The dust has settled somewhat now on the most recent foray into the courts by the shooting community, and public comment is finally no longer considered Technical Contempt by the judiciary. This should be the time when we could finally discuss amongst ourselves in the shooting community what the large number of cases on the legal diary achieved in return for:
- the high financial costs incurred (estimated by some at between €200,000 and €250,000 just for the cases to be taken on by the legal team, to say nothing of the costs detailed in the 168 section 68 letters that would have been produced),
- the higher financial risks undertaken (estimates for the cost of a failed court case run from five to six figure sums for the High Court and start at six figure sums for the Supreme Court),
- the extreme legal risks involved (a lost case would have had enormous repercussions for the entire shooting community for the whole of the foreseeable future),
- the enormous damage done to professional relationships (it seems likely that the taking of these cases and the chosen public statements made by the NARGC in this matter have seriously damaged if not destroyed the prospects for a calmer, more lasting solution via the Firearms Consultation Panel; it also seems not beyond the bounds of possibility that these victories would be overridden by legislative changes at little to no cost to the government and without possibility of legal or other challange by the shooting community),
- the appalling public relations involved (it may appear viscerally satisfying for a sitting High Court Justice to have made the comments Hedigan has made, and no doubt there is benefit in the long term to have shown the world what the Gardai admitted publicly six years ago – that certain Garda personnel are the root cause of many of our licencing issues — but in the short and medium terms, we have just displayed a malfunctioning system to the general public which they believe exists to safeguard them; the logical thing for the general public to now want is further firearms legislation, something which can only serve to worsen the situation for the entire shooting community),
- and of course, the hidden costs of being Law Society gossip for the past two years (taking 168 District Court Justices to the High Court to have their decisions reviewed by their High Court “overseers” is not a legal strategy that appears to have been well thought of in judicial circles around the metaphorical water cooler), such as District Court Justices who may have a poor view of future challanges to poor licencing decisions by Superintendents (after all, if it is felt that a plaintiff will go to the High Court should they not like the judgement, it cannot be discounted that this may colour the Justice’s thoughts on a the matter if only subconsciously – a District Court Justice is only human after all).
Given this high price, both monetary and otherwise, should we not consider the gains? Reading the extensive statement from Egan&Associates on the topic of the court cases, I admit a degree of confusion in identifying those gains. I should note that this author is, for now, ignoring the disturbing public statements from those who claim to be amongst the 168 plaintiffs, that they in fact have not yet seen nor agreed to the conditions of any settlement nor signed any document giving the right to their legal team to settle on their behalf. This author understands that such statements cannot be completely verified, but the mere possibility (which seems to be given weight by the upcoming public meeting to discuss the case with those plaintiffs) that a legal team might agree to a settlement and commence making public statements about it without first informing all of the plaintiffs they represent is a disturbing one. One hopes it is merely a misunderstanding that will soon be resolved simply and cleanly.
From my reading of the analysis mentioned above, it seems that those who took cases in the District Court, whether or not they sought Judicial Review of those cases’ outcomes in the High Court, are granted leave by the settlement referred to (whose terms thus far remain confidential) to reapply for the licences they were initially denied.
This does appear at first glance to be a substantial gain if not an outright win, but here is where my confusion begins, because I was under the impression, having read the Firearms Act in some small detail, that any person in the State who is eligible to apply for a firearms certificate, and does so, and is refused; is not barred by any legislation from reapplying ad nauseum in the event of a refusal, nor from seeking review of such refusal in the District Courts on each and every such refusal. This would have been the right of the plaintiffs long before going to the High Court, so I cannot see how leave to reapply can be seen as a gain. To be sure, the Garda personnel involved will be less likely to refuse the application on this specific instance; but no obstacle stands in their way from refusing the next application in three years time, nor does any obstacle prevent their placing preconditions on these licences which the applicants might find inconvenient; to my personal view then, it would appear that little was gained.
