Magee v Murray and Another
| Jurisdiction | Ireland |
| Judge | Mr. Justice Birmingham |
| Judgment Date | 24 November 2008 |
| Neutral Citation | [2008] IEHC 371 |
| Court | High Court |
| Docket Number | [No. 1462 JR/2006] |
| Date | 24 November 2008 |
[2008] IEHC 371
THE HIGH COURT
BETWEEN
AND
MCCARRON v SUPERINTENDENT KEARNEY UNREP HIGH CHARLETON 4.7.2008 2008 IEHC 195
FIREARMS ACT 1971
FIREARMS & OFFENSIVE WEAPONS ACT 1990
FIREARMS (PROOFING) ACT 1968
FIREARMS ACT 1925 S2
FIREARMS ACT 1925 S2(2)
FIREARMS ACT 1925 S2(3)
FIREARMS ACT 1925 S2(4)(D)
FIREARMS ACT 1925 S4
FIREARMS ACT 1925 S5
FIREARMS ACT 1925 S2(5)
FIREARMS ACT 1925 S2(5)(A)
FIREARMS ACT 1925 S2(5)(B)
FIREARMS ACT 1925 S2(5)(D)
FIREARMS ACT 1925 S2(5)(E)
FIREARMS ACT 1925 S2(5)(F)
FIREARMS ACT 1925 S3
FIREARMS ACT 1925 S3(4)
DUNNE & NATIONAL ASSOCIATION OF REGIONAL GAME COUNCILS & ANOR v DONOHOE (GARDA SUPERINTENDENT) & ORS 2002 2 IR 533
FIREARMS ACT 1925 S3(4)(A)
FIREARMS ACT 1925 S3(4)(B)
O'NEILL v MIN FOR AGRICULTURE 1998 1 IR 539
ASHBOURNE HOLDINGS LTD v BORD PLEANALA & CORK CO COUNCIL 2003 2 IR 114
FIREARMS ACT 1925 S4(B)
FIREARMS ACT 1925 S5(D)
DUBLIN CORP v RASO 1976-7 ILRM 139
DIRECTOR OF CONSUMER AFFAIRS v GOVERNOR & CO OF BANK OF IRELAND 2003 2 IR 217
GOODISON v SUPERINTENDENT SHEAHAN UNREP PEART 2.5.2008 2008 IEHC 127
O'LEARY v SUPERINTENENT MAHER UNREP CLARK 24.4.2008 2008 IEHC 113
FIREARMS (DANGEROUS WEAPONS) ORDER 1972 SI 251/1972
FIREARMS
Certificate
Conditions - Grant of firearms certificate for powerful pistol with conditions - Whether imposition of conditions ultra vires - Privilege of possessing firearm - Absence of express power to impose conditions - Whether implied power - Whether implied power justified by statutory context - Whether implied power not of such nature that should be set out specifically - Whether implied power consistent with statutory scheme - Statutory context of control and restriction - Old statute - Consistency with statutory scheme - Incidental or consequential powers - Organised competitive target shooting only conceivable legitimate basis for using weapon - McCarron v Kearney [2008] IEHC 185 (Unrep, Charleton J, 4/7/2008), Dunne v Donohoe [2002] 2 IR 533, Dublin Corporation v Raso [1976- 77] ILRM 139, Director of Consumer Affairs v Bank of Ireland [2003] 2 IR 217, Goodison v Sheahan [2008] IEHC 127 (Unrep, Peart J, 2/5/2008) and O'Leary v Maher [2008] IEHC 113 (Unrep, Clark J, 25/4/2008) considered, O'Neill v Minister for Agriculture [1998] 1 IR 549 and Ashbourne Holdings v An Bord Pleanála [2003] 2 IR 114 distinguished - Firearms Act 1925 (No17), ss 2, 3, 4 and 5- Firearms (Dangerous Weapons) Order 1972 (SI 251/1972) - Application refused (2006/1462JR - Birmingham J - 24/11/2008) [2008] IEHC 371
Magee v Murray
Facts: section 2(2) of the Firearms Act 1925 makes it an offence to fail “to comply with any condition subject to which a firearm certificate was granted”. Section 2(5) of the Act of 1925 provides, inter alia, that “(a) the superintendent…may authorise…the possession, use or carriage of firearms or ammunition…in any of the circumstances specified in [section 2(4) of the Act]…”. The section subsequently provides for the imposition of conditions in relation to the grant of that authorisation. Section 4 of the Act of 1925 provides, inter alia, that “before granting a firearm certificate to any person…the superintendent shall be satisfied that such person has a good reason for requiring the firearm…and can be permitted to have in his possession, use and carry a firearm or ammunition without danger to the public safety or peace…”. Section 5(d) of the Act provides for the revocation of a certificate in a situation where the firearm certificate limits the purpose for which the firearm to which it relates is used but is in fact used for non-authorised purposes. The respondent granted a firearms certificate to the applicant for a pistol but attached conditions thereto. The applicant sought to quash by way of judicial review the imposition of those conditions on the grounds that they were ultra vires the power of the respondent. The respondent, contended, inter alia, that section 2 of the Act of 1925 gave an express statutory basis for the imposition of conditions on a firearms certificate. In the alternative, it contended that the Act provided for an implied power to impose the conditions.
