” when he informed the respondent that many people around the country had rifles more powerful than the Glock pistol, and he believes as a result that the respondent has “little knowledge about firearms”. However, in his second affidavit, the respondent states that the applicant has deliberately misunderstood what he had stated about the existence of a safety mechanism on the Glock, and states that he referred to this feature because it a standard feature on weapons which are used by military and police forces, and requires training for its proper use.
Other matters referred to in the letter of refusal are disputed by the applicant in his second affidavit filed in response to the respondent’s first affidavit.
In his first affidavit the respondent states that he decided the applicant’s application on its own merits, and that much of what the applicant states in his grounding affidavit about the existence of a policy of refusing certificates for such weapons is irrelevant to the present application. He agrees that at the meeting already referred to the applicant informed him that he wanted this pistol “to participate in pleasure and target competitions”, but goes on to say that he understands that the normal calibre of weapon used for such target competitions are of .22 and .177 calibre pistols, and he also believes that when the applicant accepted at that meeting that the Glock 9mm pistol was normally used for defensive purposes, he was accepting also that such a calibre of pistol is not normally used for target shooting. But the respondent accepts that it could be used in situations other than combat/military/ police situations, while saying also that even though it could be used for the sporting purposes which had been put forward by the applicant, that does not mean that he must consider that reason to be a good reason for the purpose of s. 4(a) of the Act.
The respondent states in his affidavit, also, that for the reasons stated already he was not satisfied that the purpose for which the applicant requires the gun is a good reason “particularly in the light of the fact that there were other guns available to him which are suitable for target shooting”. He states that when considering if an applicant has “good reason” for requiring such a gun he must balance the needs and wants of the applicant against the needs of the public in terns of safety, and in this case he is of the view that the characteristics of the gun in question are over and above the need for which the applicant requires it “and that he has no good reason for requiring the particular gun which would otherwise outweigh public safety considerations.”
At a later point in the same affidavit the respondent states that the type of firearm in question was a consideration for him when making his decision, but that he did not refuse the certificate “because of the type of firearm in question but rather that [the applicant] had not satisfied me that the reason why he required that type of firearm or the particular firearm was a good reason”.
The respondent also rejects any suggestion made by the applicant that he has a fixed policy in relation to applications for certificates for this type of gun.
In his second affidavit filed in response to that of the respondent, the applicant expresses his belief that the respondent has refused a certificate to any applicant to him who sought a certificate in respect of any firearm over .22 calibre, and that no matter what reason was put forward by the applicant for wanting such a certificate, it would always be refused. In relation to the second reason for refusal, namely that on grounds of public safety, the applicant states that this reason ignores the fact that he is already in possession of three firearms, and that it is the “quality and character of the holder and where the gun will be used which determines the public safety element of his considerations and not the calibre of the firearm”.
In this second affidavit, the applicant stands over his account of the conversation with Garda Killeen referred to already in which he was told that the application had been approved, and notes that his version of what transpired between him and Garda Killeen is not contradicted by an affidavit by Garda Killeen himself. He also stands over his recollection of the meeting with the respondent and his statement that his [the respondent’s] mind was already made up by that meeting to refuse the application.
The respondent has filed a further affidavit sworn on the 13th October 2006. He responds further to the allegation made by the applicant that he has a fixed policy in relation to refusing certificates for firearms in excess of .22 calibre. He again denies any such fixed policy by him, although he accepts that he is slow to grant such certificates “given the danger presented by such firearms”. This, he states, stems from his concern for public safety and the risk posed in that regard “by guns in general and large calibre handguns in particular”. He states that he is willing to grant such certificates when he is satisfied that the applicant can be permitted to use, carry and possess the firearm without danger to public safety and that he has good reason for requiring it. At paragraph 7 of this affidavit he states that he has in fact granted firearms certificates for weapons above .22 calibre, but that since he was promoted to the rank of superintendent in February 2004 he has received only five applications for pistols in excess of .22 calibre, and that in respect of each such application he has interviewed the applicant, discussed the issues arising, and carried out his own enquiries, and considers each application on its own merits. He makes the point also that if, as the applicant states, he had his mind made up already when he met with the applicant in February 2005, he would simply have issued a decision to refuse without seeking to obtain further information from the applicant at that meeting.
