Barr Tribunal Report Chapter 13

CHAPTER 13

Gun licensing Law and related matters

Introduction

This chapter comprises a review of gun licensing law in this State and a comparison with the law in certain other comparable jurisdictions. It entails, inter alia, consideration of proposed improvements in our law. Much assistance has been given by a wide range of interested professional and sporting organisations in Ireland which have furnished submissions and in several instances details have been amplified by oral testimony. The Tribunal also has had the benefit of reports and expert testimony relating to the law and the experience of the police in the area of licensing and control of guns held by members of the public in the United Kingdom; Canada; the State of Victoria (Australia) and in New Zealand. In addition, a range of important reports, police guidelines and other related documentation has been furnished to the Tribunal. The expertise, generous support and assistance provided by police and others in the foregoing jurisdictions have been of outstanding value to the Tribunal and are much appreciated.

Existing Irish law and comparable law in other jurisdictions

The following acts and statutory instruments contain the relevant Irish statute law regarding sporting gun licences granted to members of the public and the renewal thereof.

1. Firearms Act, 1925

2. Customs-Free Airport (Extension of Laws) Regulations, 1962, S.I. 186 of 1962

3. Firearms Act, 1964

4. Firearms (Proofing) Act, 1968

5. Firearms (Proofing) Act, 1968 (Commencement) Order, 1969, S.I. 64 of 1969

6. Firearms (Shotguns) (Proofing Methods, Marks and Fees) Regulations 1969, S.I. 65 of 1969

7. Firearms Act, 1971

8. Firearms (Temporary Custody) Order, 1972, S.I. 187 of 1972

9. Firearms (Dangerous Weapons) Order, 1972, S.I. 251 of 1972

10. Wildlife Act, 1976

11. Criminal Law (Jurisdiction) Act, 1976 (Commencement) Order 1976, S.I. 112 of 1976

12. Firearms Regulations, 1976, S.I. 239 of 1976

13. The Wildlife Act 1976 (Section 44) (Recognised Bodies) Regulations, 1977, S.I. 335 of 1977

14. The Wildlife Act 1976 (Section 44) (Recognised Bodies) Regulations, 1980, S.I. 233 of 1980

15. Firearms and Offensive Weapons Act, 1990

16. Firearms and Offensive Weapons Act, 1990 (Part II) (Commencement), Order, 1990, S.I. 313 of 1990

17. Firearms and Offensive Weapons Act, 1990 (Offensive Weapons) Order, 1991, S.I. 66 of 1991

18. European Communities (Acquisition and Possession of Weapons and Ammunition) Regulations, 1993, S.I. 362 of 1993

19. Wildlife Act, 1976 (Firearms and Ammunition) Regulations, 1977, S.I. 239 of 1997

20. Firearms (Temporary Provisions) Act, 1998

21. Firearms (Temporary Provisions) Act, 1998 Continuance Order from 1999, S.I. 189 of 1999

22. Wildlife (Amendment) Act, 2000

23. Firearms (Firearm Certificates for Non-Residents) Act, 2000

24. Firearms Certificates for Non-Residents Order, 2002, S.I. 48 of 2002

25. European Communities (Acquisition and Possession of Weapons and Ammunition) (Amendment) Regulations, 2002, S.I. 49 of 2002.

A summary of the relevant provisions is as follows:

1. Sporting guns and related ammunition in the lawful possession of members of the public resident in the state require to be licensed by the Garda Sı´ocha´na. Firearm certificates are renewable annually. Certificates are issued by a Garda superintendent for the area where the applicant resides pursuant to section 3 of the 1925 Act. It provides that the superintendent of any Garda district may, subject to the limitations and restrictions imposed by the Act, upon the application of any person residing in such district and on payment of the fee (if any) for the time being required by law, grant to such person a firearm certificate. The issuing of firearm certificates is a function conferred on Garda superintendents who are area officers as personae design atae. Separate provisions apply to the granting of firearm certificates to persons not ordinarily resident in the State (See paragraph 12 hereunder).

