O'Leary v Superintendent Maher

• Jurisdiction: Ireland
• Judge: Ms. Justice Clark
• Judgment Date: 24 April 2008
• Neutral Citation: [2008] IEHC 113
• Docket Number: Record No.2006/301JR
• Court: High Court
• Date: 24 April 2008

O'Leary v Superintendent Maher

JUDICIAL REVIEW

Between

THOMAS O'LEARY

Applicant

And

SUPERINTENDENT MICHAEL MAHER

Respondent

[2008] IEHC 113

Record No.2006/301JR

THE HIGH COURT

FIREARMS ACT 1925 S3

FIREARMS ACT 1964

FIREARMS ACT 1925 S2(1)

FIREARMS ACT 1925 S4

FIREARMS ACT 1925 S5

FIREARMS ACT 1925 S8

FIREARMS ACT 1925 S3(1)

FIREARMS ACT 1925 S8(1)

WILDLIFE ACT 1976 S33

WILDLIFE ACT 1976 (FIREARMS & AMMUNITION) REGS 1977 SI 239/1977 ART 2(a)

MURPHY v DUBLIN CORPORATION 1972 IR 215

MCLOUGHLIN, STATE v MIN FOR SOCIAL WELFARE 1958 IR 1

DUNNE & NATIONAL ASSOCIATION OF REGIONAL GAME COUNCILS & ANOR v DONOHOE (GARDA SUPERINTENDENT) & ORS 2002 2 IR 533 2002 2 ILRM 200 2002/7/1623

KEEGAN v STARDUST VICTIMS COMPENSATION TRIBUNAL 1986 IR 642

O'KEEFFE v BORD PLEANALA 1993 1 IR 39

MATTHEWS v IRISH COURSING CLUB 1993 1 IR 346 1992/8/2479

Ms. Justice Clark

1 The issues in this application for Judicial Review are relatively simple. They arise out of the refusal of the Superintendent respondent to grant a firearms certificate to the applicant. Leave was granted to seek judicial review 15^th. March 2006 by Peart J. to seek:

2 i I. An Order of Certiorari by way of an application for judicial review quashing the Decision of the Respondent communicated orally on the 28^th of November, 2005, to refuse to issue a firearms certificate in respect of a .308 hunting rifle (Steyr Mannlicher SC 103 6883);

3 ii II. A Declaration by way of an application for judicial review that the decision of the Respondent to withhold a firearm certificate from the Applicant in respect of the said hunting rifle is ultra vires and without lawful basis;

4 iii III. An Order of Mandamus by way of an application for judicial review directing the Respondent to furnish reasons in writing for his decision to refuse to grant the firearms certificate;

5 iv IV. A Declaration by way of an application for judicial review that the Applicant is entitled to a statement in writing of the reasons for refusal to grant a firearms certificate pursuant to section 3 of the Firearms Act,1925.

6 1. Generally speaking, it is not lawful to own, use or carry a firearm unless authorised by a firearm certificate. The process for obtaining such certificate is contained in the Firearms Acts,1925 and 1964. In essence, an applicant has to prove that he has good reason for requiring the firearm; that he is capable of using the firearm without danger to the public and that he is of good character. The person designated under the Firearms Act 1925 to issue such certificate is the local Superintendent of the district in which an applicant resides.

7 2. The applicant Thomas O'Leary who was born in 1958 lives in the Killarney area where he engages in the hunting of large game and is a member of a gun club. It is not in issue that he is keen shot of considerable experience and has for many years held firearms certificates and a Wildlife licence to shoot deer with his .243 bolt action Ruger rifle and a bolt action .220 Remington rifle.

8 3. In early 2005 he purchased a legally imported Steyr Mannlicher .308 calibre hunting rifle through a registered firearms dealer for the sum €2,300 which included his existing .243 rifle in part exchange. To obtain possession of this rifle, the applicant had to first obtain a firearms certificate.

9 4. Although the gun in question is generally described as a .308 rifle, strictly speaking, it is the ammunition for the rifle made by Winchester which carries the .308 name. Rifles calibrated to take .308 cartridges are particularly suited for the shooting of large game such as deer as the cartridge is known for its accuracy and capacity to achieve a humane and clean kill.

10 5. The particular .308 rifle which the applicant sought to license is a bolt action gun holding a maximum of 3 cartridges. The applicant claims that the gun is a sporting rifle; it is neither automatic nor semi-automatic loading and thus it is not an assault weapon.

