National Association of Regional Games Council v. Minister for Justice [1998] IEHC 93 (12th June, 1998)

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1. The Applicant herein is a large association comprising some 22,000 members divided into 875 gun clubs which are situate at locations all over Ireland. It is the largest such association within the State and it is governed by its Constitution and Rules which describe its "Aims and Objectives" in the following terms:-

2. The First named Respondent (the Minister for Justice) inter alia, pursuant to Section 3(2) of the Firearms Act, 1925, is charged with the administrative responsibility for granting firearms certificates to persons not ordinarily resident within the State subject to certain conditions and limitations.

3. The Second named Respondent (the Minister for Arts, Culture and the Gaeltacht) is, inter alia, pursuant to the provisions of Section 29(2) of the Wildlife Act, 1976, charged with the administrative responsibility for granting to a person ordinarily resident outside the State a licence to hunt and kill with firearms certain exempted wild mammals and protected wild birds subject to certain conditions, provisions and limitations.

(1) That the First named Respondent (the Minister for Justice), in dealing with applications made to him pursuant to the provisions of Section 3(2) of the Firearms Act, 1925 made by persons not ordinarily resident within the State, has failed to discharge or to adequately discharge the obligation imposed upon him by Section 4 of the same Act to put into place appropriate and effective procedures so that he can be enabled to be satisfied before granting a Firearms Certificate to such an applicant that such person:-

(2) That the Second named Respondent (The Minister for Arts, Culture and the Gaeltacht), in dealing with applications made to him pursuant to the provisions of Section 29(2) of the Wildlife Act, 1976 made by persons ordinarily resident outside the State, has failed to discharge or to adequately discharge the obligation imposed upon him by Section 29(3) of the same Act to put into place appropriate and effective procedures so that he can be enabled to have regard to:-

5. At the earliest time which was reasonably available to him after the commencement of the hearing Counsel on behalf of the Respondents conceded that prior to June of 1996, in dealing with applications made to him pursuant to the provisions of Section 3(2) of the Firearms Act, 1925 for the grant of firearms certificates, the procedures adopted by the First named Respondent were insufficient to adequately discharge the obligation imposed upon him by Section 4 of the said Act so that insofar as the proceedings herein were commenced by the Applicant pursuant to an Order of the High Court (McCracken J.) dated the 4th day of March, 1996 the Applicant's claim was well founded at its commencement but it is contended on behalf of the Respondents that:-

(1) The procedures which have been adopted by the First named Respondent since June of 1996 are effective and sufficient to enable him to adequately discharge the obligations imposed upon him by Section 4 of the Firearms Act, 1925 when he is dealing with applications made to him pursuant to the provisions of Section 3(2) of the same Act and

(2) The procedures which have been adopted by the Second named Respondent have at all material times been sufficient to enable him adequately to discharge the obligation imposed upon him by Section 29(3) of the Wildlife Act, 1976 when he is dealing with applications made to him pursuant to Section 29(2) of the same Act for hunting licences and indeed that those procedures are more exacting in nature than procedures adopted by the Second named Respondent in dealing with applications made to him pursuant to the provisions of Section 29(1) of the same Act by persons ordinarily resident within the State.

(1) The evidence adduced by Desmond Crofton on behalf of the Applicant and Thomas Goff and Superintendent Diffley on behalf of the First named Respondent disclosed that prior to June of 1996 when an application for a Firearms Certificate and Hunting Licence was made to the Respondents or either of them by a person (hereinafter referred to as a "non resident") not ordinarily resident within the State, it was directed to the National Parks and Wildlife Service (hereinafter referred to as "N.P.W.S") which is a division of the Department of Arts, Culture and the Gaeltacht. The procedure adopted by the Respondents for the issue of a Firearms Certificate and Hunting Licence to a non resident in such circumstances simply provided for the N.P.W.S. submitting to the officials of the First named Respondent information comprising the name and address of the applicant and a description of his weapon whereupon a Firearms Certificate and Hunting Licence would issue to such an applicant. The procedure did not provide for any investigation of applicants or for the making of any enquiries whatsoever about such applicants.