He also states again in this affidavit that the applicant has not satisfied him in relation to these matters. He goes on to say that at no stage prior to the issue of these proceedings did the applicant inform him that he intended using this pistol for target shooting other than target shooting sports which are recognised by the Olympic movement. This refers to earlier averments related to the type of target shooting so recognised and the fact that the standard calibres used in such sports were .22 and .177. In such circumstances the respondent now feels he has limited information as to precisely what sport or target shooting the applicant intends participating in, and that such information is essential for him when making his decision on the application. In so far as the applicant had stated in his second affidavit at paragraph 10 thereof that he does not seek to participate in Olympic sport, and that some sporting disciplines only permit the use of 9mm weapons, such as competitive shooting and “practical shooting”, the respondent states that competitive, sporting disciplines and practical shooting are vague and imprecise terms and in such circumstances he cannot be satisfied that the applicant requires this gun for a “good reason” or that he can be allowed to carry, use or possess same without danger to the public safety. It is worth noting at this point that the letter of refusal in this case states that the refusal does not prevent the applicant from making further representations to the respondent in relation to the refusal of a certificate for the Glock 9mm pistol should he wish to do so.
Applicant’s submissions:
Gerard Hogan SC for the applicant refers to the discretion vested in the respondent by s. 3 of the Act to grant or refuse a firearm certificate, but submits that this is not an unlimited discretion, but one which must be exercised within the boundaries of the Act itself. In that regard he has referred in his written submissions to the judgment of Walsh J. in East Donegal Livestock Mart Ltd. V. The Attorney General [1970] IR 312, where at p. 341 the learned judge states, in relation to the exercise of a discretion conferred by an Act of the Oireachtas:
“All the powers granted to the Minister by s. 3 which are prefaced or followed by the words “at his discretion” or “as he shall think proper” or “if he so thinks fit” are powers which may be exercised only within the boundaries of the stated objects of the Act; they are powers which cast upon the Minister the duty of acting fairly and judicially in accordance with the principles of constitutional justice, and they do not give him an absolute or an unqualified or an arbitrary power to grant or refuse at his will. Therefore, he is required to consider every case upon its own merits, to hear what the applicant or the licensee (as the case may be) has to say, and to give the latter an opportunity to deal with whatever case may be thought to exist against the granting of a licence or for the refusal of a licence or for the attaching of conditions, or for the amendment or revocation of conditions which have already attached, as the case may be“.
Mr Hogan refers to s. 4 of the Act and to the two bases only (as applicable in this case) on which the respondent could lawfully exercise his discretion to refuse the applicant’s application for a certificate for the Glock 9mm pistol in question, namely (a) that the applicant has no “good reason for requiring the firearm” (i.e. the Glock pistol), and (b) that the applicant cannot “be permitted to have a firearm [i.e. any firearm] or ammunition without danger to the public safety or to the peace”.
Mr Hogan submits that it clear from this section that (a) refers only to the non-existence of a “good reason”, whereas (b) can refer only to whether this particular applicant is a person who can hold any firearm without danger to the public safety.
In relation to (a) he submits that it is accepted even by the respondent that the applicant is a bona fide sportsman who has a genuine interest in target shooting, including pistol shooting, and that the term “good reason” must be taken as meaning a legitimate reason, and that the respondent cannot decide in the exercise of his statutory discretion that the applicant’s reason is not a good reason simply because he himself believes that he has already in his possession sufficient weapons with which to pursue his hobby or interest in target shooting. He submits that the assessment of “a good reason” cannot be subjective on the basis of this opinion of the respondent as to weapons already possessed by the applicant. He submits that it cannot be concluded that an interest in target shooting is not a good reason within s. 4(a) of the Act, and that for the respondent to conclude that there is no good reason requires that he be of the view that the reason for which the applicant requires the Glock pistol is an illegitimate or unlawful reason, or a reason other than a bona fide reason. He submits that it is irrelevant to the respondent’s consideration of “good reason” that he is of the opinion that a smaller calibre weapon is appropriate for target shooting. He points also to the fact that there is nothing in the way the letter of refusal has been worded to indicate why the respondent considers that there is no good reason.
As far as (b) is concerned, Mr Hogan submits that the applicant could not possibly be considered to be someone whose possession, use or carrying of a firearm or ammunition constitutes a danger to the public safety, since he has for many years been the holder of firearm certificates for the three weapons already referred to, and points to the fact that no application has ever been made to have those certificates revoked pursuant to the provisions of s. 5 of the Act. He submits that nowhere in the respondent’s affidavits has it been suggested that the applicant is an unsuitable person to hold a firearm from a public safety point of view, and that accordingly the respondent’s reasons for refusal as shown in the letter of refusal dated 7th October 2005 must be interpreted as meaning simply that this particular weapon (i.e. the Glock 9mm pistol) cannot ever be the subject of a firearm certificate, no matter who might apply for it. He submits that this is the real reason for refusal, and that therefore it is clear that the respondent has a fixed view about the weapon, and that accordingly he has, by the adoption of such a fixed view, fettered his discretion, and has acted ultra vires the provisions of s. 4 of the Act by refusing the application for the reasons he has given in that letter.
