McVEIGH v MINISTER for JUSTICE, EQUALITY & LAW REFORM

• Jurisdiction: Ireland
• Judge: Mr. Justice Roderick Murphy
• Judgment Date: 17 December 2004
• Neutral Citation: [2004] IEHC 405
• Docket Number: [No. 442 J.R./2003]
• Court: High Court
• Date: 17 December 2004

[2004] IEHC 405

THE HIGH COURT

[No. 442 J.R./2003]

McVEIGH v. MINISTER FOR JUSTICE, EQUALITY & LAW REFORM

JUDICIAL REVIEW

BETWEEN/

NEIL McVEIGH

APPLICANT

And

THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM

RESPONDENT

Citations:

FIREARMS ACT 1925 S17(4)

FIREARMS ACT 1925 S17(2)

FIREARMS ACT 1964 S28(1)

FIREARMS ACT 1925 S2(c)

FIREARMS ACT 1990 S4(1)

FIREARMS ACT 1990 S4(2)(a)

FIREARMS ACT 1990 S3

FIREARMS ACT 1990 S4(2)(a)

FIREARMS ACT 1925 S2

FIREARMS ACT 1925 S9

FIREARMS ACT 1925 S9(8)

FIREARMS ACT 1925 S9(9)

FIREARMS ACT 1971 S6

FIREARMS ACT 1925 S10(1)

FIREARMS ACT 1925 S10(2)

FIREARMS ACT 1925 S17(3)

MURPHY V DUBLIN CORPORATION 1972 IR 215

MCLOUGHLIN V MIN FOR SOCIAL WELFARE 1958 IR 1

MISHRA V MIN JUSTICE 1996 1 IR 189

BRITISH OXYGEN LTD V MIN FOR TECHNOLOGY 1971 AC 610

R V PORT OF LONDON AUTHORITY EX PARTE KYNOCH 1919 1 KB 176

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

CARRIGALINE COMMUNITY TELEVISION BROADCASTING CO LTD V MIN FOR TRANSPORT 1997 1 ILRM 241

MCGEOUGH, STATE V LOUTH CO COUNCIL 1956 107 ILTR 13

MCNAMEE V BUNCRANA UDC 1983 IR 213

O'MAHONY V ARKLOW UDC 1965 IR 710

DEVLIN V MIN FOR ARTS 1999 1 IR 47 1999 1 ILRM 462

FIREARMS ACT 1925 S17

FIREARMS ACT 1925 S10

Abstract:

Judicial review - Whether the Minister was entitled to rely on a current policy in refusing an application for a firearms licence - Firearms Acts, 1925 as amended

Facts: The applicant, who was a registered firearms dealer sought an order quashing the Minister’s refusal to grant him an occasional import licence for a specific firearm. The applicant also sought a declaration by way of an application for judicial review that the decision to refuse to grant him an occasional import licence on the basis of a stated current policy was ultra vires the provisions of the Firearms Acts, 1925 in that it constituted a fettering of a discretion under the Acts and/or failed to have regard to the fact that as a firearms dealer the applicant was not required to possess a firearms certificate in respect of firearms in his possession in the course of his trade.

Held by Murphy J. in refusing the application:

1. That the Minister’s discretion was not fettered by the implementation of his policy. The Minister was entitled to have regard to appropriate policy considerations when deciding whether to grant a licence. The Court could only interfere with the decision of the Minister where the reasons stated for the adopted policy were such that no reasonable authority could have relied on them. In the present case the Minister had not acted in an unreasonable manner in the exercise of his discretion.

2. That the applicant had some obligation to give reasons why the Minister should deviate from a general policy. However, the applicant failed to advance any reason why an exception to the Minister’s policy should be made in this case.

Reporter: L.O’S.

Mr. Justice Roderick Murphy

1.Outline

1 The applicant sought an order quashing the Minister's refusal to grant him an occasional import licence for a Westley Richards double-barrel .47 firearm. Leave to appeal had been granted by Peart J. on 23^rd June, 2003. The matter came for hearing before this Court on 12^th October, 2004.

2 The application for the licence had been made two years beforehand on 16^th October, 2002, under the Firearms Acts,1925as amended for that and another firearm.

3 The applicant's grounding affidavit exhibited the relevant correspondence.

4 By letter, dated 24^th October, 2002, the application was refused. That letter stated:-

"… please note that prior consent for the importation of a Westley Richards Double-Barrelled .470 calibre rifle … has NOT been granted. It is current policy to grant firearms certificates for only shotguns, crossbows, unrifled air guns and rifles up to .22 inches (5.6 mm.) except in the case of deer hunting and competitive target shooting when bolt-action rifles up to .270 inches (6.8 mm. approx.) are authorised. Pistols, air pistols, revolvers, hand guns and stun guns are totally prohibited."

