Rumour Control : Criminal Justice Act

Sparks

Hi folks.
There's a rumour running about at the moment about a high court case this morning resulting in the CJA being declared unconstitutional. It's not quite correct. Here's the story taken from a conversation with the high court registrar. Note that this is not the judgement - that'll be on the website (courts.ie) next week sometime, this is just a brief overview.

The case is O'Leary v Maher (Maher, I understand, is the Kilkenny Superintendent). The applicant had applied for a firearm, already having licences for others. The super turned him down on the grounds that it was a military calibre (the actual calibre applied for, the registrar couldn't recall, I've heard conflicting scuttlebutt on it being a .223 rifle or a 9mm pistol - however that's irrelevant in the larger scheme of things). The applicant applied for a judicial review (this case predates the CJA's path through the district courts), and the judgement was delivered this morning. The super's decision was quashed and he must now remake that decision in light of the judgement.

However, the important thing from our point of view is that it was quashed because you licence the person, not the gun. I don't have the precise wording from the judgement, we have to wait for that. The sense of it was, however, that whether or not the military use that round is irrelevant because that's not what the applicant will be doing with it; the super must decide if the person is suitable to hold a firearm and that decision has nothing to do with the specific firearm. Mention was also made of common sense not having been applied as it should have been. Mention was also made that if the applicant already has licences, then obviously he's suitable to hold a firearm so it shouldn't have been refused.

There are ripples from this (and I suspect this is the source of the rumour). Most obvious is that it directly attacks both the Restricted Firearms SI and the part of the CJA that defines Restricted Firearms licencing and the like. So parts of the CJA may at a future point be overturned with this as a precedent. There may be others - we'll need to wait for the judgement to see, obviously. And of course there's the question of appeals, if there are any.

But that's what we know right now, from the source. Judgement should be available in a week or so to read on the web, I'll post a link here when I see it.

Can this act as precendent following a change in the CJB?

Ie.. can this be used as it was tried under a now outdated and amended law?

It wasn't me!

So, is the outcome of this that if a person is deemed fit to hold a certificate for a certain calibre, there's no reason to refuse them a certificate for another calibre provided they demonstrate a place to use it and necessary storage arrangements and such? I suppose the other side of the coin is that a refusal for a given certificate might be accompanied by the withdrawal of any previously held certificates and the order to surrender the firearms concerned, should there be any arbitrary unwillingness to license a particular firearm. Not what I would see happening personally, but just to pose a question really I guess.

Sparks

It could certainly be cited in a legal argument zara, though it again depends on the exact working of the judgement and we won't see that for a few days yet. It doesn't (so far as I know) do anything automatically though.

IRLConor

Deleted User wrote: »

Can this act as precendent following a change in the CJB?

Ie.. can this be used as it was tried under a now outdated and amended law?

You'd really need to ask a law-talking guy for that one TBH.

I know judges go so far as to quote British law when making rulings but I don't know where the boundary between "binding" and "persuasive" is. I don't even know if there's strictly such a thing as a "binding" precedent.

Sparks

Can't say IWM. All I think we can depend on is that this makes it easier to get a licence for a "military" calibre firearm in kilkenny now, because there's a precedent.
Which isn't to say the super can't still refuse the application; just that he can't do so on the grounds that it's a "military" calibre.

It wasn't me!

Sparks wrote: »

Can't say IWM. All I think we can depend on is that this makes it easier to get a licence for a "military" calibre firearm in kilkenny now, because there's a precedent.
Which isn't to say the super can't still refuse the application; just that he can't do so on the grounds that it's a "military" calibre.

If the judgement was made on the basis that the Superintendent should license the person, and not the gun (the type of gun becomes irrelevant?), does that mean that anyone who already holds a firearms cert of some kind, provides the necessary storage and has a demonstrable use for the gun shouldn't be refused?

chem

As I have always said, common sense is not always that common;)

Will this case have an effect on other areas? or is it only in the Kilkenny Superintendents area?

Sparks

Well, common sense says that's how it already is IWM. Like I said, we don't know the details of this judgement, and we don't know the full knock-on effects.

It wasn't me!

Sparks wrote: »

Well, common sense says that's how it already is IWM. Like I said, we don't know the details of this judgement, and we don't know the full knock-on effects.