(2) Procedures were introduced by the First named Respondent in March 1996, in May 1996 and in June 1996 which were intended to enable him to comply with the statutory obligations imposed upon him by the Firearms Act, 1925 (and in particular Section 4 thereof) so that with effect from the 7th June, 1996 where a non resident applies for a Firearms Certificate and Hunting Licence, his application is directed to the Second named Respondent who first (through the offices of the N.P.W.S.) considers his application for a Hunting Licence.

(3) If a Hunting Licence is issued to a non resident by the Second named Respondent, then that Hunting Licence is forwarded by the N.P.W.S. to the First named Respondent together with all of the documentation upon which the application for the Hunting Licence was grounded, that is to say:-

(b) either a "Hunting Licence" issued by the appropriate authority in the applicant's country of residence or a "European Firearms Pass" issued in the applicant's country of residence or a "Firearms Certificate" or "Permit" issued to him in his country of residence.

(a) officials of the First named Respondent check the applicant's name against a list of names contained in quarterly reports submitted by certain Chief Superintendents which said reports contain the names of non residents convicted of crimes set out in subsection (d) and subsection (e) of Section 8 of the 1925 Act as amended or who "....otherwise come within the provisions of......Section 8 of the same Act". It was clear from the evidence however that the "quarterly reports" to which reference was made simply comprised reports by certain Chief Superintendents of the Garda Siochana intended to identify any non resident who has been convicted within the preceding three months of any of the criminal offences described in Section 8;

(b) such reports do not deal with persons "of intemperate habits" or "of unsound mind" or persons who are bound by a recognisance in the manner described in subsection (d) of Section 8 or persons who are subject to the supervision of An Garda Siochana; and

"The European Firearms Pass" is a document which is issued on request by the authorities of a Member State to a person lawfully entering into possession of and using a firearm. This shall be valid for a maximum period of five years. The period of validity may be extended.

6. It is expressly stated to be "....without prejudice to the application of national provisions concerning the carrying of weapons, hunting or target shooting", (see Article 12(1)).

7. It further provides (see Article 5) that Member States shall allow the acquisition and possession of certain firearms suitable for use in hunting or target shooting without any restrictions or limitations whatsoever (including limitations as to age).

8. Thus the Directive requires that a "European Firearms Pass" shall be issued "....on request by the authorities of a Member States" to any of its citizens who are "...lawfully entering into possession of and using a firearm" without any additional investigation or enquiries being made in relation to the person applying for such a pass.

(6) Only nine of the thirteen European States referred to in evidence have enacted Firearms legislation. Hunting licences or permits of one kind or another are required in all of the countries concerned but in many States they appear to be obtainable without difficulty or detailed enquiry and, in more than one instance, simply upon production of documentation indicating permission to shoot over particular lands.

(7) The application for a Hunting Licence and the Declaration that the applicant has permission to shoot on land within the State during the course of his visit is accepted by the First named Respondent and deemed by the First named Respondent to comprise a sufficient discharge by him of the obligations imposed upon him by subsection (a) of Section 4 of the Firearms Act, 1925 to satisfy himself that the applicant has a good reason for requiring the firearm in respect of which the certificate is applied for.

(8) The production by the applicant for inspection of a Licence or Permit or other form of written authorisation from his country of residence to carry firearms or the production for inspection of a European Firearms Pass is considered by the First named Respondent as sufficient evidence to discharge the obligation imposed by subsection (b) of Section 4 of the Firearms Act, 1925 upon the First named Respondent to satisfy himself that such an applicant can be permitted to have in his possession, use and carry a firearm or ammunition without danger to the public safety or to the peace.

(9) Once issued, Firearms Certificates (other than certificates issued during the month of July which continue for a further twelve months) continue in force until the 31st day of July next after the grant thereof (see Section 3(3) of the Firearms Act, 1925) but whilst a power has been conferred upon certain Superintendents of the Garda Siochana to revoke Firearms Certificates which have been issued to Irish residents (in certain circumstances) Firearms Certificates issued by the First named Respondent to non residents appear to be irrevocable throughout the duration of their validity, since no power of revocation has been granted to the First named Respondent or any other person either by the Firearms Act, 1925 or by any other statute.

(1) Non residents applying for Hunting Licences must first complete the document entitled "Application for Irish Firearms Certificate" and to which I have already referred. This document on its reverse side contains a Declaration whereby the applicant, inter alia, declares that he is not less than 16 years of age and either is entitled to sporting rights over specified lands or comes within a category of person who is entitled to shoot over specified lands within the State. The application form must be accompanied by a copy of either a Firearms Certificate or Permit or a Hunting Licence issued in the applicant's country of residence or a European Firearms Pass if he is ordinarily resident in a State which issues such passes. Some European States including France and Italy do not issue European Firearms Passes.