Section 3 (4) of the 1925 Act (as amended by section 16 of the 1964 Act) provides:

Every firearm certificate shall be in the prescribed form and shall operate and be expressed to authorise the person to whom it is granted:

(a) to have in his possession, use and carry the particular firearm described in the certificate, and

(b) to use ammunition in the firearm and to have in his possession at any one time and carry so much ammunition for the firearm as shall be specified in the certificate.

2. Section 12 of the 1964 Act states that where the firearm described in a certificate is a shotgun the certificate may be expressed, and in such case shall operate to authorise such firearm to be used only for killing animals or birds (other than protected wild animals or protected wild birds within the meaning of the Wildlife Act, 1976 as amended by section 65 of that Act) on land occupied by the person to whom such certificate is granted or on land occupied by another person. In the latter event, it shall not be granted unless the occupier of the land has given the applicant a nomination in writing for holding the certificate as provided for in section 12 (2). Where such a nomination is revoked, the limited certificate to which it relates shall not, if it is then in force, be capable of being renewed.

3. The power vested in the issuing superintendent to grant a certificate is subject to his/her being satisfied as to the requirements of section 4 of the 1925 Act which provides that:

Before granting a firearm certificate to any person under this Act the superintendent of the Garda Sı´ocha´na or the Minister (as the case may require) shall be satisfied that such a person —

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

(b) can be permitted to have in his possession, use and carry a firearm without danger to the public safety or to the peace, and

(c) is not a person declared by this Act to be disen titled to hold a firearms certificate.

4. Section 8 of the 1925 Act (as amended by section 1 7 of the 1964 Act) sets out an exhaustive list of persons declared by the act to be disentitled to hold a firearm certificate. They include, inter alia, any person of intemperate habits, any person of unsound mind and any person who is subject to the supervision of the police. A person of ‘‘unsound mind’’ is not defined in the firearms legislation. However, it is referred to (rather than defined) in the Mental Treatment Act, 1945 as a person who requires detention for protection and care and who is unlikely to recover within a six month period. The Mental Health Act, 2001 does not utilise the term ‘‘unsound mind’’.

5. Section 5 of the 1925 Act provides that the superintendent of the Garda Sı´ocha´na of the district in which the holder of a firearm certificate resides may revoke the certificate at any time if he/she is satisfied that the holder:

(a) has no good reason for requiring the firearm to which the certificate relates, or

(b) is a person who cannot, without danger to the public safety or the peace be permitted to have a firearm in his possession, or

(c) is a person who is declared by this Act to be disen titled to hold a firearm certificate, or

(d) where the firearm certificate limits the purpose for which the firearm to which it relates may be used, is using such firearm for purposes not authorised by the certificate.

6. Section 9 of the 1964 Act provides for the renewal of a firearm certificate. It may be renewed by a member of the Garda Sı´ocha´na not below the rank of sergeant in the district in which the holder resides if he or she is so authorised in writing by the superintendent of the district. The power of renewal conferred by the section shall be subject to such reservations (if any) which may be specified in the written authority of the superintendent. The refusal to renew is ultimately a matter for the superintendent, as the delegated officer cannot refuse to renew a particular firearm certificate unless he or she is authorised by the superintendent of the district to refuse renewal. Therefore, in relation to renewals the Garda superintendent is again persona designata subject to a right of delegation.

7. Section 23 of the 1925 Act provides that a court may order the forfeiture of firearms or cancel a firearm certificate in circumstances where a person is convicted of an offence under the Act, is convicted of any crime for which he or she is sentenced to penal servitude or imprisonment, is ordered to be the subject of police supervision, or is ordered to enter into a recognisance to keep the peace or to be of good behaviour, a condition of which is that the offender shall not possess, use or carry a firearm. Where the court causes a firearm certificate to be cancelled under this section notice of the cancellation shall be sent to the Garda Sı´ocha´na for the area in which the certificate was granted.

