McCarron v Kearney

• Jurisdiction: Ireland
• Judge: Mr. Justice Charleton
• Judgment Date: 04 July 2008
• Neutral Citation: [2008] IEHC 195
• Court: High Court
• Date: 04 July 2008

McCarron v Superintendent Kearney

JUDICIAL REVIEW

BETWEEN

RONAN McCARRON

APPLICANT

AND

SUPERINTENDENT PEADAR KEARNEY

RESPONDENT

[2008] IEHC 195

No. 626 JR/2006

THE HIGH COURT

FIREARMS

Certificate

Judicial review - Refusal of application for firearm certificate - Large calibre handgun - Illegality of possession unless authorised by garda superintendent - Privilege - Conditions to be applied by superintendent - Whether good reason for requiring firearm - Whether applicant could be permitted to possess handgun without danger to public - Whether applicant person disentitled to hold certificate - Definition of firearm - Discretion of superintendent - Legislative policy - Considerations of public safety - Purpose of licensing - Reasonableness of decision - Whether decision fundamentally at variance with reason - Guiding principles - Authority of individual superintendent over discretion - Whether discretion fettered - Availability of alternative remedy - Right of appeal - State (Keegan) v Stardust Victims' Compensation Tribunal [1986] IR 642, N v Minister for Justice [2008] IEHC 107 (Unrep, Charleton J, 24/4/2008), Dunne v Donohoe [2002] 2 IR 533, Mishoa v Minister for Justice [1996] 1 IR 189, Lennon v District Judge Clifford [1992] 1 IR 382, Stokes v District Judge O'Donnell [1999] 3 IR 218, O'Reilly v Mackman [1983] 2 AC 237, Goodison v Sheehan [2008] IEHC 127 (Unrep, Peart J, 2/5/2008), O'Leary v Maher [2008] IEHC 113 (Unrep, Clark J, 25/4/2008), Stefan v Minister for Justice [2001] 4 IR 203, McGoldrick v An Bord Pleanála [1997] 1 IR 497 and AZ v Refugee Appeals Commissioner [2008] IEHC 36 (Unrep, McGovern J, 6/2/2008) considered - Firearms Act 1925 (No 17), ss 4, 5 and 15 - Criminal Justice Act 2006 (No 26), ss 26 and 43 - Firearms (Restricted Firearms and Ammunition) Order 2008 (SI 21/2008) - Application refused (2006/626JR - Charleton J - 4/7/2008) [2008] IEHC 195

McCarron v Superintendent Kearney

: The applicant was trained in pistol, rifle and shotgun shooting. He purchased a firearm and applied for a firearms certificate. The respondent superintendent refused him the certificate and the applicant contended that once no reason existed to refuse him the certificate that the entitlement followed and that the decision of the respondent was unreasonable and had allowed his discretion to be fettered.

Held by Charleton J. that there was a duty on the applicant to satisfy the respondent that there was a good reason for requiring the firearm for which the certificate was applied for. The ordinary test for reasonableness applied. The respondent had not fettered his discretion. The respondent had not misconstrued his powers and the application for judicial review had to be refused. Codification of this area of law was desirable.

Reporter: E.F.

FIREARMS ACT 1964

FIREARMS ACT 1971

FIREARMS & OFFENSIVE WEAPONS ACT 1990

FIREARMS (PROOFING) ACT 1968

CRIMINAL JUSTICE ACT 2006 PART V

CONSTITUTION 2ND AMDT (USA)

FIREARMS ACT 1925 S5

FIREARMS ACT 1925 S4

FIREARMS ACT 1925 S4(b)

FIREARMS ACT 1925 S4(c)

FIREARMS ACT 1925 S4(a)