Fair enough, was just wondering if it might make the process somewhat more "tick the box"-y for a Super, taking away an element of their discretion.

IRLConor

chem wrote: »

Will this case have an effect on other areas? or is it only in the Kilkenny Superintendents area?

Other Supers might take note. It will probably depend on the exact text of the ruling.

Grizzly 45

However, the important thing from our point of view is that it was quashed because you licence the person, not the gun.

Just being a bit nit picky here,but isn't it the other way round here?? That we liscense the guns not the man??

Sparks

It's the other way round in the paperwork grizzly in that you get a cert for every firearm - but in the way the decision is made whether or not to licence someone, that decision is not by law supposed to be based on the firearm being sought but on the person seeking it (and their reasons for seeking it).

Grizzly 45

Cheers Sparks,thought I'd missed somthing while being away from our shores.:D

Dvs

Hello Sparks,
This is hopefully a positive development.

But can I ask that you might close the thread,
So that this does not turn into a discussion of issues, that may or may not be raised or effected by this.

when the judgment comes out we will be able to discuss facts.

unrestrained discussion about issues that may or may not be.
should not take place, as that may have negative impact on our sport.

Dvs.

rrpc

Just to echo what Sparks said about rumours. I've never seen anything like the shooting sports for producing rumours at such wild variance to the facts.

Are we all hysterical nitwits, or is there somebody with an agenda? It's sometimes hard to fathom what goes through what people are pleased to call their minds.

My advice when hearing a rumour, is first check with your governing body/rep/etc. and make 100% sure of it before spreading it around. Joking aside, but damage could be caused to our sport by repeating rumours without checking all the facts first.

You wouldn't believe what I heard first before the truth was finally established. :eek:

IRLConor

rrpc wrote: »

Are we all hysterical, paranoid nitwits, or is there somebody with does everybody have an agenda?

Fixed for you.

Sparks

Dvs, if we wait for the judgement, we're in the same position with regard to discussing things the judgement may effect. Personally, I don't see how discussing this can hurt, but noone can have zero blind spots - what threat are you seeing?

rrpc

IRLConor wrote: »

Fixed for you.

Thanks Conor - I needed a reality check there alright

bunny shooter

Well done to whoever took the case, fair dues :cool:

johngalway

I only want to say two things, the first being a very well done Mr.(?) O'Leary. Second is I hope we can look forward to the person being licenced, as I've said in the past the person not the firearm needs approving. Fit to hold should be good enough, either fit or not.

clivej

The Kilkenny's super's name is Superintendent Pat Managn or that was the super's name that I was talking to a few weeks back. I am now waiting over 12 weeks for my 12 G shotgun license and about 7 weeks for my 22 lr license to come through. I went to talk to Superintendent Mangan about getting a license for a 308. A WHAT!!!!!!. For target shooting at Midlands. He just quoted reasons as to why this calibre would/could only be used if it was the only calibre capable of being used for that porpose from a nice yellow binded book with post-it's on all the right pages, also wanted balistic stats for the calibre, and all the details about the Midlands range. Just making it hard to get a 308.
I don't think this super has signed for any calibre above 22 hornet yet. 22 swift 223 is all tabbo, that,s from the FO. My son has just got a 223 license as his first gun from the Carlow district.
Anyway I only hope that this case will help me out with getting a license for a 308 in the future.

jwshooter

Sparks wrote: »

Hi folks.
There's a rumour running about at the moment about a high court case this morning resulting in the CJA being declared unconstitutional. It's not quite correct. Here's the story taken from a conversation with the high court registrar. Note that this is not the judgement - that'll be on the website (courts.ie) next week sometime, this is just a brief overview.

The case is O'Leary v Maher (Maher, I understand, is the Kilkenny Superintendent). The applicant had applied for a firearm, already having licences for others. The super turned him down on the grounds that it was a military calibre (the actual calibre applied for, the registrar couldn't recall, I've heard conflicting scuttlebutt on it being a .223 rifle or a 9mm pistol - however that's irrelevant in the larger scheme of things). The applicant applied for a judicial review (this case predates the CJA's path through the district courts), and the judgement was delivered this morning. The super's decision was quashed and he must now remake that decision in light of the judgement.