8. Under section 4 of the 1964 Act the Minister may, on the grounds of public safety, or public security (see also Regulation 12 of S.I. 362/93) make an order requiring every person in a specified area to surrender a particular class of firearm or ammunition to the Garda Sı´ocha´na. On foot of such an order the police may seize any firearm to which the order relates and retain it in their possession. The Garda Sı´ocha´na has no other statutory right to confiscate licensed firearms pending revocation of the relevant certificate.

9. Save for the exception referred to hereunder, there is no statutory right of appeal under existing Irish law against a refusal by an issuing superintendent to grant or renew a firearm certificate, or a decision to revoke a firearm certificate. The only relief open to a person who has been refused a certificate or whose licence has been revoked is to seek an order of certiorari in the High Court by way of judicial review. This is a limited remedy which relates to fairness of

procedures. However, a right of appeal to the District Court applies in the case of licences granted under the Wildlife Acts, 1976 to 2000 — see paragraph 12 hereunder.

10. The Firearms Regulations, 1976 (S.I. 239 of 1976) set out the form of application for and renewal of a firearm certificate and the form of the certificate to be issued by the Garda Sı´ocha´na. The garda officer signing the application form must be satisfied about the requirements set out at section 4 of the 1925 Act. The applicant does not need to verify compliance with these requirements, and that omission should be remedied by statute and in the application form for a new licence or a renewal thereof. The renewal form does not require the issuing Garda officer to state that he or she is satisfied that the conditions stipulated by section 4 remain applicable, and I recommend that that omission also should be remedied.

11. An interesting comparison arises in relation to applications for driving licences. These are governed by the Road Traffic (Licensing of Drivers) Regulations, 1999 (S.I. 352 of 1999). Pursuant to article 15 the application form for a driving licence contains a health and fitness ‘checklist’ which the applicant is obliged to complete and sign by way of declaration. This is in contrast to an application for a firearm certificate where the applicant is under no such obligation. In an application for a firearm certificate it is the Garda officer dealing with the application who must sign the document that he or she is satisfied that the applicant is not a person who is disentitled to a gun licence under the Firearms Acts.

Article 42 of the driving licence regulations provides that if the application does not contain the foregoing health and fitness declaration, it shall be accompanied by a report from a registered medical practitioner indicating that the applicant meets the minimum health standards set out in Schedule 6 to the regulations. This article also contains a provision that the registered medical practitioner shall state that the applicant does not appear to require medical review during the period in respect of which the licence is sought.

12. In relation to non-residents, the appropriate superintendent of the Garda Sı´ocha´na may grant a firearm certificate pursuant to section 2 of the Firearms (Firearm Certificate for Non-Residents) Act, 2000 where the firearm is intended only for hunting or sporting purposes or for shooting species the shooting of which is not proscribed by law. If the intended use is for other purposes the application is to the Minister for Justice, Equality and Law Reform. Such a certificate authorises the licensee to:

i. have in his or her possession, use and carry the particular firearm described in the certificate for the purpose specified in the certificate,

ii. purchase and use in such firearm during the currency of such certificate such quantity of ammunition as shall be specified in the certificate, and

have in his or her possession at any one time and carry so much ammunition as shall be specified in the certificate.

The issuing authority must be satisfied regarding compliance with the conditions stipulated by section 4 of the Firearms Act, 1925 before granting the firearm certificate in question.

It is of interest to consider the factors which the Minister or the issuing superintendent shall have regard to in the issuing of firearm certificates to non-residents pursuant to the Firearms (Firearm Certificates for Non-Residents) Act, 2000. A superintendent or the Minister, may only grant a firearm certificate pursuant to section 2 of the 2000 Act. Section 2 (5) provides that an applicant shall furnish to the issuing person the information requested in the standard application form together with such further information as the issuing person may request for the purpose of his or her functions under that section, and if the applicant fails to comply with the subsection the issuing person may refuse to grant the firearm certificate. He/she must be of the opinion that the application is bona fide and that there is no good reason to refuse it. Section 2 (9) of the 2000 Act provides that the issuing person may make such inquiries as he or she considers appropriate regarding the suitability of any applicant for a firearm certificate under that section. Under section 2 (10) the issuing person may attach such conditions as he or she considers necessary to a firearm certificate granted under that section. There is no right of appeal from a decision of the Minister or a superintendent under section 2 of the Act.