11 6. The applicant applied in June 2005 to the Respondent who was the local Superintendent for a firearms certificate for the 308 Steyr Mannlicher in substitution for the certificate for his .243 rifle because he required the gun for deer hunting. The Respondent learned from a conversation with Sergeant Walsh in mid-July, 2005 at the local garda station that his application was being refused because of safety reasons. In fact, the Superintendent had written to the sergeant in the following terms "the existing .243 rifle is more than sufficient for the purpose for which required i.e. shooting deer. I am of the opinion that licensing the .308 now proposed would contribute an additional and unnecessary risk to the public in this area. This letter was not furnished to the Applicant.

12 7. The applicant wrote seeking an explanation for the refusal. A further meeting with the respondent took place at which the applicant felt that the respondent had a closed mind on the subject viewing the .308 as a military rifle. No attempt was made by the Respondent at any time to view the hunting rifle.

13 8. A further meeting with the respondent took place when the applicant produced literature from a gun and ammunition catalogue showing that .308 was a hunting rifle but the Superintendent continued in the belief that this was a military calibre weapon. He agree however to take the opinion and advice of the garda ballistics section and to review his decision.

14 9. The respondent obtained a garda ballistics report where he had sought:

15 (i) An opinion relating to the substitution of a .308 calibre firearm for a .243 weapon and

16 (ii) The difference between the 30-06 calibre and .308 cartridges.

17 The report issued from D/G Thomas Carey on the 23^rd August 2005. The report was not furnished to the applicant but was produced to the court. It was inadvertently furnished in an incomplete form but this mistake was not realised until after the hearing had taken place when the full version was obtained. The report described:-

18 Statutory Instrument 239 of 1977 indicates that the ammunition for intended deer hunting should be fitted with a bullet of no less than 55 grains in weight. It should also, according to S.I. 239, be no less than .22 in calibre and the cartridge must develop at least 1,700 foot pounds of energy.

19 These parameters are devised as the minimum requirements to effect a clean and humane kill.

20 However, current trends have moved towards the .270 calibre using bullets between 93-150 grains. This type of ammunition is quite sufficient for the clean and humane killing of deer in this country.

21 (1) .243 calibre versus .308 calibre.

22 .308 calibre (aka 7.62 x 51mm NATO).

23 This cartridge was originally a U.S. military cartridge and was marketed at about 1952 as a sporting cartridge under the name of .308 Winchester.

24 This round was known for its accuracy and suitable for large game from deer up to elk and moose.

25 Generally fitted with bullets in the range of 110 grains up to 200 grains, it develops up to 2743 foot pounds of energy at 3,200 feet per second (muzzle velocity).

243 calibre.

26 The .243 calibre cartridge was developed around 1955 and used as the cartridge case of the above .308 Winchester round. The mouth of the cartridge case is reduced to accommodate the slightly smaller .243 (6mm) calibre bullet.

27 Bullet weights range from 55 to 100 grains giving 1,600 to 2,100 foot pounds of energy at 2, 900 to 4,058 fps.

28 This round is quite suited to deer hunting and is indeed a very popular choice of ammunition/firearm for deer hunting in this country.

Opinion.

29 In my opinion the .243 calibre round is the most suitable for all deer hunting requirements in this country.

30 While the .308 calibre will also achieve this aim, I believe that the calibre increase is unnecessary in this scenario. It should also be borne in mind that the .308 calibre is still in military service as the 7.62 x 51 mm NATO round. Full metal jacket armour piercing and incendiary rounds are all readily available in this calibre.

(2)30-06 versus .308 calibre.

31 30-06 (.30 calibre of 1906) AKA 7.62 x 63mm.

32 The 30-06 cartridge was introduced in 1906 by the US military for use in their 1903 Springfield rifle. It was fitted with various military bullets and was eventually adopted for large game hunting using bullets in the range of 150 to 165 grains. These weights typically developed 2,873 foot pounds at 2,800 fps. This cartridge is very popular in the U.S. as a large game cartridge.

33 However, it is not very common in Europe. In comparison the .308 calibre cartridge is similarly used as a large game hunting cartridge in the U.S. However, while the two have similar characteristics the 30-06 has a higher muzzle energy.

34 Both rounds would, in my opinion, be excessive for the purpose of deer hunting in Ireland."

35 10. At a further meeting on the 23^rd September, 2005 to discuss the particular hunting rifle, the respondent indicated that he was refusing the application but did not furnish the report obtained from the ballistics section and informed the applicant that his main reason for refusing was that the .308 was still in military service with NATO and that full metal jacket armour piercing and incendiary rounds were available in this calibre. His safety concerns were that as the area in which the applicant shot deer was popular with hill walkers, the higher calibre would present additional dangers to that group of persons.

36 11. The applicant persisted in trying to make the respondent change his mind on the .308 rifle and furnished the respondent with further literature about the .308 from a gun and ammunition catalogue showing "In power the 308 Winchester is superior to the 300 Savage and almost equal...