KEEGAN, STATE v STARDUST VICTIMS COMPENSATION TRIBUNAL 1986 IR 642

N (FR) & ORS (SUSAN O) v MIN JUSTICE & ORS UNREP CHARLETON 24.4.2008 2008 IEHC 107

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

MISHRA v MIN FOR JUSTICE 1996 1 IR 189

LENNON v CLIFFORD 1992 1 IR 382 1993 ILRM 77

STOKES v O'DONNELL 1999 3 IR 218 1996 2 ILRM 538

O'REILLY v MACKMAN 1983 2 AC 237

GOODISON v SHEAHAN UNREP PEART 2.5.2008 2008 IEHC 127

O'LEARY v MAHER UNREP CLARK 24.4.2008 2008 IEHC 113

FIREARMS (RESTRICTED FIREARMS & AMMUNITION) ORDER 2008 SI 21/2008

CRIMINAL JUSTICE ACT 2006 S43

FIREARMS ACT 1925 S15A

STEFAN v MIN FOR JUSTICE & REFUGEE APPEALS AUTHORITY 2001 4 IR 203 2002 2 ILRM 134

MCGOLDRICK v AN BORD PLEANALA 1997 1 IR 497

Z (A) v REFUGEE APPEALS COMMISSIONER UNREP MCGOVERN 6.2.2004 EX TEMPORE

1 1. For the last four years the applicant has been pursuing shooting as a sport. He is trained in pistol shooting, in rifle shooting and in shotgun shooting. In late 2005, he purchased a .40 calibre Gloc model 22, pistol and then applied for a firearm certificate under the Firearms Act 1925, as amended, to the respondent, who is the superintendent of An Garda Síochána in the Garda district where he resides. In consequence of his application, he was visited at home by a crime prevention officer who made requirements in relation to securing the weapon, in a firearms cabinet, should a license to possess the gun be granted by the respondent. On 24 ^th February, 2006, the applicant visited the respondent at Letterkenny Garda Station. He says he was then informed that the respondent was refusing his application for a firearm certificate because the pistol was a combat weapon and that he would only consider an application for an Olympic-standard handgun of .22 calibre. The applicant says that there is no statutory basis on which he could have been refused a firearm certificate in respect of the weapon in question. He argues in this judicial review application that once he has decided in good faith to buy a weapon that it must be licensed by the respondent provided he is not a person who is ineligible under the Act to hold a firearm and provided he has been trained to safely use it.

The Refusal

2 2. The applicant felt aggrieved by the refusal of the respondent to grant him a firearm certificate in respect of his .40 calibre Gloc pistol. Through his solicitors, he wrote to the respondent asking for his reasons in writing. In consequence the respondent superintendent replied on 22 ^nd March, 2006, in the following terms:-

"I refer to yours of 8 ^th March, 2006, in the above matter. I met with Mr. McCarron on 24 ^th February, 2006, and outlined to him that I was not satisfied that he had a good reason for acquiring a .40 Gloc pistol in respect of which the certificate was applied for, s. 4(a) of the Firearms Act, 1925, as amended refers. My reason for this is that I do not believe that the firearm for which the application refers is a suitable weapon for target practice."

3 3. It is unfortunate that a number of allegations were directed against the respondent superintendent by the applicant. It was said, on affidavit, that the respondent refused, in general and as a kind of policy, to grant certificates for this type of firearm; that he had "a mental block against granting certificates above a certain calibre"; and that he was "prejudiced by an unfounded view that such calibre firearms are combat weapons". A temperate and dignified answer to these allegations was provided by the respondent at para. 4 of his affidavit. I accept this evidence. This reads in part:-

"I say… that Mr. McCarron was also informed that an application for a firearm certificate for a .22 or a .177 target pistol would be considered. I explained the reasons for this approach… when I met with Mr. McCarron on 24 ^th February, 2006…I explained to Mr. McCarron that I was refusing the application under s. 4(a) of the Firearms Act 1925, on the grounds that I was not satisfied that he had a good reason for requiring the particular firearm because I did not believe that it was a suitable weapon for target practice. I did advise Mr. McCarron that, in my view, the firearm in respect of which he had sought a certificate was a combat weapon and that, as such, while it could of course be used for target shooting in that an individual could shoot it at a target, it was not suitable for same when weighed against the dangers of such a firearm. I further informed Mr. McCarron that in reaching my decision I considered that this type of weapon was one declared to be particularly dangerous by the Firearms (dangerous weapons) Order, 1972. However, I did not say that I "would not license a handgun of higher calibre than an Olympic standard handgun - in other words a .22 calibre handgun". I consider applications for firearm certificates on their merits and if I receive an application for a handgun with a greater calibre and there is good reason for acquiring same I would (provided I am satisfied of all the matters contained in the Firearms Act), grant a certificate for same. However, I believe that the calibres used in Olympic type shooting competitions are non military/police calibres and present less of a risk to society and participants than the type of handgun for which the applicant seeks a certificate. In short, Mr. McCarron stated that he required this particular gun for target shooting; I am not satisfied that same is suitable for target shooting given the dangers inherent in such a gun, although I concede that it can be used for same and I am therefore not satisfied that Mr. McCarron has a good reason for acquiring this particular handgun. I should also say that even if this type of handgun is the only one that is suitable for the particular type of shooting in which Mr. McCarron wishes to engage, I am not satisfied that such a use is a good reason for acquiring this particular gun."

Legislative Background

4 4. The essential law regulating the use and possession of firearms is contained in five Acts of the Oireachtas: The Firearms Acts 1925, 1964 and 1971, the Firearms and Offensive Weapons Act 1990, and the Firearms (Proofing) Act 1968. The commencement of this action pre-dated the passing of the Criminal Justice Act 2006. In this last Act however, in Part 5, amendments are made to the Firearms Act 1925. Anyone attempting to deal with the law regulating firearms and ammunition has to have regard to six Acts of the Oireachtas together with a number of Statutory Instruments. There is no constitutional provision providing for any right to keep lethal firearms such as that in the Second Amendment to the...