The Minister for the Environment, Heritage and Local Government has the power to grant a licence to hunt and kill with firearms to Irish residents and also to persons not ordinarily resident in the State under section 29 (1) of the Wildlife Act, 1976 as amended by section 4 of the Firearms (Firearm Certificates for Non-Residents) Act, 2000. Under section 29 (3) (a) of the 1976 Act the Minister, before granting a licence or renewing a licence, ‘‘shall be of the opinion that the application is bona fide and that there is no good reason to refuse to grant the licence or renew it’’. Under section 29 (3) (c) the Minister may make such inquiries as he or she considers appropriate regarding the suitability of any applicant for a licence.

A person who applies to a superintendent for a firearm certificate under section 3 of the 1925 Act, section 2 of the 2000 Act or a renewal under section 9 of the 1964 Act, and who makes the declaration required by section 29 (1) of the 1976 Act, as amended by section 4 of the 2000 Act, is entitled by virtue of section 29 (8) of the 1976 Act to an endorsement on the certificate entitling the person to hunt prohibited wild birds and hares.

Unlike other comparable aspects of the gun licensing code, section 29 (7) of the Wildlife Act, 1976 (as amended) provides that a person aggrieved by a decision of the Minister to refuse to grant or renew a licence to hunt with firearms may apply to the District Court in the area to which the appellant ordinarily resides or, where he or she is ordinarily resident outside the state, temporarily resides. See order 89, rule 2 of the District Court Rules 1997.

13. There are no guidelines in this jurisdiction for the assistance of issuing superintendents on the exercise of their discretion under the firearms

legislation. The absence of guidelines militates against consistency and uniformity in the processing and granting of gun licences and renewals thereof.

14. There is no provision in the application form for a firearm certificate for furnishing any information regarding the applicant’s mental or physical fitness.

Superintendent Philip A. Lyons, who gave evidence on behalf of the Garda Sı´ocha´na, told the Tribunal that in exceptional cases issuing superintendents will require some medical information from an applicant’s medical advisor. There is nothing in the current application form or in the gun licensing code for the provision of consent by an applicant that his or her medical advisor may be consulted by the issuing authority. As already stated, this is in contrast to the position regarding an application for a driving licence.

1 5. An exhaustive examination of respective gun licensing systems has been carried out in the United Kingdom and New Zealand. They are contained in the Report of Lord Cullen¹ regarding the shooting dead of eighteen people at Dunblane primary school in Scotland on 13^th March, 1996 and the report of the Inquiry carried out by Judge Thorp,² being an independent review of firearms control in New Zealand following two police shootings in September and November of 1995.

An examination of procedures in the United Kingdom, Victoria and Canada establishes that comprehensive application forms are utilised which contain certain safeguards in requiring applicants, inter alia, to answer questions regarding their mental and physical health, thus identifying cases which may cause concern in that area. The latter provision is supported by a system of referees, generally two in number. In the United Kingdom the referees must be of good character, and, in general, neither can be a member of the applicant’s immediate family. In Victoria the application provides for one referee, who should come from within certain categories of persons in good standing in the community, and who should not be a family member. In Canada, two referees are required, neither of whom can be the applicant’s spouse. By way of comparison, in New Zealand two referees are required, one being the applicant’s spouse/partner or next of kin, and the other unrelated. The referees are obliged to complete forms containing a series of questions regarding the applicant’s fitness to hold a firearms licence, and their state of knowledge about his/her mental and physical health, demeanour and disposition. Underpinning the foregoing safeguards is the provision in those jurisdictions of detailed guidelines, some statutory, regarding the interviewing of applicants, referees and other involved persons, by suitably experienced and trained police officers.

In the United Kingdom, Victoria and Canada the application forms also give the applicant’s consent to the licensing authority to contact his or her medical advisors for such further information as may be required in connection with the

1 The Public Inquiry into the Shootings at Dunblane Primary School on 1 3th March 1996 [The Scottish Office. Cm 3386, presented to Parliament in October 1996.]

