High Court of Ireland Decisions

1. By Order of this Court made the 17th July, 2000 Mr. Justice Butler granted to the Applicants Martin Dunne and Desmond Crofton, leave to apply by way of an application for Judicial Review for the relief of:

2. I. An Order of Certiorari by way of an application for Judicial Review quashing the Directive of the Second named Respondent (undated but officially announced on June 7th 2000) which directs Superintendents of the Gárda Síochána when issuing/renewing firearm certificates under the Firearms Act, 1925 (as amended) to require the installation of a firearms cabinet and to put in place security measures for the storage of firearms which said facilities are to be inspected by the Gárda Síochána prior to issue or renewal of the certificate.

3. II. An Order (including interim and/or interlocutory order) by way of an application for Judicial Review restraining the Respondents their servants or agents or any person having notice of the making of the Order from enforcing the new Directive and/or refusing to issue or renew firearms certificates by reason of non-compliance with the said Directive pending the determination of the proceedings herein.

4. III. An Order (including interim and/or interlocutory order) by way of an application for Judicial Review directing a stay on the implementation and/or enforcement of the Directive the subject matter of these proceedings pending a determination of the within proceedings.

5. IV. An Order of Certiorari by way of an application for Judicial Review quashing the decision of the First named Respondent to issue a notice to the First named Applicant received on or about the 27th June 2000 requiring him to install a firearms cabinet and/or to provide security arrangements which should then be available for inspection before his Firearms certificate is renewed.

6. V. A Declaration by way of an application for Judicial Review that the notification received by the First named Applicant in or about the 27th day of June 2000 from the First named Respondent requiring him to put in place a gun safe and make it available for inspection prior to the renewal of his firearms certificate is ultra vires the powers of the First named Respondent under the provisions of the Firearms Act, 1925.

7. VI. A Declaration by way of an application for Judicial Review that the First named Respondent and any Garda Superintendent who purports to require compliance with the Directive issued by the Second named Respondent is acting ultra vires his powers under the provisions of the Firearms Act 1925 and has unlawfully fettered his discretion under the Act.

8. VII. A Declaration that the Second named Respondent has no power under the Firearms Act 1925 to direct Superintendents of the Gárda Síochána to refuse to issue or renew firearms certificates in respect of individuals who fail to meet the requirements of a Directive issued by him and that the said Directive is ultra vires without legal basis and has no lawful or binding effect.

9. VIII. A Declaration that the introduction of a new category of persons who shall not be eligible for a firearms certificate and/or the introduction of a requirement to install a gun safe and/or a power for the Gárdai to inspect the private property of applicants for a firearms certificate by way of a Directive from the Second named Respondent constitutes an act of law making contrary to Article 15.2 of the Constitution being measures which are not provided for in the Firearms Act 1925 (as amended) or any other legislation.

10. IX. A Declaration by way of an application for Judicial Review that any requirement imposed by members of the Gárda Síochána that a person’s private dwelling be inspected prior to the issue or renewal or a firearm’s certificate is without lawful basis and infringes the Constitutional and personal rights of the individual to equal and/or privacy and/or inviolability of the dwelling contrary to Articles 40.1 and/or 40.3 and/or 40.5 of the Constitution.

11. X. A Declaration by way of an application for Judicial Review that the decision of the Second named Respondent to issue the said Directive is unreasonable and/or the measures proposed are disproportionate and/or irrational.

12. XI. A Declaration by way of an application for Judicial Review that the Directive issued by the Second named Respondent which the First named Respondent is purporting to implement is unconstitutional by reason of its disproportionate impact on the constitutional rights of the individual including the First named Applicant and all other members of the Second named Applicant.

13. XII. A Declaration by way of an application for Judicial Review that in purporting to introduce a different system for the assessment of applications for firearms in respect of residents (administered by the Gárdai) as distinct from non-residents (administered by the Minister for Justice Equality and Law Reform) the new Directive is discriminatory and results in a discriminatory system being introduced without lawful basis or proper purpose contrary to Article 40.1 of the Constitution.

14. XIII. A Declaration by way of an application for Judicial Review that in providing for a power to assess the suitability of a person who applies for a certificate under the Firearms Act 1925 the Legislature did not distinguish between residents and non-residents and the clear purpose and meaning of Section 4(b) was to permit refusal by reason of the character and conduct of the applicant only the not by reason of his possession of a gun safe which the Superintendent would inspect.

