1. By
Order of this Court made the 17th July, 2000 Mr. Justice Butler granted to the
Applicants Martin Dunne and Desmond Crofton, leave to apply by way of an
application for Judicial Review for the relief of:
2. I. An
Order of Certiorari by way of an application for Judicial Review quashing the
Directive of the Second named Respondent (undated but officially announced on
June 7th 2000) which directs Superintendents of the Gárda
Síochána when issuing/renewing firearm certificates under the
Firearms Act, 1925 (as amended) to require the installation of a firearms
cabinet and to put in place security measures for the storage of firearms which
said facilities are to be inspected by the Gárda Síochána
prior to issue or renewal of the certificate.
3. II. An
Order (including interim and/or interlocutory order) by way of an application
for Judicial Review restraining the Respondents their servants or agents or any
person having notice of the making of the Order from enforcing the new
Directive and/or refusing to issue or renew firearms certificates by reason of
non-compliance with the said Directive pending the determination of the
proceedings herein.
4. III. An
Order (including interim and/or interlocutory order) by way of an application
for Judicial Review directing a stay on the implementation and/or enforcement
of the Directive the subject matter of these proceedings pending a
determination of the within proceedings.
5. IV. An
Order of Certiorari by way of an application for Judicial Review quashing the
decision of the First named Respondent to issue a notice to the First named
Applicant received on or about the 27th June 2000 requiring him to install a
firearms cabinet and/or to provide security arrangements which should then be
available for inspection before his Firearms certificate is renewed.
6. V. A
Declaration by way of an application for Judicial Review that the notification
received by the First named Applicant in or about the 27th day of June 2000
from the First named Respondent requiring him to put in place a gun safe and
make it available for inspection prior to the renewal of his firearms
certificate is ultra vires the powers of the First named Respondent under the
provisions of the Firearms Act, 1925.
7. VI. A
Declaration by way of an application for Judicial Review that the First named
Respondent and any Garda Superintendent who purports to require compliance with
the Directive issued by the Second named Respondent is acting ultra vires his
powers under the provisions of the Firearms Act 1925 and has unlawfully
fettered his discretion under the Act.
8. VII. A
Declaration that the Second named Respondent has no power under the Firearms
Act 1925 to direct Superintendents of the Gárda Síochána
to refuse to issue or renew firearms certificates in respect of individuals who
fail to meet the requirements of a Directive issued by him and that the said
Directive is ultra vires without legal basis and has no lawful or binding effect.
9. VIII. A
Declaration that the introduction of a new category of persons who shall not be
eligible for a firearms certificate and/or the introduction of a requirement to
install a gun safe and/or a power for the Gárdai to inspect the private
property of applicants for a firearms certificate by way of a Directive from
the Second named Respondent constitutes an act of law making contrary to
Article 15.2 of the Constitution being measures which are not provided for in
the Firearms Act 1925 (as amended) or any other legislation.
10. IX. A
Declaration by way of an application for Judicial Review that any requirement
imposed by members of the Gárda Síochána that a
person’s private dwelling be inspected prior to the issue or renewal or
a firearm’s certificate is without lawful basis and infringes the
Constitutional and personal rights of the individual to equal and/or privacy
and/or inviolability of the dwelling contrary to Articles 40.1 and/or 40.3
and/or 40.5 of the Constitution.
11. X. A
Declaration by way of an application for Judicial Review that the decision of
the Second named Respondent to issue the said Directive is unreasonable and/or
the measures proposed are disproportionate and/or irrational.
12. XI. A
Declaration by way of an application for Judicial Review that the Directive
issued by the Second named Respondent which the First named Respondent is
purporting to implement is unconstitutional by reason of its disproportionate
impact on the constitutional rights of the individual including the First named
Applicant and all other members of the Second named Applicant.
13. XII. A
Declaration by way of an application for Judicial Review that in purporting to
introduce a different system for the assessment of applications for firearms in
respect of residents (administered by the Gárdai) as distinct from
non-residents (administered by the Minister for Justice Equality and Law
Reform) the new Directive is discriminatory and results in a discriminatory
system being introduced without lawful basis or proper purpose contrary to
Article 40.1 of the Constitution.
14. XIII. A
Declaration by way of an application for Judicial Review that in providing for
a power to assess the suitability of a person who applies for a certificate
under the Firearms Act 1925 the Legislature did not distinguish between
residents and non-residents and the clear purpose and meaning of Section 4(b)
was to permit refusal by reason of the character and conduct of the applicant
only the not by reason of his possession of a gun safe which the Superintendent
would inspect.
