Irish Shooting Politics

May 15, 2010

The greatest threat to the shooting sports in Ireland today

Filed under: Politics — Mark Dennehy @ 7:44 pm

The recent Supreme Court judgement in the McCarron, Magee and McVeigh cases carry deeply worrying implications for all of us in the shooting community, but perhaps the most worrying aspects of the case are peripheral to the cases themselves.

A precis for those who have not being following these cases is in order. The three cases are made up of two cases of shooters appealing a licencing decision by their local Garda Superintendents ( McCarron-v-Kearney and Magee-v-Murray ) and a third ( McVeigh-v-The Minister for Justice, Equality and Law Reform ) which was an appeal by a firearms dealer against an import licence decision by the Minister.

McCarron gained immediate notoriety amongst the shooting community as it represented the first major defeat of a case taken to court by a shooter appealing a licencing decision. It was not the first of its kind (that was Goodison-v-Sheahan a year earlier), but in Goodison, Justice Peart all but told Goodison to reapply for his licence (“In the light of my conclusions the applicant may well consider it appropriate to re-apply to the respondent for a certificate on a more complete basis”); whereas in McCarron, Justice Charleton made several comments regarding shooting sports which were viewed as disparaging by the community and which were utilised by the Minister as support for measures which the community felt were unwarranted and unjust. The behaviour of the applicant during the application process was the subject of much comment at the time as it was mentioned obliquely in the judgement. The nature of this alleged behaviour does not reflect well upon the applicant, whom Justice Charleton stated made several allegations against the Superintendent during a conversation regarding the application. It is to be noted that when making an application for a firearms licence, it does not behove the applicant to accuse the licencing authority of prejudice and mental blocks.

Magee did not gain such notoriety, and in fact was first encountered by many on reading the judgement of the Supreme Court. It centered on the attachment by the Superintendent of conditions to the applicant’s licence (which, it should be noted was granted – the case was about the conditions, not the licence itself). On the face of them, these conditions seem, at least today, to be a very strange thing to take a case over – they required that the pistol only be carried by Magee to and from the authorised range on which it would be used; and that it would only be used for target shooting on an authorised range; and that there was a limit on the amount of ammunition that could be held. This last condition is a standard one on all licences issued in living memory for all firearms; competition target shooters do regularly have to seek to have their limits raised to levels that some would find unusual, but given the amount of shooting they do, these levels are a logistical and competitive necessity — however, usually, this is sorted out with a quiet talk explaining the situation to the Garda Superintendent and the courts are not utilised. The first three conditions are currently articles of law, albeit indirectly – no pistol licence may be granted for any purpose other than target shooting, target shooting may only be carried out on an authorised range, and it is of at best dubious legality to carry a licenced firearm in public unless one is en route to or from the place where it was or would be lawfully used (a Garda is in fact authorised under the Firearms and Offensive Weapons Act 1990 to arrest a member of the public for carrying any item that Garda feels was to be used in an assault, and the burden of proof of innocence is on the defendant in such a case).

McVeigh, like many such cases taken by the firearms dealers, was of very limited visibility to most shooters, though of great importance to their long term interests. McVeigh centered on the refusal by the Minister to grant an import licence for a firearm which fell afoul of the policy of not licencing rifles of calibre over .270 which was in force from 1972 until around 2004 (it had been modified in the 1990s to allow firearms of calibre over .22 up to .270 Winchester for the purposes of deer hunting and target shooting). This refusal occurred in October 2002, before that policy was rescinded. However the grounds for the refusal were that a firearms certificate for such a rifle (in this case a double .470 calibre safari hunting rifle) would not be issued in Ireland — which was irrelevant to the application for an import licence which did not require that a firearms dealer have a certificate (as they are trading in firearms rather than using them personally, dealers do not have to have certificates for each firearm). On this basis, the decision was appealed (rightly) by seeking leave in the High Court to go to a Judicial Review. Two of the orders sought under the Judicial Review application – and this is of extreme interest to shooters in general – were:

  • A declaration by way of an application for judicial review that the respondent (the Minister) acted ultra vires his statutory powers in determining as a matter of policy that a firearms certificate would not issue in respect of specified classes of firearms and/or in further deciding that occasional import licence would not issue in respect of the said class of firearms;
  • A declaration by way of application for judicial review that the discretion to grant firearms certificates vested in the garda superintendent for the area in which an applicant for a certificate resided and not in the respondent;

The first would have declared that the 1972 licencing policy (and therefore the de facto confiscation of firearms that tool place at that time) was illegal; the second would have reaffirmed the persona designata status of the Superintendent that Dunne had introduced. However leave to have a judicial review was denied, and so the Supreme Court appeal held here was to seek to have that denial overturned. This meant that the opportunity to have the 1972 licencing policy overturned by the courts was lost because of the delay in getting to the Supreme Court. McVeigh, then, was an important case to have undertaken at the time and indeed would have been an important case to have appealed to the Supreme Court at the time; though events have since overtaken its importance, as the policy it sought to have declared ultra vires and therefore illegal to have implemented has already been rescinded. It was, it must be noted, important to address this issue even as a mere academic point. The latter declaration is on a point currently under debate and basicly argues what the Dunne-v-Donohoe supreme court case upheld in 2002, five months before the inital events in McVeigh took place. It is important to note that the final success in this appeal is not success in the initial case; but success in applying to have the initial case reviewed, with the pleasant caveat that the Justice has decided that actually taking that Review would be an academic exercise and has almost directed its outcome:

According to the case-law, especially Dunne v. Donohoe, it was not a lawful decision. In my view, it was such as should have been quashed on judicial review. However, it is difficult to discern, at this stage, any advantage to be gained by quashing the decision of the Minister made more than seven years ago. I would simply make a declaration that the Minister had made an unlawful decision by basing it on an inflexible policy.

What this basicly says, is that the taking in and holding of all pistols and all rifles over .22 in calibre in 1972 was an unlawful act, one which continued for 32 years. This is, regardless of all other considerations, a significant result to have obtained.

Turning now to the specifics of the Supreme Court’s judgement itself, there are several very worrying items of note, which we look at in no particular order:

  • We as a community have noted for some time that the use of the word ‘weapon’ when referring to our firearms is defamation of character. ‘Weapon’ is a term defined by the intent of the person who is the subject of the statement. For example, I own firearms, I do not own weapons. This is because a weapon is something used to harm another person, and it is that act of harm that defines it. It is difficult enough to witness high ranking officers in an Garda Siochana commit this act of defamation; for a Supreme Court Justice to do so is far more deeply offensive, but is also arguably evidence of prejudice. It would be a great relief to all for this word to be dropped from use when dealing with sports equipment like this.
  • The Justice makes reference to not understanding the distinction between the existence of good reason; and whether there is a requirement for a specific firearm. This does not reflect well on the case made on behalf of McCarron – surely the distinction between the need to have a particular firearm imposed by the rules and regulations of a particular sporting discipline; and the wish to take part in that particular sporting discipline, is one which is easily made.
  • To tacitly approve of the subjective nature of the Superintendent’s decision to not licence a firearm on the basis of the Superintendent’s view of the firearm alone and not the use to which it will be put is deeply damaging. It directly contradicts case law precedent where it was upheld (in O’Leary-v-Maher) that if the applicant was suitable to hold a firearm, that it was not acceptable to hold that the applicant could not licence a specific firearm based only on make and model, that:

It is not the firearm itself which is licensed to the owner but rather the owner who is authorised to possess, use and carry the particular firearm… 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. It seems to me that to refuse a certificate on the grounds of public safety necessarily requires the superintendent to demonstrate some evidence that the applicant …  is in some way more likely to create a danger to the public

It should be obvious to most that overturning this precedent is deeply damaging to fair hearings for licence applicants. When Justice Fennelly said “I am quite satisfied that the Superintendent had power to refuse the firearms certificate in this case for the reason given, namely that he did not believe the firearm in question was a suitable weapon for target practice”, what he effectively did was to uphold the Superintendent’s subjective decision regarding suitability of a particular firearm over the opinion of those who are acknowledged experts in the sport at hand and upheld the Superintendent’s deviation from the test set forth by O’Leary. That the Superintendent is now regarded by the Supreme Court to make licencing decisions on such subjective grounds without seeking expert opinion is deeply troubling and I would personally regard it as an unjust decision.

