Home
English VersionIrish Version
Search for Click to Search
Advanced Search
Printable Version
All SectionsPractice DirectionsCourt Rules Terms & Sittings
Legal Diary Offices & Maps Judgments & Determinations

Judgment
Title:
McCarron -v- Kearney; Magee -v- Murray & anor; McVeigh -v- Minister for Justice Equality and Law Reform
Neutral Citation:
[2010] IESC 28
Supreme Court Record Number:
11/09 413/08 44/05
High Court Record Number:
2006 626 JR 2006 1462 JR 2003 442 JR
Date of Delivery:
05/11/2010
Court:
Supreme Court
Composition of Court:
Fennelly J., Macken J., O'Donnell J.
Judgment by:
Fennelly J.
Status:
Approved
Details:
In the matter of McCarron -v- Kearney and Magee -v- Murray & anor appeals
dismissed.
In the matter of McVeigh -v- Minister for Justice Equality and Law Reform
appeal allowed.
Judgments by
Link to Judgment
Concurring
Fennelly J.
Macken J., O'Donnell J.



THE SUPREME COURT
Appeal No: 011/2009
      Fennelly J.
      Macken J.
      O’Donnell J

      BETWEEN


      RONAN McCARRON
APPLICANT/APPELLANT
-v-

SUPERINTENDENT PEADAR KEARNEY

RESPONDENT
AND
Appeal No: 413/2008
JOSEPH MAGEE
APPLICANT/APPELLANT
-v-

INSPECTOR PAT MURRAY AND SUPERINTENDENT DENIS ROCHE

RESPONDENTS
AND
Appeal No: 044/2005
NEIL McVEIGH
APPLICANT/APPELLANT
-v-

MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM

RESPONDENT
      JUDGMENT of Mr. Justice Fennelly delivered the 11th day of May 2010.

      1. Three judges of the High Court have refused applications for judicial review of decisions refusing applications for firearms certificates in two cases and, in one case, an import licence. The solicitors representing the appellants in each of these three cases represents the National Association of Regional Games Council, which, according to the solicitors, had supported dozens of legal challenges to what were claimed to be breaches of the Firearms Legislation by the Garda Commissioner, Garda Superintendents and the Minister for Justice Equality and Law Reform. Certainly, there were a number of judicial review challenges to decisions of Garda Superintendents in the year 2008.

      2. Each application has to be considered according to its individual merits under the terms of the Firearms Act, 1925 as amended by the Firearms Act, 1964. The firearms legislation has been so radically amended since the occurrence of the events giving rise to these proceedings, by the Criminal Justice Act, 2006 and the Criminal Justice (Miscellaneous Provisions) Act, 2009, that the outcome of the appeals is of limited, if any, practical importance for the future.

      3. The three appeals arise in the following circumstances;


        • Mr. McCarron applied in November 2005 at Letterkenny Garda Station for a firearms certificate for a .40 Gloc pistol for use in target practice. The respondent, Superintendent Kearney, the garda superintendent for the district, refused the application pursuant to section 4(a) of the Firearms Act, 1925 on the ground that he did not believe the firearm in question was a suitable weapon for target practice. Mr. McCarron submits that the garda superintendent had no power to consider the calibre of the weapon, once he, as applicant, had provided a “good reason,” namely target practice, for wishing to use it. Charleton J. dismissed his application for judicial review of the decision.

        • Mr. Magee applied to the Superintendent of An Garda Síochána in Wicklow in 2006 for the renewal of a firearms certificate in respect of .22 Sig. pistol. The respondent, Superintendent Denis Roche, issued a certificate on 4th October 2006 for the period until 31st July 2006, subject to a number of conditions. The conditions limited Mr. Magee’s possession and use of the pistol to travelling to and from a firing range specifically authorised of which he was a member. Mr. Magee claims that the respondent had no lawful power to impose any conditions other than in relation to the possession of ammunition. Birmingham J. dismissed his application for judicial review of the decision to impose conditions.

        • Mr. McVeigh, who is a registered firearms dealer, applied in October 2002 to the Minister for Justice Equality and Law Reform for an occasional licence for the importation of a Westley Richards double barrel .470 calibre rifle. The Minister refused on the ground that it was current policy to grant firearms certificates only for certain specified firearms, in the case of rifles, only up to a calibre of .22 inches. Mr. McVeigh complains that the Minister had improperly fettered his discretion to consider the application by referring to a fixed and inflexible policy.


      4. The first two cases raise two specific points of statutory interpretation regarding the powers of Superintendents of An Garda Síochána in granting or refusing firearms certificates. In the third case, the question is whether the Minister had declined properly to exercise his discretion by rigidly adhering to a fixed policy. Each case arises under the Firearms Act, 1925 as amended by the Firearms Act, 1964.

