High Court of Ireland Decisions

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THE HIGH COURT

[2025] IEHC 234

[Record No. 2022 301 JR]

BETWEEN

TURLOUGH TRACEY

APPLICANT

AND

 

THE COMMISSIONER OF AN GARDA SÍOCHÁNA

RESPONDENT

JUDGMENT of Ms. Justice Marguerite Bolger delivered on the 25^th day of March 2025

 

1.            This is the applicant's application for leave to seek certiorari to quash the decision of a Chief Superintendent of 28 January 2022 which the applicant received on 1 February 2022, to refuse the applicant's application for licences for two firearms. The application was on notice, so both the leave application and substantive matters fall to be determined in this judgment.  For the reasons set out below, I am refusing the applicant leave to seek judicial review.

2.            The applicant asserts that the Chief Superintendent acted in excess of his jurisdiction and failed to give adequate and/or lawful reasons for his decision to refuse the application.

Time

3.            The application for leave was made some seven weeks out of time. The applicant set out on affidavit various difficulties he said he encountered in filing his papers in the Central Office and, thereafter, in making the application to court, as the rules then required in order to stop time from running. In his oral submissions and for the first time in the proceedings, the applicant said he had dyslexia and explained how his condition caused him particular difficulties in preparing and filing his papers. The applicant's request to the Court to take what he says was his diagnosed disability into account in considering an extension of time would appear to fit within the requirements of reasonable accommodation to which a person with a disability is entitled pursuant to the Equal Status Acts 2000, as amended.

4.            Upon hearing of the applicant's condition and consequent difficulties, the respondent withdrew their objection on time, subject to the applicant filing an affidavit confirming his diagnosis. The applicant filed an affidavit on 6 February 2025 and exhibited a report from his GP dated 29 January 2025 in which his GP confirms the applicant reporting to them that the applicant said he had been diagnosed with dyslexia some thirty years previously in London.  The GP's account is not a diagnosis but simply a report of what the applicant told them. It is little more than what the applicant told this Court, i.e. that he had been diagnosed with dyslexia.  The applicant had sufficient time prior to this application for leave to secure documentary evidence of a diagnosis such that which would enable the Court to allow him reasonable accommodation in accordance with the Equal Status Acts. An unverified statement from the applicant that he has dyslexia is insufficient on its own to entitle him to that reasonable accommodation.

5.            However, the period of time by which the application is out of time is relatively short and the applicant has given a credible account of difficulties he encountered in filing his papers, at a time when he was required to make an application to court in order to stop time from running.  I, therefore, will proceed to consider the strength of the applicant's underlying judicial review in order to assess whether I should exercise my discretion to extend time.

Restricted firearms

6.            Initially there was some dispute about the nature of the firearms in question which An Garda Síochána had treated as restricted because they resembled restricted firearms. Whilst there were affidavits sworn on that point, ultimately, the applicant accepted in his affidavit, sworn on 26 April 2024, that the point was "obsolete" as he had not argued that the firearms were not restricted and he had, in fact, indicated on his application that they were restricted.

The Firearms Act 1925, as amended

7.            The relevant sections of the Firearms Act 1925, as amended (hereinafter referred to as 'the Act') are ss. 2, 3, 4 and 15A:-

"Restrictions on possession, use, and carriage of firearms.

2.—(1) Subject to the exceptions from this section hereinafter mentioned, it shall not be lawful for any person after the commencement of this Act to have in his possession, use, or carry any firearm or ammunition save in so far as such possession, use, or carriage is authorised by a firearm certificate granted under this Act and for the time being in force.

...

Applications for, and form and effect of, firearm certificates.

3.— (1) Application for a firearm certificate (other than a restricted firearm certificate) shall be made to the Superintendent of the Garda Síochána of the district in which the applicant resides.

(2) Application for a restricted firearm certificate shall be made to the Commissioner.

(3) The application shall be in the prescribed form, and if the applicant intends to use the firearm to hunt and kill exempted wild mammals within the meaning of the Wildlife Act 1976 (other than hares), be accompanied by a current licence to do so under section 29(1) of that Act.

(4) The applicant shall supply in writing any further information that the Superintendent or the Commissioner may require in the performance of his or her functions under this section.

...

Conditions of grant of firearm certificate.

4.— (1) An issuing person shall not grant a firearm certificate unless he or she is satisfied that the applicant complies with the conditions referred to in subsection (2) and will continue to comply with them during the currency of the certificate.