15. XIV. A Declaration by way of an application for Judicial Review that the measures are discriminatory as against non-property owners contrary to Articles 40.1 and 40.3 of the Constitution.

16. XV. A Declaration by way of an application for Judicial Review that in exercise of his powers under the Firearms Act 1925 and having regard to Section 4 of the Act a Superintendent of An Gárda Síochána, including the First named Respondent has power to make an assessment of the suitability of the person having regard to his character and conduct but has no power to refuse to issue a firearms certificate by reason of the security of the premises in which the applicant lives and/or whether or not he has installed a gun safe which has been made available for inspection.

17. XVI. An Order of Mandamus by way of an application for Judicial Review directing the Respondents their servants or agents to rescind in writing their notice to each individual member of the Second named Applicant requiring the installation of all security arrangements prior to the issue/renewal of a firearms certificate.

18. XVII. Such further or other Order as to this Honourable Court shall seem meet.

19. The grounds upon which this relief was granted are those set out at paragraph E I- XIX inclusive.

20. At the hearing before me it was agreed that two issues arise in these proceedings

21. The directive at issue in these proceedings indicates that the number of unlicensed firearms which are being stolen from dwellings and unattended dwellings continues to give cause for concern. Many of the firearms which are stolen are subsequently used in the commission of crime. The directive indicated that in future when granting or renewing Firearm Certificates, District Officers will ensure that the following security arrangements are in place before issuing the Firearm Certificate

22. In fact a press release at the time indicated that as and from the 1st July, new applicants for firearm certificate would have to install a steel storage cabinet securely bolted to a wall in their dwelling in order to secure the firearm when not in use. It was indicated that existing firearm certificate holders would have to install such a cabinet by the 1st July, 2001. The directive indicated the nature of the cabinet that should be installed and the fixings or fastenings that must be used to secure a firearms cabinet. The directive also indicated measures that should be put in place where the number of firearms held by a person would render steel cabinets not to be suitable and where a gun room was to be used to hold such firearms. The directive which was signed by the second Respondent indicated towards its conclusion that “the above recommendations are aimed at providing a satisfactory level of security for the various categories of firearms. The storage facilities should be available for inspection by a member of An Gárda Síochána at all reasonable times. District Officers should ensure that the above recommendations are strictly adhered to.”

23. It was indicated in the content of the directive that District Officers will ensure that the security arrangements set forth in the directive are in place before issuing the firearm certificate. It was indicated that this directive should be read in conjunction with an earlier circular or directive issued by the Gárda Commissioner.

24. The subject directive was approved by the Minister on the 10th March, 2000

25. Firearm Certificate should be issued unless the Applicant had installed a security cabinet for

26. It is indicated that while the circular in this case containing the directive uses the term ‘recommendation’ it was intended to be mandatory in nature.

27. A Statement of Opposition was filed in these proceedings on about the 24th November, 2000 by the Chief State Solicitor on behalf of the Respondents. The Statement of Opposition pleads that the directive at issue in these proceedings was made by the second named Respondent in the exercise of functions assigned to him by the Commissioner of An Gárda Síochána under Sections 8 and 9 of the Police Forces Amalgamation Act, 1925; by acting in compliance with this directive, individual Gárda Superintendents discharge their responsibilities under the Firearms Act of 1925 according to law; and that the directive is not an unlawful interference in the manner in which a Gárda Superintendent exercises his/her functions under Section 4 (b) of the Firearms Act, 1975 as alleged or at all. Amongst the other matters pleaded in the Statement of Opposition are pleas that the directive neither purports to, nor does in fact, create or grant a power of inspection to An Garda Siochana; that the Commissioner of An Gárda Síochána has a right to have a consistency of approach by Officers of An Gárda Síochána who are mandated by their rank to exercise their functions under legislation and that he has a similar right to have a consistency and fairness of approach with the overriding factors being public safety and duty of care.

28. The Act provides for a Deputy Commissioner to exercise the powers and duties of the Commissioner in certain cases and Section 9 of the same Act provides:-

29. It was submitted on behalf of the Applicants by May Finlay S.C. that the discretion vested in a Superintendent under sections 3 and 4 of the 1925 Act and Section 9 of the 1964 Act is conferred expressly on a Superintendent in a district where an Applicant resides and that such a person having been conferred with a discretion is obliged to exercise this discretion independently and may not act under the direction and dictation of any other body. What is essentially at issue in these proceedings is whether a Superintendent of the Gárda Síochána exercising the discretion vested by the Act of 1925 and subsection 3 and 4 thereof in particular may be subject to the direction of the Commissioner in the discharge of that function.