      The Legislation
      5. No claim can be made that our Constitution guarantees any citizen the right to possess or use firearms. The Act of 1925 declares itself, in its long title, to be “an act to place restrictions on the possession of firearms and other weapons and ammunition…” It makes it unlawful to possess or use a firearm without a form of licence called a firearms certificate. The power to grant a firearms certificate was given to the Superintendent of any district.

      6. Section 2(3), as amended by the Act of 1964, lists some exceptions, not relevant to any of the present cases, to the need for a firearms certificate. The most obvious examples are use in the defence or police forces.

      7. Section 1(1) defines a firearm as meaning “a lethal firearm or other lethal weapon of any description from which any shot, bullet, or other missile can be discharged…” The Act contains definitions and other provisions relating to ammunition, which are not of central importance to any of the current cases. I will concentrate on the provisions relating to firearms.

      8. Section 2 is the key provision around which much of the Act revolves. It criminalises the use or possession of firearms or ammunition in the following terms:


        “(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 in so far as such possession, use, or carriage is authorised by a firearm certificate granted under this Act and for the time being in force.

        (2) Save in any of the cases hereinafter excepted from this section, every person who after the commencement of this Act has in his possession, uses, or carries any firearm without holding a firearm certificate therefore or otherwise than as authorised by such certificate, or purchases, uses, has in his possession, or carries any ammunition without holding a firearm certificate therefore or in quantities in excess of those authorised by such certificate, or fails to comply with any condition subject to which a firearm certificate was granted to him, shall be guilty of an offence under this Act and shall be punishable accordingly.”


      9. It will be noted that sub-section (2) provides for four types of offence relating to firearms or ammunition:

        • Possession, use or carrying a firearm without a firearms certificate;

        • Possession, use or carrying a firearm otherwise than as authorised by a firearms certificate;

        • Possession of or carrying ammunition without a firearms certificate or in excess of the quantity authorised;

        • failing to comply with any condition subject to which a firearm certificate was granted.


      10. Section 25 provided for penalties, respectively, on summary conviction and conviction on indictment.

      11. Section 3, as amended by the Act of 1964 provided for the grant, form and effect of firearms certificates. So far as relevant, it is in the following terms:


        “(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 by such person of the fee (if any) for the time being required by law, grant to such person a firearm certificate.

        (2) [provides for the Minister to grant firearms certificates to “upon the application of any person not ordinarily resident in Saorstát Eireann”...

        (3) Every firearm certificate shall continue in force until the 31st day of July next after the grant thereof, but a firearm certificate granted before the 31st day of July in any year may be expressed to commence on the next following 1st day of August and shall in that case be in force on and from such 1st day of August until the next following 31st day of July.

        (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—

            (a) to have in his possession, use and carry the particular firearm described in the certificate, and

            (b) 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.

        (5) Where the firearm described in a firearm certificate is a shot-gun the certificate may be expressed and in such case shall operate to authorise such firearm to be used only for killing animals or birds other than game on land occupied by the person to whom such certificate is granted.

        (6) Every firearm in respect of which a firearm certificate is granted shall be marked in the prescribed manner with a number or other prescribed mark of identification and such number or mark shall be entered in the firearm certificate.”


      12. Section 4 was the subject of much of the argument in the McCarron case. It provides:

        “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 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.”

      13. Section 8 lists the persons who, by virtue of youth or various types of unfitness or unsuitability and for the purposes of section 4(c) are disentitled to hold a firearm. Section 5, in a partial mirror image of section 4, provides that a Superintendent may revoke a firearms certificate on grounds corresponding to the negative of paragraphs (a), (b) and (c) of section 4 with the addition of ground (d) as follows:

        “where the firearms 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.”

      14. In the normal way, firearms certificates run from 1st August in each year and are renewed annually.

      15. Section 17 restricts the import of firearms into the State. The material provision for the McVeigh appeal, is section 17(4), which provides:


        “An occasional licence to import into Saorstát Éireann a firearm, with or without ammunition therefor, may, on application in the prescribed manner be granted by the Minister to any person who holds or could be granted a firearm certificate for the firearm and ammunition (if any) in respect of which the occasional licence is sought or is a registered firearms dealer and every such occasional licence shall operate and be expressed to authorise the importation into Saorstát Éireann of the firearm and the quantity of ammunition (if any) specified in such licence through the port, by the, person, within the time, and subject to the conditions named in such licence.”


      The McCarron Appeal
      16. Mr. McCarron challenges the Superintendent’s decision to refuse his application for a firearms certificate for a .40 Gloc pistol on the narrow ground that the reasons given by him related entirely to the nature of the firearm. Mr. McCarron has provided extensive evidence of his qualifications and training in shooting sports. He has been trained by the most accomplished sportspersons and refers to his “complete submergence in the sport of shooting.” At the insistence of the gardaí, he has installed a safe and alarm system. The difference of opinion between himself and the Superintendent concerns the type of weapon. The appellant takes part in a sport called “practical shooting,” which, in certain circumstances, gives the more powerful pistol a scoring edge. The Superintendent is willing to grant firearms certificates only for weapons of a calibre suitable for Olympic pistol style competitions.

