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You are here: BAILII >> Databases >> Supreme Court of Ireland Decisions >> Dunne v. Donohoe [2002] IESC 35 (1 May 2002) URL: http://www.bailii.org/ie/cases/IESC/2002/35.html Cite as: [2002] IESC 35, [2002] 2 IR 533, [2002] 2 ILRM 200 |
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1. The
possession and use of firearms is regulated by a number of statutes, of which
the most important in the context of the present proceedings are the Firearms
Acts of 1925 and 1964 (hereafter “the 1925 Act” and “the 1964
Act” respectively). The 1925 Act prohibits the possession or use of
firearms except where a certificate is granted to the person concerned under
the provisions of the Act by the Superintendent of An Garda
Síochána of the district in which the person resides.
2. The
present proceedings are the result of a directive entitled “Security
Arrangements for Licensed Firearms” (“Directive 53/00”)
issued by the second named respondent, an assistant commissioner of An Garda
Síochána, to each officer, inspector and station of An Garda
Síochána on 15th March 2000. The directive purported to require
certain security arrangements to be in place before firearm certificates were
issued: in particular, the holders of firearms were required to keep them when
not in use in a properly constructed and locked firearms cabinet. Wooden
cabinets were not permitted and the keys of the cabinet were to be separately
stored. Those requirements were of general application: in the case of rifles
in excess of .22 calibre, there were more stringent requirements.
3. This
was the last of a series of circulars from Garda headquarters dating from
November 1989 relating to the holding of firearms and which were said to be
prompted by a growing concern on the part of the garda as to the incidence of
larcenies of such weapons from private premises and motor vehicles.
4. In
these proceedings, the legal validity of these requirements is challenged by
the first and second named applicant. The first applicant is the
administrator/director of the second applicant which is the largest voluntary
organisation in Ireland involved
inter
alia
in game shooting, its membership being made up of the members of 885 gun clubs
throughout the country. They were granted leave by the High Court to institute
proceedings by way of judicial review, claiming a number of reliefs in the form
of certiorari, injunction and declarations in respect of Directive 53/00 on
various grounds.
5. A
statement of opposition having been filed on behalf of the
respondents/appellants, the substantive proceedings came on for hearing before
Ó Caoimh J. He concluded that the applicants were entitled to orders of
certiorari quashing Directive 53/00 and the decision of the first named
respondent (the superintendent of the district in which the first applicant
resides) requiring him to install a firearms cabinet and/or to provide security
arrangements which should be available for inspection before his firearm
certificate was renewed.
8. Before
considering the submissions of the parties, I should refer to the statutory
provisions in more detail. The long title to the 1925 Act describes it as
9. Section
2(1) provides that, subject to specified exceptions, it is not to be lawful for
any person to possess, use or carry any firearm or ammunition except as
authorised by a firearm certificate granted under the Act and in force. The
possession, use or carriage of firearms, save in the excepted cases, without a
certificate is an offence punishable under the provisions of the Act.
10. Section
3(1) provides that
11. I
should note at this point that, in the case of persons not ordinarily resident
in Ireland, a firearm certificate may be granted by the Minister for Justice,
Equality and Law Reform under s. 3(2).
13. The
categories of persons disentitled to hold a firearm certificate are set out in
s.8, as amended by s.17(b) of the 1964 Act as follows:
14. Section
5 of the 1925 Act empowers the superintendent of the Garda
Síochána of the district in which the holder of a firearm
certificate resides to revoke the certificate at any time if he is satisfied
that the holder
15. The
renewal of firearm certificates is dealt with by s.9 of the 1964 Act: they may
be renewed by a member of the Garda Síochána not below the rank
of a sergeant in the district in which the holder resides if he is so
authorised in writing by the superintendent of the district. However, the
member concerned cannot refuse to renew a particular firearm certificate unless
he is so authorised by the superintendent of the district.