15. XIV. A
Declaration by way of an application for Judicial Review that the measures are
discriminatory as against non-property owners contrary to Articles 40.1 and
40.3 of the Constitution.
16. XV. A
Declaration by way of an application for Judicial Review that in exercise of
his powers under the Firearms Act 1925 and having regard to Section 4 of the
Act a Superintendent of An Gárda Síochána, including the
First named Respondent has power to make an assessment of the suitability of
the person having regard to his character and conduct but has no power to
refuse to issue a firearms certificate by reason of the security of the
premises in which the applicant lives and/or whether or not he has installed a
gun safe which has been made available for inspection.
17. XVI. An
Order of Mandamus by way of an application for Judicial Review directing the
Respondents their servants or agents to rescind in writing their notice to each
individual member of the Second named Applicant requiring the installation of
all security arrangements prior to the issue/renewal of a firearms certificate.
19. The
grounds upon which this relief was granted are those set out at paragraph E I-
XIX inclusive.
21. The
directive at issue in these proceedings indicates that the number of unlicensed
firearms which are being stolen from dwellings and unattended dwellings
continues to give cause for concern. Many of the firearms which are stolen are
subsequently used in the commission of crime. The directive indicated that in
future when granting or renewing Firearm Certificates, District Officers will
ensure that the following security arrangements are in place before issuing the
Firearm Certificate
22. In
fact a press release at the time indicated that as and from the 1st July, new
applicants for firearm certificate would have to install a steel storage
cabinet securely bolted to a wall in their dwelling in order to secure the
firearm when not in use. It was indicated that existing firearm certificate
holders would have to install such a cabinet by the 1st July, 2001. The
directive indicated the nature of the cabinet that should be installed and the
fixings or fastenings that must be used to secure a firearms cabinet. The
directive also indicated measures that should be put in place where the number
of firearms held by a person would render steel cabinets not to be suitable and
where a gun room was to be used to hold such firearms. The directive which was
signed by the second Respondent indicated towards its conclusion that
“the above recommendations are aimed at providing a satisfactory level of
security for the various categories of firearms. The storage facilities should
be available for inspection by a member of An Gárda
Síochána at all reasonable times. District Officers should
ensure that the above recommendations are strictly adhered to.”
23. It
was indicated in the content of the directive that District Officers will
ensure that the security arrangements set forth in the directive are in place
before issuing the firearm certificate. It was indicated that this directive
should be read in conjunction with an earlier circular or directive issued by
the Gárda Commissioner.
26. It
is indicated that while the circular in this case containing the directive uses
the term ‘recommendation’ it was intended to be mandatory in
nature.
27. A
Statement of Opposition was filed in these proceedings on about the 24th
November, 2000 by the Chief State Solicitor on behalf of the Respondents. The
Statement of Opposition pleads that the directive at issue in these proceedings
was made by the second named Respondent in the exercise of functions assigned
to him by the Commissioner of An Gárda Síochána under
Sections 8 and 9 of the Police Forces Amalgamation Act, 1925; by acting in
compliance with this directive, individual Gárda Superintendents
discharge their responsibilities under the Firearms Act of 1925 according to
law; and that the directive is not an unlawful interference in the manner in
which a Gárda Superintendent exercises his/her functions under Section 4
(b) of the Firearms Act, 1975 as alleged or at all. Amongst the other matters
pleaded in the Statement of Opposition are pleas that the directive neither
purports to, nor does in fact, create or grant a power of inspection to An
Garda Siochana; that the Commissioner of An Gárda Síochána
has a right to have a consistency of approach by Officers of An Gárda
Síochána who are mandated by their rank to exercise their
functions under legislation and that he has a similar right to have a
consistency and fairness of approach with the overriding factors being public
safety and duty of care.
28. The
Act provides for a Deputy Commissioner to exercise the powers and duties of the
Commissioner in certain cases and Section 9 of the same Act provides:-
29. It
was submitted on behalf of the Applicants by May Finlay S.C. that the
discretion vested in a Superintendent under sections 3 and 4 of the 1925 Act
and Section 9 of the 1964 Act is conferred expressly on a Superintendent in a
district where an Applicant resides and that such a person having been
conferred with a discretion is obliged to exercise this discretion
independently and may not act under the direction and dictation of any other
body. What is essentially at issue in these proceedings is whether a
Superintendent of the Gárda Síochána exercising the
discretion vested by the Act of 1925 and subsection 3 and 4 thereof in
particular may be subject to the direction of the Commissioner in the discharge
of that function.
