Herlihy v District Judge Riordan & Finn
| Jurisdiction | Ireland |
| Judge | Kearns P. |
| Judgment Date | 09 July 2010 |
| Neutral Citation | [2010] IEHC 285 |
| Court | High Court |
| Date | 09 July 2010 |
[2010] IEHC 285
THE HIGH COURT
BETWEEN
AND
AND
FIREARMS ACT 1925 S4
CRIMINAL JUSTICE ACT 2006 S32
FIREARMS ACT 1925 S15A
CRIMINAL JUSTICE ACT 2006 S43
CRIMINAL JUSTICE (MISCELLANEOUS PROVISIONS) ACT 2009 S27
FIREARMS ACT 1925 S2C
CRIMINAL JUSTICE (MISCELLANEOUS PROVISIONS) ACT 2009 S30
FIREARMS ACT 1925 S3D
FIREARMS ACT 1925 S4(2)(H)
FIREARMS ACT 1925 S4C(4)
CRIMINAL JUSTICE (MISCELLANEOUS PROVISIONS) ACT 2009 S33
O'LEARY v SUPERINTENENT MAHER UNREP CLARK 24.4.2008 2008/51/10760 2008 IEHC 113
GOODISON v SUPERINTENDENT SHEAHAN UNREP PEART 2.5.2008 2008/27/5816 2008 IEHC 127
MCCARRON v SUPERINTENDENT KEARNEY UNREP CHARLETON 4.7.2008 2008/36/7808 2008 IEHC 195
MCCARRON v SUPERINTENDENT KEARNEY UNREP SUPREME 11.5.2010 2010 IESC 28
FIREARMS ACT 1925 S4(2)(A)
DUNNE & ORS v SUPERINTENDENT DONOHOE & ORS 2002 2 IR 533 2002 2 ILRM 200 2002/7/1623
FIREARMS ACT 1925 S4(A)
FIREARMS ACT 1925 S4(2)(H)
LICENSING
Objection
Firearm certificate - Refusal - Calibre and lethality of firearm - Prohibition of ownership of certain firearms to new applicants - Illegality of possession unless authorised by garda superintendent - Whether good reasons for requiring firearm - Whether applicant could be permitted to possess handgun without danger to public - Whether applicant person disentitled to hold certificate - Considerations of public safety - Guiding principles - Character of applicant - Whether discretion fettered - Whether decision fundamentally at variance with reason - McCarron v Kearney [2008] IEHC 195 (Unrep, Charleton J, 4/7/2008) distinguished; Dunne v Donohoe [2002] 2 IR 533 and O'Leary v Maher [2008] IEHC 113 (Unrep, Clark J, 2/5/2008) considered - Firearms Act 1925 (No 17), ss 2C, 3D, 4, 15A - Criminal Justice (Miscellaneous Provisions) Act 2009 (No 28) - Relief granted, matter remitted to District Court (2010/87JR - Kearns P - 9/7/2010) [2010] IEHC 285
Herlihy v Judge Riordan
JUDGMENT of Kearns P. delivered the 9th day of July, 2010
The applicant is a sixty year old engineer, range design consultant and firearms instructor who resides in Carrigaline, Co. Cork. For many years he has been deeply involved in the recreational sport of target shooting. He holds a numbers of senior posts in the management, administration, development and planning of target shooting events and has represented Ireland as an individual competitor and as captain of successful Irish international target shooting teams. He was formerly a member of the Defence Forces. His involvement in target shooting for over forty years has been without accident or incident and he is regarded by all parties herein as a man of impeccable character and integrity.
The applicant has an established history as the holder of firearms under licence. In August, 2009 he submitted completed application forms in respect of certain firearms which were lawfully held by him pursuant to certificates which had been issued and which were valid until the end of July, 2009. The firearms in question included two Sig Sauer 9mm pistols and four Smith and Wesson 357 revolvers.
In submitting his application the applicant believed he complied in full with the various considerations specified under s. 4 of the Firearms Act 1925 (as substituted by s. 32 of the Criminal Justice Act 2006) and also included the shooting itinerary for 2008-10 which identified the events for which the firearms were required.
The notice party herein is a Chief Superintendent of An Garda Síochána in the Cork W.R. Division and is the "issuing person" under the Firearms Acts for that division.