16. The
exemptions from the requirements of s.2 as to the holding of a certificate are
set out in s.s.(4) which was inserted by s.15 of the 1964 Act. While for the
purposes of this judgment it is unnecessary to set them out in detail, the
exemptions extend to the possession, use or carriage of firearms or ammunition
by
17. The
power to grant authorisations for the purposes of these provisions is also
vested in the superintendent. Section 2(5)(b) of the Act of 1925, also
inserted by s.15 of the 1964 Act provides that
18. Finally,
s.8(1) of the Police Forces (Amalgamation) Act, 1925 under which the Dublin
Metropolitan Police and the Garda Síochána were amalgamated,
provided that
20. On
behalf of the appellants, Mr. Senan Allen SC submitted that the control of
firearms was quintessentially an operational policing matter and the fact that
the power to regulate the possession of firearms was statutory in origin did
not make their control any less an operational matter. As such, it was capable
of being regulated in accordance with directions made under the Police Forces
(Amalgamation) Act, 1925, unless a contrary intention was to be found in the
1925 and 1964 Acts.
21. Mr.
Allen submitted that the High Court judge had erred in law in concluding that,
because a licensing function was conferred on Garda superintendents as
personae
designatae
,
the power in question could be exercised at their absolute discretion.
22. Mr.
Allen further submitted that, while the intention of the 1925 and 1964 Acts was
that the function of issuing firearm certificates was to be exercised at local
level by senior officers of the Gardaí, there was nothing in the Acts
which expressly, or by necessary implication, conferred on the superintendents
a role or function independent of their position as officers of an Garda
Síochána or of the established hierarchical structure of a
disciplined force.
23. Mr.
Allen submitted that while part of the rationale of conferring the licensing
jurisdiction on the superintendent of the district was to facilitate inquiries
as to the identity and character of an applicant and the relevance of local
conditions and local needs, it did not follow that the Oireachtas was removing
from the Commissioner any power to ensure minimum acceptable standards of
public safety. That conclusion would not be consistent with the structure of
the police force as clearly and unambiguously required by the Oireachtas. He
submitted that the decisions in the
State
(Rajan) -v- Minister for Industry and Commerce
[1998] ILRM 231 and
McLoughlin
-v- Minister for Social Welfare
[1958] IR1, relied on by the respondents, related to entirely different
statutory regimes and had no application to the circumstances of the present
case. He also cited in support of his arguments the decision of Kelly J in
Mishra
-v- Minister for Justice
[1996] 1IR 189.
24. As
to the second ground on which the High Court judge had found in favour of the
respondents, Mr. Allen submitted that the High Court judge had accepted that,
in considering the circumstances in which an applicant for a firearm
certificate could have a firearm in his or her possession without danger to the
public safety of peace, a Garda Superintendent could take account of the
conditions under which those firearms were stored and that this finding by him
had not been the subject of any notice to vary. Mr. Allen submitted that it
followed that a decision of a Garda Superintendent to require all applicants
for firearm certificates in his district to have a gun safe in which to store
their weapons was one which was permitted under the 1925 Act. Hence, even if
the appellants’ argument that the exercise by garda superintendents of
their licensing power under the 1925 Act could not be fettered by a directive
such as Directive 53/00, a superintendent was nonetheless entitled to decide,
in the independent exercise of his statutory functions, that the requirements
of public safety in his district generally, or in the particular area in which
the applicant resided, would require the application of a more stringent
standard or perhaps could not be met at all. He submitted that sensitive
security issues of this nature could not be determined in an
ad
hoc
manner, not merely differing from district to district but even from applicant
to applicant.
25. On
behalf of the respondents, Ms. Mary Finlay SC submitted that it was noteworthy
that it was not contested on behalf of the appellants that, as found by the
learned High Court judge, Directive 53/00 was mandatory in its terms and
intended to be binding on superintendents. The general provisions in s.s. 8
and 9 of the Police Forces (Amalgamation) Act 1925 could not be construed as
derogating from or amending the express provisions of the Firearms Acts 1925 -
2000.