30. It is further submitted that the conditions appearing at Section 4 of the Act of 1925 relate to the character of the person applying for a certificate and, insofar as the functions vested in a Superintendent of a district under Sections 3 and 4 of the Act relate to functions to be exercised at a local level, that such a Superintendent is a person who is likely to have personal information relating to an Applicant. With regard to the provisions of Sections 8 and 9 of the Police Forces Amalgamation Act of 1925 it is submitted that these provisions relate to operational matters and do not entitle the Commissioner to issue directions in relation to the exercise by officers designated by law in the discharge of statutory functions.

31. With reference to the fettering of a discretion vested in a Superintendent it is submitted that where the Oireachtas confers a decision making power on a persona designata then that individual must exercise the decision making power conferred upon him/her and it is not permissible for the designated decision maker to exercise power in accordance with the dictates of another body or authority, that a person fails to exercise a discretion where she or he acts on the instructions or dictation of another party or applies an inflexible policy; both of these situations arise on the facts of the instant case in that the Superintendent in whom the discretion is vested does not exercise the discretion as was intended by the legislature but instead applies an inflexible policy or rule which has been derived by another party who has no statutory function in respect of the exercise of the discretion in question and further that the only person vested with a discretion in the exercise of the power to grant a firearm certificate is a Garda Superintendent in an area in which an applicant resides or such other officer expressly provided for by law. No function is given to the Garda Commissioner or the Assistant Commissioner regarding the exercise of this discretion.

32. The power vested in the Superintendent to grant a certificate is subject to his being satisfied as to the requirements of Section 4 of the Act of 1925. The exercise of a discretion by acting on the dictation of another person such as the Commissioner constitutes the fettering of a discretion. By acting in accordance with the directive of the second named Respondent the first named Respondent, and other Garda Superintendents around the country neutralise the discretion which was the intention of the legislature to create thereby rendering the exercise of that discretion invalid.

33. Counsel has adopted a Statement of Law set forth by Hillary Delaney in a recently published book, ‘Judicial Review of Administrative Action-A Comparative Analysis’ published by Roundhall, Sweet and Maxwell in Dublin 2001 where at p. 101 of the text the author states as follows:-

34. In support of her submissions counsel for the Applicants has referred this Court to the decision in the case of Murphy -v- Dublin Corporation [1972] I.R. 213 dealing with a persona designata and to the judgment of the Supreme Court in the case of McLoughlin -v- Minister for Social Welfare [1958] I.R. 1. In this latter case the appeals officer dealing with the Social Welfare matter indicated that was bound to adhere to a direction given by the Minister for Finance. At page 27 of the report O’Daly J. as he then was, indicated that the action of the Appeals Officer to adhere to a direction purported to have been given to him by the Minister for Finance was an abdication by him of his duty as an appeals officer. He stated that the duty is laid upon him by the Oireachtas and he is required to perform it as between the parties that appear before him freely and fairly as becomes anyone who is called upon to decide on matters of right or obligation. In light of this statement of principle for the exercise of the discretion vested in Garda Superintendent in Section 4 of the 1925 Act to be proper the Garda Superintendent must act in a genuinely independent manner and not feel constrained to act in accordance with any direction from an outside or higher authority. With regard to Section 8 of the Police Forces Amalgamation Act, 1925 this relates to the authority of the Commissioner with regard to operation matters and has no application to the exercise of a legislative function such as that provided for in Section 4 of the Act of 1925.

35. Counsel further referred this Court to the decision of the Kings Bench division in Simms Motor Units Limited -v- Minister of Labour [1946] 2 All ER 201. Here the Court invalidated a reinstatement order made under wartime labour regulations by a national service officer who was empowered to direct reinstatement of workers dismissed for misconduct, in circumstances where the officer was acting under directions from the Minister in circumstances where the officer was a statutory authority in his own right and should have exercised his personal discretion. The Court held that the Minister had no power to lay down any rule however reasonable in the form of directions to the officer concerned.

36. In light of the submissions that have been made in this regard it is submitted on behalf of the Applicants that they are entitled to an order of Certiorari quashing the directive as being an unlawful interference by a third party with the exercise of the discretion of a Superintendent in regard to applications made or to be made by them.