However, the important thing from our point of view is that it was quashed because you licence the person, not the gun. I don't have the precise wording from the judgement, we have to wait for that. The sense of it was, however, that whether or not the military use that round is irrelevant because that's not what the applicant will be doing with it; the super must decide if the person is suitable to hold a firearm and that decision has nothing to do with the specific firearm. Mention was also made of common sense not having been applied as it should have been. Mention was also made that if the applicant already has licences, then obviously he's suitable to hold a firearm so it shouldn't have been refused.

There are ripples from this (and I suspect this is the source of the rumour). Most obvious is that it directly attacks both the Restricted Firearms SI and the part of the CJA that defines Restricted Firearms licencing and the like. So parts of the CJA may at a future point be overturned with this as a precedent. There may be others - we'll need to wait for the judgement to see, obviously. And of course there's the question of appeals, if there are any.

But that's what we know right now, from the source. Judgement should be available in a week or so to read on the web, I'll post a link here when I see it.

yes sparks , tom o leary v maher but from kerry killarney .full costs ,,big door just opened

Sparks

I was sure Maher was Kilkenny. Well, I'm open to correction from someone who knows

edit: Ah - killarney rather than kilkenny. I must have misheard the registrar.

Sparks

I think, by the way, that DvS had a valid point - let's discuss this constructively of course, but let's not jump off into the wild blue yonder until we've seen the actual judgement itself.

jwshooter

Sparks wrote: »

I think, by the way, that DvS had a valid point - let's discuss this constructively of course, but let's not jump off into the wild blue yonder until we've seen the actual judgement itself.

no worries sparks your spot on with the most of it :quote:you licence the shooter not the gun :

thehair

johngalway wrote: »

I only want to say two things, the first being a very well done Mr.(?) O'Leary. Second is I hope we can look forward to the person being licenced, as I've said in the past the person not the firearm needs approving. Fit to hold should be good enough, either fit or not.

yes it is the person needs approving :eek: not the firearm:)

Manic Moran

IRLConor wrote: »

I know judges go so far as to quote British law when making rulings but I don't know where the boundary between "binding" and "persuasive" is. I don't even know if there's strictly such a thing as a "binding" precedent.

Any ruling from a higher court is binding on a lower court and may not be contradicted. Any court can, if it really, really thinks that the precedent is bad law, reverse itself or a lower court. As a result, there is no such thing as binding precedent for the Supreme court, but anything the SC says is binding to everyone below it.

NTM

Sparks

A lower court can't overrule a ruling on a specific case by a higher court, yes, but that's not what IRLConor was asking MM. He was asking, if a judge in the high court rules one way in one case, does that precedent bind on any other judge at the same level in another case. And it doesn't - precedent doesn't bind unless the cases are identical. A judge can decide another way if they feel the case is sufficiently different. That's why you could have both sides in a case arguing over which precedent ought to be followed by the judge.

fourtycoats

Is it possible that the Govt, got wind of this judgement and the Firearms Misc, Bill may be the tidy up attempt?

ivanthehunter

This judgment is an excellent result for shooters and it goes to show that the legal system is fairly fought on points of law.

I (for one) would like to know the financial implications of a case similar to this.. knowledge like this would and will give people the power to threaten the Garda with legal action and it will help Irish shooters, put to bed once and for all the irregularities that are all too common with firearm legislation within Ireland's Garda stations.

One of the possible negative out comes from this judgment might be a general increase in the difficulty in acquiring a first firearm. Or an 'across the board' rise in the 'conditions' (by super) placed in a bid to future proof any licensee against any caliber weapon which a citizen is allowed to own, in other words any citizen might have to have in place any and all of the security requirments required for a .308 when he/she applies for a cert for an airrifle......

Irish laws will probably be modified to distinguish between the supposed restricted and the alleged un-restricted:D

Sparks

fourtycoats wrote: »

Is it possible that the Govt, got wind of this judgement and the Firearms Misc, Bill may be the tidy up attempt?

I seriously doubt it - the Misc Bill has been in the works for some time now and made it onto the program for government's to-be-published list quite a while back.

ivanthehunter wrote: »

I (for one) would like to know the financial implications of a case similar to this.