26. She
further submitted that the superintendent is a
persona
designata
in whom a discretion is vested under s.s. 3 and 4 of the Firearms Act 1925 in
relation to the granting of firearm certificates and under s.9 of the 1964 Act
in relation to renewals, subject to the power of delegation in respect of the
latter function. It was impermissible for a superintendent to exercise such a
discretion by acting on the instructions of any other party, including the
Commissioner or Assistant Commissioner, or adopting a rigid policy not
expressly authorised by the relevant statutes.
27. Ms.
Finlay further submitted that the qualification “general” in s. 8
of the Police Forces ( Amalgamation) Act 1925 emphasised that the
Commissioner’s directive authority was not intended to extend to the
exercise of a garda’s power in individual cases, citing in support
observations of Professor Dermot Walsh in
The
Irish Police: A Legal and Constitutional Perspective
(Dublin 1998) at p.70.
28. She
further submitted that the learned High Court judge was correct in interpreting
s.8 of that Act as applying only to operational matters and in concluding that
the licensing function of superintendent under the 1925 Act and the 1964 Act is
not such an operational matter, involving as it does the exercise of a
regulatory power conferred by the Oireachtas on designated persons. This was
borne out by the fact that, in the case of non-residents, the function was
assigned to the Minister for Justice, Equality and Law Reform. It could not be
said that the latter was exercising a power which related to an operational
policing matter and it followed that the same considerations applied to a
superintendent who was exercising a statutory power couched in almost identical
language.
29. She
further submitted that, where the Oireachtas confers a decision-making power on
a
persona
designata
,
that individual alone may exercise the power and it is not permissible for him
or her to exercise it in accordance with the dictates of another body of
authority. She cited in support the decision of this court in
Murphy
-v- Dublin Corporation
[1972] IR 215, the
State (McLoughlin) -v- Minister for Social Welfare
and the
State
(Rajan) -v- Minister for Industry and Commerce.
30. Ms.
Finlay submitted that, on the facts of this case, strictly speaking the second
issue did not arise, as it was not in dispute that the first named appellant
was at all material times acting in accordance with the directive of the second
named appellant. Without prejudice to that submission, she said that the
imposition of a condition requiring the construction of a gun safe and its
inspection by the gardaí as a precondition to the issue or renewal of a
firearm certificate was
ultra
vires
the powers conferred on superintendents by the Firearms Act 1925 - 2000.
31. She
further submitted that to construe the relevant provisions of the 1925 Act as
conferring a power on a superintendent to impose preconditions of this nature
would be inconsistent with the provisions of the Constitution under which the
sole and exclusive power of making laws for the State was vested in the
Oireachtas, citing in support the decisions of this court in
Cityview
Press Limited -v- An Comhairle Oiliuna
[1980]
IR 381,
Cassidy
-v- Minister for Industry and Commerce
[1978] IR 297 and
O’Neill -v- The Minister for Agriculture
[1998] 1IR 539. In requiring the instalment by citizens of gun safes which
would be available for inspection, it was inconsistent with the provisions of
the 1925 Act which conferred powers of search in respect of certain other types
of premises, but not in respect of private dwellings: the application of the
expressio
unius
principle would preclude the existence of any implied power on the part of
Garda Superintendents to conduct inspections of private dwelling houses. It
was also inconsistent with the right to the inviolability of the dwelling
protected by Article 40.5 of the Constitution.
32. In
considering the submissions advanced on behalf of the parties in this case, it
should be noted, at the outset, in relation to the first issue, that the power
conferred by s.3 of the 1925 Act on garda superintendents to grant firearm
certificates is one of a wide range of powers in various areas conferred by
legislation: one could instance the Betting Act 1931, the Public Dance halls
Act, 1935, the Gaming and Lotteries Act, 1956 and the Intoxicating Liquor Acts.