37. Without prejudice to the foregoing and independent of it, it is submitted on behalf of the Applicants that the imposition of a condition requiring the provision of a gun safe and for its inspection by the Gárdai as a precondition to the issue or renewal of a firearm certificate is ultra vires the powers conferred on Superintendents by the Firearms Act, 1925 - 2000. The delegation of functions must derive from the provisions of the Act and with regard to the policy of storage of firearms; it also must be derived from express provisions of the legislation. The provisions of the Firearms Act, 1925 as amended, relevant to these proceedings, provide no legal basis for the policy of imposing requirements regarding the storage of firearms as a precondition to the grant of a firearm. The relevant sections should be given their ordinary meaning and in doing so it is submitted that the Acts do not contemplate the imposition of conditions on the storage of firearms by individual Applicants for firearm certificates. Accordingly, it is ultra vires the powers of a Superintendent to impose mandatory conditions on the issue or renewal of a firearm certificates in circumstance where this was not contemplated by the Oireachtas.

38. By reference to the authority of Cityview Press Limited -v- An Chomhairle Oiliúna [1980] I.R. 381, it is for the legislature to determine the policy in relation to the issue of firearm certificates and it is not a matter for a Superintendent of An Garda Siochana to determine policy which is a matter reserved to the Houses of the Oireachtas. Counsel further referred this Court to the decision of the Supreme Court in the case of O’Neill -v- Minister for Agriculture [1998] 1 I.R. 539 which again examined the power of the Minister to make regulations under an Act. Reference was made in that case to the Cityview Press case where O’Higgins CJ indicated that the test is whether that which is challenged as an unauthorised delegation of parliamentary power is more than a mere giving effect to principles and policies which are contained in the statute itself.

39. Further reference was made to passages of the judgment of Murphy J in this case at p. 554 where he states as follows:-

40. It is submitted, with regard to the instant case, that a principle and policy to be derived from the legislation is that it was intended that the Superintendent of each District would make the initial decision whether to grant a certificate. In doing so he had to be satisfied of the three matters referred to in Section 4 of the 1925 Act. The requirement that an Applicant install a gun safe which is available for inspection in a private property as a precondition to a renewal of a firearm certificate is a new policy which would require a legislative basis and could not have been contemplated by the Oireachtas as being a permissible construction of the powers granted in Section 4 of the Act of 1925. It is submitted that none of the provisions of the Act touch on a storage provision by an individual.

41. The relevant portion of Section 4 is that at (b) which is that the Superintendent be satisfied that the Applicant can be “permitted to have in his possession, use, and carry a firearm or ammunition without danger to the public’s safety or to the peace”. The issue arises whether this provision could potentially authorise a Superintendent to have regard to storage provision for any firearm. One cannot construe the Firearms Act to find in any place a provision enabling a Superintendent to exercise a discretion under Sections 3 and 4 and in doing so to have regard to storage arrangements. It is submitted that there is nothing in the Act authorising the imposition of such a precondition. Counsel refers this Court to the provisions of Section 2(5)(b) of the Act of 1925 as inserted by Section 15 of the Act of 1964 insofar as it provides a contrasting provision to that at issue in the instant case. In the case of authorisations under the Act it is provided:

42. Furthermore, under the provisions of Section 6 of the Firearms and Offensive Weapons Act, 1990 dealing with an authorisation to hold a defective firearm without a firearm certificate it is provided in subsection (2) thereof:-

43. It is submitted that the Oireachtas when amending other provisions of the Firearms legislation did not see fit to amend Section 4 of the 1925 Act to indicate an intention on the part of the Houses of the Oireachtas that the Superintendent have regard to storage arrangements in the exercise of his discretion under Section 4, and that it cannot be disputed that the directive at issue in these proceedings is a matter of policy; that it would be necessary for the Oireachtas to implement such a policy by either imposing conditions or enabling conditions to be made by a Superintendent, and that this is an overall policy consideration that had to be determined by the Oireachtas. With reference to Section 4 that section does not enable a precondition to be imposed by a Superintendent such as set out in the impugned directive. It is submitted further that the provisions of paragraph (b) of Section 4 are directed to the persons and the character of the persons that they be reliable persons to use a firearm and to have a firearm in their possession without danger to the public’s safety or to the peace. Ms. Finlay asks rhetorically: Did the Oireachtas indicate in any way that a Superintendent could impose a condition not expressly referred to either as a condition of issuing a Certificate or in the Certificate itself ? It is submitted that nothing in Sections 3 or 4 of the Principal Act authorised any express conditions of the nature in these proceedings, in contrast to the position as indicated in Section 2 subsection (5)(d) of the Act as inserted by Section 15 of the Act of 1964 and Section 6 of the Act 1990 previously referred to herein. Under the terms of the Firearms (Firearm Certificate Non Residence) Act of 2000 a person issuing a firearm certificate to a non resident is expressly authorised in Section 2(10) of the Act to “attach such conditions, if any as he or she considers necessary, to a firearm certificate granted to a person under this section.” If the Oireachtas anticipated that such a condition could be imposed, one would have expected that a Superintendent would be entitled to revoke any such grant for breach of any such condition. However, no such power exists.