5 The policy referred to the grant of acertificate (italics added) which was within the discretion of the relevant superintendent of the gardaí. An import licence (italics added) was granted by the Minister in respect of a bolt-action rifle with a calibre of 243. The licence was issued subject to the condition that the applicant would not arrange to import the firearm until he had applied at his local garda station for a firearms certificate which was a matter for the local superintendent.

6 By letter dated 3^rd January, 2003 the applicant's solicitors referred to s. 17(4) of the Firearms Act,1925, as amended. There is no requirement in that provision for a registered firearms dealer to hold a certificate in respect of the firearm in respect of which an occasional licence was sought. It was submitted that the basis upon which the application was refused was not a valid reason under the legislation. The policy in relation to the granting of a firearms certificate was not a valid consideration. The failure on the part of the respondent to issue an occasional importation licence to the applicant in the ordinary course of his business as a registered firearms dealer constituted a restraint on his capacity to trade as such, both within this jurisdiction and within the European Union. That letter concluded that the legitimacy or otherwise of the "current policy" as the ground for refusal had no relevance to the application.

7 On 17^th January, 2003 the respondent replied:

"Firearms certificates and importation licences may only be granted in respect of those firearms which come within the current policy for granting such certificates and licenses.

It is current policy to grant firearms certificates and Importation Licences only for shotguns, crossbows, unrifled air guns and rifles up to .22 inches (5.6 mm) except in the case of deer hunting and competitive target shooting when bolt-action rifles up to .270 inches (6.8 mm approx.) may be authorised. Pistols, air pistols, revolvers, hand guns and stun guns are totally prohibited.

As the firearm which Mr. McVeigh wishes to import does not come within these categories, his application is refused."

8 The applicant relies on this letter of 17^th January, 2003 for the purpose of the present application for judicial review. It refers to "current policy for granting such certificates and licences" leave to bring an application for judicial review was granted with six months of this letter on 23^rd June, 2003.

9 In a further letter from the applicant's solicitors, dated 28^th January, 2003, it was submitted that it was legitimate for the applicant, as a firearms dealer, to possess a 470 calibre rifle for the purpose of sale either in the State or for export abroad. There was no provision in the Firearms Acts which removed the discretion vested in individual superintendents as to whether to issue a certificate or not in respect of the firearm in question. It remained possible that such a firearm would be certified in appropriate circumstances. Similarly, it remained possible for the Minister to authorise the use of such firearms in the State in respect of persons holding European Firearms Passes. The Minister was requested to respond, setting out the statutory basis for the refusal to grant the import licence and for refusing to grant certificates. A similar letter was sent to the Minister for Defence.

10 The respondent Minister replied on 6^th February, 2003 as follows:

"I wish to confirm that in accordance with the provisions of the Firearms Acts, 1925–2000, a firearms dealer is not required to hold firearms certificates in respect of the firearms in which he is trading. As already stated in previous correspondence, current policy in regard to the licensing of firearms allows for only certain categories of firearms to be licensed. Therefore it follows that a firearms dealer, may only trade in those firearms as defined by policy. The policy is not set out on a statutory basis.

As regards the refusal of the importation licence, your attention is drawn to the provisions of s. 17(4) of the Firearms Act,1925, which provides, inter alia, that “an occasional importation licence … may be … granted by the Minister” which confers a discretionary power on the Minister."

11 This letter referred to "current policy in regard to licensing".

12 The letter continued to deal with the European Firearms Pass which is not relevant to the present application.

13 The letter finally referred to s. 17(2) of the Firearms Act,1925in relation to the grant of an occasional licence to import a prohibited weapon being granted by the Minister for Defence which was revoked by s. 28(1) of the Firearms Act,1964.

14 The applicant exhibited the certificate of renewal of registration of a firearms dealer for the relevant period 28^th November, 2002 to 27^th November, 2003 in his affidavit grounding the application. There is no indication as to. conditions, if any, in respect of which the original registration or licence was subject.

2.Relief Sought

15 The applicant, on 23^rd June, 2003, was granted leave to apply by way of application for judicial review for the following relief:-

16 (1) An Order ofcertiorari quashing the decision of the respondent to refuse to grant an occasional import licence which said decision was first communicated by letter dated 24^th October, 2002, and confirmed by letters dated 17^th January, 2003, and6^th February, 2003;

17 (2) A declaration by way of application for judicial review that the decision to refuse to grant an occasional import licence to a registered firearms dealer on the basis of a stated current policy [was]ultra vires the provisions of the Firearms Acts,1925in that it constituted a fettering of a discretion under the Acts and/or failed...