Following the submission of the said application forms, the applicant was invited to attend a meeting with the notice party. This meeting took place on the 29 th October, 2009. During this meeting the applicant set out in particular detail the events for which he required the identified firearms. However, subsequent to the meeting in question, the applicant was issued with a letter of refusal dated 30 th October, 2009 identifying various grounds upon which the notice party relied to refuse his application for certificates for the firearms in question. Those factors included public safety, good order of the community, proliferation of firearms generally, calibre of firearm, ammunition type, lethal effect or danger, velocity of the ammunition, size and shape of the firearm and the use to which the firearm might be put.
As the refusal impacted upon the applicant's professional and sporting activities and his ability to continue participation in the sport of target shooting, the applicant appealed to the District Court pursuant to s. 15A of the Firearms Act 1925 as inserted by s. 43 of the Criminal Justice Act 2006. That appeal came on for hearing before the respondent on the 16 th November, 2009 at Cork District Court. The applicant attended with one Denis Linehan to give evidence in support of his appeal. The appeal was opposed by the notice party who also called Detective Inspector Kevin Brooks from the Garda Ballistic Section as a witness. During the course of the hearing a full booklet of the applicant's qualifications, achievements and experience was handed into court.
Having heard the evidence, the respondent adjourned the case for written submissions and heard further oral submissions based thereon when he resumed the hearing of the case on the 30 th November, 2009.
In giving his decision on that date, the respondent indicated that he considered himself to have an unfettered discretion or to be "at large" in relation to the application for firearms certificates and that he, the respondent, should refuse a restrictive firearms certificate if of the view that it should not be granted. The respondent also considered it relevant that the firearms in respect of which certificate were sought were prohibited under new legislation in the case of new applicants. The respondent further based his decision on the calibre of the firearms in question and their "lethality".
In consequence of the respondent's decision, the applicant was obliged to surrender the firearms in question to a firearms dealer pending a resolution of the matter. He contends that he is now unable to lawfully possess and use those firearms which has serious implications for his property rights in the firearms and "undermines in a radical fashion" his ability to earn his livelihood.
Against that background, the applicant brought the present judicial review proceedings seeking an order of certiorari to quash the decision of the respondent made on the 30 th November, 2009 refusing to grant firearms certificates and an order remitting the application for the said certificates in respect of the said firearms for further consideration by the District Court in accordance with law.
Section 4 of the Firearms Act 1925 (as substituted by s. 32 of the Criminal Justice Act 2006) provides as follows:-
2 "4.-(1) An issuing person shall not grant a firearm certificate unless he or she is satisfied that the applicant complies with the conditions referred to in subsection (2) and will continue to comply with them during the currency of the certificate.
(2) The conditions subject to which a firearm certificate may be granted are that, in the opinion of the issuing person, the applicant-
a ( a) has a good reason for requiring the firearm in respect of which the certificate is applied for,
b ( b) can be permitted to possess, use and carry the firearm and ammunition without danger to the public safety or security or the peace,
c ( c) is not a person declared by this Act to be disentitled to hold a firearm certificate,
d ( d) has provided secure accommodation for the firearm and ammunition at the place where it is to be kept,
e ( e) where the firearm is a rifle or pistol to be used for target shooting, is a member of an authorised rifle or pistol club,
f ( f) has complied with subsection (3),
g ( g) complies with such other conditions (if any) specified in the firearm certificate, including any such conditions to be complied with before a specified date as the issuing person considers necessary in the interests of public safety or security, and
h ( h) in case the application is for a restricted firearm certificate-
(i) has a good and sufficient reason for requiring such a firearm, and
(ii) has demonstrated that the firearm is the only type of weapon that is appropriate for the purpose for which it is required."
Under and by virtue of s. 27 of the Criminal Justice (Miscellaneous Provisions) Act 2009, which introduced a new section 2C into the Firearms Act 1925, the Minister for Justice, Equality and Law Reform is empowered to order the prohibition of certain types of firearms by reference to features such as calibre. Section 30 of the said Act of 2009, inserting a new section 3D into the Firearms Act, 1925, contains the following provision:-
2 " 3D.- (1) As and from the date of commencement of this section, no application for a firearm certificate in respect of a short firearm shall be considered by an issuing person other than for-
a ( a) a device capable of discharging blank ammunition and to be used as a starting gun or blank firing gun;
b ( b) a short firearm of a type specified at paragraph 4(2)( e) of the Firearms (Restricted Firearms and Ammunition) Order 2008 ( S.I. No. 21 of 2008) and designed for use as so specified;
c ( c) short firearm for which the applicant for the firearm certificate held a firearm certificate on or before 19 November 2008.
(2) Any firearm certificate in...
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