Mr Hogan submits also that the reasons for refusing the applicant’s application must be gleaned only from the letter of refusal, and not by reference to any elaboration or explanation of those reasons which may have been stated by him in his affidavits on this application. He submits that the mere denial by the respondent in his affidavit that he operates a fixed policy in relation to the Glock 9mm pistol is not sufficient to undermine the submission that the terms of the letter of refusal so indicate. He submits that when exercising his discretion the respondent must act in a genuinely independent manner, and the exercise of his administrative functions, such as under the Firearms Act, 1925 in relation to considering applications for firearm certificates must fall to be governed by the requirements of administrative law regarding the exercise of discretionary powers. Mr Hogan refers in this regard to the decisions of the High Court and Supreme Court in Dunne & ors v. Donohoe & ors [2002] 2 IR 533, where it was held, inter alia, that the superintendent’s discretion under the Firearms Act, 1925 could be exercised only by him/her and within the relevant statutory limitations, and not abdicated to someone else or by reference to any policy dictated by any other body or authority. He submits that in so far as the respondent has fettered his own discretion by having a fixed view about this particular weapon regardless of who is the applicant for a certificate, this is impermissible, and refers to the judgment of Kelly J. in Mishra v. Minister for Justice [1996] 1 IR 189, where he states at p. 205:
“… Care must be taken to ensure that the application of this policy or rules does not disable the Minister from exercising her discretion in individual cases. In other words, the use of a policy or a set of fixed rules must not fetter the discretion which is conferred by the Act.”
It is submitted also that the only logical inference to be drawn from the evidence in this case is that the respondent’s refusal constitutes an attempt to perpetuate a policy of refusing to certify firearms over a certain calibre, and that this amounts to a prohibition on a particular type of firearm by the respondent. Mr Hogan submits that the Act makes no distinction between types of firearm which may be the subject of a certificate, and that the parameters of the Act are drawn by reference to the personal characteristics of the applicant for a certificate rather than the characteristics of the weapon in respect of which the certificate is sought. It is submitted that the respondent cannot refuse the applicant the certificate sought in this case where demonstrably the reason given for having the weapon is a good reason, and the personal characteristics of the applicant are not disputed, because of the nature of the weapon where it is suitable for the use for which the applicant seeks to use it, i.e. target shooting. In so far as the respondent has done exactly this, it is submitted that his decision is ultra vires the section.
The decision to refuse is also submitted to be unreasonable since the applicant has demonstrated at length in his affidavits the reason for seeking a certificate for this pistol, has explained that reason to the superintendent prior to the refusal, the respondent has not disputed that this is the reason, and has simply said that it is not a good reason, and has not indicated in the decision any basis for considering target shooting not to be a good reason.
It is submitted that in setting out in the letter of refusal the various matters of which he had “taken particular note” as set out above, the respondent has shown that he took into account irrelevant considerations, misconstrued the scope of his discretion, and failed to apply the correct test. Accordingly, it is submitted that he did not determine the application in accordance with the requirements of s. 4 of the Act.
Respondent’s submissions:
Conor Dignam BL for the respondent submits that when considering under s. 4(a) of the Act whether the applicant has a good reason for requiring the firearm, he must be entitled to consider the particular characteristics of that firearm in the context of the reason put forward by the applicant for wanting it i.e. target shooting. He submits that issues of safety of the weapon, or other characteristics thereof can be considered in this context also within s. 4(a), and that the concept of “good reason” cannot be limited to whether the reason itself given by the applicant is a legitimate or lawful one. In this regard Mr Dignam refers to the various matters which, according to the letter of refusal, the respondent took particular note of.
It is submitted that the legislature has conferred a discretion on the respondent, and that in this case the respondent was in possession of the information given to him by the applicant, has considered that information, and has reached the view that since the applicant can pursue his hobby or interest in target shooting with pistols of lower calibre, the reason for requiring the Glock 9mm pistol is not a good reason. He submits that if this is not so, s. 4(a) of the Act is redundant, and consideration would have to be given to the application only by reference to the personal characteristics of the applicant under s. 4(b) of the Act, once the reason given is not an unlawful reason.