In what sense?

knowledge like this would and will give people the power to threaten the Garda with legal action

I can't stress enough how stupid, short-sighted and self-destructive a course of action that would be. You make this us versus them and we lose in the long term. No contest. And regardless of the inevitable outcome, it's not how it should be. Co-existence is the goal here, not victory. It ain't sexy, but it's the only thing that will work. Remember, taking a militant, we-can-beat-them approach is how we got into trouble with the CJA in the first place. The FCP is the best avenue we have for a situation where the DoJ and Gardai and we are all able to coexist without risking either public safety or our sports.

and it will help Irish shooters, put to bed once and for all the irregularities that are all too common with firearm legislation within Ireland's Garda stations.

No, it won't. This was a judicial review, same as a hundred or more before it. It was a favorable judgement, and it will have effects, but it's not going to fix everything overnight. The best shot at ensuring regularity is still the FCP.

an 'across the board' rise in the 'conditions' (by super) placed in a bid to future proof any licensee against any caliber weapon which a citizen is allowed to own, in other words any citizen might have to have in place any and all of the security requirments required for a .308 when he/she applies for a cert for an airrifle

That wouldn't stand up in the District Courts. Nor, for that matter, would the Super have that legal authority under the law.

ivanthehunter

Sparks.
Co-existence is what we need but its not going to be achieved without the possibility of threatened action from people like o'leary..because the powers that be are unfair and ill informed...preiod.

Also under current legislation a superintendent can impose any conditions that he wishes on a license holder, so that could mean a monitored alarm for a .22lr or a sb shot gun.....


This judgment will i think set the bar and as such it will shift many of the rubber goal post but I never said that it would totally put to bed all irregularities that exist, did now?
No i dont think so! I only said it would help in putting irregularities to bed..

Sparks

ivanthehunter wrote: »

Co-existence is what we need but its not going to be achieved without the possibility of threatened action from people like o'leary

Threats don't work on the Gardai or DoJ. Philosophically, threatening to get coexistence is like fornicating for virginity. Pragmatically, remember the bin tax and the CJA 2006. High court cases won against the government led to new legislation re-establishing and strengthening the position that the government held before the court cases.

Also under current legislation a superintendent can impose any conditions that he wishes on a license holder, so that could mean a monitored alarm for a .22lr or a sb shot gun

Indeed. However, that's being addressed through other, less confrontational means.

This judgment will i think set the bar

It's a helpful precedent without doubt. It will not, however, change shooting as we know it overnight, and it only acts to bolster what has already been lined up through other, less confrontational means.

I never said that it would totally put to bed all irregularities that exist, did now?

Technically, you stongly implied it and I'm not in the mood to split hairs. It wouldn't be very constructive on what's a sensitive issue anyway.

ivanthehunter

Sparks wrote: »

Threats don't work on the Gardai or DoJ. Philosophically, threatening to get coexistence is like fornicating for virginity. Pragmatically, remember the bin tax and the CJA 2006. High court cases won against the government led to new legislation re-establishing and strengthening the position that the government held before the court cases.

Bin tax... yes i remember it well, fair point...

But i dont have the time to split hairs either.

foxshooter243

it seems to me that people taking court actions against superintendants
paved the way for the FCP to come into being, im sure that behind closed doors people in government knew that high court actions were not the best way to solve things. i agree the fcp is the best avenue we have in getting results in a reasoned manner..but i wonder if that invitation would have been sent if everyone sat back and accepted the bad practise that was prevalent and in some places still goes on in the application of firearms licencing..or now it seems "people licencing".

Sparks

Fox, I think we're talking here about the difference between being assertive and being antagonistically aggressive. The former is definitely a positive virtue, but the latter was what we saw more of in some areas, and it did nothing for us and a lot against us. It's a line we'd want to be overly aware of, if you follow me.

foxshooter243

Sparks wrote: »

Fox, I think we're talking here about the difference between being assertive and being antagonistically aggressive. The former is definitely a positive virtue, but the latter was what we saw more of in some areas, and it did nothing for us and a lot against us. It's a line we'd want to be overly aware of, if you follow me.