30. It
is further submitted that the conditions appearing at Section 4 of the Act of
1925 relate to the character of the person applying for a certificate and,
insofar as the functions vested in a Superintendent of a district under
Sections 3 and 4 of the Act relate to functions to be exercised at a local
level, that such a Superintendent is a person who is likely to have personal
information relating to an Applicant. With regard to the provisions of
Sections 8 and 9 of the Police Forces Amalgamation Act of 1925 it is submitted
that these provisions relate to operational matters and do not entitle the
Commissioner to issue directions in relation to the exercise by officers
designated by law in the discharge of statutory functions.
31. With
reference to the fettering of a discretion vested in a Superintendent it is
submitted that where the Oireachtas confers a decision making power on a
persona designata then that individual must exercise the decision making power
conferred upon him/her and it is not permissible for the designated decision
maker to exercise power in accordance with the dictates of another body or
authority, that a person fails to exercise a discretion where she or he acts on
the instructions or dictation of another party or applies an inflexible policy;
both of these situations arise on the facts of the instant case in that the
Superintendent in whom the discretion is vested does not exercise the
discretion as was intended by the legislature but instead applies an inflexible
policy or rule which has been derived by another party who has no statutory
function in respect of the exercise of the discretion in question and further
that the only person vested with a discretion in the exercise of the power to
grant a firearm certificate is a Garda Superintendent in an area in which an
applicant resides or such other officer expressly provided for by law. No
function is given to the Garda Commissioner or the Assistant Commissioner
regarding the exercise of this discretion.
32. The
power vested in the Superintendent to grant a certificate is subject to his
being satisfied as to the requirements of Section 4 of the Act of 1925. The
exercise of a discretion by acting on the dictation of another person such as
the Commissioner constitutes the fettering of a discretion. By acting in
accordance with the directive of the second named Respondent the first named
Respondent, and other Garda Superintendents around the country neutralise the
discretion which was the intention of the legislature to create thereby
rendering the exercise of that discretion invalid.
33. Counsel
has adopted a Statement of Law set forth by Hillary Delaney in a recently
published book, ‘Judicial Review of Administrative Action-A Comparative
Analysis’ published by Roundhall, Sweet and Maxwell in Dublin 2001 where
at p. 101 of the text the author states as follows:-
34. In
support of her submissions counsel for the Applicants has referred this Court
to the decision in the case of
Murphy
-v- Dublin Corporation
[1972] I.R. 213 dealing with a persona designata and to the judgment of the
Supreme Court in the case of
McLoughlin
-v- Minister for Social Welfare
[1958] I.R. 1. In this latter case the appeals officer dealing with the Social
Welfare matter indicated that was bound to adhere to a direction given by the
Minister for Finance. At page 27 of the report O’Daly J. as he then was,
indicated that the action of the Appeals Officer to adhere to a direction
purported to have been given to him by the Minister for Finance was an
abdication by him of his duty as an appeals officer. He stated that the duty
is laid upon him by the Oireachtas and he is required to perform it as between
the parties that appear before him freely and fairly as becomes anyone who is
called upon to decide on matters of right or obligation. In light of this
statement of principle for the exercise of the discretion vested in Garda
Superintendent in Section 4 of the 1925 Act to be proper the Garda
Superintendent must act in a genuinely independent manner and not feel
constrained to act in accordance with any direction from an outside or higher
authority. With regard to Section 8 of the Police Forces Amalgamation Act,
1925 this relates to the authority of the Commissioner with regard to
operation matters and has no application to the exercise of a legislative
function such as that provided for in Section 4 of the Act of 1925.
35. Counsel
further referred this Court to the decision of the Kings Bench division in
Simms
Motor Units Limited -v- Minister of Labour
[1946] 2 All ER 201. Here the Court invalidated a reinstatement order made
under wartime labour regulations by a national service officer who was
empowered to direct reinstatement of workers dismissed for misconduct, in
circumstances where the officer was acting under directions from the Minister
in circumstances where the officer was a statutory authority in his own right
and should have exercised his personal discretion. The Court held that the
Minister had no power to lay down any rule however reasonable in the form of
directions to the officer concerned.
36. In
light of the submissions that have been made in this regard it is submitted on
behalf of the Applicants that they are entitled to an order of Certiorari
quashing the directive as being an unlawful interference by a third party with
the exercise of the discretion of a Superintendent in regard to applications
made or to be made by them.