Held by Mr Justice Birmingham in refusing the reliefs sought that, 1, section 2(4) of the Act of 1925 did not provide an express statutory basis for the imposition of conditions in situations where a firearms certificate was required as opposed to where authorisation for the firearm had been granted.
2. That the statutory powers to impose conditions as contended for could only be implied where: (A) they were justified by the statutory context; (B) the power contended for was not of such a nature that one would expect to see it set out specifically and; (C) the power contended for was consistent with the statutory scheme.
3. That, applying those principles, (A) the combined effect of sections 2(2) and 5(d) of the Act of 1925 were consistent only with a belief on the part of the legislators that they were providing for certification which could be subject to conditions, (B) while one could expect to see powers to impose conditions set out specifically in a modern statute, that argument had less force when considering a statute dating to 1925 and, (C) the ability to impose conditions in relation to the grant of a firearms certificate was consistent with the approach of the Act of 1925. Accordingly, the powers contended for could fairly be described as incidental or consequential and not ultra vires.
Reporter: P.C.
The applicant is a gun enthusiast, the owner of a number of firearms including a Sig pistol. He has applied to the respondents for a firearms certificate in respect of that pistol. They have issued a certificate to him, but in doing so, have imposed, or have purported to impose, conditions. The applicant contends that in doing so, they exceeded their authority and that, in providing for conditions, and in particular, those set out in this certificate, the respondents acted in a manner that wasultra vires.
Before coming to the specifics of the case, it is worth putting the present proceedings in context. In the course of a letter sent by the solicitors for the applicant to the Garda Authorities, reference is made to the fact that the National Association of Regional Game Council, the representative body to which the applicant is affiliated, has supported and sponsored dozens of legal challenges. Certainly, it is the case that the legislation in issue in these proceedings has been the subject of no less than three written judgments, by three different High Court judges, during the period May to July, 2008.
It is accepted on both sides that the issue in this case is a net one. While it might be possible to determine the legal issues without any detailed consideration of the factual background, it nonetheless seems desirable to refer briefly to the history of the present controversy.
The applicant is, as I have stated, a gun enthusiast owning a number of firearms and he participates in various recreational activities such as game shooting, vermin control, clay pigeon shooting and target shooting. He is a member of several gun clubs including Hilltop Shooting Club. This particular club operates a firing range at Newtownmountkennedy, County Wicklow.
In January, 2006 he acquired a Sig pistol (serial no. AO18716), to which I have referred, and applied for and obtained a firearms certificate. While this has not been spelled out in any great detail, it appears clear that he gave the gardaí to understand that, his intention in acquiring the handgun was to use it for target shooting at the Hilltop Range. A certificate was issued to him in what might be described as a standard form, a certificate that would have been generated by computer at Garda Headquarters. The form of the certificate is not really suitable for a pistol as it contains on its face a reference to hunting birds and animals. The printed form also contained a recital that the holder of the certificate, holds a certificate in respect of "another shotgun" offering a further clue that as printed out, it was designed for applications in respect of shotguns.
In the ordinary course of events, the applicant would have expected to have his certificate renewed annually. However, on the 2nd August, 2006, he received a letter informing him that the certificate had not been renewed. Much of the correspondence that preceded these proceedings, centred on the refusal to renew the certificate. However, that aspect has been resolved and, it is unnecessary to review the exchange of correspondence in any detail. Suffice to say, that the gardaí seemed to have had concerns about the safety of the Hilltop Range, but when certain improvement works were carried out this aspect was resolved to their satisfaction. At that stage a certificate issued. Unlike the original certificate, this would seem to have been created in Wicklow and was clearly specific to the present applicant.
The document purported to impose a number of conditions on the carrying and use of the firearm, and to make the certificate conditional on compliance. The conditions as they appear are as follows:-
a "A. Have in his possession and carry a Pistol unloaded by Sig. of .22 Inches, bearing I.D. No. A018176 only while travelling to and from a Firing Range specifically authorised under the Firearms Act1925, of which the said holder is a member.
b B. Have in his possession and carry a[n] unloaded Pistol by Sig. of .22 Inches, bearing I.D. No. A018176 only while travelling to and from a Firing Range specifically authorised under the Firearms Act1925, for Competition purposes.
c C. To...
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