I agree, but I remember questioning a decision by a firearms officer not to provide me with another licence as i had "too many", on taking my case upwards to the local inspector ,it was the inspector who had adopted the aggresive posture, i was quite prepared to debate my application reasonably and had prepared a written reason of my need and bona fides for the firearm...after a hostile barrage of 10 mins..too which i didnt rise,
he suddenly stopped and signed my application..i could tell countless stories of fellow shooters going through the same pains to get a licence,
like the farmer in our club refused a shotgun cert point blank and on contacting his solicitor having the situation reversed immediatley..he now shoots on the irish skeet team. In reality the reason for people having the attitude they do is largley justified, people nowadays are quite prepared to fight their corner when the need arises as the high court cases show.
The perplexing thing about all this is I have never met or heard about anyone who takes a court action or has to use a solicitor or whatever means not end up with their cert in the end anyway..so I can understand people getting frustrated with the system.

Sparks

I'm not saying things are perfect fox, but... well, allow me to quote myself if I can be that pretentious, 'cos what I'm trying to say is something I said over a year ago:

it's important to keep a clear picture. 220,000 licences granted every year. Currently there are 72 cases being taken against the Gardai in relation to the licencing process by the NARGC. Even if those 72 represent the best cases available (say, one out of every ten reported), and even if half of the problems are never reported at all to anyone, that still means that 99.35% of all applications are processed and granted without problems.

Now that's not saying that those cases are unjustified - it's vital that the law is followed in 100% of cases - but 99.35% isn't quite bad enough to make me want to dust off the pitchfork and light the torch, you know?

It's like airline crashes. Incredibly rare, but hugely reported so that everyone's heard of them.

fishdog

Sparks

The figures you quote are not correct because the vast majority of people that have been unjustly refused firearms certificates have taken no legal action and therefore are not counted.

foxshooter243

Sparks, of those 220 000 licences -how many are renewals and how many are 1st applications?

bunny shooter

foxshooter243 wrote: »

Sparks, of those 220 000 licences -how many are renewals and how many are 1st applications?

Now that IS a good question :pac:

Sparks

I did say that I was assuming that one in ten reported cases went to court and that only half the cases were reported; but if you want to play with those assumptions, go ahead. You need to set up some pretty ridiculous numbers before you start seeing the majority of applications being problematic.

We tried a thread in here a while back to get everyone to report good and bad experiences with their local super. The good outweighted the bad by the kind of margin the 99% figure would lead you to expect.

bunny shooter

I've had 5 previous applications that were refused and I didn't go to Court !

foxshooter243

Sparks wrote: »

I did say that I was assuming that one in ten reported cases went to court and that only half the cases were reported; but if you want to play with those assumptions, go ahead. You need to set up some pretty ridiculous numbers before you start seeing the majority of applications being problematic.

We tried a thread in here a while back to get everyone to report good and bad experiences with their local super. The good outweighted the bad by the kind of margin the 99% figure would lead you to expect.

yeah , but the good would outweigh the bad in a shooting forum as i would expect the posters are all active shooters, to get a true figure you would need to know the number of new applications in a year-and then be able to quantify the number of people who had their application processed without a hitch versus the number of people who didnt and who were refused , put off, gave up trying etc. I dont know how you would do this.
The reason my view differs is that I spent some years as secretary of a
large gun club,and met and dealt with a lot of people who were attempting to get started in shooting, and the number of people who had trouble obtaining permits was higher than your stats suggest..although i
would have to say in all fairness that there has been a huge turnaround
lately..

fishdog

You need to set up some pretty ridiculous numbers before you start seeing the majority of applications being problematic.

I agree, but that does not mean that there are not an unacceptably large number of cases of people being unjustly refused a FAC.

I know people (and I am sure many others here have seen this) in the shooting community that have:

1) Been refused a FAC on the basis of a law that does not exist

2) Been told that what they are applying for is illegal (when it is not)

3) Been told that they must have ridiculous security, and when they comply with the requirements they are still refused (even after a favourable inspection from CPO)

4) At the age of 21 told to come back and reapply when he is older!

5) Renewal refused on the basis that the range was not authorised a few years ago when none in the country were authorised.

I could go on.....

I hear that things have improved, but I do not know anyone that has applied for anything recently. Personally, I have had positive experiences myself.

I will not argue around in circles about this, this is just what I have seen.

rrpc

Personally I think things have improved barring certain well known areas and problems.

The point of having and developing a shooting community is that those who heretofore have had no recourse to either information or advice when faced with an unfair decision, now do.