(b) non resident applicants who enter the State for the purposes of engaging in hunting and shooting holidays arranged in advance by professional promoters most of whom notify the N.P.W.S. of the shooting requirements of such non resident applicants prior to the start of each shooting season and furnish to the N.P.W.S. maps and evidence of the permission from land owners to shoot over specified lands within the State.

(3) The procedures adopted by the Second named Respondent in respect of non resident applicants who come into category (2)(a) above is for the N.P.W.S. to confirm with the land owner that the latter has given permission to the non resident applicant to shoot over the specified lands whereupon the local officer of the N.P.W.S. inspects the land and satisfies himself as to:-

(4) The procedure adopted by the Second named Respondent in respect of non resident applicants who fall into category (2)(b) above is for the maps and details received from promoters to be furnished to a local Wildlife Officer or Ranger of the N.P.W.S. who is familiar with the lands over which permission to shoot had been obtained. The appropriate Officer or Ranger will then inspect the land and estimate the amount of hunting which can reasonably be undertaken on the lands concerned having due regard to the conservation of the species affected by such hunting. In the light of that inspection, the Ranger or Officer concerned will allocate a number of "gun days" to the lands concerned and when applications are received from non residents (either professional promoters or otherwise) such "gun days" are allocated in respect of the lands in question and deducted from the overall allocation until all "gun days" have been exhausted whereupon applicants are informed that no further Hunting Licences will be issued in respect of the lands concerned for the remainder of the season concerned.

(5) The production by the applicant for inspection of a Firearms Certificate or Permit issued in his country of origin or of a Hunting Licence issued in his country of residence is considered by the Second named Respondent as sufficient evidence to discharge the obligation imposed by subsection (3) of Section 29 of the Wildlife Act, 1976 to have regard to the suitability of the applicant to hold a licence having regard further to the conservation requirements of the species of protected wild birds or exempted wild mammals concerned or to the purposes of the Wildlife Act, 1976 and no investigations are carried out or enquiries made by the Second named Respondent or anyone on his behalf within the country of residence of an applicant for a Hunting Licence in relation to such application.

(7) The applicant and its members are concerned about the shooting practices of non residents and claim that there has been commercial exploitation of migratory birds to the extent that it is claimed that bird populations have been reduced and evidence was adduced on affidavit which suggested that some non resident shooters have engaged in most undesirable practices which are likely to have a detrimental effect upon migratory birds. There was however a considerable conflict of evidence between the parties as to the effect which non resident shooters have had upon the species concerned and upon the conservation requirements of those species including their habitat.

"The Minister may, at his discretion but subject to the limitations and restrictions imposed by this Act, upon the application of any person not ordinarily resident in Saorstat Eireann and upon payment by such person of the fee (if any) for the time being required by law grant to such a person a Firearms Certificate."

"But before granting the certificate the Minister shall require the person applying for the certificate to state in writing whether or not, if the certificate is granted, he intends to use the firearm to which the application relates to kill exempted wild mammals within the meaning of the Wildlife Act, 1976, or protected wild birds within such meaning and to which an Order under Section 24 of that Act for the time being applies, and in case the person indicates that he so intends to use that firearm, the Minister shall grant the certificate only on production by the applicant of a current licence granted to him by the Minister for Lands pursuant to Section 29(2) of that Act."

9. The powers of the Minister for Lands for the purposes of the grant of a hunting licence are now vested in the Second named Respondent (see Heritage (Transfer of Departmental Administration and Ministerial Functions) Order, 1994 (S.I. 443 of 1994)).

10. It is clear from the foregoing that before granting a firearms certificate to a non-resident applicant for such a certificate, the First named Respondent must first require such an applicant to state in writing whether or not, if the certificate is granted, he intends to use the firearm to which the application relates to kill certain exempted wild mammals or protected wild birds.

11. I am satisfied on the evidence that the procedures which have been adopted by the First named Respondent since June of 1996 are effective and sufficient to enable him to adequately discharge this statutory obligation having regard in particular to the requirement for non-residents to make a written declaration in the terms set out in the rear of the document entitled "Application for Irish Firearms Certificate" to which I have already referred.