  • It is also somewhat troubling to see that the long title of an Act used as legal argument for defining nonstatutory powers exercisable by the officers denoted in such Acts. This is troubling not because of Justice Fennelly’s argument itself, which frankly had been long accepted by the majority of the shooting community; but because of the full title of the Firearms Acts – An Act to place restrictions on the possession of firearms and other weapons and ammunition, and for that and other purposes to amend the law relating to firearms and other weapons and ammunition. One must wonder – if law can be inferred from the specifically stated purpose of imposing restrictions on the possession of firearms; what are the limits to what law can be inferred from those undefined other purposes?
  • It is worrying also that while the power of the Garda Superintendent to impose conditions on a licence was upheld, no mention was made of any substantial test as to whether such conditions were reasonable or appropriate. One would imagine that in the event of making a ruling of such import, that checks and balances to the authority being granted would be considered in more detail.
  • It is perhaps petty to note that while McCarron saw the O’Leary precedent overturned, Magee‘s original High Court ruling relied in part upon O’Leary to support the argument that the Superintendent had the right to impose conditions, which leads to the interesting scenario where a precedent is overturned in one case to deny an appeal only to be indirectly upheld by denying an appeal to a case heard within the same judgement.
  • Of all the entire judgement, however, it is perhaps the following line which is most likely to be a point which will need to be addressed in the future, because it summarises the concerns over the current status of the Commissioner’s Guidelines succinctly: Clearly, it will be difficult to draw the line between permissible guidelines and impermissible rigid and inflexible policies. This has been a longstanding concern of the shooting community for some time – do the Commissioner’s Guidelines constitute permissible – and indeed, desirable – guidelines; or will concerns over career advancement manifest through Garda Superintendents adopting these Guidelines as de facto adjuncts to the Firearms Acts themselves, inflexible and unbreakable even in cases where fairness would dictate otherwise? This may well be a case of bad law arising from an unrepresentatively straightforward case.

It is of some interest, having reviewed the Supreme Court’s judgement itself, to also consider the analysis of that judgement as released by the NARGC from their website. This analysis is not one with whom we can agree on all points, nor on overall tone and approach. In the case of Magee, for example, it concludes that the outcome of the case has not had, and could not have had any positive or negative effect on the licensing code as presently constituted. While this is on the face of it correct, it cannot, we feel, be said to adequately represent the nature of the judgement. It is true, that in the narrow view of whether or not the Superintendent could issue conditions, the case has had no real impact; but the argument which the judgement has now endorsed, namely that unspecified powers may be argued to be afforded to agents by the combination of the title of the Firearms Act and subjective opinions on the dangers of the possession of firearms, is one which should deeply trouble many within our community. Further, one must question the allocation of resources to a case where it was thought that the outcome could not have had any positive impact.

For further example, there is the statement that The Supreme Court upheld Mr. McVeigh’s decision and accordingly has strengthened and underpinned the Dunne v. Donohue principles that a Licensing Authority cannot operate a licensing code which is based on inflexible policy without exception. This statement is strongly undermined by the statement which we commented on above where Justice Fennelly notes that it will be difficult to draw the line between permissible guidelines and impermissible rigid and inflexible policies. As it is arguable that McVeigh was the major positive outcome for the shooting community from this case, that statement should be raising red flags for those considering legal action in the resolution of licencing disputes. It should not be argued that McVeigh represents a clear-cut legal argument against refusal to licence certain firearms, especially in the light of the arguments made in McCarron. It cannot be reasonably argued that McVeigh is an unqualified strengthening of the position of target shooters as a result of Justice Fennelly’s comments.

Also, while it might be petty to note this, it is disturbing that the faux pas of referring to sports equipment as “weapons” is one committed by the NARGC in their released analysis. One would have hoped that the implications of such a term would have been more clearly understood by an NGB of shooting. It is understandable that having expended large amounts of resources and time in the pursuit of these cases that the NARGC would present the outcome in the best possible light, but one wonders if perhaps in the pursuit of that best possible light, the pudding was not over-egged somewhat.