(2) The conditions subject to which a firearm certificate may be granted are that, in the opinion of the issuing person, the applicant—

(a) has a good reason for requiring the firearm in respect of which the certificate is applied for,

(b) can be permitted to possess, use and carry the firearm and ammunition without danger to the public safety or security or the peace,

...

Appeal to District Court.

15A.— (1) An appeal may be made to the District Court by a person aggrieved by any of the following decisions made by an issuing person:

...

(b) to refuse to grant or renew a firearm certificate under section 3 of this Act;

...

(2) An appeal shall be made within 30 days of receipt of notice of the decision concerned.

(3) On the appeal the Court may—

(a) confirm the decision,

(b) adjourn the proceedings and direct the issuing person to reconsider the decision in the light of the appeal proceedings, or

(c) allow the appeal."

Background

8.            The applicant is a litigant in person. Some of his pleadings and affidavits do not follow the format of pleadings that would normally be presented to the Court. During his oral submissions the applicant referred to, inter alia, evidence of his version of disputed events which was not on affidavit. Nevertheless, and for reasons that are set out below, I have taken account of some of what he said in considering the veracity and reliability of his affidavit evidence and how the Court's discretion should be exercised.

9.            The applicant is the safety officer of Togher Gun Club, a member of Midlands National Shooting Centre of Ireland and is qualified to supply wild game. Prior to the difficulties he encountered in acquiring a licence from 2017 onwards, he previously held a firearms licence.

The 2019 Decision

10.         Whilst the within application relates to the refusal of the applicant's application of 12 February 2021, an earlier refusal in 2019 and the background to it is relevant in understanding the context of the impugned decision.  On 30 September 2016, two members of An Garda Síochána attended at the applicant's home as a result of an anonymous complaint made to them that the applicant's two dogs, a German shepherd and a rottweiler, had been shot after the dogs had had an encounter with a neighbour. In their statements the gardaí say that they made enquiries and the neighbour confirmed an incident with the dogs and her belief that the dogs had been shot.  One of the statements say that the neighbour was clear in saying that she did not wish to have the matter investigated. Both gardaí confirmed that the applicant told them that the dogs had been shot by someone else at his request, but he refused to say who had shot them or where the dogs were buried. Subsequently, in his pleadings, the applicant averred to having given the gardaí a different account, i.e. that he said, "I shot my dogs? Yes I'm the shooter from behind the grassy knole". In his oral submissions he described this statement as a joke and as "stupid gibberish".

11.         The two members of An Garda Síochána were sufficiently concerned that they seized the applicant's then legally held firearms and made contact with the issuing authority for the applicant's firearms licences. Thereafter, the Chief Superintendent invited the applicant to make a fresh application for a licence for each of the two firearms, which he did on 22 December 2017.  The applicant was invited to meet with the Chief Superintendent on 13 February 2018. At that meeting the Chief Superintendent advised the applicant that no one could be licensed where there was a belief that there was a danger to public safety and that the Chief Superintendent, therefore, wished to explore the background to the shooting of the dogs. The applicant told him that the dogs had been rehoused with two new owners and that he would revert to the Chief Superintendent with their details. By 26 June 2018 the Chief Superintendent had not heard from the applicant and telephoned him.  The applicant said he had handed in the details to An Garda Síochána in the Laytown Station. The Chief Superintendent made enquiries but could find no record of that.

12.         Before this Court (and not on affidavit), the applicant claimed that he had been advised by a member of An Garda Síochána in the Laytown Station to include both the original piece of paper, on which he had set out the two new owners' details, and a copy that he had taken.  He had not retained any further copy.

13.         On 28 August 2019, the Chief Superintendent met with the applicant, and the applicant provided some limited details about the two new owners, but said he had no addresses for them. The Chief Superintendent could not verify any of the information the applicant had given to him.

14.         During his reply in the hearing of his application before this Court, the applicant stated for the first time (and again, not on affidavit) that he did, in fact, know the details of the two new owners when he first spoke to the Chief Superintendent, but chose not to disclose those details as he was concerned that, what he referred in emphatic terms to "his pets", would be destroyed and that it was only when the Chief Superintended assured him that they would not be destroyed that he furnished their details to Laytown Garda Station.  Previously in his licence applications, his pleadings and written submissions, he claimed that he was unable to remember the details of the two new owners after having handed in his written account of them to the Laytown station.

15.         On 3 September 2019, the applicant's applications for licence were refused due to the Chief Superintendent's concerns in relation to public safety.