12. Where non-resident applicants for firearm certificates indicate in writing that if the certificate is granted they intend to use the firearm for the purpose of killing certain exempted wild mammals or protected wild birds then the following statutory obligations have been imposed upon the First named Respondent, that is to say:-

1. The evidence adduced at the hearing of this application has established to my satisfaction that the procedures which have been adopted by the First named Respondent with effect from June of 1996 are effective and ensure that the First named Respondent complies fully with the statutory obligation imposed upon him by Section 3(2) of the Firearms Act of 1925 as amended by Section 62(b) of the Wildlife Act, 1976 to grant Firearm Certificates to non-resident applicants only on production by such applicants of a hunting licence granted by the Second named Respondent pursuant to Section 29(2) of the Wildlife Act of 1976.

2. The evidence adduced at the hearing of this application has established that in accordance with the procedures adopted by the First named Respondent with effect from June 1996, the application for a hunting licence by a non-resident applicant for a Firearms Certificate together with the written declaration made by such applicant that he has permission to shoot on land within this State during the course of his visit is accepted by the First named Respondent as adequate evidence indicating that such an applicant has a good reason for requiring the firearm which is the subject of the application.

13. The statutory obligation imposed upon the First named Respondent by Section 4(a) of the Firearms Act, 1925 is intended to require the First named Respondent to satisfy himself that there is a good and sufficient reason why the non-resident applicant should be permitted to carry and use the firearm which is the subject of the application. I am satisfied on the evidence that the procedures adopted by the First named Respondent with effect from June of 1996 are effective in making reasonable enquiry and establishing in respect of non-resident applicants who have applied to the Second named Respondent for a hunting licence and made written declarations of intention to use the firearm for the purpose of hunting and killing game, that such applicants have good reason for requiring the firearm which is the subject of the application for a certificate.

3. The statutory obligation imposed by Section 4(b) of the Firearms Act, 1925 is clear and unequivocal and has implications which relate to the security of the State and its citizens. It requires an administrative decision by the First named Respondent as to whether a non-resident applicant for a Firearms Certificate is a fit and appropriate person to be permitted to have in his possession and to use and to carry a firearm or to carry ammunition without danger to the public safety or the risk that the public peace will be broken.

14. It follows that before making such a decision the First named Respondent must, by way of procedures or otherwise, make a reasonable enquiry as to the identity and character of the non-resident applicant and give reasonable consideration to the results of such enquiry before deciding whether the applicant is a fit and suitable person to be permitted to have in his possession, to use and to carry, a firearm or ammunition without danger to the public safety or to the peace.

15. The evidence adduced at the hearing of this application has established that the procedures which have been adopted by the First named Respondent with effect from June of 1996 in respect of non-resident applicants for Firearm Certificates make no provision for any enquiry by or on behalf of the First named Respondent as to the identity of such an applicant or as to the character of such an applicant. The production by an applicant for inspection of a licence or permit or other form of written authorisation from his country of residence to carry firearms or the production for inspection of a European Firearms Pass is considered by the First named Respondent as sufficient evidence to discharge the statutory obligation concerned.

16. It has been argued on behalf of the First named Respondent that this production and inspection of documentation enables the First named Respondent to give consideration to the suitability of the applicant for the purposes of Section 4(b) of the 1925 Act and that arising out of that consideration the First named Respondent makes the appropriate administrative decision and satisfies himself as to whether or not the non-resident applicant concerned is a fit and suitable person to be permitted to have in his possession, to use and to carry the firearm or ammunition which is the subject of the application. Reliance has been placed by the Respondents upon the Judgment of O'Higgins C.J. in the case of The State (Lynch) -v- Cooney , (1982) I.R. 337 and in particular upon the following passage at p.361:-

"The Court is of the opinion that Section 31, sub-section (1), of the Act of 1960, as amended, does not confer on the Minister the wide, unfettered and sweeping powers which have been alleged by the Prosecutor. The Court is satisfied that the sub-section does not exclude review by the Courts and that any opinion formed by Ministers thereunder must be one which is bona fide held and factually sustainable and not unreasonable."

