Criminal Justice Bill 2004, Firearms Acts amendments

Sparks

Folks,
I was trying over the last few days to put together a composite document, starting with the 1925 Firearms Act and then applying amendments to it as set out by the other Firearms Acts (1964,1968,1971,1990,etc) and by the current Criminal Justice Bill at it's current committee stage.

I came across a number of discrepencies at a fairly basic level (along with a rake of things that target shooters are looking at in disbelief - this new Act puts us up there with drug dealing pimps in terms of how our civil liberties are regarded, it would seem). For instance, in Section 1, "firearm" has more than one definition, and the definitions do not match.

In such a case, what happens? Could the Bill become an Act with such errors in it, and if so, what happens if it's challanged in the courts? Can it be prevented from becoming an Act in it's current form as a result of these errors? Who could we talk to to express our desire for change in the current Bill's committee-stage amendments?

walrusgumble

you are probably aware that there are two methods for challenging legisalation.

Under Article 26 the President can refer the Bill to the Supreme Court, to see if it is repugnant to the Constitution, before he/she signs it. However only the President an do this.

the second is for citizens. this is by way of judicial review in the High Court,where the court can strike down legislation that is either as a whole or partly unconstitutional. if the court does so then it shall be declared null and void and the legislative would have to admend or repeal the Act. SEE ART 34.3.2.

The next issue is your locus standi (legal standing). normally you must show to the court that the law personally affected or is dangerous to your personal interests. however there is an exception, for people who are not directly affected by legislation, you maybe be a bone fide interest group eg gun association. this is where the group would prove that they have a genuine concern in seeing that the constitition is upheld

the next issue is that as two organs of state, the legisaltive and the courts must respect each each others power/role whih was distributed under art 6. y ensuring this there is a presumption of Constitutionality, whih must be rebutted by the applicant. i am not sure a citizen can dierectly challenge a bill, only the president. the diasadvantage of this is not if challenged and the supreme court is sastified that its constitutional, then because of the presumption, it can never be challenged by a citizen. it would remain in the statute books until its repealed or amended.

it is worthwhile chatting up a qualified solicitor or and a gun gun club to see there views. i wouldnt take what i said as being totally correct.

Sparks

On this point, can I get peoples' opinions on section 4B in this thread please? I'd like to get a broader range of opinions, since mine will be coloured by my being a target shooter...

Eru

Sparks wrote:

On this point, can I get peoples' opinions on section 4B in this thread please? I'd like to get a broader range of opinions, since mine will be coloured by my being a target shooter...

Your arguement, while it exists has no merit. the inspector will clearly not be a convicted criminal. I suspect the minister has, as with many acts, left it broad to allow some changes in the future. Perhaps Im reading too far ahead but perhaps the objective is for licensed shooters to some day take this job away from Gardai or perhaps a board established to oversee this whole area.

as for searches, the inspector is being given the same powers as An Garda Siochana. I need not explain myself to any person prior to performing a search (other than the person being searched obviously). if you believe the search unlawfull you take a civil case.

Please also note, warrants are not always required to enter a house and in my opinion, a shooting range or club would be searched in the same manner that we enter clubs, pubs, etc now.

Sparks

the inspector will clearly not be a convicted criminal.

I'm not suggesting that the Minister will be recruiting from Mountjoy, but the point was that the Bill, as written, does not require those conducting searches of people's houses to not have criminal records. But those who would apply for a firearms licence are required to not have criminal records (or, more exactly, to not have been convicted of a serious crime in the last five years or so). Hardly seems just to me. It also seems like an oversight that could be seriously abused.

I need not explain myself to any person prior to performing a search (other than the person being searched obviously).

But the inspector need not explain himself to even the person whose premesis/dwelling/vehicle/land is being searched, according to this Bill, nor need the inspector report that said search took place. Nor is there the large body of rules which Gardai, Customs officers and TV inspectors need to follow to ensure that searches are not abused as methods of opression and to ensure a secure chain of custody for evidence in case of prosecutions.

And yes, I realise that warrants are not always required, but this is a case where they would never be required.