      17. Mr. Gerard Hogan, Senior Counsel for the appellant submitted that the Superintendent made his decision on the basis of a purely subjective appraisal of the type of firearm sought to be licensed, notwithstanding that the appellant had demonstrated good reason for possessing that firearm. A constant theme of Mr. Hogan’s argument was that the ultimate policy decision was a matter for the Oireachtás. It was, he said, unlawful for the Superintendent to have any policy regarding the types of firearms which should be licensed.

      18. Charleton J. responded to the appellant’s submissions as follows:


        “An individual superintendent,……, retains authority over his own discretion. That must be respected unless there is evidence of improper conduct. I am not satisfied that the respondent in any way fettered his discretion as to the issue of firearm certificates. Rather, it seems to me, that he exercised a sensible policy through an individual decision which is within the terms of legislation concerned with the public good. It is a reasonable, lawful and sensible practice for those who have to decide on applications to exercise privileges at law to have regard to a set of guiding principles.”

      19. The Court is required to decide, on this appeal, a comparatively straightforward question of statutory interpretation. Only section 4(a) of the Act of 1925 is relevant, since that is the provision invoked by the Superintendent. Before he grants a firearms certificate section 4 requires the Superintendent to be satisfied that the person applying for a firearms certificate “has a good reason for requiring the firearm in respect of which the certificate is applied for…” I fail to understand the distinction drawn between the need to be satisfied regarding the existence of a good reason and whether there is a good reason for “requiring” the particular firearm. Both must necessarily be considered together. The Oireachtás has imposed an obligation on each Superintendent to satisfy himself of both matters. The “good reason” cannot be considered in isolation from the firearm required. I particularly fail to understand how the Superintendent can be said, in some way, to have usurped the province of the Oireachtás. The Act does not specify any particular firearm. Insofar as I understand the submission, it is that the Superintendent is limited to considering whether the applicant has put forward a “good reason.” Once he has accepted that there is a good reason, apparently the Superintendent is not permitted to make any judgment as to the suitability of the proposed firearm. That interpretation would make no sense; the reason and the weapon are inseparable.

      20. I am quite satisfied that the Superintendent had power to refuse the firearms certificate in this case for the reason given, namely that he did not believe the firearm in question was a suitable weapon for target practice. No doubt Mr. McCarron was disappointed with the Superintendent’s refusal of his application, particularly since other Superintendents in other areas had granted certificates for similar weapons. That is an obvious consequence of a system based on decisions of individual Superintendents each in his own district. The application for judicial review in the present case is based on the proposition that the Superintendent had no power to make the decision he did, not that it was unreasonable or discriminatory. I am satisfied that he had that power.

      21. I would dismiss the appeal in Mr. McCarron’s case.

      The Magee Appeal
      22. Mr. Magee’s application for judicial review is also based on a net point of law. He claims that the Superintendent had no power to impose conditions, except of a very limited sort, on the grant of a firearms certificate.

      23. Mr. Magee is a long-time shooting enthusiast and has been a member of several shooting and gun clubs. He has held firearms certificates for a number of years and is in good standing with An Garda Síochána. He has two firearms safes which have passed inspection by the gardaí. He has completed several safety courses.

      24. The problem in Mr. Magee’s case arose in 2006. He had been granted a certificate for a Sig .22 pistol in January of that year and applied for its renewal from 1st August. The Superintendent informed him on 2nd August that his pistol certificate, though not certificates for other firearms, would not be renewed because the range which he had nominated for use had not been duly authorised. He was told that this was a temporary situation. Mr. Magee disputes whether the range in question was authorised and objects that no conditions in that respect had been imposed previously. This does not now matter, since he was informed in due course that the range in question had been authorised and that his firearms certificate was available for collection.

      25. The firearms certificate issued for the Sig pistol contained a number of conditions to the effect already mentioned, limiting possession and use of the pistol to travelling to and from a firing range specifically authorised under the Act of 1925 of which he was a member and which was authorised for competition purposes and limiting the amount of ammunition he could carry. The appellant says the certificate issued to him was not in the usual form and that “atypical conditions regarding the use of the firearm are imposed on the face of the certificate.” In fact, however, his original firearms certificate for the pistol contained three conditions lettered A, B and C. These conditions limited authorisation to use the pistol to hunting and killing any protected bird within the meaning of the Wildlife Act, 1976 and 2000 and possession of not more than 100 cartridges or rounds of ammunition. This question of conditions, however, being the core of this appeal, I will discuss it later.