37. Without
prejudice to the foregoing and independent of it, it is submitted on behalf of
the Applicants that the imposition of a condition requiring the provision of a
gun safe and for its inspection by the Gárdai as a precondition to the
issue or renewal of a firearm certificate is ultra vires the powers conferred
on Superintendents by the Firearms Act, 1925 - 2000. The delegation of
functions must derive from the provisions of the Act and with regard to the
policy of storage of firearms; it also must be derived from express provisions
of the legislation. The provisions of the Firearms Act, 1925 as amended,
relevant to these proceedings, provide no legal basis for the policy of
imposing requirements regarding the storage of firearms as a precondition to
the grant of a firearm. The relevant sections should be given their ordinary
meaning and in doing so it is submitted that the Acts do not contemplate the
imposition of conditions on the storage of firearms by individual Applicants
for firearm certificates. Accordingly, it is ultra vires the powers of a
Superintendent to impose mandatory conditions on the issue or renewal of a
firearm certificates in circumstance where this was not contemplated by the
Oireachtas.
38. By
reference to the authority of
Cityview
Press Limited -v- An Chomhairle Oiliúna
[1980] I.R. 381, it is for the legislature to determine the policy in relation
to the issue of firearm certificates and it is not a matter for a
Superintendent of An Garda Siochana to determine policy which is a matter
reserved to the Houses of the Oireachtas. Counsel further referred this Court
to the decision of the Supreme Court in the case of
O’Neill
-v- Minister for Agriculture
[1998]
1 I.R. 539 which again examined the power of the Minister to make regulations
under an Act. Reference was made in that case to the
Cityview Press
case where O’Higgins CJ indicated that the test is whether that which is
challenged as an unauthorised delegation of parliamentary power is more than a
mere giving effect to principles and policies which are contained in the
statute itself.
39. Further
reference was made to passages of the judgment of Murphy J in this case at p.
554 where he states as follows:-
40. It
is submitted, with regard to the instant case, that a principle and policy to
be derived from the legislation is that it was intended that the Superintendent
of each District would make the initial decision whether to grant a
certificate. In doing so he had to be satisfied of the three matters referred
to in Section 4 of the 1925 Act. The requirement that an Applicant install a
gun safe which is available for inspection in a private property as a
precondition to a renewal of a firearm certificate is a new policy which would
require a legislative basis and could not have been contemplated by the
Oireachtas as being a permissible construction of the powers granted in Section
4 of the Act of 1925. It is submitted that none of the provisions of the Act
touch on a storage provision by an individual.
41. The
relevant portion of Section 4 is that at (b) which is that the Superintendent
be satisfied that the Applicant can be “permitted to have in his
possession, use, and carry a firearm or ammunition without danger to the
public’s safety or to the peace”. The issue arises whether this
provision could potentially authorise a Superintendent to have regard to
storage provision for any firearm. One cannot construe the Firearms Act to
find in any place a provision enabling a Superintendent to exercise a
discretion under Sections 3 and 4 and in doing so to have regard to storage
arrangements. It is submitted that there is nothing in the Act authorising the
imposition of such a precondition. Counsel refers this Court to the provisions
of Section 2(5)(b) of the Act of 1925 as inserted by Section 15 of the Act of
1964 insofar as it provides a contrasting provision to that at issue in the
instant case. In the case of authorisations under the Act it is provided:
42. Furthermore,
under the provisions of Section 6 of the Firearms and Offensive Weapons Act,
1990 dealing with an authorisation to hold a defective firearm without a
firearm certificate it is provided in subsection (2) thereof:-
43. It
is submitted that the Oireachtas when amending other provisions of the Firearms
legislation did not see fit to amend Section 4 of the 1925 Act to indicate an
intention on the part of the Houses of the Oireachtas that the Superintendent
have regard to storage arrangements in the exercise of his discretion under
Section 4, and that it cannot be disputed that the directive at issue in these
proceedings is a matter of policy; that it would be necessary for the
Oireachtas to implement such a policy by either imposing conditions or enabling
conditions to be made by a Superintendent, and that this is an overall policy
consideration that had to be determined by the Oireachtas. With reference to
Section 4 that section does not enable a precondition to be imposed by a
Superintendent such as set out in the impugned directive. It is submitted
further that the provisions of paragraph (b) of Section 4 are directed to the
persons and the character of the persons that they be reliable persons to use a
firearm and to have a firearm in their possession without danger to the
public’s safety or to the peace. Ms. Finlay asks rhetorically: Did the
Oireachtas indicate in any way that a Superintendent could impose a condition
not expressly referred to either as a condition of issuing a Certificate or in
the Certificate itself ? It is submitted that nothing in Sections 3 or 4 of
the Principal Act authorised any express conditions of the nature in these
proceedings, in contrast to the position as indicated in Section 2 subsection
(5)(d) of the Act as inserted by Section 15 of the Act of 1964 and Section 6 of
the Act 1990 previously referred to herein. Under the terms of the Firearms
(Firearm Certificate Non Residence) Act of 2000 a person issuing a firearm
certificate to a non resident is expressly authorised in Section 2(10) of the
Act to “attach such conditions, if any as he or she considers necessary,
to a firearm certificate granted to a person under this section.” If the
Oireachtas anticipated that such a condition could be imposed, one would have
expected that a Superintendent would be entitled to revoke any such grant for
breach of any such condition. However, no such power exists.