And lastly, for the record, pretty much every shooter I know always cooperates with the Gardai. I've never heard of someone in the shooting community refusing a garda permission to inspect anything they asked for, and in those rare cases where things get to the calling-in-the-soliciter stage, it's usually because the Garda involved has departed from the firearms act. Besides which, I've yet to encounter a garda in relations to my firearms where there was anything but a friendly relationship. The problem here is not the rank-and-file - the problem here is from the policy makers. And this whole Bill is set up so that if these policy makers wish to, they could crucify our sport and heavily abuse other people's civil rights and the past thirty years of experience with them offers little hope that that's not a cause for concern on our part

Eru

Sparks,
90& of what Gardai can and cannot do is contained within proceedures and accepted staff protocol not within the actual law. This would be the same.

the fact that the law states they need not explain themselves will in reality not matter. Where in law do I have to explain anything I do? No where but in reality and in general proceedures I must or it causes more trouble than need be.

I seriously doubt the inspectors will be allowed barge into someones house and ignore the house and gun owner. I simple cannot see it.

As for criminal records, a criminal record does not bar a person frm working within any civil service jobs, Gardai included. We all make mistakes but again, Im sire the recruitment proceedures will outline that.

Im sure that the inspectors will adopt the same approach as Gardai, the man your visiting has the kettle on.

Sparks

Im sure that the inspectors will adopt the same approach as Gardai, the man your visiting has the kettle on.

Karlito, I have great faith in the rank-and-file Gardai for various reasons; but for equally good reasons I have precious little faith in the Minister and in the end, he gives the orders.

An unrelated example to show why I'm worried; I have a single-shot olympic air pistol (more accurately, I have the licence for one, I haven't gotten it delivered as yet). Three years ago, had I tried to get one, I'd have been refused because of a policy that was in place in the DoJ and Gardai since 1972, that lumped some forms of olympic target shooting in with gunrunning. Not until it was taken to the High Court was this overturned, at great expense and with great difficulty - and now, before the dust is settled, in comes this bill with provisions to let the Minister issue de facto bans on any firearm he so wishes, without mechanisms for consultation or appeals.

Similarly, much of the amendments to the firearms act in this bill all overturn earlier cases won by applicants for firearms licences who had been denied their applications on illegal grounds (eg. "No, you can't have a third firearm, the law says you may only have two". Court points out that this is nowhere in the Act. The Bill now lets the superintendent add any precondition he likes to the preconditions for getting a licence.

The ideas might have merit, but the timing makes this appear to just be petulence on the part of the Minister! And the resulting Bill is very open to abuses like the one I was highlighting. According to the law, it would be completely legal for an inspector who was released from Mountjoy yesterday following a burglary sentence to wander through your property and search the place at four in the morning without telling you, the Gardai, the DoJ or anyone else, either before or after the search.

I realise this isn't too likely; but it's fully legal.

Let me give you another example to show why that's not a good thing. Three years ago, when I couldn't have a single-shot olympic air pistol, I could, if I wanted, fully legally, crawl through the wicklow hills in a ghillie suit with a .220 calibre (no, that's not a .22lr, it's a .220 swift - much bigger bullet, much more propellant, much more lethal, much longer range) sniper rifle, night vision goggles, camoflauged facepaint, and a semi-automatic shotgun with twelve rounds of double-O buckshot (lethal through body armour out to around thirty yards from what I've heard) or solid slugs (lethal through body armour to a longer range) strapped to my back. And that would have been completely legal, even before they let back in rifles with a higher calibre than .22 for hunting deer, in the middle of the bad old days when the Provos were supposed to be training in those hills.

See what I mean about it not being a good idea for something to be legal but not too likely?

Eru

I see what your saying Sparks and your right but I just dont see it happening somehow, recruitment proceedure wont allow it.

As for ownership, Im very very anti-gun so your not going to find an ally in me Im afraid.

Sparks

As for ownership, Im very very anti-gun so your not going to find an ally in me Im afraid.

That's quite allright Karlito, I don't need for everyone to suddenly love my sport. All I need is fair treatment. If what I do is safe and not a threat to anyone, I should not be penalised, that's pretty much the entirity of committment I expect from anyone on this.

For those wondering, target shooting - so far as we have records - dates back beyond 1841, when the first recorded match happened in the front square of TCD; since then, we've not had a single firearms-related injury (I'm not counting the one instance I heard of someone breaking their ankle while walking forward to change targets because he stepped in an unseen pothole). My firearms are too akward to make effective weapons; they are locked in a safe; licenced; never assembled and made ready to fire away from the firing point in a firing range; and are owned exclusively for olympic target shooting (ie. I don't hunt with them). They're as safe as we can make them. Frankly, I worry far more about being killed by an idiot behind a wheel on the way to the range than I do about any possible accident on the range.

