Dunne and Others v Garda Superintendent Donohoe and Others

• Jurisdiction: Ireland
• Judgment Date: 01 May 2000
• Date: 01 May 2000
• Docket Number: 274/01
• Court: Supreme Court

THE SUPREME COURT

Keane C.J.

Murphy J.

McGuinness J.

274/01

BETWEEN

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

APPLICANTS/RESPONDENTS

AND

GARDA SUPERINTENDENT K G DONOHOE,PATRICK O’TOOLE,IRELAND AND THE ATTORNEY GENERAL

RESPONDENTS/APPELLANTS

Abstract:

Judicial review - Certiorari - Firearms - Garda Síochána - Statutory interpretation - Delegation of legislation - Installation of firearms’ cabinets - Whether directive regulating firearm certificates ultra vires - Whether directive unlawfully fettered discretion of Garda Superintendents - Police Forces Amalgamation Act, 1925 (No 7) sections 8 & 9 - Firearms Act, 1925 (No 17) - Firearms Act, 1964 (No 1) - Firearms and Offensive Weapons Act, 1990 (No 12) - Firearms (Firearm Certificates for Non-Residents) Act, 2000 (No 20).

Facts: The applicants issued judicial review proceedings against the respondents. The main thrust of the proceedings was that a directive issued by the second named respondent to Superintendents of An Garda Síochána regulating the issuing of firearms certificates was ultra vires and had no lawful effect. The directive required that a number of measures be put into place before a firearms certificate could issue. It was claimed that the directive had the effect of unlawfully fettering the discretion of the first named respondent and other Superintendents in the exercise of their powers. In addition objections were raised to the powers of inspection contained in the directive which allegedly interfered with citizen’s property rights. Mr. Justice Ó Caoimh was satisfied that the impugned directive was invalid insofar as it had the effect of fettering the discretion of a Superintendent in the exercise of functions under sections 3 and 4 of the Police Forces Amalgamation Act, 1925. It was not permissible to impose a fixed precondition to an application which would preclude a Superintendent from considering the case on its merits. The Commissioner of An Garda Síochána was not entitled to interfere with the functions of a Superintendent in this way. The respondents appealed against the judgment.

Held by the Supreme Court (Keane CJ delivering judgment; Murphy J and McGuinness J agreeing) in dismissing the appeal. The power conferred on Garda superintendents by section 2 of the 1925 Act was conferred on them as personae designatae and could not be abdicated to anyone else. A superintendent who imposed a precondition requiring applicants to install a gun safe and have it available for inspection would be acting ultra vires the relevant Statutes. Neither the Commissioner of An Garda Síochána nor the district officers were empowered by the legislature to impose such preconditions. The order of the High Court would be affirmed.

1 JUDGMENT delivered the 1st day of May, 2002, by Keane C.J.

2 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

3 the Act by the Superintendent of An Garda Síochána of the district in which the person resides.

4 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.

5 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.

6 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 involvedinter 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.

7 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.

8 Those reliefs were granted by the learned High Court judge on two grounds:

1. (1) 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;

2. (2) 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.

9 From that order and judgment, the appellants have appealed to this court.

10 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

11 “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.”

12 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

13 possession, use or carriage of firearms, save in the excepted cases, without a certificate is an offence punishable under the provisions of the Act.

Section 3(1) provides that

14 “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.”

15 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).

Section 4 provides that

16 “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

1. (a) has a good reason for requiring the firearm in respect of which the certificate is applied for, and

2. (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

3. (c) is not a person declared by this Act to be disentitled to hold a firearm certificate.”

17 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:

1. “(a) any person under the age of 16 years,

2. (b) any person of intemperate habits,

3. (c) any person of unsound mind,

4. (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

5. (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

6. (f) any person who is subject to the supervision of the police, and

7. (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.”

18 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

1. (a) has no good reason for requiring the firearm or

2. (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

3. (c) is a person disentitled under the Act to hold a firearm certificate, or

4. (d) where the certificate limits the purposes for which it may be used, is using...