17. An analogy has been drawn between decisions made by the Minister for Posts and Telegraphs in that case pursuant to Section 31, sub-section (1), of the Broadcasting Authority Act, 1960 and decisions made by the First named Respondent in the instant case giving rise to his satisfaction or otherwise as to the suitability of non-resident applicants for Firearms Certificates.

18. I have little difficulty in accepting the contention advanced on behalf of the First named Respondent to the intent that Judicial Review of administrative decisions made or opinions formed by the First named Respondent pursuant to the powers and obligations conferred and imposed upon him by the Firearms Act, 1925 and other legislation is inappropriate where such decisions made and opinions formed are bona fide made and held, are factually sustainable and not unreasonable.

In The State (Keegan) -v- Stardust Compensation Tribunal , (1986) I.R. 642, Griffin J. quoted with approval the speech of Lord Brightman in the case of Chief Constable of the North Wales Police -v- Evans , (1982) 1 WLR 1155 as follows:-

"Judicial review is concerned, not with the decision, but with the decision-making process. Unless that restriction on the power of the Court is observed, the Court will in my view, under the guise of preventing the abuse of power, be itself guilty of usurping power.... Judicial review as the words imply, is not an appeal from a decision, but a review of the manner in which the decision was made."

19. It follows from the foregoing that it is appropriate for this Court to review the methods or means or procedures adopted by the First named Respondent which enable him to make his decision and satisfy himself in the manner required by Section 4(b) of the 1925 Act. Similarly I am satisfied that it is appropriate for this Court in some circumstances to review such decisions with a view to discovering whether or not they are bona fide made, factually sustainable and not unreasonable.

20. The sole means and procedure adopted by the First named Respondent with a view to enabling him to be satisfied that a non-resident applicant for a Firearms Certificate ".... can be permitted to have in his possession, use and carry a firearm or ammunition without danger to the public safety or to peace....." is the inspection of a licence, or permit, or other form of written authorisation to carry firearms from the applicant's country of residence or the inspection of a European Firearms Pass.

21. As I have already indicated herein, the evidence adduced has established that only 9 of the 13 European States referred to in evidence have enacted Firearms Legislation. Hunting licences or permits of one kind or another are required in all of the countries concerned but in many States they appear to be obtainable without difficulty or detailed enquiry and in more than one instance simply upon production of documentation indicating permission to shoot over particular lands.

22. The evidence also has established that a European Firearms Pass is a document which is simply issued on request by authorities of a Member State to any person lawfully entering into possession of and using a firearm. Such a Pass is obtainable on request by citizens of many European States which have not enacted firearms legislation and where hunting licences are readily available without any investigation of applicants.

Section 4(b) of the 1925 Act requires the First named Respondent to be satisfied that the "person" who has applied for a Firearms Certificate "..... can be permitted to have in his possession, use, and carry a firearm or ammunition without danger to the public safety or to the peace...." Clearly this requires some form of investigation or enquiry as to the suitability of such a "person" to be in possession of and to use firearms. No such enquiry or investigation is or has been undertaken by or on behalf of the First named Respondent pursuant to the procedures which he has adopted in respect of non-resident applicants for Firearms Certificates.

23. It has been argued on behalf of the First named Respondent that the obligations imposed upon him by Section 4(b) of the 1925 Act are adequately discharged by the production to his officials for inspection of a European Firearms Pass or of a certificate, permit or other form of written authority from the applicant's country of residence. Significant emphasis has been placed upon the obligations of Member States of the European Union to give due weight to similar or equivalent qualifications, permissions or authorities granted in other Member States of the Union and reliance has been placed by the First named Respondent upon the decision of the European Court of Justice in Case C-340/89, Irene Vlassopoulou -v- Ministerium fur Justiz, Bundes-Und Europaangelegenheiten Baden-Wurttemberg , (1991) E.C.R. 1 - 2357, in support of that contention.

24. It has been argued that, having regard to the "due weight" which he should give to such documentation, the First named Respondent can discharge his statutory obligation merely by satisfying himself that a non-resident applicant for a Firearms Certificate is in possession of some form of written authority from his country of origin to carry and use firearms.

25. I regret that I am unable to accept that argument. As I have already indicated, the sub-section concerned is quite specific. It does not require the First named Respondent to satisfy himself in relation to the issue of documentation in another European state. It requires him to satisfy himself as to the suitability of a non-resident applicant to be in possession of and to use firearms.