He accepts that the discretion given to the respondent is not an unfettered one, but that the respondent has sworn in his affidavits that his view about the Glock pistol is not a fixed view or derived from any fixed policy, and that he considers each application on its own merits. Mr Dignam accepts that the respondent cannot simply take the view that he does not like the Glock 9mm pistol and will never therefore grant a certificate, but that he is entitled to take the view, a personal view, that the reason given by the applicant does not justify or require the ownership of a weapon of the calibre of the Glock pistol. In this regard he refers to the fact that the respondent in his affidavits is not stating that target shooting per se is not a “good reason”, but rather that, based on what he knows, that sport is one pursued using only .22 or .177 calibre weapons, and that weapons of higher calibre than that (i.e. the Glock) are not used in such competitions. For this reason the respondent has come to the view that the reason put forward prior to the decision to refuse for requiring this particular weapon is not a good reason.
Mr Dignam accepts that if the respondent had a fixed view or adopted a fixed policy in relation to such applications, then this Court would have to set aside the decision without having to consider the other grounds put forward. But he refers to the respondent’s second affidavit filed herein in which he deals with that point and I have already set out what he has stated in this regard.
Mr Dignam accepts that the submission which he makes in this regard, if correct, would result in a situation where the granting or refusal of a certificate for this type of pistol might depend on which superintendent’s area a particular applicant resided in, given that different superintendents could have differing views as to whether or not a Glock 9mm pistol is suitable for target shooting, and whether target shooting is a good reason for having the weapon. But he states that that is the nature of a discretion, and that different persons determining all sorts of applications on similar facts may reach different decisions.
Conclusions:
The letter of refusal in this case gives two reasons for refusing to issue the applicant with a firearm certificate for the Glock pistol. The second reason is that the respondent is not satisfied that such a pistol “can be used without danger to public safety”. The letter does not state whether that reason is one under s.4(a) or s. 4(b) of the Act. In my view it cannot be a reason under s. 4(a), which deals only with whether there is “good reason” for the applicant requiring it. If it is a reason which the respondent is entitled to take into account at all, as expressed in the letter of refusal, it must therefore be one under s. 4(b). However, that paragraph is specific in its terms. It quite clearly entitles the respondent to refuse a certificate where the respondent is not satisfied that the person “cannot be permitted to have in his possession, use, or carry a firearm or ammunition without danger to the public safety or to the peace.” (my emphasis)
That must be interpreted as meaning that before granting a certificate for the particular firearm, the applicant must be someone whose possession, use or carrying of any kind of firearm does not pose a danger to the public safety or the peace. Where, as in this case, such a person has been the holder over many years of three firearm certificates for three other weapons, and where no application has ever been made to revoke same, or indeed no grounds have been put forward in this application why this applicant’s possession of those other weapons poses such a danger, there cannot in my view be grounds for refusing the application under s. 4(b) of the Act. There is nothing in that provision which entitles the respondent to consider the applicant’s suitability in relation to a particular weapon where certificates are held in respect of others. Either the applicant is a person who can possess, use or carry “a firearm” or he is not. In this case he must be seen as a person who can. In so far as the respondent appears to have stated the second reason in the context of considering public safety issues referred to in s. 4(b) of the Act, and specifically in relation to the Glock pistol under consideration, he has acted ultra vires, and the decision to refuse on that ground is outside his powers.
In addition, it is worth saying that, even if it were found to be an intra vires reason, there is nothing in the decision which indicates in what way the public safety or peace is endangered by the “type of firearm”. While certain features of the Glock are referred in the paragraph which states a number of matters of which the respondent took particular note, it is unclear how any of these matters enabled him to form the view that this weapon poses a danger to public safety or the peace, as opposed to any other weapon. All weapons are inherently dangerous, and it would in my view need to be indicated in the letter of refusal just how this particular weapon poses such a danger where the others in respect of which the applicants holds certificates do not. To the extent that the reason is unclear and unstated it is incapable of being reviewed and is invalid for that reason also.
The decision remains then to be considered in relation to the first ground of refusal under s. 4(a) of the Act. It is safe to assume that the matters taken particular note of were so taken note of in relation to the first reason also. But it is important to bear in mind, that when considering the basis on which the respondent concluded that he was not satisfied that the reason put forward by the applicant for requiring this particular firearm was a good reason, that he did so in the light of the reasons put forward by the applicant in the application form itself or in his conversation with the respondent at the meeting which took place between them on the 29th September 2008. In so far as the applicant has later in his affidavits on this application explained or elaborated upon exactly why he requires this particular firearm for target shooting, (.i.e. competitive shooting and practical shooting), these are irrelevant since the respondent had to make his decision on the basis of facts made known to him prior to making that decision. Indeed, Mr. Hogan, as I have stated above, submitted that the respondents could not seek to explain his decision in his replying affidavits and that the decision had to speak for itself. In my view the same applies in relation to the information given to the superintendent by the applicant prior to the making of the decision.