2 Review of Fireams Control in New Zealand, Report of an Independent Inquiry commissioned by the Minister of Police [June 1997].

applicant’s mental or physical health. The position in New Zealand is also referred to at paragraph 16 (d) hereunder. The Tribunal is of opinion that the application form currently used in this jurisdiction requires radical amendment. A proposed revised draft is contained in Appendix 8.

Each of the foregoing jurisdictions has rejected the introduction of a requirement that an application for a firearm certificate or licence shall be accompanied by a medical certificate or report as a matter of course. Such a requirement has been criticised also by the various legal and medical organisations who have furnished submissions and/or have given evidence to the Tribunal. It is perceived to be unworkable from an administrative point of view. Mental health organisations object to it also on the ground that it stigmatises persons with mental health difficulties or illness. Shooting organisations in their submissions were also of the view that such a process would be unworkable administratively. The point was strongly made by various medical organisations that if any future amendment of the existing law made provision for the furnishing of medical certificates or reports that the contents thereof should be limited to factual matters concerning the applicant’s health rather than the expression of an opinion by the medical advisor on whether or not in the context of his or her state of health the applicant was a fit and proper person to hold a firearm certificate. The medical bodies were of the opinion that the decision to grant or refuse a gun licence should remain one for the licensing authority only and medical advisors should not be required to participate in that function. The opinion was also expressed that if any such requirement was introduced into our law, it would have significant potential for damaging the therapeutic relationship between the applicant and his or her medical advisor. On this issue it is noted that the ‘‘Firearms Law Guidance to the Police, 2002’’ issued by the Home Office in the United Kingdom makes the point strongly that it is for the police to make the decision on an application for a gun licence or renewal thereof and in particular the applicant’s medical advisor ‘‘should not be asked to either endorse or oppose applications, though it is open to them to do so’’.³

The Irish College of Psychiatrists furnished a submission to the Tribunal dated 29^th June, 2004 in which it is stated:

‘‘In summary it is the view of the college that the role of medicine, and psychiatry in particular, should be limited to providing advice on a selected minority of cases. The issuing of firearms [certificates] is primarily a matter for political and social policy makers’’.

The college submission refers to difficulties relating to the time required by a psychiatrist to make an appropriate risk assessment in the context of a patient’s application for a gun licence or renewal thereof. Objections expressed are similar to difficulties adverted to by Lord Cullen in his Dunblane report referred to hereunder. The college is of the opinion that psychiatric assessments in

3 Firearms Law Guidance to the Police, 2002 [Home Office, United Kingdom], paragraph 10.22.

relation to gun-licence applications as a statutory requirement are not appropriate. I share that view.

The issue about whether British statute law should be amended to provide for the furnishing of a medical report from a general practitioner in respect of each application for a gun licence was considered by Lord Cullen in his Dunblane Report at paragraphs 8.84 to 8.87 in the following terms:

‘‘8.84 It was submitted that a significant improvement in the elimination of the unsuitable applicants could be achieved by the following as a matter of routine:

(i) a report on the applicant by his general practitioner, with or without the disclosure of his or her medical records; and

(ii) the carrying out of a psychiatric examination or a psychological test of the applicant.

8.85 I am entirely satisfied that general practitioners cannot reliably assist in the identification of those who pose a risk of violence and those who do not. There is at present no scientific evidence which would allow this to be determined. It is clear that forensic psychiatrists and clinical psychologists doubt their own ability to predict violent behaviour. A generalist such as the applicant’s doctor, who lacks specialist expertise, is even less able to reach soundly-based judgment as to his potential for violence. As regards mental illness, it was pointed out by the Royal College of Psychiatrists in their submission that this of itself does not indicate the risk of violence since only a small proportion of those who suffer from such illness commit such offences. Severe mood disturbance or instability or alcohol abuse or a history of violence might suggest that the patient should not be permitted to possess a firearm, but this is based on common sense rather than on scientific grounds. Quite apart from these considerations there are cases, of which Thomas Hamilton is an example, where the general practitioner has no adequate personal knowledge of the individual patient. There may, of course, be cases in which a doctor is under the duty of disclosure in the interests of others. Such cases are covered by paragraph 18 of the Guidance on Confidentiality issued by the General Medical Council which states: ‘‘Disclosures may be necessary in the public interest where a failure to disclose information may expose the patient, or others, to risk of death or serious harm. In such circumstances you should disclose information promptly to an appropriate person or authority’’. For such cases a confidential telephone advice and information service is offered to doctors by the DVLA. In his letter to the Home Affairs Committee dated 24 May 1996, which formed part of the BMA evidence to the Inquiry, the Secretary, Dr. E. M. Armstrong, stated: ‘‘Our conclusion, sadly, is that until

