Irish Shooting Politics

September 4, 2009

The Commissioner’s Guidelines — Some comments

Filed under: Politics — Mark Dennehy @ 9:18 pm

Some small comments on a rather large document…

As of necessity therefore, these guidelines will be subject to amending and updating as appropriate so as to keep abreast of the legislative provisions as and when commenced as well as emerging case law.

It’s a good thing that the document can be amended; while by and large it’s well-written, there are some rather glaring problems in it as it stands.

Superintendents and chief superintendents of the Garda Síochána are ultimately responsible for the administration of the firearms legislation in their areas and they will continue to act as personae designate under the Firearms Acts 1925 to 2009.

This could be an interesting error, because that personae designate status is questioned by District Court having the authority to overturn their decisions;  a point highlighted later on in the guidelines themselves:

On appeal, the court may –
1. confirm the decision,
2. adjourn the proceedings and direct the issuing person to reconsider the decision in the light of the appeal proceedings, or
3. allow the appeal.

If the Superintendents have personae designata status, then the District Court Judge cannot direct them to grant a licence; yet that is precisely what Section 15A of the Firearms Acts permits.

Now that particular section remains untested in this regard in a courtroom, but the matter is so directly self-contradictory that it shouldn’t have to wait for a test case to be addressed.

(b) Proof of competence in the use of the firearm or ammunition which is subject of the application – depending on the circumstances of each case, an individual who has already possessed a certificate (without any convictions under the Firearms Act, 1925-2009) for a period of a minimum of 1 year may be considered to have fulfilled the proof of competency. First time applicants for firearms certificates may demonstrate that they have acquired a degree of competency in the use of firearms by satisfying the issuing person of having attended a firearms training course, or of having joined an authorised rifle or pistol club or range for the purpose of gaining competency in firearms use, or having previously been granted a firearms training certificate.

A point here is that there is no defined HETAC standard for courses to meet to be acceptable for this this. Current popular advice remains that if your Superintendent asks you to take a course, ask him which one before taking one. Matters such as accreditation are going to be a major issue, with many courses being run for profit without suitable accreditation. Enormous amounts of ill-feeling already exist at present from students in such courses discovering that after significant expenditure, that their certificates carry no meaning with the Powers That Be; or worse, that their instructors are insufficiently accredited to even grant those certificates in the first place.

Caveat Emptor is often heard in these cases; though it remains to be seen if the courts agree with this or if they believe that such accreditation is a major component of the advertising of such courses; in which case ugly charges such as fraud can be brought to bear.

Section 2.2 of application form FCA1 must be completed in full by every applicant for a firearms certificate. (See Annex ‘B’ for further guidance).

Personally, I find this a very vexing stipulation. Like many modern-day people, I have no GP so I can’t fill out Section 2.2; I can’t leave it blank; and I can’t fake it or give “misleading information” on pain of imprisonment.

It’s quite vexing.

(d) The names and addresses of 2 referees who may be contacted to attest to the character of the applicant – referees should be responsible adults and, as the issuing person may need to contact them and verify the information they provide, it is best they reside in the State. As two referees are required, it may be appropriate to differentiate in the nature of their knowledge of the applicant e.g. have one referee who has an intimate knowledge of the applicant such as a close relative and the other a person who, while knowing the applicant well e.g. in a social or work context for over 5 years, is not a relative. In the case of an applicant who has not resided long in the State, a referee who is able to demonstrate knowledge of the applicant and who is acceptable to the Garda Síochána will suffice. A referee must be of good character and shall be independent of the certifying process. (See Annex ‘B’ for further guidance).

And yes, according to the Garda FPU, all applicants need to fill this section. This is in direct contradiction to previous official statements and reassurements from the DoJ. There is a moral concern here and a potential legal one – an applicant who has previously held firearms licences has, by law, been personally approved by a Garda Superintendent. It seems unusual to demand character references in such a case. One would wonder about the motivation for such a requirement.