26. In "Vlassopoulou" the European Court of Justice discussed the question of an application for admission to the profession of lawyer in the (then) European Economic Community made by a Community subject who was already admitted to practice in her country of origin and who practised as a legal adviser in another Member State and was seeking admission to the profession of lawyer within that (second) Member State.

"Article 52 of the E.E.C. Treaty must be interpreted as requiring the national authorities of a Member State to which an application for admission to the profession of lawyer is made by a Community Subject who is already admitted to practice as a lawyer in his country of origin and who practices as a legal adviser in the first mentioned Member State to examine to what extent the knowledge and qualification attested by the diploma attained by the person concerned in his country of origin correspond to those required by the rules of the host State; if those diplomas correspond only partially, then the national authorities in question are entitled to require the person concerned to prove that he has acquired the knowledge and qualifications which are lacking."

"That examination procedure must enable the authorities of the host Member State to assure themselves, on the objective basis, that the foreign diploma certifies that its holder has knowledge and qualifications which are, if not identical, at least equivalent to those certified by the National Diploma. That assessment of the equivalence of the foreign diplomas must be carried out exclusively in the light of the level of knowledge and qualifications which its holder can be assumed to possess in the light of that diploma, having regard to the nature and duration of the studies and practical training to which the diploma relates (see the judgment in Case 222/96 Unectef -v- Heylens cited above, paragraph 13).

In the course of that examination a Member State may, however, take into consideration objective relating to both the legal framework of the profession in question in the Member State of origin, and to its field of activity. In the case of the profession of lawyer, a Member State may therefore carry out a comparative examination of diplomas, taking account of the differences identified between the national legal systems concerned.

If that comparative examination of diplomas results in the finding that the knowledge and qualifications certified by the foreign diploma correspond to those required by the national provisions, the Member State must recognise that diploma as fulfilling the requirements laid down by its national provisions. If, on the other hand, the comparison reveals that the knowledge and qualifications certified by the foreign diploma and those required by the national provisions correspond only partially, the host Member State is entitled to require the person concerned to show that he has acquired the knowledge and qualifications which are lacking.

In this regard the competent national authorities must assess whether the knowledge acquired in the host Member State, either during a course of study or by way of practical experience, is sufficient in order to prove possession of the knowledge which is lacking.

If completion of a period of preparation or a training for entry into the profession is required by the rules in the host Member State, those national authorities must determine whether professional experience acquired in the Member State of origin or in the host Member State may be regarded as satisfying that requirement in full or in part."

"Vlassapoulou" appears to provide authority for the proposition that, when dealing with applications made by non-residents for Firearms Certificates the First named Respondent, as the "Competent National Authority" is entitled to carry out a comparative examination of the licensing schemes for firearms within the country of origin of the applicant. That examination, if undertaken, should be concerned with the extent to which such a licensing scheme corresponds with or assists in the fulfilment of what is required for the discharge by the First named Respondent of the obligations imposed upon him by Section 4(b) of the 1925 Act.

29. In the instant case no examination of the licensing schemes in force in the countries of origin of non-resident applicants has been undertaken by the First named Respondent so that he cannot be said to have given "due weight" or indeed any weight to such licensing systems in the context of the obligations imposed upon him by the 1925 Act and other Firearms Legislation in force within the State.

30. In the light of the foregoing I am satisfied that the procedures which have been adopted by the First named Respondent are ineffective and insufficient to enable him to adequately discharge the obligations which have been imposed on him by Section 4(b) of the Firearms Act, 1925.

31. On the evidence of the First named Respondent, before granting a Firearm Certificate to a non-resident applicant, first requires such an applicant to furnish a written declaration to the intent that such an applicant is ".... not less than 16 years of age.....".

32. In addition officials of the First named Respondent check the applicant's name against a list of names contained on quarterly reports submitted by certain Chief Superintendents of the Garda Siochana which reports contain the names of non-residents convicted of crimes set out in sub-sections (d) and (e) of Section 8 of the 1925 Act or who "otherwise come within the provisions of.... Section 8 of the same Act...." but such reports identify only non-residents convicted of such crimes within the preceding three months .

33. No other investigation or enquiry of any kind is undertaken by the First named Respondent in respect of non-resident applicants for Firearms Certificates either within the jurisdiction of this State or within the applicant's country of origin.