You can imagine why I'm so annoyed at the new regulations the Minister proposes so. Specifically (and I apologise for wandering away from the specific case of Section 4B here) the points I noted in my training diary:

Section 2a
This is the new Firearms Training Certificate - originally intended to let under-16s train for target shooting legally. Only now, the age limit for this certificate has been raised to 16 - at which age you can get a full certificate anyway, so why bother? In fact, it gets better - if you go for a training certificate at age 16-18, you have to supply parental permission in writing - which isn’t needed for a full certificate! So why get a Training Certificate? Well, the only reason I can think of is that you want to avoid all the new stuff in Section 4 indefinitely, as there’s nothing in Section 2a to say that an applicant for a Training Certificate has to fulfill any of the conditions in Section 4!

Section 2b
Ah, this is a doozy. Basicly, it says that for any firearms the Minister wants, he can force more hoops to be jumped through to get them, to the point where noone can get through the hoops, and it’s all legal and above board and can’t be challanged in court successfully. Two guesses what fullbore rifles and pistols will be declared restricted once this Bill is enacted?

Section 3a
Described as the “do anything you want” clause, this section empowers the Commissioner, or - according to Section 1 - any Garda at or over the rank of Superintendent that the Commissioner wants to let do so - can set out “guidelines” for how the act is enforced, and for any extra conditions that we have to fulfill to get our licences. No mechanism for appealing these of course, nor for ensuring that firearms experts are consulted first, nor even for ensuring that these guidelines are put in the public domain…

Section 4
Not just almost rewritten, this section has been rewritten completely. No longer a simple section with just three conditions to meet to get a certificate, now you have - count ‘em - nine conditions (or eleven for a restricted firearm); plus you have to furnish more information as the Gardai see fit, including character references, permission to check your medical records and proof of competence with the firearm.

Argh! Okay, first the information - how do tourists or those outside the state provide character references, and if they don’t have to, why do I? Why should the Gardai be able to see my medical records when for every other licence (driving, pilots, etc) that has a medical concern, I just take a test and either pass or fail? Who in the Gardai sees my records? The Commissioner? The Superintendent? The secretary? Are they returned to the doctor? Are copies kept if they are returned?

Now, the mandatory conditions. (a) through (c) are just the current conditons, and (d) is just secure storage, which most shooters will have anyway, if they’re in any way sensible - though what exactly “secure” means isn’t defined.

(e) where the firearm is to be used for target shooting, is a member of an authorised rifle or pistol club,
What about clay pigeon shooters then? Or do you not need to be a member of a club for shooting at clay disks? If so, I predict a rise in the number of shooters shooting rifles and pistols at said disks…

(f) is of sound mental and psychiatric health,
Okay, I know I’m of sound psychiatric health, but how do I prove it? And not just right now, but also that I will be so for the entire duration of my certificate? Medically speaking, I’m told that that can’t be done - so then noone gets to have a certificate! Wonderful!

Oh, and for the record - are you feeling a bit blue during winter because of the short days and bad weather? Then you may have SAD, a kind of depression that 60% of us get - and therefore can’t have a firearms licence as you’re not of sound mental health…

I suppose I should be happy. Prior to committee stage, my dentist was qualified to testify to my mental health, according to the bill…


(i) complies with such other conditions (if any) specified in the firearm certificate, including any such conditions to be complied with before a specified date as the issuing person considers necessary in the interests of public safety or security, and
Ah yes, the “do whatever the hell I want” clause. How wonderfully just and fair…

(j) in case the application is for a restricted firearm certificate—
(i) has a good and sufficient reason for requiring such a firearm, and
(ii) has demonstrated that the firearm is the only type of weapon that is appropriate for the purpose for which it is required.

Excuse me? “Weapon”? That’s the term for something used in a crime, not something you give out a licence for!

Section 4a
Here’s where it gets even more fun. Any shooting club or range that’s not authorised isn’t allowed to exist, basicly. Anyone shoots there, then both they and the operator of the range/club get fined anything up to €25,000 and go to jail for up to seven years. No, that’s not a misprint. You can go to jail for up to seven years for not having paperwork authorising something that the Bill doesn’t even define.

And if that authorisation is revoked and your rifle is in the club safe? It goes to the gardai lockup. Doesn’t matter that it’s not owned by the club.

Oh, and the authorisation can be set according to the competence of the people using the range - and from what we’ve heard, that’s a very, very, very likely thing to happen. By the way, how many newbies do you know who are competent from before their first shot? And yet, if they get a training licence for target shooting, they can only shoot on a range; but if they’re not competent they can’t shoot on that range. Lovely, isn’t it?