McCarron (applicant/appellant) Superintendent Peadar Kearney (Respondent) & Others

• Jurisdiction: Ireland
• Judge: Mr. Justice Fennelly
• Judgment Date: 11 May 2010
• Neutral Citation: [2010] IESC 28
• Court: Supreme Court
• Docket Number: [S.C. Nos. 11 of 2009, 413 of 2008 &
• Date: 11 May 2010

[2010] IESC 28

THE SUPREME COURT

Fennelly J.

Macken J.

O'Donnell J.

Appeal No: 011/2009

Appeal No: 413/2008

Appeal No: 044/2005

McCarron & Ors v Superintendent Kearney & Ors

RONAN McCARRON

APPLICANT/APPELLANT

-v-

SUPERINTENDENT PEADAR KEARNEY

RESPONDENT

AND

JOSEPH MAGEE

APPLICANT/APPELLANT

-v-

INSPECTOR PAT MURRAY AND SUPERINTENDENT DENIS ROCHE

RESPONDENTS

AND

NEIL McVEIGH

APPLICANT/APPELLANT

-v-

MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM

RESPONDENT

FIREARMS ACT 1925 S4(A)

FIREARMS ACT 1925 S2(3)

FIREARMS ACT 1925 S1(1)

FIREARMS ACT 1925 S2

FIREARMS ACT 1925 S2(2)

FIREARMS ACT 1925 S25

FIREARMS ACT 1925 S3

FIREARMS ACT 1925 S4

FIREARMS ACT 1925 S8

FIREARMS ACT 1925 S4(C)

FIREARMS ACT 1925 S5

FIREARMS ACT 1925 S4(A)

FIREARMS ACT 1925 S4(B)

FIREARMS ACT 1925 S5(D)

FIREARMS ACT 1925 S17(4)

FIREARMS ACT 1925 S3(5)

FIREARMS ACT 1925 S3(4)(B)

FIREARMS ACT 1925 S3(4)

FIREARMS ACT 1925 S2(5)(D)

FIREARMS ACT 1925 S2(4)

FIREARMS ACT 1925 S2(4)(D)

FIREARMS ACT 1925 S2(5)

AG v GREAT EASTERN RAILWAY CO 1879-80 5 APP CAS 473

KEANE & NAUGHTON v BORD PLEANALA & CMSR OF IRISH LIGHTS 1997 1 IR 184

FIREARMS ACT 1925 S3(1)

FIREARMS ACT 1925 S5(B)

DUNNE & ORS v DONOHOE & ORS 2002 2 IR 533 2002 2 ILRM 200 2002/7/1623

FIREARMS ACT 1964 S1(2)

MURPHY v DUBLIN CORP & MIN FOR LOCAL GOVT 1972 IR 215 1973 107 ILTR 65

MCLOUGHLIN v MIN FOR SOCIAL WELFARE & BYRNE 1958 IR 1

RAJAN & ORS, STATE v MIN FOR INDUSTRY & CONTROLLER OF PATENTS DESIGNS & TRADEMARKS 1988 ILRM 231 1987/4/1058

MISHRA v MIN FOR JUSTICE & ORS 1996 1 IR 189 1996/13/4227

CARRIGALINE COMMUNITY TELEVISION BROADCASTING CO LTD (T/A SOUTH COAST COMMUNITY TELEVISION BROADCASTING SERVICE) & MURPHY v MIN FOR TRANSPORT & ORS (NO 2) 1997 1 ILRM 241 1996 DULJ 139 1998/13/4403

STATUTE

Interpretation

Canons of construction - Discretionary powers - Firearms - Granting of firearms certificate - Conditions imposed by superintendent - Whether good reason for requiring firearm - Whether superintendent entitled to consider firearm when evaluating good reason - Whether superintendent had power to impose conditions - Persona designata - Policy - Firearms - Granting of firearms certificate - Importation - Firearms dealer - Whether policy rigid and inflexible - Whether unlawful fettering of discretion - Whether ultra vires - Keane v An Bord Pleanála [1997] 1 IR 184 and Dunne v Donohoe [2002] 2 IR 533 followed - Firearms Act 1925 (No 17), ss 2, 3, 4 & 17 - Firearms Act 1964 (No 1), ss 15 & 16 - Applicants' appeal allowed (44/2005, 413/2008 & 11/2009 - SC - 11/5/2010) [2010] IESC 28

McCarron v Superintendent Kearney

Facts: The first applicant was refused a firearms certification on the basis that a Garda Superintendent did not believe the firearm was a suitable weapon for target practice. The second applicant was issued with a certificate subject to conditions as to use. The third applicant, a registered fire arms dealer, was refused a licence on the basis that it was current policy to grants firearms certificates only for specified firearms. The applicants sought to review the decisions made by way of judicial review. The first two cases related to a question of statutory interpretation as to the powers of the Superintendent to grant and refuse firearms certifications pursuant to the Firearms Act 1925, as amended by the Firearms Act 1964 and in the third case, the question arose as to whether the Minister had declined properly to exercise his discretion by rigidly adhering to a fixed policy. The issue arose I particularas to the power of the Superintendent to attach conditions to the grant of a firearms certificate.