      26. The conditions attached to the firearms certificate at issue on the appeal were expressed in terms that Mr. Magee was to:


        “A. Have in his possession and carry a Pistol unloaded by Sig. of .22 Inches, bearing I.D. No. A018176 only while travelling to and from a Firing Range specifically authorised under the Firearms Act 1925, of which the said holder is a member.

        B. Have in his possession and carry a[n] unloaded Pistol by Sig. of .22 Inches, bearing I.D. No. A018176 only while travelling to and from a Firing Range specifically authorised under the Firearms Act 1925, for Competition purposes.

        C. To use the said .22 Inches Pistol I.D. A018176 mark only at a Firing Range specifically authorised under the Firearms Act 1925, of which the said holder is a member.

        D. The certificate may be used to purchase rounds of ammunition therefore, provided he shall not have in his possession or carry, at any one time, more than 100 rounds of ammunition, thereof.”


      27. This appellant’s case is very simply that the Superintendent had no power at all to impose any conditions relating to any such matters, with the possible exception, it would appear of condition D. He had power only to impose conditions regarding the amount of ammunition carried or, in the case of a shotgun, limiting use in the manner mentioned in section 3(5) of the Act of 1925.

      28. Birmingham J. noted that Mr. Gerard Hogan, on behalf of the applicant had proposed a three-tier test on the following lines: the power to impose conditions could only ever be implied where (1) that is justified by the statutory context, (2) the power contended for is not of such a nature that one would expect to see it set out specifically and (3) the power contended for is consistent with the statutory scheme. The learned judge dealt with this argument as follows:


        “The statutory context here is one of control and restriction. The long title of the Act of 1925 describes it as an Act that is 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. There are elements within the Act which seem consistent only with a belief on the part of the legislators that they were providing for certification which could be subject to conditions. So s. 2(2) of the Act of 1925 makes it an offence to fail “to comply with any condition subject to which a firearm certificate was granted” (emphasis added). Moreover, s. 5(d) provides for the revocation of a certificate in a situation where the firearm certificate limits the purpose for which the firearm to which it relates is used but is in fact used for non-authorised purposes. The combined effect of these sections is to indicate that at least some conditions can be imposed and some limitations placed on the extent of the authorisation.”

      29. Noting that he was dealing with an Act passed in the year 1925, he said:

        “I would suspect that parliamentarians of that era would have been astonished if it was suggested to them that a superintendent who was entitled to refuse a certificate altogether was not entitled to take the much less radical step of issuing a certificate subject to conditions.”

      30. He continued:

        “As to the question of whether the ability to impose conditions is consistent with the statutory scheme I am firmly of the view that the ability to impose conditions is entirely consistent with the approach of the statute.

        In my view this is a case where the powers contended for can fairly be described as incidental or consequential and as such ought not to be regarded as ultra vires.”


      31. On appeal this appellant, for whom Mr. Gerard Hogan also appeared, submitted that the respondent Superintendent could not lawfully impose conditions on the use and possession of a firearm since he did not have statutory authority to do so. Section 3 does not confer any power to impose conditions. It is true, he accepted, that section 2 provides that an offence is committed where a person “fails to comply with any condition subject to which a firearm certificate was granted to him…”

      32. This provision, Mr. Hogan says, can be explained by two provisions of the Act. Firstly, section 3(4)(b), as amended by the Act of 1964, authorises the holder of a firearms certificate “ to have in his possession at any one time and carry so much ammunition for the firearm as shall be specified in the certificate.” It would be a breach of a condition of a firearms certificate to carry ammunition in excess of the amount which it specifies. Secondly, in the case of a certificate for a shot-gun, section 3(5) provides that “the certificate may be expressed and in such case shall operate to authorise such firearm to be used only for killing animals or birds other than game on land occupied by the person to whom such certificate is granted.” To use such shot-gun for killing animals or birds not authorised by the certificate would, it is argued, be a breach of condition.

      33. Mr. Hogan said that it was absolutely critical to his argument that section 3(4), as amended by the Act of 1964 provides, without qualification and without any reference to conditions that:


        “Every firearm certificate shall be in the prescribed form and shall operate and be expressed to authorise the person to whom it is granted—
            (a) to have in his possession, use and carry the particular firearm described in the certificate, and

            (b) 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.”

      34. It follows, says Mr. Hogan that the right to possess, carry and use a firearm is unconditioned once a certificate has issued.