The applicant's appeal of the 2019 Decision

16.         The applicant appealed the 2019 decision to the District Court pursuant to s. 15A of the Act. The appeal was unsuccessful. In his oral submissions to this Court (once again without putting it on affidavit) he said he was not heard before the District Court and did not receive a fair process. He sought to appeal that decision of the District Court to the Circuit Court, but withdrew his appeal, he said on the basis of having been told that no such appeal lay to the Circuit Court.  Regardless of whether that is so or not (a point on which this Court is not required to make a decision), the applicant clearly wished to challenge the decision of the District Court and took steps to appeal to the Circuit Court to do so. However, he did not attempt at that time to challenge the District Court by way of judicial review or any other process that might have been available to him. I make no observation on the prospects of success in any such application, but simply note the applicant's failure to take any further steps at that time to challenge what he claims was a failure by the District Court to afford him a fair and lawful appeal process in accordance with his statutory right pursuant to s. 15A of the Act.

The 2022 Decision

17.         The applicant made further applications for licences on 12 February 2021. The impugned decision, dated 28 January 2022 and received by the applicant on 1 February 2022, was refused "[on] the grounds of public safety" based on the applicant's failure "to provide contact details of persons to whom you allegedly gave your dogs following a reported incident between yourself and your then neighbour". The grounds and reasons given were very similar to those of the 2019 decision.    In accordance with the decision of the Supreme Court in Connelly v. An Bord Pleanála [2018] ILRM 453, the process and the reasons provided for in the 2019 decision can be taken into account by this Court in assessing the legality of the impugned decision including the adequacy of the reasons given for it.

The applicant's grounds

18.         The applicant's statement of grounds plead that the Chief Superintendent acted outside of his office and the legislation. He cites s. 4(3) of the Act and states he met all the criteria therein. He says the information requested (i.e. contact details for the two people to whom he allegedly gave his dogs) does not relate to public safety. In relation to the whereabouts of his dogs, he averred that he no longer has the information, that he did not destroy the dogs, and that the information was sought on the basis of hearsay. He submits that not remembering information sought several years after the events is not a matter of public safety.

The availability of an alternative remedy

19.         The respondent raised a preliminary objection that the applicant failed to avail of the alternative remedy to appeal the decision of the Chief Superintendent to the District Court pursuant to s. 15A of the Act. The respondent also relies on the decision of the Supreme Court in G v. DPP [1994] 1 IR 374, where Finlay C.J. set out what the applicant must establish in an application for leave, including at (e) on p. 378:-

"That the only effective remedy, on the facts established by the applicant, which the applicant could obtain would be an order by way of judicial review or, if there be an alternative remedy, that the application by way of judicial review is, on all the facts of the case, a more appropriate method of procedure."

20.         The scope of s. 15A of the Act is broader than simply allowing or refusing an appeal.  The section confers powers on a District Court similar, though perhaps not identical to those of this Court in terms of adjourning the appeal and directing the issuing person (here, the Chief Superintendent) "to reconsider the decision in the light of the appeal proceedings".

21.         In explaining his decision not to appeal the impugned decision, the applicant firstly said he was concerned that the impugned decision of the Chief Superintendent may follow any further application for a licence as he may make in the future, as indeed it has followed him since his previous application of 2017. That may be so, but that does not, in itself, justify his decision not to appeal the decision of the Chief Superintendent to the District Court, albeit it explains why he considers this to be an important issue for him. Secondly, he explained his decision not to pursue his statutory appeal on the basis of how he claims to have been unfairly treated by the District Court in February 2020 when he sought to appeal the decision of 2019. There is no evidence before this Court of any of the unfairness alleged by him.  The fact the applicant did not put those matters on affidavit meant the respondent was denied any opportunity to refute his serious allegations of an unfair process. He never sought leave to judicially review that process even though he was within time to do so when he withdrew his Circuit Court appeal on 15 February 2021.

22.         The applicant justified his position to pursue leave for judicial review to this Court, rather than a s. 15A appeal to the District Court, on the basis that he could only secure a fair process in this Court. I find that to be a groundless belief devoid of any basis in fact or in law. I am satisfied that the appeal available to the applicant, pursuant to s. 15A, was not only an effective remedy for him, but one that was far more appropriate than the within application to this Court.