34. It has been submitted by Counsel on behalf of the First named Respondent that Section 8 of the Firearms Act, 1925 does not impose a check list but that the Minister is required to make a discretionary judgment on non-resident applicants for Firearms Certificates. However, the wording of Section 8(1) of the 1925 Act is explicit and sets out precisely what is required of the First named Respondent. To some extent the requirements could be described as onerous and a failure by the First named Respondent to comply in rigid detail with all of the obligations imposed by Section 8 of the 1925 Act might not give rise to relief by way of Judicial Review which is of course discretionary in nature. The obligation, for instance imposed by subsection (b) of Section 8, could be regarded as a difficult if not impossible obligation and compliance with sub-section (c) of the same section might also give rise to difficulties but the obligation is statutory and is couched in unambiguous terms and accordingly, there is an obligation upon the First named Respondent to comply with its provisions.

35. On the evidence there has been an attempted compliance by the First named Respondent with sub-section (a) of Section 8 but having regard to the fact that sub-sections (d) and (e) require investigation of convictions over a period of 5 years , it is clear that the First named Respondent has not discharged his obligations under those sub-sections and it is admitted on behalf of the First named Respondent that no attempt has been made by or on behalf of the First named Respondent to comply with any of the provisions of sub-sections (b), (c), (f) or (g) of Section 8 of the 1925 Act either by making enquiries within the applicant's country of origin or within this jurisdiction.

36. Whilst, as I have indicated, failure on the part of the First named Respondent to comply strictly with each of the obligations imposed upon him by Section 4(c) of the 1925 Act would not necessarily give rise to relief by way of Judicial Review, I am satisfied on the evidence that the procedures adopted by the First named Respondent fail fundamentally to address the obligations imposed by the sub-section concerned and accordingly are inadequate and insufficient to discharge the First named Respondent's statutory obligation under that Section

"Subject to Section 75(1) of this Act, the Minister may, if he thinks fit, grant to a person ordinarily resident outside the State who when making application for a licence makes a declaration referred to in sub-section (1) of this section, a licence (operating in the manner specified in sub-section (4) of this section) to hunt and kill with firearms, subject to the restrictions contained in Section 33 of this Act, exempted wild mammals and protected wild birds to which an Order under Section 24 of this Act for the time being applies."

"In determining an application for a licence or renewal under sub-section (1), sub-section (2) or sub-section (6) of this section, the Minister shall have regard to the conservation requirements of the species of protected wild birds or exempted wild mammals concerned and to the suitability of the applicant having regard to those requirements or to the purposes of this Act."

Accordingly, Section 29(3) of the Wildlife Act, 1976 imposes upon the Second named Respondent two separate and distinct statutory obligations when he is "determining" whether or not to exercise the power conferred upon him by Section 29(2) of the 1976 Act to grant a hunting licence to a non-resident applicant for such a licence. The two statutory obligations set out in sub-section (3) of Section 29 of the 1976 Act are as follows:-

37. As I have indicated earlier herein, I have little difficulty in accepting the contention advanced on behalf of the Respondents to the intent that Judicial Review of administrative decisions made or opinions formed by Ministers or "competent authorities" pursuant to the powers and obligations conferred and imposed on them by legislation is inappropriate where such decisions made and opinions formed are bona fide made and held, are factually sustainable and are not unreasonable.

38. There was a conflict of evidence during the hearing of this application as to whether or not the procedures adopted by the Second named Respondent were effective in achieving their stated objectives. Having considered the evidence, I do not believe that it is appropriate for this Court to embark upon a review of the measures taken by the Second named Respondent directed towards the conservation of the various species of protected wild birds and exempted wild mammals concerned.

"The Court cannot interfere with the decision of an administrative decision-making authority merely on the grounds that (a) it is satisfied that on the facts as found it would have raised different inferences and conclusions or (b) it is satisfied that the case against the decision made by the authority was stronger than the case for it."

40. Furthermore, I am not satisfied that evidence has been adduced which would indicate that the measures taken by the Second named Respondent with a view to the conservation of the species concerned were not measures born of views which were bona fide held, factually sustainable and perfectly reasonable - see The State (Lynch) -v- Cooney (Supra) and Kiberd -v- Mr. Justice Hamilton , (1992) 2 I.R. 257.