      35. Mr. Hogan referred also to section 2(5)(d) of the Act of 1925. It is necessary here to explain that the Act of 1964 introduced a new section 2(4) excepting a number of specified cases from the operation of the section. One of these, section 2(4)(d) relates to:


        “the possession, use or carriage of a firearm or ammunition by a member of a rifle club or other gun club that stands authorised under this section while engaged as such member in a competition or target practice at a range or other place that stands authorised under this section…”

      36. This provision has to be read with section 2(5) of the Act of 1925 also inserted by the Act of 1964. The significance of these provisions for Mr. Hogan’s argument is that two paragraphs of section 2(5) authorise a Superintendent, when he is authorising a place for use by reference to the paragraph cited in the preceding paragraph, inter alia, to impose “such conditions (if any) as he considers necessary to prevent danger to the public”. Furthermore, “where such a condition is imposed, it shall be specified in the authorisation.”

      37. Applying the maxim expression unius est exclusio alterius, Mr. Hogan argued, that this express provision for the imposition of conditions suggests that a superintendent has no such power when granting a firearms certificate pursuant to section 3 of the Act of 1925.

      38. I commence my assessment of the High Court decision by saying that Birmingham J. applied the correct test when he considered whether the power to attach conditions was incidental to or consequential upon the power to grant the firearms certificate. This test laid down in Attorney General v Great Eastern Railway (1880) 5 Appellants. Cas. 473 has stood the test of time and was adopted, to cite but one example, in both the majority and minority judgments of this Court in Keane v An Bórd Pleanála [1997] 1 I.R. 184 when the Court was considering, the powers of the Commissioners of Irish Lights. Hamilton C.J. on behalf of the majority followed closely the wording of the test laid down in Attorney General v Great Eastern Railway as follows:


        “The powers of the Commissioners, being a body created by statute, are limited by the statute which created it and extend no further than is expressly stated therein or is necessarily and properly required for carrying into effect the purposes of incorporation or may fairly be regarded as incidental to or consequential upon those things which the legislature has authorised.”

      39. When considering whether the Superintendent had power to attach conditions to the grant of a firearms certificate I would, therefore, ask the question whether, in a case where such a power is not expressly spelled out in the relevant section, it should fairly be regarded as incidental to or consequential upon the power to grant the certificate. It is not necessary to adopt the further three-stage analysis proposed by Mr. Hogan and accepted by the learned High Court judge.

      40. It is true that section 3(1) does not expressly grant a power to attach conditions; nor, on the other hand, does it exclude such a power. The power of each Superintendent is, however, expressed to be “subject to the limitations and restrictions imposed by this Act.” If the matter rested there, I would have thought that the proclaimed purpose of the Act “to place restrictions on the possession of firearms,” taken with the obviously dangers associated with the possession of firearms would strongly suggest that it would be perfectly normal for a garda superintendent to consider it appropriate to impose conditions designed to reduce the risk to the safety of the public. Both section 4(b) and section 5(b) recognise that the possession of a firearm may constitute a “danger to the public safety or to the peace…”

      41. In particular, I would have thought that any reasonable conditions designed to achieve the safe custody and protection of firearms would be reasonable. On this point, it is true that the judgment of this Court in Dunne v Donohoe [2002] 2 I.R. 533 stands as a somewhat uncertain authority. O’Caoimh J. in the High Court, had expressed the view obiter that a Superintendent was not restricted from having regard to “consideration as to the personal attributes of an applicant for a firearms certificate but [these considerations] may relate to the circumstances in which he/she may have a firearm in his/her possession without danger to public safety or to the peace.” Keane C. J., delivering the unanimous judgment of this Court on appeal thought that the above passage “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……to keep the firearm or firearms, when not in use, locked in a firearms cabinet.” The Chief Justice found it unnecessary to express any view on this question. In my own view, the imposition of a condition of the sort there described would be a proper, reasonable and appropriate exercise of the power of a Superintendent, provided he has that power.

      42. It seems to me to be clear that section 2(2), by making it an offence where a person “fails to comply with any condition subject to which a firearm certificate was granted to him,” implies in the clearest terms that a Superintendent when granting a firearms certificate under section 3(1) has power to impose conditions.

      43. Mr. Hogan counters this latter point by saying that the only conditions which can lawfully be imposed are conditions relating to the quantity of ammunition (section 3(4)(b)) or the animals or birds which may be killed (section 3(5)). Even this submission recognises that section 2(2) itself implies that there is some power to attach conditions. Neither of these provisions, however, speaks in terms of conditions at all. Section 3(4)(b) provides that the firearms certificate is to amount to an authority to the holder “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.” The act of carrying of excessive quantities of ammunition would constitute the distinct offence under section 2(2), not of breach of a condition, but of carrying “ammunition…… in quantities in excess of those authorised by such certificate…” Nor is section 3(5) expressed in terms of a condition. It provides that a firearms certificate may be expressed to and operate to authorise the firearm to be used “only for killing animals or birds other than game on land occupied by the person to whom such certificate is granted.” A failure to observe that limitation would be prosecuted as the offence of using the firearm “otherwise than as authorised by such certificate.” It follows that neither of the provisions cited by Mr. Hogan requires the creation of a related offence of breach of a condition; each is matched by a clearly expressed, but different, offence. Thus the creation in section 2(2) of an offence of failing to comply with a condition attached to the firearms certificate is not explained by either of the provisions advanced by Mr. Hogan. It remains a powerful indicator that superintendents may impose appropriate and reasonable conditions.