44. With regard to other aspects of the impugned directive and in particular that portion which indicates that a Superintendent should be entitled to inspect a gun safe in a house, it is submitted that this represents an invasion of the right to privacy arising under Article 40 Section 3 and the inviolability of the dwelling protected by Article 40 Section 5 of the Constitution. The requirement to install a gun safe and to make such safe available for inspection clearly brings the protection of these fundamental rights into question. It is submitted, given that the measures contemplated by the directive potentially impact on constitutionally protected rights and freedoms, it could not have been the intention of the legislature to permit the Gárda Síochána to determine the balance between these fundamental rights without providing a legislative basis and an appropriate framework to guide and exercise such extensive powers. No provision in the Firearms Act can be construed as authorising or permitting a member of the Gárda to enter a home to inspect the storage facility for a firearm. Specific provision is made for inspection and search of dealers premises under the terms of Section 13 of the Act of 1925 and other places under the provisions of subsection 3 of Section 21 of the same Act.

45. On behalf of the Respondents Mr. Senan Allen Senior Counsel has referred this Court to the terms of other circulars previously issued by the Commissioner with regard to firearms. These are circulars issued in 1989 and 1991. They relate to firearms and heavy calibre rifles. Earlier directives indicated the need for a gun press or safe and that they should be emphasised. Furthermore more recent directives contained advice to be given to holders of firearm certificates.

46. It is submitted that the impugned directive in this case involves the central exercise of a power used for an operational matter by the Gárda Síochána, that the control of firearms is quintessentially an operational police matter, that the issue in these proceedings is whether in the context of Section 4 paragraph (b) a Superintendent is entitled to go beyond the personal character of an applicant for a firearm certificate; that the enquiry by a Superintendent in the context of Section 4 of the Act involves an investigation beyond merely the character of the Applicant; that considerations of public safety arise and in this context the absence of a secure facility within which to store the firearm is a relevant consideration. Even if a decision was to be taken by a local Superintendent of his own volition he should be entitled to have regard to the facility within which to store a firearm. In this regard that he would have been entitled to have an approach that a gun safe in principle is what should be provided for. The section contemplates objective requirements as well as subjective requirements such as those relating to the character of the Applicant and that it is unduly artificial to separate objective and social requirements in the context of Section 4 of the Act. The same requirements can be imposed by a Superintendent as part of his assessment of the individual requirements of a particular Applicant and if the Superintendent takes the view that a gun safe is required the Applicant must then abide by that Superintendent’s assessment rather than his own assessment of what is required. The requirements for a certificate are directed to the weapon as well as to the holder and that they are not restricted to the personal characteristics of the Applicant for the certificate. In this regard Counsel referred this Court to the provisions of Section 3(4) of the Act of 1925 as inserted by Section 16 of the Act of 1964 which reads as follows:-

47. Counsel submitted that the expressio unius principal does not apply in this case insofar as the statutory provisions relied upon to demonstrate a distinction between the situation facing Applicants for firearms certificates and firearm dealers have no application. The express terms in relation to dealers cannot apply to exclude the possibility of the situation of certificate holders being construed as including like powers. With regard to Section 21 of the Principal Act, the power of inspection there relates to the firearms rather than the place itself. It is submitted therefore that it is directed to fundamentally different circumstances. It is not something to be used in reference to certificate holders.

48. Counsel point out that under the terms of the 1925 Act as initially enacted there was no provision for a renewal of a Certificate but that this was introduced in the terms of the 1964 Act. What is set out in Section 4 paragraph (b) represents at one and the same time the minimum and the maximum of what the Superintendent must address his mind to.

