IESC 35
THE SUPREME COURT
MARTIN DUNNE AND THE NATIONAL ASSOCIATION OF REGIONAL GAME COUNCILS SUING BY ITS ADMINISTRATOR/DIRECTOR, DESMOND CROFTON ON BEHALF OF ALL ITS MEMBERS AND BRENDAN McLOUGHLIN
GARDA SUPERINTENDENT K G DONOHOE, PATRICK O’TOOLE, IRELAND AND THE ATTORNEY GENERAL
RESPONDENTS/APPELLANTSJUDGMENT delivered the 1st day of May, 2002, by Keane C.J.
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:
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
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.
“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.”
10. Section 3(1) provides that
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).
“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.”
12. Section 4 provides that
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:
“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 -
(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.”
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
“(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.”
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.
(a) has no good reason for requiring the firearm 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 disentitled under the Act to hold a firearm certificate, or
(d) where the certificate limits the purposes for which it may be used, is using it for purposes not authorised by the certificate.
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
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) registered firearms dealers and their employees;
(b) employees of persons engaged in warehousing goods for reward;
(d) members of authorised rifle or gun clubs while engaged in competition or target practice at an authorised range;
(e) persons operating or using ranges or shooting galleries in amusement halls or funfairs, carnivals or the like where authorised;
(f) persons taking part in theatrical performances, rehearsals or filming where authorised;
(g) starting athletic races by an authorised person;
(h) persons using firearms or blank ammunition provided by the Minister for Defence in ceremonies, where authorised.
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
“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.”
19. Directive 53/00 provided inter alia as follows:
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. .
“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.”
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  ILRM 231 and McLoughlin -v- Minister for Social Welfare  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  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  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  IR 381, Cassidy -v- Minister for Industry and Commerce  IR 297 and O’Neill -v- The Minister for Agriculture  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.
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  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
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
“An abdication by him from his duty as an appeals officer.”
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.
“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.”
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
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.
“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.”
40. I would dismiss the appeal and affirm the order of the High Court.