44. With
regard to other aspects of the impugned directive and in particular that
portion which indicates that a Superintendent should be entitled to inspect a
gun safe in a house, it is submitted that this represents an invasion of the
right to privacy arising under Article 40 Section 3 and the inviolability of
the dwelling protected by Article 40 Section 5 of the Constitution. The
requirement to install a gun safe and to make such safe available for
inspection clearly brings the protection of these fundamental rights into
question. It is submitted, given that the measures contemplated by the
directive potentially impact on constitutionally protected rights and freedoms,
it could not have been the intention of the legislature to permit the
Gárda Síochána to determine the balance between these
fundamental rights without providing a legislative basis and an appropriate
framework to guide and exercise such extensive powers. No provision in the
Firearms Act can be construed as authorising or permitting a member of the
Gárda to enter a home to inspect the storage facility for a firearm.
Specific provision is made for inspection and search of dealers premises under
the terms of Section 13 of the Act of 1925 and other places under the
provisions of subsection 3 of Section 21 of the same Act.
45. On
behalf of the Respondents Mr. Senan Allen Senior Counsel has referred this
Court to the terms of other circulars previously issued by the Commissioner
with regard to firearms. These are circulars issued in 1989 and 1991. They
relate to firearms and heavy calibre rifles. Earlier directives indicated the
need for a gun press or safe and that they should be emphasised. Furthermore
more recent directives contained advice to be given to holders of firearm
certificates.
46. It
is submitted that the impugned directive in this case involves the central
exercise of a power used for an operational matter by the Gárda
Síochána, that the control of firearms is quintessentially an
operational police matter, that the issue in these proceedings is whether in
the context of Section 4 paragraph (b) a Superintendent is entitled to go
beyond the personal character of an applicant for a firearm certificate; that
the enquiry by a Superintendent in the context of Section 4 of the Act involves
an investigation beyond merely the character of the Applicant; that
considerations of public safety arise and in this context the absence of a
secure facility within which to store the firearm is a relevant consideration.
Even if a decision was to be taken by a local Superintendent of his own
volition he should be entitled to have regard to the facility within which to
store a firearm. In this regard that he would have been entitled to have an
approach that a gun safe in principle is what should be provided for. The
section contemplates objective requirements as well as subjective requirements
such as those relating to the character of the Applicant and that it is unduly
artificial to separate objective and social requirements in the context of
Section 4 of the Act. The same requirements can be imposed by a Superintendent
as part of his assessment of the individual requirements of a particular
Applicant and if the Superintendent takes the view that a gun safe is required
the Applicant must then abide by that Superintendent’s assessment rather
than his own assessment of what is required. The requirements for a
certificate are directed to the weapon as well as to the holder and that they
are not restricted to the personal characteristics of the Applicant for the
certificate. In this regard Counsel referred this Court to the provisions of
Section 3(4) of the Act of 1925 as inserted by Section 16 of the Act of 1964
which reads as follows:-
47. Counsel
submitted that the
expressio
unius
principal does not apply in this case insofar as the statutory provisions
relied upon to demonstrate a distinction between the situation facing
Applicants for firearms certificates and firearm dealers have no application.
The express terms in relation to dealers cannot apply to exclude the
possibility of the situation of certificate holders being construed as
including like powers. With regard to Section 21 of the Principal Act, the
power of inspection there relates to the firearms rather than the place itself.
It is submitted therefore that it is directed to fundamentally different
circumstances. It is not something to be used in reference to certificate
holders.
48. Counsel
point out that under the terms of the 1925 Act as initially enacted there was
no provision for a renewal of a Certificate but that this was introduced in the
terms of the 1964 Act. What is set out in Section 4 paragraph (b) represents
at one and the same time the minimum and the maximum of what the Superintendent
must address his mind to.
49. With
reference to Section 15 of the 1964 Act pertaining to authorised persons, this
category is of a wholly different class or category to certificate holders.