Held by Fennelly J. (Macken, O'Donnell JJ. concurring), that a Superintendent had an implied power pursuant to s. 2(2) to impose conditions as otherwise, to read the provision literally, would not limit the use of the firearm in any way. The appeal would be dismissed on this basis and the order of the High Court affirmed as to the first and second applicants. As to the third applicant, the Minister had no function to formulate policy and the decision did communicate a rigid inflexible policy. The decision should have been quashed on judicial review but now delay had beset the proceedings, now relating to a decision made seven years ago. A declaration would be granted that the Minister had made an unlawful decision by basing it on an inflexible policy.

Reporter: E.F.

1 JUDGMENT of Mr. Justice Fennelly delivered the 11th day of May 2010.

2 1. Three judges of the High Court have refused applications for judicial review of decisions refusing applications for firearms certificates in two cases and, in one case, an import licence. The solicitors representing the appellants in each of these three cases represents the National Association of Regional Games Council, which, according to the solicitors, had supported dozens of legal challenges to what were claimed to be breaches of the Firearms Legislation by the Garda Commissioner, Garda Superintendents and the Minister for Justice Equality and Law Reform. Certainly, there were a number of judicial review challenges to decisions of Garda Superintendents in the year 2008.

3 2. Each application has to be considered according to its individual merits under the terms of the Firearms Act, 1925 as amended by the Firearms Act, 1964. The firearms legislation has been so radically amended since the occurrence of the events giving rise to these proceedings, by the Criminal Justice Act, 2006 and the Criminal Justice (Miscellaneous Provisions) Act, 2009, that the outcome of the appeals is of limited, if any, practical importance for the future.

4 3. The three appeals arise in the following circumstances;

5 · Mr. McCarron applied in November 2005 at Letterkenny Garda Station for a firearms certificate for a .40 Gloc pistol for use in target practice. The respondent, Superintendent Kearney, the garda superintendent for the district, refused the application pursuant to section 4(a) of the Firearms Act, 1925 on the ground that he did not believe the firearm in question was a suitable weapon for target practice. Mr. McCarron submits that the garda superintendent had no power to consider the calibre of the weapon, once he, as applicant, had provided a "good reason," namely target practice, for wishing to use it. Charleton J. dismissed his application for judicial review of the decision.

6 · Mr. Magee applied to the Superintendent of An Garda Síochána in Wicklow in 2006 for the renewal of a firearms certificate in respect of .22 Sig. pistol. The respondent, Superintendent Denis Roche, issued a certificate on 4 ^th October 2006 for the period until 31 ^st July 2006, subject to a number of conditions. The conditions limited Mr. Magee's possession and use of the pistol to travelling to and from a firing range specifically authorised of which he was a member. Mr. Magee claims that the respondent had no lawful power to impose any conditions other than in relation to the possession of ammunition. Birmingham J. dismissed his application for judicial review of the decision to impose conditions.

7 · Mr. McVeigh, who is a registered firearms dealer, applied in October 2002 to the Minister for Justice Equality and Law Reform for an occasional licence for the importation of a Westley Richards double barrel .470 calibre rifle. The Minister refused on the ground that it was current policy to grant firearms certificates only for certain specified firearms, in the case of rifles, only up to a calibre of .22 inches. Mr. McVeigh complains that the Minister had improperly fettered his discretion to consider the application by referring to a fixed and inflexible policy.

8 4. The first two cases raise two specific points of statutory interpretation regarding the powers of Superintendents of An Garda Síochána in granting or refusing firearms certificates. In the third case, the question is whether the Minister had declined properly to exercise his discretion by rigidly adhering to a fixed policy. Each case arises under the Firearms Act, 1925 as amended by the Firearms Act, 1964.

The Legislation

9 5. No claim can be made that our Constitution guarantees any citizen the right to possess or use firearms. The Act of 1925 declares itself, in its long title, to be "an act to place restrictions on the possession of firearms and other weapons and ammunition..." It makes it unlawful to possess or use a firearm without a form of licence called a firearms certificate. The power to grant a firearms certificate was given to the Superintendent of any district.

10 6. Section 2(3), as amended by the Act of 1964, lists some exceptions, not relevant to any of the present cases, to the need for a firearms certificate. The most obvious examples are use in the defence or police forces.

11 7. Section 1(1) defines a firearm as meaning "a lethal firearm or other lethal weapon of any description from which any shot, bullet, or other missile can be discharged..." The Act contains definitions and other provisions relating to ammunition, which are not of central importance to any of the current cases. I will concentrate on the provisions relating to firearms.

12 8. Section 2 is the key provision around which much of the Act revolves. It criminalises the use or possession of firearms or ammunition in the following terms:

13 2 "(1) Subject to the exceptions from this section hereinafter mentioned, it shall not be lawful for any person after the commencement of this Act to have in his possession, use, or carry any firearm or ammunition save in so far as such possession, use, or carriage is authorised by a firearm certificate granted under this Act and for the time being in force.

14 (2) Save in any of the cases hereinafter...