49. With reference to Section 15 of the 1964 Act pertaining to authorised persons, this category is of a wholly different class or category to certificate holders. Further in relation to this class of authorised persons it is to be noted that under the terms of Section 2(5)(d) a Superintendent may impose in relation to the grant of an authorisation under the section such conditions (if any) as he considers necessary to prevent danger to the public and where a condition is imposed, it shall be specified in the authorisation. This provision indicates that a Superintendent may impose conditions in relation to the grant of an authorisation. In regard to Section 2(5)(b) as inserted by Section 15 of the Act of 1964, the reference to having regard to “all the circumstances (including the provision to be made for the storage of the firearms and ammunition to which the authorisation (if granted) would relate and the supervision of their use)” does not add anything to section 4 paragraph (b) but mirrors the provisions of Section 4 paragraph (b) which relates to certificate holders. The words in brackets appearing in Section 2(5)(b) relate to considerations of public safety which are already embraced in Section 4 (b).

50. It is submitted with regard to authorisations that in all cases considerations of public safety include supervision and use of firearms. With regard to the inclusion of a power to impose conditions contained in section 2(5)(d) of the Act as inserted by section 15 of the Act of 1964, if section 4 does not allow the imposition of conditions then the Superintendent must be satisfied that the Applicant can have firearms without danger to the public. It is further submitted that overemphasis has been placed on the words ‘use and carry’in paragraph (b) of Section 4 rather than the word ‘possession’ appearing in the section. The Court and a Superintendent must have regard to the use of the word ‘possession’ appearing in this section in reference to a certificate holder. It is submitted that a Certificate holder would be continuously in possession of a firearm though not necessary in charge of his firearm at all times. Possession is something different to use and carrying of a firearm and includes considerations of storage.

51. With regard to the question of entry to a dwelling house, what the directive is addressing is that either an assurance be given or if necessary that this matter be addressed by the Applicant demonstrating an ability to keep the firearm safely. The storage facility inspection is a practical application of the requirement that the Superintendent be satisfied that the person seeking a firearm certificate can be permitted to have it in his possession, use and carry a firearm or ammunition without danger to the public’s safety or to the peace. This type of requirement of having an adequate storage facility is no different to a requirement that the component parts of a gun be held separately. With regard to inspection it is submitted that this would be consequent upon a power of appointment.

52. While it has been argued that the Superintendent is a persona designata , in fact he does not have any function independent of his position as a member of the force. The exercise of functions in the force contemplates accountability. In this regard counsel for the Respondent relies upon Sections 8 and 9 of the Police Forces Amalgamation Act of 1925. It is submitted that this contemplates direction and control in relation to firearms which is quintessentially an operational matter, that this is something beyond personal management functions and that the control of firearms is a matter for the Gárda Síochána. While the District Officer has a role under Section 4, the real issue is the extent of the role and public safety must be assessed by reference to the policy of the Oireachtas. It is submitted that an issue arises as to whether the local policy is to be set by an individual or whether the Commissioner has an entitlement to set a general policy in relation to the matters to be exercised under the terms of Section 4 of the Act. The Superintendent makes an administrative decision at a local level and that this is not inconsistent with the entitlement of the Gárda Commissioner to set national objective standards and to see that they are implemented. There is no imperative in the Firearms Act such that it be construed as entitling or requiring a Superintendent to set a policy on safety at the local level.

53. While it is conceded that there is nothing in the Act expressly entitling the Commissioner to set general safety policy or standards it is submitted that the Act is silent as to where the policy is to be defined and that it has to be construed in harmony with the Police Forces Amalgamation Act of 1925. If this means that either the Commissioner is not entitled to have a view regarding public safety requirements or, if he is entitled to have such a view, that District Officers may have their own different views, such that an administrative role given by Section 4 might be exercised at variance with the express policy of the Commissioner, this is not the construction that fits in with the provisions of the Police Force Amalgamation Act of 1925.

54. Circulars represent a central policy where that policy has not been fixed previously. Public safety involves an objective standard decided by the Commissioner.

55. It is submitted that the McLoughlin and the Simms cases referred to by counsel for the Applicant are distinguishable from the instant case and that the discretion in the McLoughlin case was wider than the discretion in the instant case.