Further in relation to this class of authorised persons it is to be noted that
under the terms of Section 2(5)(d) a Superintendent may impose in relation to
the grant of an authorisation under the section such conditions (if any) as he
considers necessary to prevent danger to the public and where a condition is
imposed, it shall be specified in the authorisation. This provision indicates
that a Superintendent may impose conditions in relation to the grant of an
authorisation. In regard to Section 2(5)(b) as inserted by Section 15 of the
Act of 1964, the reference to having regard to “all the circumstances
(including the provision to be made for the storage of the firearms and
ammunition to which the authorisation (if granted) would relate and the
supervision of their use)” does not add anything to section 4 paragraph
(b) but mirrors the provisions of Section 4 paragraph (b) which relates to
certificate holders. The words in brackets appearing in Section 2(5)(b) relate
to considerations of public safety which are already embraced in Section 4 (b).
50. It
is submitted with regard to authorisations that in all cases considerations of
public safety include supervision and use of firearms. With regard to the
inclusion of a power to impose conditions contained in section 2(5)(d) of the
Act as inserted by section 15 of the Act of 1964, if section 4 does not allow
the imposition of conditions then the Superintendent must be satisfied that the
Applicant can have firearms without danger to the public. It is further
submitted that overemphasis has been placed on the words ‘use and
carry’in paragraph (b) of Section 4 rather than the word
‘possession’ appearing in the section. The Court and a
Superintendent must have regard to the use of the word ‘possession’
appearing in this section in reference to a certificate holder. It is
submitted that a Certificate holder would be continuously in possession of a
firearm though not necessary in charge of his firearm at all times. Possession
is something different to use and carrying of a firearm and includes
considerations of storage.
51. With
regard to the question of entry to a dwelling house, what the directive is
addressing is that either an assurance be given or if necessary that this
matter be addressed by the Applicant demonstrating an ability to keep the
firearm safely. The storage facility inspection is a practical application of
the requirement that the Superintendent be satisfied that the person seeking a
firearm certificate can be permitted to have it in his possession, use and
carry a firearm or ammunition without danger to the public’s safety or to
the peace. This type of requirement of having an adequate storage facility is
no different to a requirement that the component parts of a gun be held
separately. With regard to inspection it is submitted that this would be
consequent upon a power of appointment.
52. While
it has been argued that the Superintendent is a
persona
designata
,
in fact he does not have any function independent of his position as a member
of the force. The exercise of functions in the force contemplates
accountability. In this regard counsel for the Respondent relies upon Sections
8 and 9 of the Police Forces Amalgamation Act of 1925. It is submitted that
this contemplates direction and control in relation to firearms which is
quintessentially an operational matter, that this is something beyond personal
management functions and that the control of firearms is a matter for the
Gárda Síochána. While the District Officer has a role
under Section 4, the real issue is the extent of the role and public safety
must be assessed by reference to the policy of the Oireachtas. It is submitted
that an issue arises as to whether the local policy is to be set by an
individual or whether the Commissioner has an entitlement to set a general
policy in relation to the matters to be exercised under the terms of Section 4
of the Act. The Superintendent makes an administrative decision at a local
level and that this is not inconsistent with the entitlement of the
Gárda Commissioner to set national objective standards and to see that
they are implemented. There is no imperative in the Firearms Act such that it
be construed as entitling or requiring a Superintendent to set a policy on
safety at the local level.
53. While
it is conceded that there is nothing in the Act expressly entitling the
Commissioner to set general safety policy or standards it is submitted that the
Act is silent as to where the policy is to be defined and that it has to be
construed in harmony with the Police Forces Amalgamation Act of 1925. If this
means that either the Commissioner is not entitled to have a view regarding
public safety requirements or, if he is entitled to have such a view, that
District Officers may have their own different views, such that an
administrative role given by Section 4 might be exercised at variance with the
express policy of the Commissioner, this is not the construction that fits in
with the provisions of the Police Force Amalgamation Act of 1925.
54. Circulars
represent a central policy where that policy has not been fixed previously.
Public safety involves an objective standard decided by the Commissioner.
55. It
is submitted that the
McLoughlin
and the
Simms
cases referred to by counsel for the Applicant are distinguishable from the
instant case and that the discretion in the
McLoughlin
case was wider than the discretion in the instant case.