      44. In these circumstances, Mr. Hogan’s argument that section 3(4), as amended by the Act of 1964, should be read as providing without qualification and without any reference to conditions that a firearms certificate authorises the possession and use of a firearm cannot be accepted. Indeed, if that provision were to be read as literally as advocated by Mr. Hogan, the firearms certificate would not limit the use of a firearm in any way, not even to such use as mentioned in section 3(5), which he accepts as being legitimate. Furthermore, the use of the firearm other than for the “good reason” offered by the applicant for a certificate could not lead to any prosecution. A certificate for the use of a pistol for target practice would, in practice, enable the holder to shoot game. This would undermine the operation of section 2: there could not be a prosecution for use “otherwise that as authorised by such certificate.”

      45. Finally, I do not accept that the fact that the provisions relating to the authorisation of target or practice ranges expressly authorise the imposition of conditions leads to the conclusion that section 3 of the Act of 1925 precludes a superintendent from attaching conditions to a firearms certificate. Section 2(2), as I have already said, contains the clearest acknowledgement to the contrary. Furthermore, while the maxim expressio unius est exclusio alterius, is often a useful guide to interpretation, it is no more than that and its utility will depend on the terms of the legislation under review. Its value is greatly diminished in this case, where an attempt is made to compare the wording of two different statutes. The Act of 1925 either did or did not authorise the attachment of conditions when it was passed. It bore its 1925 meaning in all years from that year to 1964. It cannot have been amended indirectly in 1964 by the insertion of a power to attach conditions in a quite different situation. Mr. Hogan relies on the usual provision for collective citation of the two acts. Section 1(2) of the Act of 1964 provides that references to provisions of the Act of 1925 are to be construed, “where the context so requires or permits,” to the provision as amended. Clearly, this does not carry the matter any further. There is no relevant amendment to the Act of 1925. Even if there were, the section is qualified by context.

      46. I find myself in entire agreement with the judgment of Birmingham J. on the question of the power to impose conditions. I would dismiss the appeal and affirm the order of the High Court.

      The McVeigh Appeal
      47. Mr. McVeigh a registered firearms dealer. He applied in October 2002 to the Minister for Justice Equality and Law Reform for an occasional licence for the importation of a Westley Richards double barrel .470 calibre rifle.

      48. Section 17(4) of the Act of 1925 provides that the Minister may grant an occasional import licence either to any person who holds or could be granted a firearm certificate for the firearm or to a registered firearms dealer.

      49. The Minister conveyed his refusal of the licence in a letter of 24th October 2002 giving the following reason:


        “It is current policy to grant firearms certificates for only shotguns, crossbows, unrifled airguns and rifles up to .22 inches (5.6 mm) except in the case of deer hunting and competitive target shooting when bolt action rifles up to .270 inches (6.8 mm approx.) are authorized. Pistols, air-pistols, revolvers, handguns and stun guns are totally prohibited.”

      50. The solicitors for Mr. McVeigh wrote to the Minister suggesting that he had misunderstood the application, pointing out that, since Mr. McVeigh was a registered firearms dealer, there was no requirement that he hold a firearms certificate and called upon the Minister to issue the licence.

      51. The Minister replied on 17th January 2003, stating:


        "Firearms certificates and importation licences may only be granted in respect of those firearms which come within the current policy for granting such certificates and licenses.

        It is current policy to grant firearms certificates and Importation Licences only for shotguns, crossbows, unrifled air guns and rifles up to .22 inches (5.6 mm) except in the case of deer hunting and competitive target shooting when bolt-action rifles up to .270 inches (6.8 mm approx.) may be authorised. Pistols, air pistols, revolvers, hand guns and stun guns are totally prohibited.

        As the firearm which Mr. McVeigh wishes to import does not come within these categories, his application is refused.”


      52. Following a further exchange of correspondence, the Minister explained his position in a letter of 6th February, 2003 as follows:

        "I wish to confirm that in accordance with the provisions of the Firearms Acts, 1925-2000, a firearms dealer is not required to hold firearms certificates in respect of the firearms in which he is trading. As already stated in previous correspondence, current policy in regard to the licensing of firearms allows for only certain categories of firearms to be licensed. Therefore it follows that a firearms dealer may only trade in those firearms as defined by policy. The policy is not set out on a statutory basis.”