41. It follows from the foregoing that I am not satisfied that evidence has been adduced which is sufficient to prove that the Applicant is entitled to the relief which he has sought by reason of any failure on the part of the Second named Respondent to comply with the statutory obligation imposed upon him by subsection (3) of Section 29 of the 1976 Act to "...have regard to the conservation requirements of the species of protected wild birds or exempted wild mammals concerned...".

2. In addition to the statutory obligation imposed upon the Second named Respondent to have regard to the conservation requirements of certain species of wild birds and mammals, the same subsection of Section 29 of the 1976 Act imposes an obligation upon the Second named Respondent to have regard to the suitability of the Applicant having further regard to:-

44. The provisions of Section 29(3) of the 1976 Act are clear and precise. They expressly require the Second named Respondent to "have regard" to the suitability of each non resident applicant for a Hunting Licence. It is manifest that in imposing an obligation upon the Second named Respondent to "have regard" to the suitability of an applicant, the Legislature intended the Second named Respondent to make some enquiries about such applicants and to give some consideration to the results of those enquiries before issuing a Hunting Licence to the persons concerned.

45. It is of some significance that the subsection imposes upon the Second named Respondent an obligation to "have regard" to the suitability of a non resident applicant for a Hunting Licence and in doing so to take into account one of two distinct and separate considerations, that is to say:-

46. This clearly indicates that in enacting the subsection it was the intention of the Legislature that the Second named Respondent should be required, before granting a Hunting Licence to a non resident applicant, whether by way of enquiry or otherwise, to obtain appropriate information about such applicant to enable him to consider and make an informed decision as to whether or not such an applicant is a suitable person to be permitted to hunt and kill with firearms, the particular exempted wild mammals and protected wild birds which the Second named Respondent is required to protect and conserve. It is clear also that the information which the Second named Respondent is required to consider should also extend to the wider purposes of the 1976 Act with regard to the general conservation of wildlife, wild creatures and flora.

47. As I have indicated earlier herein, the production for inspection by a non resident applicant of a Hunting Licence or a Firearms Certificate or Permit issued in his country of origin is considered by the Second named Respondent as sufficient to discharge the obligation imposed by subsection (3) of Section 29 of the 1976 Act to have regard to the suitability of the applicant to hold a licence having regard to the conservation requirements of the species of protected wild birds or exempted wild mammals concerned and to the purposes of the 1976 Act.

48. No investigations are carried out or enquiries made by the Second named Respondent or anyone on his behalf in the country of residence of an applicant for a Hunting Licence or elsewhere in relation to such application.

49. Earlier in this judgment, I have held that the production for inspection by a non resident applicant for a Firearms Certificate of a Certificate or Permit or Hunting Licence issued in his country of origin is inadequate to discharge the obligation imposed upon the First named Respondent by Section 4(b) of the 1925 Act to be satisfied that such an applicant, is suitable, to be in possession of and to use firearms. For similar reasons and based upon the same authorities, I do not accept that the production for inspection by a non resident applicant of a Hunting Licence or a Firearms Certificate or Permit issued in the applicant's country of residence is a sufficient discharge by the Second named Respondent of the obligations imposed upon him by Section 29(3) of the 1976 Act.

50. The subsection is explicit. It does not require the Second named Respondent to "have regard to" documentation issued in another European State. It requires him to have regard to the suitability of a non resident applicant having regard to certain conservation requirements or the purposes of the 1976 Act.

51. Clearly, the procedures which have been adopted by the Second named Respondent are ineffective and insufficient to enable him to adequately discharge the obligations imposed upon him by Section 29(3) of the 1976 Act to "....have regard to.... the suitability of the applicant having regard to...... " the conservation requirements referred to in the subsection and the general purposes of the 1976 Act. It follows from the foregoing that the Applicant is entitled to certain declaratory and other forms of relief in the proceedings herein and I will make the appropriate Order after discussion as to the form of that order with Counsel on behalf of both parties.

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	High Court of Ireland Decisions
You are here: BAILII >> Databases >> High Court of Ireland Decisions >> National Association of Regional Games Council v. Minister for Justice [1998] IEHC 93 (12th June, 1998) URL: http://www.bailii.org/ie/cases/IEHC/1998/93.html Cite as: [1998] IEHC 93

High Court of Ireland Decisions

National Association of Regional Games Council v. Minister for Justice [1998] IEHC 93 (12th June, 1998)