56. It
is submitted that the onus is on the Applicant to satisfy the Superintendent
that public safety will not be endangered and that the setting of standards is
something separate from the ability of an Applicant to satisfy those particular
standards. The
McLoughlin
and
Simms
cases involved disputes
inter partes
,
where there was a prima facie entitlement to the relief which was sought. In
the instant case that there is not a prima facie right to a firearms
certificate. Contrary to the submission of counsel for the Applicant the
Commissioner is not deciding principles or policies as contemplated in the
O’Neill
case. It is submitted that the objective is one of promoting public safety and
this is the end to which the particular measure in the form of the impugned
directive is directed and further that the action of the Commissioner in the
instant case was a bona fide exercise of his power. Counsel says by reference
to the decision of Kelly J in the case of
Mishra
-v- Minister for Justice
[1996] 1 I.R. 189 where Kelly J. stated at 207 that nothing in his judgment
“should be construed as in any way suggesting how the application should
be reconsidered as to its merits. That is entirely a matter for the Minister.
Neither should it be construed as suggesting that there is any impropriety on
the part of the Minister in having in place a policy or set of rules to guide
but not govern in an absolute way the implementation of the discretion given to
her”, that this statement supports the action of the Commissioner in the
instant case.
57. Further
reference has been made to the decision of the High Court in the case of the
State
(Rajan) -v- Minister for Industry and Commerce
[1988] I.L.R.M. 231 where at 240 Barron J addressed the erroneous belief of the
Controller of Patents in relation to his control over examiners within the
Patents Office. He indicated in that case that the examination was a statutory
function and there was nothing in the relevant statutory powers giving the
Controller such a right either as
persona
designata
or as head of the Patent Office. In the instant case counsel submits that the
Superintendent is deployed by the Commissioner although appointed by the
Minister and that he exercises a dual role both statutory and operational.
58. Ms.
Finlay in reply to the submissions of counsel for the Respondents, said that
nothing in the sections expressly stated that the powers had to be exercised
independently. However, it must have been clear that the legislative intention
was one entitling the Superintendent to define policy independent of the
Commissioner. The Superintendent is the
persona
designata
under the Act. With regard to Section 8 of the Police Forces Amalgamation Act
of 1925 this was not intended to give control over functions expressly
conferred on Superintendents by the legislation. A decision making power
involved the exercise of a discretion and that at law the exercise of a
discretion must be exercised independently by a
persona designata
.
In the instant case the action of the Commissioner overrides the overall
provisions of the Firearm Acts themselves. It amounts to a specific repeal of
the Act by non-legislative means. With regard to the nature of the Directive
this is clearly considered to be binding and this has not been contradicted in
this particular case. The conditions contained in the Directive amount to a
mandatory precondition to grant or renew a certificate. It is indicative of
the fact that one will not be granted a certificate unless the particular
conditions laid down by the Commissioner are satisfied.
59. With
regard to the
Rajan
case relied upon by counsel for the Respondent, this in fact supports the
Applicant’s case insofar as it relates to the exercise of a function
under a statutory scheme and that this should be done independently. It is
submitted that in the
Rajan
case there was in fact a closer connection between the Controller and the
Examiner than there is in the instant case between the Commissioner and the
Superintendent. Nevertheless, Barron J said that in the absence of anything in
the section entitling the Controller to examine applications and to make
rulings in the form of directions to the applicants without them being heard,
the functions of an Examiner as a person to whom applications are referred
under the provisions of Section 11 of the Patent Act and those of the
Controller are separate and distinct. The High Court, in that case, held that
the proper construction of the sections in that case did not give the
Controller the powers which he claimed. It is submitted by Counsel that the
Rajan
case follows the decision in the
McLoughlin
case previously referred to herein. In the context of the Firearms Act what the
Superintendent has to decide in the context of section 3 and 4 is the
entitlement of an Applicant to a firearms certificate and, if section 4 is
satisfied, that the Applicant is entitled to a certificate. By reference to
section 3(1) of the 1925 Act the power vested in the Superintendent under the
Act is only subject to the limitations and restrictions imposed by the Act
itself.
60. With
regard to the vires argument the Commissioner sought to impose two mandatory
preconditions to a renewal, one relating to a firearms cabinet being installed
in each house and secondly, one permitting inspection in the house itself.
What is at issue in these proceedings is whether the Commissioner is entitled
to impose such a general precondition. Even if the Superintendent can enquire
of a person what proposed arrangements as to storage they have, in the instant
case what one is involved with is a general precondition to all applicants.