Where an application is refused, the applicant shall be informed in writing of the refusal and the reason for it. If a decision on an application is not made within this 3 month period then this is deemed to be a refusal under section 15A of the Firearms Act 1925 as inserted by section 43 of the Criminal Justice Act 2006.

The cynic in me wonders how many people are going to be “notified” using section 15A instead of by being explicitly informed that they have been refused…

Section 4(2)(g) of the Firearms Act 1925 as substituted by section 32 of the Criminal Justice Act, 2006 provides that when a firearms certificate is granted it may be subject to a condition or conditions. Furthermore in the case of Joseph Magee v Patrick Murray and Dennis Roche, a judgment delivered by Birmingham J. in the High Court on 24th November 2008, confirmed that the statutory scheme allows a superintendent to impose conditions when granting a firearms certificate under the Firearms Acts.

It should be noted as well that Dunne v Donoghue in the Supreme Court upheld that such conditions could not be blanket preconditions, but had to be individual in nature. Leaving this reference out may cause further issues in the future.

The important issue is the applicant’s character, the reason why he requires the particular firearm and whether that particular applicant can be permitted to possess, use and carry a firearm or ammunition without danger to the public safety or the peace. In light of this judgment superintendents should be mindful of addressing not just the issue of the calibre of the firearm, but must also give adequate weight to the character of the applicant, the reason why the applicant requires the particular firearm and the ability of the applicant to possess, use and carry the particular firearm without danger to the public safety or the peace.

That section is outrageous and shocking.

A High Court Judge staties explicitly that the issue is the applicant, not the firearm. And a Garda Commissioner recommends (thankfully in a roundabout manner) to all Garda Superintendents and Chief Superintendents that they effectively disregard the Judges ruling and consider the applicant as just another factor instead of the sole factor.

It seems perilously close to the definition of sedition.

McCarron Judgement – Contrary Ruling of the High Cou

Drafting guidelines on a minority contrary and contraversial ruling seems… very unwise.

It is clear, therefore, that the judgement in McCarron is authority for the proposition that a superintendent may consider a broad range of factors and issues when deciding whether an applicant for a firearms certificate has satisfied him that he has a good reason for requiring the particular gun.

Except that it’s not clear. What’s clear is that McCarron is a minority contrary judgement and Clarkson acknowledged it as such at the time. What’s clear is it has to go to the Supreme Court to be ruled on. Drafting guidelines based on that kind of ruling is…. well, unwise seems the polite term.

At least this is acknowledged, if only in token form:

Quote:
It is clear that there are now inconsistent judgements of the High Court. The legal position can only be resolved by the Supreme Court. It must be emphasised that the position as stated in McCarron cannot be seen as the settled position.

But including the section at all seems as though the drafters were seeking conflict in a courtroom.

Garda Liaison With Local Gun Clubs
It is recommended that the superintendent of each district, or a representative nominated by the superintendent, should meet not less than twice a year, with representatives of all gun clubs in their areas to discuss any problems or issues with regard to firearms licensing.

It’s laudable (though tautological) that this is mentioned; it’s not quite so laudable, that it’s listed as a recommendation when it’s a mandatory legal requirement under the Clubs and Ranges SIs for clubs and ranges to do this. Cyncial thoughts arise as to the prioritisation of a recommended action against that of a legally mandatory one in the to-do list of an overworked Superintendent.

Rifles designed for military/police tactical use or with large magazine capacity are more dangerous and the difference between them and ordinary rifles does not make them any more suited to target and clay shooting.
The same applies to rifles which are variants of military assault rifles, bullpups with folding or telescopic stocks or semi-automatic centrefire calibres. Rifles to be safe should have a barrel length of more than 50cm.
shotguns which have prominent pistol grips or folding or telescopic stocks or a magazine capacity which allows more than three (3) cartridges to be loaded in the shotgun are more dangerous and are no more effective.

Much of this is precisely, completely, utterly  wrong. It is worrysome that the Gardai would display such a poor grasp of technical knowlege in this area.

Quote:
Shotguns, to be safe, should have a barrel not less than 61cm in length and should not resemble a tactical or combat firearm.