On the face of it then, McCarron and Magee do not seem to have been worthwhile applicants for Judicial Review in the High Court or for a Supreme Court appeal of that Review application. Granted, at the time that these cases began, the current legislative framework was not fully in place and a District Court appeal was not an available option, but even at the point where the High Court Judicial Review came out, the argument was publicly made that McCarron should never have gone to court at any level. The case appeared obviously weak on first examination, the manner in which the application was made raised issues that were commented on in the High Court, and it resulted in a very worrying precedent being set regarding how the Superintendent should consider the nature of the firearm for which a licence is sought. At the time that McCarron came out, I was personally of the opinion that that precedent alone was sufficient cause to challenge the ruling; but after sleeping on it, thought that an appeal of McCarron was not the correct route to take as the case was so weak. It is cold comfort indeed to be proven right on this point.

Further, though leave to have Judicial Review of McVeigh was won in the Supreme Court, and the statements made in the judgement with regard to the policy enacted by the Minister and the Gardai from 1972 to 2004 regarding the licencing of firearms were of great importance for the historical record; it is somewhat questionable as to the practical value of the ruling today given that since the initial events of the case, the legislative framework of the Firearms Acts has been so comprehensively altered — and the Justice has noted that explicitly. Even the principle laid down by Dunne and now affirmed by McVeigh, that a licencing decision based on an inflexible policy instead of an  individual decision, is one whose weak nature was commented on by Justice Fennelly, as we have previously noted.

Today, under current legislation, the Minister has in fact full legal authority to enact in law the erstwhile policy of denying licences for specific classes of firearms (and the manner in which those classes may be defined is very wide indeed). As such, noting that the policies enforced from 1972 to 2004 were illegal is important for the historical record but won’t help those currently in the District Courts seeking redress from unfair decisions by their local Superintendents – and one has to query the wisdom of pursuing an exceptionally expensive court case like this which can have only limited use even with a successful outcome, when large numbers of people are facing large financial outlays on several smaller cases in lesser courts.

The total cost of these three initial cases and their supreme court appeals must be enormous from the point of view of the shooting community – on the order of €500,000 or more. The question of whether such outlay has provided a return worth the expense is one that is worthy of informed discussion.

We’ve commented here before on the perils of legal action to both the plaintiff and the shooting community as a whole – it is deeply troubling that that simple point – that legal action is not guaranteed to lead to a positive outcome – seems to be ignored today by those who should know better. It is deeply troubling to see cases taken from the District Court straight to a High Court Judicial Review without intervening steps, to hear of sporting NGBs advising applicants to bypass the mechanisms so hard fought for (such as the Firearms Policy Unit) and to go directly to court over any grievance. A decade ago, we witnessed the same philosophy in action, and following many expensive court cases and much risk, and even welcome victories at the Supreme Court; we witnessed every single step forward wiped out with a single short paragraph buried in the miscellaneous part of an otherwise relatively anonymous Criminal Justice Bill.

The amount of manpower and effort that was required (and is still required today) to deal with the fallout from that paragraph has crippled our sports, paralysed development, and in the meantime our sport has suffered both in participation and performance, to say nothing of facilities and expenses. The view that the legislative rewrite comprised by the Criminal Justice Act 2006, the Criminal Justice Act 2007 and the Criminal Justice (Miscellaneous Provisions) Act 2009 has been the worst blow our sports have ever endured is a popular one, and for just cause – and the view that this blow was a result of an overly belligerent and antagonistic approach to dealing with valid legislative concerns is a widespread and reasonable one. As Justice Fennelly put it, the communications between the appellant and the Minister had some of the character of a dialogue of the deaf.

Surely it needs to be said plainly and directly to those who now agitate for court cases to be the sole recourse for all disputes, that they have no right to incur the attendant risks for both the plaintiffs and the sections of the shooting community who have the most to lose, without at least having the informed consent of those sections and plaintiffs. Taking repeated court cases in this manner gains nothing and risks everything that many of us have sacrificed years of our life working for. Those who agitate in this manner are not on the side of the angels. They are instead the most serious risk our sporting community face today, and our community needs to deal with that risk in a mature fashion.


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