such time as methods are developed to provide reliable predictions, firearms policy needs to be based on the understanding that, from time to time, unpredictable behaviour will occur’’.

8.86 As regards carrying out of a special examination or test, essentially the same considerations apply. The carrying out of risk assessments by psychiatrists and clinical psychologists who were trained for this type of work would involve considerable expense, and the use of resources which are in short supply. Such assessments would require to be carried out at least annually. On the basis that firearm certificates have a life of 5 years approximately 35,000 applications require to be dealt with each year. The corresponding figure for shot gun applications is 145,000. Professor Cooke in his evidence said that it would be possible to identify individuals who had a propensity to violence but that this would require 2 days’ work interviewing the applicant, seeking to build up rapport and trust and using collateral information. However, there would always be errors, which would tend to be errors on the side of regarding the person as unsuitable rather than the other way round. Extreme violence was very rare and was virtually impossible to predict. Mental illness, as distinct from traits of personality, could come about rapidly and unexpectedly; and accordingly it could not be taken that this would be picked up in an examination. The remarks which Professor Cooke made about a psychological examination applied also to psychometric testing. In any event there is a danger that applicants would discover what were the ‘‘right’’ answers.

8.87 In the light of the above I am satisfied that neither of these approaches is practicable. In each case there are grounds for considerable reservations as to its effectiveness’’.

Questions posed on issues raised in the Sixth Module specified in the Chairman’s Opening Statement on 7th January, 2003, and certain proposed amendments to Irish law.

16. Five questions relating to the existing gun-licensing law and practice in Ireland were raised by me and are as follows:

(a) Whether or not there should be a statutory requirement that applicants for gun licences shall furnish medical certificates concerning their fitness to possess and use the type of firearms for which application is made.

The submissions and evidence on this issue from a wide range of experts to which I have already referred, when considered in conjunction with Lord Cullen’s opinion in his Dunblane Report (with which there appears to be general agreement) establishes that there should not be any statutory requirement for the mandatory provision

of medical certificates by applicants for gun licences or renewals thereof. In the light of the evidence presented on this topic, it is evident that there are major practical difficulties in implementing such a statutory requirement. These include the fact that in many instances a gun licence applicant’s general medical practitioner may not have sufficient knowledge of his or her patient, or specialist expertise to make an appropriate assessment and the time factor (and expense) involved in making a realistic psychiatric specialist assessment of the applicant. In my opinion it is not a workable proposition.

However, the position of an issuing superintendent should in my view be strengthened by adoption of the provision in the UK as specified in the ‘‘Firearms Law Guidance to the Police, 2002’’ referred to in paragraph 15 hereof that the consent of an applicant to the licensing authority regarding contacting his or her medical advisors should be an ongoing and enduring one.

(b) The second question posed concerns a provision for the withdrawal of gun licences where the issuing authority has reasonable grounds for believing that a licensee is temporarily or permanently unfit to hold a licence and to possess a firearm by reason of mental or physical disorder or other such disability.

The general consensus of the submissions and evidence received by the Tribunal on this issue indicates that sufficient powers at present exist. I agree with that view. (See in particular section 5 of the 1925 Act.)