23.         There are situations in which a decision from which a statutory appeal lies merits proceeding by way of judicial review rather than a statutory appeal, one of which was identified by Clarke J. (as he was then) in EMI Records v. Data Protection Commissioner  [2013] IESC 34, [2014] 1 ILRM 225 as where an aggrieved party alleges "that they were deprived of the reality of a proper consideration of the issues such that confining them to an appeal would be in truth depriving them of their entitlement to two hearings" (para. 4.9). Clarke J. cited the dicta of Denham J. (as she was then) in Stefan v. Minister for Justice [2001] 4 IR 203, "[i]t is clear that whilst the presence of an alternative remedy, an appeal process, is a factor, the court retains jurisdiction to exercise its discretion to achieve a just solution." This was relied on by Donnelly J. more recently in the Court of Appeal decision of FD v. Chief Appeals Officer and ors [2023] IECA 123.

24.         I do not believe the within applicant has established any stateable case that he was deprived of a proper consideration of the issues. Rather, he seems to challenge the impugned decision on its merits in claiming that the Chief Superintendent was incorrect in his analysis of the issue of public safety and his grounds for his concerns.  His concerns are clearly more appropriate to the appeal process of s. 15A than the type of review of procedure that occurs within a judicial review.

25.         The applicant has presented differing versions of the facts around the disappearance of his two dogs in 2016, ranging from an account contained in one of the two statements of the members of An Garda Síochána who attended at his home, that he told them he had arranged for someone to shoot the dogs, to his statement that he was the shooter. Whilst he claims the latter was a joke, whatever he said to the two members of An Garda Síochána was taken sufficiently seriously by them to require his firearms to be seized. The applicant then claimed to have rehoused the dogs.  His failure to identify the person to whom he gave the dogs gave rise to the Chief Superintendent's concerns and the grounds for the impugned decision. The applicant claimed the Chief Superintendent was irrational in relying on the applicant's memory lapse in relation to what happened several years previously. However, his claimed inability to remember those details is placed in doubt by his own stated knowledge of those same details in the course of his oral submission to this Court, along with what he says was his reason for not telling the Chief Superintendent, i.e. in order to save his dogs from being destroyed.

26.         The Chief Superintendent's decision did not deprive the applicant of a right to a fair hearing such that he was compelled to apply to this Court. The District Court appeal, which the applicant chose not to pursue, would have given him a more detailed process than is afforded by the Chief Superintendent, and than would normally be afforded by this Court, including rights of cross-examination and the possibility of the matter being reconsidered by the Chief Superintendent. Section 15A is a particular remedy that the Oireachtas has determined should be available to a person, such as the applicant, who has been refused a firearms licence. Where such a broad appeal is available, there is a greater obligation on a litigant to exhaust that appeal before seeking leave to judicially review the decision, than might apply in a situation where a flaw in the impugned decision is alleged to have deprived the applicant of fair procedures such as the right to a hearing. I find support for that view in the decision of Donnelly J. in FD, at para. 49, which stated:

"The reasons for imposing a requirement to exhaust alternative (adequate) remedies include that a statutory system of appeals will be more effective and convenient than an application for certiorari, that the Oireachtas has provided specialist bodies with specialist expertise and that issues of judicial resources may arise."

She went on, at para. 50:

"That said however, a court must have  some  regard  to  the  underlying  grounds  upon which the substantive claim for relief is made.  That may be the only way the court can assess whether the issue is one which would bring it within the exception to the rule of exhausting alternative remedies.  For example, the court would have to assess whether the claim amounted to a fundamental denial of fair procedures or is one that is based on a lack of jurisdiction.  If that were the case, then the discretion to refuse jurisdiction may not be exercised by the court hearing the application." 

27.         The applicant failed to exhaust his alternative, and far more suitable and appropriate, remedy of an appeal to the District Court pursuant to s. 15A of the Act. The applicant has not made even an arguable case of a fundamental breach of fair procedures or a lack of jurisdiction such as to bring it within the exceptions to the rule of exhausting alternative remedies as identified by the Court of Appeal. 

28.         The substantial judicial review challenge is neither strong nor compelling.  This militates against the exercise of my discretion to extend the time. 

29.         I, therefore, refuse the applicant's application for leave to seek judicial review of the impugned decision.

Indicative view on costs

30.         As the applicant has failed in his application for leave that was heard on notice, my indicative view on costs, in accordance with s. 169 of the Legal Services Regulation Act 2015, is that the respondent is entitled to their costs against the applicant. I will put the matter in before me at 10.00am on 3 April 2025 to hear whatever submissions either party wishes to make in relation to final orders, but, if either party wishes to lodge a written submission, this must be filed with the Court at least 48 hours in advance of the matter coming back before me.

 

 

The applicant represented himself.

Counsel for the respondent: Mark Finan BL