Counsel again referred to the express provisions in the legislation dealing
with storage facilities, in submitting that, insofar as the Superintendent is
concerned, he is looking at the personal attributes of the Applicant rather
than the storage facilities. That the Superintendent is only entitled to have
regard to the circumstances of an individual Applicant in reaching any decision
under the Act and not to any precondition sought. Further, with reference to
Article 40 Section 5 of the Constitution, if the Houses of the Oireachtas
intended an inspection one would have to find express provision when stating
this in the legislation. The Commissioner and by extension the Superintendent
cannot require an entitlement or precondition that inspection be effected in
the house. There is no legislative basis for this. If this is the intention
of the Oireachtas, it would need express legislative provision to be enacted.
The so called
expressio
unius
principle referred to in the Third Edition of Benion ‘Statutory
Interpretation’ (Butterworths 1997) at paragraph 390 to 395 (to express
one thing is to exclude another) is itself an aspect of the principle
expressum facit cessare tacitum
.
Insofar as express powers of search are given in Section 21(3) and it
excludes dwelling houses, it is suggested that the fact they are not included
in these express powers of search is indi cative of the policy as intended by
the Oireachtas.
61. With
particular reference to how Section 4 of the Act of 1925 should be construed, a
further principle of statutory interpretation should be referred to and this is
that referred to at paragraph 396 of Benion under the title of
‘Implication by Oblique Reference’. Benion states at this
paragraph “uncertainty in one part of the proposition maybe resolved by
implication from what's said in another part, even thought that other part is
not directly referring you to the first part. Accordingly account is to be
taken of a meaning of one provision in an Act that logically if obliquely rises
from what is said elsewhere in the Act. Equally an express statement in an
enactment may carry oblique implications respecting the legal meaning of other
acts or enacted rules of law.” Applying this principle of Statutory
Interpretation it is submitted by Ms. Finlay that it is permissible to take
into account what is contained in Section 2(5) of the Act and to note that it
is to be contrasted with the provisions of Section 4 itself, insofar as it
extends to considerations of the place where a firearm is to be held.
62. What
is not in issue in these proceedings is the fact that the impugned directive
was intended to bind Superintendents in the exercise of their statutory
function under the provisions of Sections 3 and 4 of the Act of 1925. What is
in issue is whether this purpose was something that was enabled by the
provisions of sections 8 and 9 of the Police Forces Amalgamation Act of 1925.
63. I
am satisfied that the provision of section 8 of the Police Forces Amalgamation
Act of 1925 apply only to operational matters and I am also satisfied that the
function of a Superintendent, as outlined in the Act of 1925 are not mere
operational matters but are functions vested in Superintendents of An Garda
Siochana in each district in circumstances where they are
persona
designata
.
Accordingly I am satisfied that the impugned directive is invalid and void
insofar as it has the effect of fettering the discretion of a Superintendent in
the exercise of the functions under Sections 3 and 4 of the Act of 1925.
64. With
reference to the question as to what is incumbent under the provisions of
Section 4 of the Act of 1925 and in particular paragraph (b) thereof and
whether it enables a Superintendent of An Garda Siochana to impose as a
precondition to the issue of a certificate matters such as those contained in
the impugned directive in this case, I believe that if the Act intended that
such might be imposed by way of precondition that it would have expressly so
stated. I am further satisfied insofar as Section 2(5) of the Act as inserted
by the provisions of Section 15 of the Act of 1964 is concerned, that the
contrast in wording gives some light as to how one should construe Section 4 of
the Act and it is in this light I believe that Section 4 does not entitle a
Superintendent to impose conditions such as might otherwise be imposed had
similar wording been used in Section 4 to those appearing on Section 2(5) of
the Act. I am of the belief that it was not permissible to imposed a fixed
precondition to an application of the nature applied in this case by the
impugned directive such as would preclude a Superintendent from considering a
case on its merits where something of equivalent safety was provided by the
certificate holder or Applicant for a certificate.
65. In
light of my conclusions on the particular facts of this case in relation to the
particular issues addressed to me by the parties and sought to be addressed by
me, it is strictly speaking not necessary to address further the general
entitlement of a Superintendent of An Gárda Síochána in
regard to Section 4 paragraph (b) of the Act of 1925. However, I am of the
opinion that the provisions of the paragraph are such as to not to restrict the
ambit to consideration as to the personal attributes of an applicant for a
firearms certificate but may relate to the circumstances in which he or she may
have a firearm in his or her possession without danger to the public’s
safety or to the peace.
66. In
conclusion I wish to state that this Court expresses no concluded view as to
how far a Superintendent may go in the context of the exercise of his powers
under Section 4(b) of the Act of 1925 other than indicating that he may not
impose preconditions of the nature sought to be imposed by the Commissioner in
this case and the Commissioner is not entitled to interfere with a
Superintendent in the exercise of his functions under the Act.