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