Dunne v Donohoe

• Jurisdiction: Ireland
• Judge: Keane C.J.
• Judgment Date: 01 May 2002
• Neutral Citation: [2002] IESC 35
• Court: Supreme Court
• Docket Number: [S.C. No. 274 of 2001]
• Date: 01 May 2002

[2002] IESC 35

THE SUPREME COURT

Keane C.J.

Murphy J.

McGuinness J.

274/01

DUNNE v. DONOHOE (GARDA SUPERINTENDENT) & ORS

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

Citations:

FIREARMS ACT 1925 S2(1)

FIREARMS ACT 1925 S3(1)

FIREARMS ACT 1925 S3(2)

FIREARMS ACT 1925 S4

FIREARMS ACT 1925 S8

FIREARMS ACT 1964 S17(B)

FIREARMS ACT 1925 S5

FIREARMS ACT 1964 S9

FIREARMS ACT 1964 S15

FIREARMS ACT 1925 S2(5)(B)

FIREARMS ACT 1925 S8(1)

RAJAN, STATE V MIN FOR INDUSTRY 1998 ILRM 231

MCLOUGHLIN V MIN FOR SOCIAL WELFARE 1955 IR 1

MISHRA V MIN FOR JUSTICE 1996 1 IR 189

POLICE FORCES (AMALGAMATION) ACT 1925 S8

POLICE FORCES (AMALGAMATION) ACT 1925 S9

WALSH THE IRISH POLICE A LEGAL AND CONSTITUTIONAL PERSPECTIVE 1998 70

MURPHY V DUBLIN CORP 1972 IR 215

CITYVIEW PRESS LTD V COMHAIRLE OILIUNA 1980 IR 381

CASSIDY V MIN FOR INDUSTRY 1978 IR 297

O'NEILL V MIN FOR AGRICULTURE 1998 1 IR 539

CONSTITUTION ART 40.5

FIREARMS ACT 1925 S3

BETTING ACT 1931

PUBLIC DANCE HALLS ACT 1935

GAMING & LOTTERIES ACT 1956

Synopsis:

JUDICIAL REVIEW

Garda Síochána

Certiorari - Firearms - 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 sections 8 & 9 - Firearms Act, 1925 - Firearms Act, 1964 - Firearms and Offensive Weapons Act, 1990 - Firearms (Firearm Certificates for Non-Residents) Act, 2000 (274/2001 - Supreme Court - 01/05/2002) - [2002] 2 IR 533 - [2002] 2 ILRM 200

Dunne v Donohoe

1 JUDGMENT delivered the 1st day of May, 2002, by Keane C.J. [nem diss]

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 1925and 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.

3 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.

4 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.

5 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 aliain 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.

6 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.

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

8 (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;

9 (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.

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

11 Before considering the submissions of the parties, I should refer to the statutory provisions in more detail. The long title to the 1925 Act describes it as

"An Act to place restrictions on the possession of firearms and other weapons and ammunition, and for that and other purposes, to amend the law relating to firearms and other weapons and ammunition."

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

13 Section 3(1) provides that

"The superintendent of the Garda Síochána of any district may, subject to the limitations and restrictions imposed by this Act, upon the application of any person residing in such district and upon the payment by such a person of the fee (if any) for the time being required by law, grant to such person a firearm certificate."

14 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).

15 Section 4 provides that

"Before granting a firearm certificate to any person under this Act the superintendent of the Garda Síochána or the Minister (as the case may require) shall be satisfied that such a person -"

(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."

16 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:

17 a "(a) any person under the age of 16 years,

18 (b) any person of intemperate habits,

19 (c) any person of unsound mind,

20 (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

21 (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

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

23 (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."

24 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

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

26 (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

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

28 (d) where the certificate limits the purposes for which it may be used, is using it for purposes not authorised by the certificate.

29 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.

30 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

31 (a) registered firearms dealers and their employees;

32 (b) employees of persons engaged...