      53. The appellant obtained leave to apply for judicial review form the High Court (Peart J.) on 23rd June 2003. The essential grounds advanced by the appellant in the High Court as in this Court on appeal comprise two points.

      54. Firstly, the Minister made the exercise of his discretion contingent on grant by a Garda Superintendent of a firearms certificate in respect of particular types of firearms: there is no legal basis by which the Minister could determine a priori that Garda Superintendents should not grant firearms certificates in respect of certain types of firearm. Secondly, the Minister had adopted a rigid policy with regard to the grant of occasional import licences and thus fettered the exercise of his discretion.

      55. Mr. Declan Kelly, an Executive Officer in the Firearms and Explosives Unit of the Department of Justice swore an affidavit in opposition to the judicial review application. He reiterated the general policy of the Minister as outlined in correspondence. He said that, by restricting the calibre of rifles that may be imported, it is made more difficult for criminals or terrorists to acquire heavy calibre weapons. He claimed that the Minister’s policy was not inflexible or indiscriminate and that it could be adjusted to take account of changing circumstances. He pointed out that the appellant had never advanced any particular reason why an exception should be made in his case.

      56. Murphy J. rejected the application for judicial review. He said


        “The Minister is under a duty to consider all applications made to him in a fair and impartial manner. He is also entitled to have regard to appropriate policy considerations. The relevant legislation provided a basis for a distinction between sporting firearms and other firearms. It all allows the Minister to impose conditions in relation to the import of firearms.

        It does not seem that the Minister, in exercising his discretion in adopting and implementing such a policy or in imposing a condition, is fettered by the exercise of discretion of a Garda Superintendent in relation to the grant of a firearm certificate under section 3 of the Firearms Act, 1925.

        Where the Minister, or any competent authority, adopts a policy for specific or declared reasons, the court will not treat such adoption just because it takes a different view as to the cogency of the reasons. Only where the reasons stated are such that no reasonable authority could have relied on them could such a decision be set aside. It does not seem to the court that the Minister has acted in an unreasonable manner in the exercise of his discretion.”


      57. The essential question became narrowed down on appeal to one of whether the Minister, in conveying his decision to the appellant, had shown that he had adopted such a rigid and inflexible policy that he had fettered the exercise of his discretion. The appellant says that his objection is that the Minister decided that he would only grant a licence where the firearm in question came within a particular category which he had pre-defined. The question here is one of vires rather than reasonableness. The Minister cannot determine on an a priori basis that there are certain types of firearms which he will not licence.

      58. The appellant submits that where the Oireachtás confers a decision-making power on a persona designata then that individual must exercise the decision-making power conferred upon him and it is not permissible for the designated decision maker to exercise power in accordance with the dictates of another body or authority. A person fails to exercise a discretion where he acts on the instructions or dictation of another party or applies an inflexible policy.

      59. Reference was made to Murphy v. Dublin Corporation [1972] I.R. 215; State (McLoughlin) v Minister for Social Welfare [1958] I.R. 1; State (Rajan) v. Minister for Industry and Commerce [1988] I.L.R.M. 231; Dunne v. Donohoe, cited above.

      60. The Minister, in response, submits that a decision-maker is entitled to have a policy by reference to which he or she exercises his or her discretion. He cites the decision of Kelly J. in Mishra -v- The Minister for Justice [1996] 1 I.R. 189 and that of Keane J. in the High Court in Carrigaline Community Television Broadcasting Company Ltd v Minister for Transport, Energy and Communications [1997] 1 I.L.R.M. 241.

      61. I now turn to consider the result of this appeal. It is well established that, where a statute, confers a discretionary power, the decision-maker must exercise that discretion properly in each individual case. In State (McLoughlin) v Minister for Social Welfare, O’Daly J., as he then was, considered the case of an appeals officer who considered that he was bound to adhere to a direction, purported to have been given to him by the Minister for Finance. O’Daly J. held that:


        “Such a belief on his part was an abdication by him of his duty as an appeals officer. That duty is laid upon him by the Oireachtás and he is required to perform it as between the parties that appear before him freely and fairly as becomes anyone called upon to decide on matters of right or obligation.”

      62. Barron J. reached a similar conclusion in State (Rajan) v. Minister for Industry and Commerce. In that case the facts were that the Controller of Patents, Designs and Trademarks had given directives to examiners on the assumption that he had a general power of control over them, even extending to instructing them as to the extent of the investigation of applications which they are to perform. The learned judge held:

        “The examination is a statutory function and there is nothing in the relevant statutory powers giving him such a right either as persona designata or as head of the Patent Office.”

      63. The case with most relevance to the particular powers under consideration on this appeal is Dunne v. Donohoe, cited above. The Assistant Commissioner of An Garda Síochána had issued a formal directive to all officers of the force requiring them to insist, inter alia, on requiring certain security arrangements before firearms granting certificates.