One is entitled to assume that in all such instances the Oireachtas decided
that the power should be exercised by a senior garda officer in a particular
locality for what seemed to them (the Oireachtas) good reasons, but they would,
of course, have been perfectly entitled to confer the power in question on
another body, such as a court of local and limited jurisdiction, a local
authority or some other state agency.
33. It
follows, in my view, that the learned High Court judge was correct in holding
that the power conferred on garda superintendents by s.2 of the 1925 Act was
conferred on him as a
persona
designata
and that, accordingly, it vested in him a discretion which he could not
abdicate to anyone else. Accordingly, while he can only exercise that
discretion within any relevant statutory limitations, he cannot be required to
exercise it in any particular manner by any other body or authority.
34. That
conclusion is supported by the decision of the former Supreme Court in
McLoughlin
-v- the Minister for Social Welfare
[1955] IR 1. In that case, an appeals officer in the Department of Social
Welfare had purported to determine a question which came before him as to
whether the appellant was in the employment of the Civil Service of the
Government by reference to a minute from the Minister for Finance directing him
so to hold. O’Dalaigh J., as he then was, characterised that view of his
function as
35. Similarly,
in the
State
(Rajan) -v- The Minister for Industry and Commerce and Others
,
the High Court (Barron J), found to be erroneous a belief of the Controller of
Patents, Designs and Trademarks that he had a general power of control over
examiners in his department. Acting on that belief, the Controller, who was
endeavouring to deal with arrears of work existing in his office, directed the
examiners to allow certain applications through with limited investigation and,
in certain cases, without any investigation whatsoever. Having cited the
decision in
McLoughlin,
Barron J went on to say that
36. Since
I am satisfied that the learned High Court judge was correct in so holding, the
second issue, strictly speaking, does not arise: it is acknowledged that the
first named appellant, in requiring the first named applicant to instal a gun
safe and have it available for inspection as a condition of having his firearm
certificate renewed, was acting in compliance with Directive 53/00. However,
even if he could be regarded as having exercised an independent judgment in the
matter, I am satisfied that a superintendent who imposed a precondition in the
case of all applications for the grant or renewal of firearm certificates that
the applicant should, at the least, instal a gun safe and have it available for
inspection, would be acting
ultra
vires
the provisions of the 1925 and 1964 Acts.
37. That
legislation empowers the superintendent to grant the firearm certificate where
he is satisfied as to three matters i.e., that the person has a good reason for
requiring the firearm, can be permitted to possess, use and carry it without
danger to the public safety or to the peace and is not one of the persons
disentitled by the statute to hold a firearm certificate. For a superintendent
to add, in effect, a fourth condition, by requiring every applicant to provide
a gun safe which would be available for inspection by the gardaí, would
be to place the applicants in the same position as if, in the case of that
particular district, the Oireachtas had so prescribed by primary or secondary
legislation. Neither the Commissioner nor the district officers have been
empowered by the legislature to impose such preconditions. (See, in this
connection, the judgment of Murphy J in this court in
O’Neill
-v- The Minister for Agriculture.)
39. That
passage, admittedly
obiter,
would appear to suggest that, in the view of the learned High Court judge, it
would be open to a superintendent, in the circumstances of a particular case,
to stipulate that the holder of one or more firearms could be required, as a
condition of being granted a licence, or obtaining a renewal of a licence, to
keep the firearm or firearms, when not in use, locked in a firearms cabinet.
No notice to vary was served in respect of that passage, and understandably so,
since this did not form any part of the reasoning by which the learned High
Court judge arrived at his decision. It is, accordingly, unnecessary to
express any view as to the circumstances in which the imposition of such a
condition might constitute the appropriate exercise of a discretion vested in a
superintendent under the 1925 Act or the implementation of a policy by him of
an inflexible and rigid nature which would be inconsistent with the proper
exercise of that discretion.