Dunne v Donohoe

• Jurisdiction: Ireland
• Judge: Mr. Justice Aindrias Ó Caoimh
• Judgment Date: 27 July 2001
• Neutral Citation: [2001] IEHC 126
• Date: 27 July 2001
• Docket Number: No. 378JR/2000
• Court: High Court

[2001] IEHC 126

THE HIGH COURT

No. 378JR/2000

DUNNE & ORS v. DONOHOE (GARDA SUPERINTENDENT) & ORS

JUDICIAL REVIEW

BETWEEN

MARTIN DUNNE, DESMOND CROFTON AND BRENDAN McLOUGHLIN

APPLICANTS

AND

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

RESPONDENTS

Citations:

FIREARMS ACT 1925 S4(b)

CONSTITUTION ART 15.2

CONSTITUTION ART 40.1

CONSTITUTION ART 40.3

CONSTITUTION ART 40.5

FIREARMS ACT 1925 S4

FIREARMS ACT 1925 S3

FIREARMS ACT 1925 S8

FIREARMS ACT 2000

POLICE FORCES AMALGAMATION ACT 1925 S8

POLICE FORCES AMALGAMATION ACT 1925 S9

FIREARMS ACT 1925 S2

FIREARMS ACT 1925 S2(1)

FIREARMS ACT 1925 S3(a)

FIREARMS ACT 1925 S3(c)

FIREARMS ACT 1925 S3(1)

FIREARMS ACT 1925 S3(3)

FIREARMS ACT 1925 S5

FIREARMS ACT 1925 S13(1)

FIREARMS ACT 1925 S21

FIREARMS ACT 1964 S9

FIREARMS ACT 1964 S9(4)

FIREARMS ACT 1964 S15

FIREARMS ACT 1925 S2(5)

POLICE FORCES AMALGAMATION ACT 1925 S8(1)

POLICE FORCES AMALGAMATION ACT 1925 S9(1)

DELANEY JUDICIAL REVIEW OF ADMINISTRATIVE ACTION 2001 101

MURPHY V DUBLIN CORPORATION 1972 IR 213

MCLOUGHLIN V MIN FOR SOCIAL WELFARE 1958 IR 1

SIMMS MOTOR UNITS LTD V MIN FOR LABOUR 1946 2 AER 201

CITYVIEW PRESS LTD V AN CHOMHAIRLE OILIUNA 1980 IR 381

O'NEILL V MIN FOR AGRICULTURE 1998 1 IR 539

FIREARMS ACT 1925 S4(b)

FIREARMS ACT 1925 S2(5)(b)

FIREARMS AND OFFENSIVE WEAPONS ACT 1990 S6

FIREARMS AND OFFENSIVE WEAPONS ACT 1990 S6(2)

FIREARMS ACT 1925 S2(5)(d)

FIREARMS (FIREARM CERTIFICATE NON RESIDENCE) ACT 2000 S2(10)

FIREARMS ACT 1925 S21(3)

FIREARMS ACT 1925 S3(4)

FIREARMS ACT 1964 S16

MISHRA V MIN FOR JUSTICE 1996 1 IR 189

RAJAN, STATE V MIN FOR INDUSTRY 1988 ILRM 231

PATENT ACT 1964 S11

BENION ON STATUTORY INTERPRETATION 1977 PARA 390–395

Synopsis:

STATUTORY INTERPRETATION

Delegation of legislation

Certiorari - Firearms - Garda Síochána - Installation of firearms cabinets - Whether directive regulating firearm certificates ultra vires - Whether directive unlawfully fettered discretion of Garda Superintendents - Police Forces Amalgamation Act, 1925 sections 8 & 9 - Firearms Act, 1925 - Firearms Act, 1964 - Firearms and Offensive Weapons Act, 1990 - Firearms (Firearm Certificates for Non-Residents) Act, 2000 (2000/378JR - O Caoimh J - 27/7/01)

Dunne v Donohoe

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.

Held by Mr. Justice Ó Caoimh in stating that he 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.

1 Mr. Justice Aindrias Ó Caoimh delivered the 27th day of July, 2001.

2 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:

3 i 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.

4 ii 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.

5 iii 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.

6 iv 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.

7 v 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.

8 vi 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 1925and has unlawfully fettered his discretion under the Act.

9 vii VII. A Declaration that the Second named Respondent has no power under the Firearms Act 1925to 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.

10 viii 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.

11 ix 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.

12 x 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.

13 xi 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.

14 xii 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.

15 xiii 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 1925the 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.

16 xiv 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.

17 xv XV. A Declaration by way of an application for Judicial Review that in exercise of his powers under the Firearms Act 1925and 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...