For example, one wonders – if shotguns are safer if they don’t look like something else, are they safer if they don’t look like a chocolate eclair? Or does the nature of the ‘something else’ have constraints unmentioned in the Guidelines?

The shooting of foxes at night time with the aid of a lamp is not unlawful provided it can be done with the permission of the landowner and it does not occur within 60 feet of the public road.

It is interesting to see the 60 feet limit being cited as having anything to do with the law, since it doesn’t seem to have any basis in law in Ireland. It certainly does in the UK, but since we do not have the Queen’s highways in the Republic, the wording of the law seems non-transferable without alteration; and it hasn’t happened as yet. One may not fire from a public road or a vehicle; but there is no rule in law that I have found at least, which specifies a minimum distance from a road.

Modern reproductions of antique firearms are not exempt from firearms legislation.

This does not make an enormous amount of common sense. Two physically identical muskets should be treated identically under the law.

The protection of life and property is a function of the Garda Síochána and civilians are only entitled to use reasonable force to protect themselves and their property.

I am incredulous that a Garda Commissioner would pen a statement like that. One cannot sue the Gardai for failing to protect you or your property in the event of a homicide or robbery; and Irish citizens are legally permitted to do anything and everything they feel at the time is necessary to protect their life and escape a threat when in extremis. Suggesting otherwise is highly irresponsible.
Especially when it’s not germane to the rule that you can’t have a firearm for personal protection, which is unaffected by the in extremis rules.

Rifles which have folding stocks or are variants of an assault rifle are more dangerous and no more effective.

Oddly, the only way I can think of for a rifle with a folding stock to be more dangerous, is if you caught your fingers in the stock when folding it. And surely a deerhunting rifle which is more dangerous is by definition more effective since it will be more likely to effect a humane kill?

When making a decision whether to grant or renew a firearm certificate, a superintendent or chief superintendent of the Garda Síochána may take into account information available about the individual’s consumption of alcohol or other such substances such as drugs

One must ask – if the Garda knows you’re taking drugs (of the illegal kind), is he not bound by law to arrest you, let alone give you a licence for a firearm?

Other factors which may aid a decision on persons of intemperate habits may include evidence of aggressive or anti-social behavior which may include domestic disputes or any evidence of hostility likely to lead to violence. Again, an assessment will need to be made of each case, particularly as regards the seriousness of individual incidents.

One wonders if publicly criticising the Garda Commissioner for seditious behaviour will be seen as an intemperate habit?
Or maybe whether asking in the pages of the Irish Shooters Digest if the Gardai and DoJ have ‘lost it’ would be such?
Or, indeed, half the stuff that happens in the shooting community along those lines?

issuing persons should be alert to cases in which a general practitioner’s report reveals that an applicant has exhibited, or is exhibiting, signs of depression, suicidal tendencies, longstanding or intermittent periods of either emotional instability or unpredictable behavior.

It would be interesting to hear the opinion of Irish Medical bodies on the suitability of General Practitioners to make judgements regarding the mental health of an applicant based on the average time spent in consultation with them. It’s hard to wonder if it might also be a rather expletive-filled conversation…

Silencers are designed to reduce the report of the firearm so as to conceal the position of the shooter, and also to reduce the felt recoil.

Most shooters would probably have said they were designed to reduce to report of the firearm so as to make it quieter.

Quote:
The use of silencers on deer hunting rifles has become increasingly popular in recent times. Previously this was regarded as unsporting and unnecessary.

Previously, it was felt unnecessary to provide the Irish Army with hearing protection during firearms training as well. This also proved a costly mistake.

These advantages must be weighed against the safety to others (other shooters, walkers, foresters, farmers) having available to them the clear audible report – rather than a significantly lower report when a silencer is fitted – of a rifle, thereby giving them a general direction in which possible danger lies.

Sir, if your plan to avoid danger requires you to wait for the rifle to be fired so you can hear the bullet coming and dodge it somehow, you need a new plan.

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