Curiously, the form of application provided to the applicant for the purpose of seeking a firearm certificate does not, as far as I can glean from the rather bad copy thereof produced to the court, contain any question as to the purpose for which the Glock 9mm pistol is required by him. That perhaps in part explains why the superintendent adopts the practice, as he did in this case, of meeting any applicant and obtaining information in order to enable him to make the required decision to either grant or refuse the application.
On the 29th September 2005 such a meeting took place. The applicant has stated in his grounding affidavit, as I have set forth, that at this meeting he explained to the respondent that he was “keen to participate in target shooting” and that he was “a member of the South East Pistol Club”, and that he was anxious to participate in all club events including club competitions and competitions with other clubs. The first replying affidavit by the respondent states in relation to this meeting that the applicant informed him that he wanted this particular pistol “to participate in pleasure and target shooting competitions” (paragraph 7). That seems consistent with what the applicant has stated in his grounding affidavit as to the purpose for which he requires the weapon. The respondent then goes on to explain what he knew about the calibre of weapons used in such target shooting competitions, namely calibres of not more than .22 or .177 pistols. He states that the Glock is not used in target shooting “as I understand that term”, and states that he understands that these are the calibres which are used in Olympic competitions. Accordingly he was not satisfied that the Glock was a firearm required for such competitions, and therefore that the applicant’s reason for requiring it was not “a good reason”.
The applicant in his second affidavit at paragraph 10 thereof refers again to that meeting, and states that he does not require the Glock pistol in order to compete in Olympic sports, and that “the 9mm calibre is widely used in competitive shooting in this country and indeed some sporting disciplines only permit use of a 9mm (for example, the sport of practical shooting only permits participation by persons licensed to hold a 9mm). It is not apparent from any of the affidavits filed that this particular aspect was discussed during the meeting. It is something now being stated by the applicant in response to what is averred by the respondent. The respondent in his second affidavit at paragraph 6 thereof states that “it now appears from [the applicant’s] supplemental affidavit that, in fact, he does not seek to participate in sports within the Olympic umbrella”, and that he (the respondent) has “limited information as to precisely what sports or target shooting [the respondent] proposes to participate in”. He goes on to state that “the reference to competitive shooting and sporting disciplines and practical shooting is imprecise and vague and in this those circumstances [he] cannot be satisfied that the reason for which the applicant requires the firearm is a good reason…..” It seems clear from the affidavits filed that the particular competitions or practical shooting where a 9mm pistol is required are not matters in respect of which the applicant provided any information to the respondent either in his application form or at the meeting of the 29th September 2005, and that accordingly the respondent had no opportunity to consider these matters when making his decision to refuse the application being made at that time. No third affidavit was filed by the applicant in response to the respondent’s averments in this regard.
It follows, therefore, that the respondent was entitled, based on the information provided by the applicant prior to the decision being made, to form the view that the applicant had not by that time satisfied him that this particular weapon was reasonably required for target shooting as that term was used by the applicant at the meeting of the 19th September 2005, and as understood by the respondent. That does not mean that the respondent formed the view that “target shooting” itself is not “a good reason”. He is required to be satisfied that the applicant has a good reason for requiring “the firearm in respect of which the certificate is being applied for. That means that he is entitled under s. 4(a) to have regard to the particular firearm and the use to which it is intended to be put by the applicant, as explained prior to the decision being made, and not by reference to matters explained afterwards in affidavits filed in these proceedings. The onus is on the applicant to provide all relevant information prior to that decision being made.
Since I have concluded that issues of public safety can be addressed only in relation to the suitability of the applicant personally under s. 4(b) of the Act, and that the applicant cannot be found to be somebody who is not a person who “can be permitted to have in his possession, use, and carry a firearm or ammunition without danger to the public safety or to the peace”, it follows that the applicant is entitled to an order for certiorari in respect of the decision to refuse the certificate applied for, but on that ground alone. Given my finding in relation to the reason for refusal under s. 4 (a) of the Act, I will not grant the declaration sought at paragraph II of the Notice of Motion.
In the light of my conclusions the applicant may well consider it appropriate to re-apply to the respondent for a certificate on a more complete basis bearing in mind what he has stated in his affidavits in these proceedings as to the precise competitions or sports in which he wishes to participate and for which a 9mm Glock pistol is “required”. That application can then be considered by the respondent in the light of my conclusions, and in the light of all necessary and relevant information in relation to the precise reasons why the applicant requires this particular weapon, so as to discharge the applicant’s onus in that regard. The letter of refusal in fact invites the applicant to make such further representations to him.