56. It is submitted that the onus is on the Applicant to satisfy the Superintendent that public safety will not be endangered and that the setting of standards is something separate from the ability of an Applicant to satisfy those particular standards. The McLoughlin and Simms cases involved disputes inter partes , where there was a prima facie entitlement to the relief which was sought. In the instant case that there is not a prima facie right to a firearms certificate. Contrary to the submission of counsel for the Applicant the Commissioner is not deciding principles or policies as contemplated in the O’Neill case. It is submitted that the objective is one of promoting public safety and this is the end to which the particular measure in the form of the impugned directive is directed and further that the action of the Commissioner in the instant case was a bona fide exercise of his power. Counsel says by reference to the decision of Kelly J in the case of Mishra -v- Minister for Justice [1996] 1 I.R. 189 where Kelly J. stated at 207 that nothing in his judgment “should be construed as in any way suggesting how the application should be reconsidered as to its merits. That is entirely a matter for the Minister. Neither should it be construed as suggesting that there is any impropriety on the part of the Minister in having in place a policy or set of rules to guide but not govern in an absolute way the implementation of the discretion given to her”, that this statement supports the action of the Commissioner in the instant case.

57. Further reference has been made to the decision of the High Court in the case of the State (Rajan) -v- Minister for Industry and Commerce [1988] I.L.R.M. 231 where at 240 Barron J addressed the erroneous belief of the Controller of Patents in relation to his control over examiners within the Patents Office. He indicated in that case that the examination was a statutory function and there was nothing in the relevant statutory powers giving the Controller such a right either as persona designata or as head of the Patent Office. In the instant case counsel submits that the Superintendent is deployed by the Commissioner although appointed by the Minister and that he exercises a dual role both statutory and operational.

58. Ms. Finlay in reply to the submissions of counsel for the Respondents, said that nothing in the sections expressly stated that the powers had to be exercised independently. However, it must have been clear that the legislative intention was one entitling the Superintendent to define policy independent of the Commissioner. The Superintendent is the persona designata under the Act. With regard to Section 8 of the Police Forces Amalgamation Act of 1925 this was not intended to give control over functions expressly conferred on Superintendents by the legislation. A decision making power involved the exercise of a discretion and that at law the exercise of a discretion must be exercised independently by a persona designata . In the instant case the action of the Commissioner overrides the overall provisions of the Firearm Acts themselves. It amounts to a specific repeal of the Act by non-legislative means. With regard to the nature of the Directive this is clearly considered to be binding and this has not been contradicted in this particular case. The conditions contained in the Directive amount to a mandatory precondition to grant or renew a certificate. It is indicative of the fact that one will not be granted a certificate unless the particular conditions laid down by the Commissioner are satisfied.

59. With regard to the Rajan case relied upon by counsel for the Respondent, this in fact supports the Applicant’s case insofar as it relates to the exercise of a function under a statutory scheme and that this should be done independently. It is submitted that in the Rajan case there was in fact a closer connection between the Controller and the Examiner than there is in the instant case between the Commissioner and the Superintendent. Nevertheless, Barron J said that in the absence of anything in the section entitling the Controller to examine applications and to make rulings in the form of directions to the applicants without them being heard, the functions of an Examiner as a person to whom applications are referred under the provisions of Section 11 of the Patent Act and those of the Controller are separate and distinct. The High Court, in that case, held that the proper construction of the sections in that case did not give the Controller the powers which he claimed. It is submitted by Counsel that the Rajan case follows the decision in the McLoughlin case previously referred to herein. In the context of the Firearms Act what the Superintendent has to decide in the context of section 3 and 4 is the entitlement of an Applicant to a firearms certificate and, if section 4 is satisfied, that the Applicant is entitled to a certificate. By reference to section 3(1) of the 1925 Act the power vested in the Superintendent under the Act is only subject to the limitations and restrictions imposed by the Act itself.