What then of the exposure of the modification of completed and finalised firearms certificate applications by senior Gardai upon the commencement of a court case challanging the decisions they pertained to? This is, it must be stated, an important result; proof of wrongdoing of this scale would be a hefty chip indeed to play in later negotiations with the Gardai and the Department and the Minister in order to secure more favorable treatment. Two small queries do however present themselves when considering this result, namely:
- Why did the Minister state in his answer to two recent parliamentary questions on this topic that the settlement accepts that no wrongdoing took place? Surely the settlement would not simply throw away the single most important fact it established in a public court? And yet, the officers in question have since been the recipient of promotion to very high ranks within the Gardai, which one would imagine would be at least impeded by a High Court Justice declaring from the bench that they had acted illegally – an obstacle which one imagines only a settlement waiving the complaint could remove.
- At what point does the NARGC plan to sit down with the Gardai or the Minister or the Department and utilise this chip, given that it has spent over a year now destroying professional relationships that took hundreds of man-years to build up over the past decade and even in its most recent public statements refuses to meet with the personnel involved? One cannot cry in the public media this week that certain key personnel are corrupt or incompetent or bereft of good judgement, and then hope to sit with those personnel next week in search of a solution to a real problem; for those personnel will never accept that the discussion is being entered into in good faith. Nor in this economic climate – nor indeed, even before it – could anyone reasonably expect a mass firing of staff from a state body because of the objections to certain personnel with clean Civil Service records by a sporting body.
I find it difficult because of these random thoughts to see this aspect of the cases as being a substantial gain. What then remains? We have, it is very true, avoided the enormous legal and financial risk that rolling the dice on the remaining 165 court cases entailed; but this was avoidable by engaging with the Firearms Consultation Panel, as proven by many of the target shooting governing bodies during the past few years, or even by merely not taking all 168 cases at once but instead taking only a smaller number of test cases.
What does appear to be readily visible however, both from the statements from Egan&Associates and from the public statements by the NARGC, is that these cases appear to have been directed by the NARGC for purposes which go beyond the immediate scope of the cases themselves. We have said it here on many occasions, court cases are risky endeavours at the best of times; but it seems utterly foolhardy to have undertaken these cases — which could never have resulted in a single licence being directed to be issued because a High Court Judicial Review simply does not have any legal means to so do — purely for the purposes of seeking more favourable legislation for shooters, something which the judiciary is simply not in a position to provide even if they wished to do so.
Nor does obtaining such a result seem likely to be aided by public belittlement of those with whom the shooting community has no choice but to work in order to improve our legislative position. To quote the NARGC director himself,
the High Court settlement has not bought tuppence worth of peace in relation to how the Gardai operate the licensing system and NARGC is determined to continue the battle in the courts until someone in the political establishment engages with us with a view to bringing forward a lasting peace. Neither current DOJ officials nor any member of the Garda Siochana are capable of commanding the trust and respect necessary to deliver that peace. Certainly, NARGC will not again sit with such people.
Such language is both illuminating of the facts of the matter and the mindset of the parties involved, in the opinion of this author, who was fully convinced that the shooting community was not in fact either a seperate sovereign nation in a state of declared war with anyone, nor a paramilitary organisation in a similar situation. This author was convinced on the basis of ten years of work and contact with the parties involved that such an idea was not only distasteful to all, but belied a poor grasp of the needs of ordinary shooters, whose objectives here are basically to enjoy their sports and activities, rather than to seek a long protracted shouting match which can never resolve anything satisfactorily.
Nor for that matter, does this author gain any confidence from the nonchalance with which the NARGC director, on the strength of court cases apparently settled without any finding of wrongdoing or visible gain for the plaintiffs, demand the firing of dozens of high-ranking personnel in the Gardai and Civil Service despite those bodies’ recent severe troubles with low manpower and hiring freezes due to the economic situation. It seems almost impossible that anyone with the level of political experience the director has would have any doubt that such a demand could never be entertained, let alone met; it would then follow that this is a stratagem of some form, which has not been disclosed to the wider shooting community. Such an approach implicitly assumes that the director has the right to speak for the entire shooting community; one would humbly suggest that the dozens of recognised sporting governing bodies on the island would beg to differ on that point, and justifiably so.