      64. Keane C.J. speaking for a unanimous Supreme Court noted the existence of a wide range of statutes conferring discretionary powers and continued:


        “One is entitled to assume that in all such instances the Oireachtás decided that the power should be exercised by a senior Garda officer in a particular locality for what seemed to them (the Oireachtás) 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. It follows, in my view, that the learned High Court Judge was correct in holding that the power conferred on Garda superintendents by section 3 of the Act of 1925 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.”

      65. Having cited the McLoughlin and Rajan cases, he then observed:

        “Since I am satisfied that the learned High Court judge was correct [in holding that the decision of the Assistant Commissioner was invalid and should be quashed], the second issue, strictly speaking, does not arise; it is acknowledged that the first named appellant, in requiring the…applicant to install a gun safe and have it available for inspection as a condition of having his firearms 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 applicants for the grant or renewal of firearms certificates that the applicant should, at least, install a gun safe and have it available for inspection, would be acting ultra vires the provisions of the 1925 and 1964 Acts.”

      66. It follows from this passage that a decision reached by a superintendent in compliance with a general instruction or directive from a superior officer or, perhaps, from the Minister acts unlawfully and his decision may be set aside on that ground. In addition, however, the same result may follow where the decision-maker himself lays down a rigid policy from which he does not permit himself to depart.

      67. On the other hand, it would be wrong to preclude a decision-maker from formulating guidelines by reference to which he makes it clear that he will make his decisions. It would be inimical to good administration and to consistency in decision-making to oblige all decision-makers to treat each decision entirely on its own, without reference to previous decisions or to criteria designed to serve the public interest. Keane J. in Carrigaline Community Television Broadcasting Company Ltd v Minister for Transport, Energy and Communications, cited above, said:


        “In the case of this and similar licensing regimes, the adoption by the licensing authority of a policy could have the advantage of ensuring some degree of consistency in the operation of the regime, thus making less likely decisions that might be categorised as capricious or arbitrary. But it is also clear that inflexible adherence to such a policy may result in a countervailing injustice. The case law in both this jurisdiction and the United Kingdom illustrates the difficulties in balancing these competing values.”

      68. Similarly, Kelly J. in Mishra -v- The Minister for Justice, cited above, said:

        “In my view there is nothing in law which forbids the Minister upon whom the discretionary power … is conferred to guide the implementation of that discretion by means of a policy or set of rules. However, 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 set of fixed rules does not fetter the discretion which is conferred by the Act. Neither, in my view, must the application of those rules produce a result which is fundamentally at variance with the evidence placed before the Minister by an applicant”.

      69. Clearly, it will be difficult to draw the line between permissible guidelines and impermissible rigid and inflexible policies.

      70. The present case does not present any such difficult problems of judgment. There are two obvious problems about the Minister’s decision, as communicated to the appellant. The first is that he refers to “the policy,” clearly referring to some single policy concerning the criteria for the grant of firearms certificates. However, the Minister had no function in the grant of firearms certificates and, a fortiori, in formulating such policies. Moreover, there could not, at that time, be a single policy. The function was allotted to Garda Superintendents in their own individual districts. I do not say that it was impermissible for the Minister to have regard to the need for any person possessing or using a firearm to have a firearms certificate, granted by his local superintendent. If the Minister had formulated the matter differently by referring, for example, to the unlikelihood of a particular firearm being granted a certificate, his decision might have been defensible. Since that situation did not arise, it is unnecessary to decide a hypothetical case.

      71. The second problem with the Minister’s decision is that it clearly does communicate a rigid inflexible policy. The Minister offered the applicant no opportunity to address the possibility of any exception to the policy or the merits of the particular firearm.

      72. Indeed, it could be said that the communications between the appellant and the Minister had some of the character of a dialogue of the deaf. The appellant surprisingly made no effort explain his need to import a Westley Richards double barrel .470 calibre rifle. On all the evidence in these cases, this was a high calibre weapon. Indeed, Mr. Kelly’s affidavit suggests that it was a weapon for use primarily for the shooting of heavy game, such as elephants. The Minister, for his part, did not propose to open any dialogue with the appellant.

      73. In any event, it is quite clear that the Minister’s decision as communicated was infected by the vice of inflexibility. I do not think the matter can be rescued from the Minister’s point of view by Mr. Kelly’s belated attempt to portray it as otherwise than inflexible. The decision has then been made. According to the case-law, especially Dunne v. Donohoe, it was not a lawful decision. In my view, it was such as should have been quashed on judicial review. However, it is difficult to discern, at this stage, any advantage to be gained by quashing the decision of the Minister made more than seven years ago. I would simply make a declaration that the Minister had made an unlawful decision by basing it on an inflexible policy.












Back to top of document