60. With regard to the vires argument the Commissioner sought to impose two mandatory preconditions to a renewal, one relating to a firearms cabinet being installed in each house and secondly, one permitting inspection in the house itself. What is at issue in these proceedings is whether the Commissioner is entitled to impose such a general precondition. Even if the Superintendent can enquire of a person what proposed arrangements as to storage they have, in the instant case what one is involved with is a general precondition to all applicants. Counsel again referred to the express provisions in the legislation dealing with storage facilities, in submitting that, insofar as the Superintendent is concerned, he is looking at the personal attributes of the Applicant rather than the storage facilities. That the Superintendent is only entitled to have regard to the circumstances of an individual Applicant in reaching any decision under the Act and not to any precondition sought. Further, with reference to Article 40 Section 5 of the Constitution, if the Houses of the Oireachtas intended an inspection one would have to find express provision when stating this in the legislation. The Commissioner and by extension the Superintendent cannot require an entitlement or precondition that inspection be effected in the house. There is no legislative basis for this. If this is the intention of the Oireachtas, it would need express legislative provision to be enacted. The so called expressio unius principle referred to in the Third Edition of Benion ‘Statutory Interpretation’ (Butterworths 1997) at paragraph 390 to 395 (to express one thing is to exclude another) is itself an aspect of the principle expressum facit cessare tacitum . Insofar as express powers of search are given in Section 21(3) and it excludes dwelling houses, it is suggested that the fact they are not included in these express powers of search is indi cative of the policy as intended by the Oireachtas.

61. With particular reference to how Section 4 of the Act of 1925 should be construed, a further principle of statutory interpretation should be referred to and this is that referred to at paragraph 396 of Benion under the title of ‘Implication by Oblique Reference’. Benion states at this paragraph “uncertainty in one part of the proposition maybe resolved by implication from what's said in another part, even thought that other part is not directly referring you to the first part. Accordingly account is to be taken of a meaning of one provision in an Act that logically if obliquely rises from what is said elsewhere in the Act. Equally an express statement in an enactment may carry oblique implications respecting the legal meaning of other acts or enacted rules of law.” Applying this principle of Statutory Interpretation it is submitted by Ms. Finlay that it is permissible to take into account what is contained in Section 2(5) of the Act and to note that it is to be contrasted with the provisions of Section 4 itself, insofar as it extends to considerations of the place where a firearm is to be held.

62. What is not in issue in these proceedings is the fact that the impugned directive was intended to bind Superintendents in the exercise of their statutory function under the provisions of Sections 3 and 4 of the Act of 1925. What is in issue is whether this purpose was something that was enabled by the provisions of sections 8 and 9 of the Police Forces Amalgamation Act of 1925.

63. I am satisfied that the provision of section 8 of the Police Forces Amalgamation Act of 1925 apply only to operational matters and I am also satisfied that the function of a Superintendent, as outlined in the Act of 1925 are not mere operational matters but are functions vested in Superintendents of An Garda Siochana in each district in circumstances where they are persona designata . Accordingly I am satisfied that the impugned directive is invalid and void insofar as it has the effect of fettering the discretion of a Superintendent in the exercise of the functions under Sections 3 and 4 of the Act of 1925.

64. With reference to the question as to what is incumbent under the provisions of Section 4 of the Act of 1925 and in particular paragraph (b) thereof and whether it enables a Superintendent of An Garda Siochana to impose as a precondition to the issue of a certificate matters such as those contained in the impugned directive in this case, I believe that if the Act intended that such might be imposed by way of precondition that it would have expressly so stated. I am further satisfied insofar as Section 2(5) of the Act as inserted by the provisions of Section 15 of the Act of 1964 is concerned, that the contrast in wording gives some light as to how one should construe Section 4 of the Act and it is in this light I believe that Section 4 does not entitle a Superintendent to impose conditions such as might otherwise be imposed had similar wording been used in Section 4 to those appearing on Section 2(5) of the Act. I am of the belief that it was not permissible to imposed a fixed precondition to an application of the nature applied in this case by the impugned directive such as would preclude a Superintendent from considering a case on its merits where something of equivalent safety was provided by the certificate holder or Applicant for a certificate.

65. In light of my conclusions on the particular facts of this case in relation to the particular issues addressed to me by the parties and sought to be addressed by me, it is strictly speaking not necessary to address further the general entitlement of a Superintendent of An Gárda Síochána in regard to Section 4 paragraph (b) of the Act of 1925. However, I am of the opinion that the provisions of the paragraph are such as to not to restrict the ambit to consideration as to the personal attributes of an applicant for a firearms certificate but may relate to the circumstances in which he or she may have a firearm in his or her possession without danger to the public’s safety or to the peace.

66. In conclusion I wish to state that this Court expresses no concluded view as to how far a Superintendent may go in the context of the exercise of his powers under Section 4(b) of the Act of 1925 other than indicating that he may not impose preconditions of the nature sought to be imposed by the Commissioner in this case and the Commissioner is not entitled to interfere with a Superintendent in the exercise of his functions under the Act.