About this case:

• Citation:
  [2023] IEHC 45
• Judgment:
  External link
• Court:
  High Court
• Judge:
  Mr Justice Garrett Simons

The applicant had applied for a new firearm certificate under current “grandfathering” provisions and had also sought to substitute a modern firearm into his certificate.

Delivering judgment in the case, Mr Justice Garrett Simons held that the Chief Superintendent’s correspondence with the applicant indicated that he was precluded as a matter of jurisdiction from granting the applications.

However, a different case was made in court, where it was said that the decision was refused on the merits. Accordingly, the court held that it was necessary to remit the matter for fresh consideration by a new decision-maker.

Background

The applicant held a firearm licence prior to November 2008 for a particular short firearm. A short firearm was defined as having a barrel of less than 30 centimetres or an overall length of less than 60 centimetres. The grant of firearms certificates was previously governed by the Firearms Act 1925, which required applicants to meet certain qualifying thresholds.

The general conditions for a firearm certificate in the 1925 Act included inter alia that a person had a good reason for requiring a firearm and that the person could use the firearm without being a danger to public safety.

Subsequently, section 11 of the Firearms Act 1964 was enacted, which provided for the substitution of the description of a firearm on a certificate. The effect of substitution was to grant permission for the substituted firearm on a certificate.

The Criminal Justice (Miscellaneous Provisions) Act 2009 placed a general prohibition on the grant of firearm certificates in respect of short firearms. However, the 2009 Act provided for a “grandfathering” provision, where applicants who previously held firearm certificates before November 2008 could apply for further certificates in respect of the specific weapon contained on the certificate.

The applicant had availed of the grandfathering provision for an older firearm and had been granted a firearm certificate in 2017. The certificate was valid for three years. In July 2019, the certificate was amended by substituting a modern firearm for the older firearm. The amended firearm certificate expired in February 2020.

Following this, the applicant submitted two applications: one application was for a new firearm certificate in respect of the grandfathered firearm and the other application was to substitute a modern firearm for the grandfathered firearm.

The Chief Superintendent refused both applications. In correspondence, it was stated that the Chief Superintendent had met with the applicant in 2019 to explain the effects of substituting the modern firearm onto the certificate. Essentially, it was explained that the substitution application would result in the applicant losing his entitlement to renew his certificate for the grandfathered weapon. As such, no new firearm certificate would be granted, it was said.

The applicant issued judicial review proceedings seeking to quash the decision of the Chief Superintendent.

High Court

Mr Justice Simons began by considering the correspondence between the applicant and the respondent in the case. The ordinary and natural meaning of the correspondence implied that the respondent “had taken the view that the legal effect of the amendment of the firearm certificate in July 2019, i.e. by the substitution of the description of the modern firearm for the grandfathered firearm, was to preclude the applicant from seeking, thereafter, to rely on the grandfathering provisions”.

Effectively, the applicant was treated as having given up his legacy rights to his firearm and the correspondence could be interpreted as outlining a jurisdictional bar to the Chief Superintendent entertaining subsequent applications for a renewal of the certificate.

However, in his defence to the proceedings, the respondent maintained that he had refused the applications based on their merits. First, it was said that the grandfathered firearm was a danger to public safety as it had been damaged over time. Second, it was said that the applicant did not have good reason for requiring the certificate.

The court held that these reasons for the refusal of the certificate were “not at all apparent from the correspondence” and that the “chain of correspondence does not convey the rationale now advanced in the verified statement of opposition and the legal submissions”.

Since this rationale for the underlying decision was belatedly disclosed, it was held that the Chief Superintendent did not comply with his statutory obligation to inform the applicant in writing of the reasons for the refusal of the applications.

Further, the statement of reasons was insufficient by reference to the decision in Connelly v. An Bord Pleanála [2018] IESC 31. It was not obvious to the reasonable reader that the applications had been refused on their merits and the applicant was therefore not in a position to make an informed decision to exercise his statutory right of appeal to the District Court.

While a deficient statement of reasons by a first instance decision-maker would not necessarily justify a party in foregoing a statutory right of appeal and seeking judicial review, the present case could be distinguished because of the mistaken impression conveyed by the respondent that the applications were refused on jurisdictional grounds.

Since this mistaken impression undermined the effectiveness of a right of appeal, the applicant did not fail to exhaust his right of appeal to the District Court in bringing the proceedings, the court held.

Conclusion

The court held that the applicant succeeded on the narrow grounds that the Chief Superintendent failed to comply with his obligation to provide reasons for the decision. The court quashed both decisions on the applications and remitted the matter to a different decision-maker.

Brennan v. The Chief Superintendent of the Cork West Division [2023] IEHC 45