There will be still some who will fall through the cracks, but it's good to see people coming into this forum and asking advice before attempting to apply for a licence.

Sparks

From the NARGC website:

NARGC SECURES LANDMARK JUDGEMENT

High Court Judicial Review
Thomas O'Leary -V- Superintendent Michael Maher.

The Reserved Judgment of Ms Justice Harding-Clarke was delivered in the High Court in the above NARGC case on Friday last, April 25th. While it is nothing out of the ordinary for us to win our Judicial Review cases, having won every single one to date, this one is particularly important as it is a landmark Judgment which settles once and for all the proper interpretation of Section 4(b) of the Firearms Act 1925 as amended. Section 4(b) of the Act states that before granting a firearms certificate to an applicant, a Superintendent of the Garda Siochana must satisfy himself that the applicant may be permitted to possess, use and carry the firearm without posing a danger to public safety or the peace. Many Superintendents around the country have been interpreting this for the purposes of resisting a firearms licence application, as meaning that the Superintendent is entitled to take into account the calibre, style or type of firearm which is being sought as in some way forming part of his reasoning concerning public safety and the peace. We have persistently maintained that this is an incorrect interpretation and that the correct interpretation is that the Superintendent must make a subjective assessment of the character of the applicant and that this should have nothing whatever to do with the type of firearm. Justice Harding-Clarke agrees with our interpretation and has ruled accordingly. However, her Judgment is particularly strong and that will be obvious from the terminology she uses, e.g. illogical, defying commonsense, bizarre etc. The implications of this Judgment are that if a person is already an existing firearms licence holder, then de facto that person has already been adjudicated by the Superintendent as not posing a threat to public safety or the peace by his/her possession of a firearm. The fact that the applicant may be applying for a different firearm or higher calibre does not alter the character of the applicant which has already been assessed prior to the granting of the existing firearm, unless of course there has been a material change to the applicant's circumstances. Even for a new applicant, the judgement states unambiguously that the Superintendent must still address his consideration to the character of the applicant and he may not decide for the applicant the type of firearm which the applicant requires. The only matter which a Superintendent may consider in relation to the firearm is whether the applicant would be able to handle the firearm in question competently. This of course is covered now in the Criminal Justice Act by the Minimum Standards of Safety Requirements. This Judgment seriously changes the manner in which Superintendents will have to apply themselves in considering firearms applications and it will no longer be permissible for a Superintendent to say to an applicant that he is refusing the firearm application because the firearm is used by military personnel somewhere in the world or by a police force somewhere else or because of the calibre or type of firearm etc. It will be noted from the Judgment, that much was made of this military aspect in the case with the State arguing that the firearm is a NATO Sniper calibre and that it can fire armour piercing bullets. This was a rather disingenuous argument in view of the fact that the .308 which was the subject of the application was a sporting version which was bolt action and capable of holding only three rounds of ammunition. It is also the case that armour piercing ammunition is not available to private citizens.

Apart from altering the way in which Superintendents will have to approach consideration of an applicant in the future, this Judgment also means that a number of other cases which are currently on our Judicial Review list but yet to be heard will now fall to be settled.

Rovi

Hmmm... interesting.

An occasional tap of the 'Return' key would have been nice, if anyone from the NARGC nerve centre happens to be reading this.:rolleyes:


It'll be interesting to see how this effects the application of the law in the real world, particularly in those places where the man in the blue suit has a bee in his bonnet over 'military calibres'.

Is the wording of the actual judgement available anywhere, does anyone know?

Sparks

It's a good summation of it allright (at least the parts I've seen reported so far, the actual judgement isn't up on the web yet) - though I think it's a bit loose in regard to how the super can look at the firearm being applied for:

The only matter which a Superintendent may consider in relation to the firearm is whether the applicant would be able to handle the firearm in question competently. This of course is covered now in the Criminal Justice Act by the Minimum Standards of Safety Requirements.

Thing is, that's correct in that competence comes into it, but there's also the matter of having a safe place to use the firearm. Granted the two are linked (no competent shooter would try to use a .308 for shooting rats in a barn) but it's such a major item that it ought to be thought of as a seperate thing really.

It wasn't me!

Hmm, just a quick question: If the nature of the firearm concerned in an application is irrelevant, how is the restricted list to be applied now?