(c) The third question posed in my Opening Statement concerns whether the licence holder’s medical or legal advisor should have an obligation to inform the police or other appropriate authority of his or her belief that a licensee is temporarily or permanently unfit to hold a licence or possess a firearm by reason of mental or physical disorder in circumstances where the advisor has good reason to believe that such a situation exists and may constitute a danger for the licensee or others. The submissions and evidence from all of the medical and legal organisations which appeared at the Tribunal was strongly against the introduction of any such specific statutory requirement. Their concern was that it would undermine the confidential relationship that exists between solicitor and client, and the confidential and therapeutic relationship between a medical advisor and patient. It seems, however, that an informal guideline such as that contained in paragraph 18 of the ‘‘Guidance on Confidentiality’’ issued by the British General Medical Council is acceptable to medical practitioners in Ireland. It is in the following terms:

‘‘Disclosure may be necessary in the public interest where a failure to disclose information may expose a patient, or others, to risk of death or serious harm. In such circumstances you

should disclose information promptly to an appropriate person or authority’’.

In course of his evidence to the Tribunal Dr. John Hillery, consultant psychiatrist, who is president of the Irish Medical Council, elaborated on a report furnished by him on its behalf. He stated that the Council publishes an Ethical Guide for the benefit of all medical practitioners. Section E of the 6th edition, published in 2004 deals with confidentiality and consent. It contains, inter alia, the following directions:

‘‘16.1 Confidentiality

Confidentiality is a time-honoured principle of medical ethics. It extends after death and is fundamental to the doctor/patient relationship. While the concern of relatives and close friends is understandable, the doctor must not disclose information to any person without the consent of the patient, subject to paragraph 16.3.

16.3 Exceptions to Confidentiality

There are four circumstances where exceptions may be justified in the absence of permission from the patient:

1. When ordered by a judge in a court of law or by a Tribunal established by an act of the Oireachtas.

2. When necessary to protect the interest of the patient.

3. When necessary to protect the welfare of society.

4. When necessary to safeguard the welfare of another individual or patient’’.

Dr. Hillery indicated that Irish medical practitioners have obligations similar to those of their colleagues in the United Kingdom in the area of patient confidentiality and public duty. For example, in circumstances where a doctor has good reason to feel that his or her patient who possesses a firearm has become a danger to himself or others in that regard by reason of mental illness, he or she has an obligation to the patient and/or members of the public to report such concern to the appropriate authority.

Dr. Hillery stated that in the area of confidentiality medical practitioners have an ethical duty to their patients and to the public. If such duties are in conflict, the doctor must balance the interest of the patient and of the public and make his or her own judgement on where their duty lies in the particular circumstances. The Medical Council believes that such decisions should be left to the judgement of the individual practitioner rather than to the introduction of statutory obligations in that area. It seems to me that that opinion is well founded. I do not believe that there is a reasonable case for introduction of a mandatory requirement having regard to the stated

difficulties involved. However, it occurs to me that in the interest of clarity it is desirable that the Medical Council should elaborate on section E of its Guidelines by including an explanation of the need for disclosure in particular circumstances on lines similar to that in paragraph 18 of the British General Medical Council’s ‘‘Guidelines on Confidentiality’’ to which I have already referred.

A point of significance, in Ireland, in the context of any possible exception, formal or informal, to a health professional’s obligation of confidentiality to his or her patient is that the State of Victoria has in place legislative protection for health professionals who voluntarily advise the gun licensing authorities (though under no specific statutory obligation to do so) that they believe that a person who is in possession of a firearms licence and to whom they have been providing professional service is not a fit and proper person to possess, carry or use a firearm. The law in Victoria provides that in so advising the licensing authority, the health professional is not subject to any civil or criminal liability in that regard if the advice is given in good faith.

A statutory provision on the foregoing lines was one which Dr. Hillery, on behalf of the Medical Council, believed would be desirable in the interest of health professionals in Ireland. I agree with that opinion and recommend the introduction of such statutory protection for health professionals.

The next question in the Opening Statement relates to consideration of whether or not an obligation should be placed on the immediate adult family of a licence holder to seek the removal of a firearm where there are reasonable grounds for believing that a licensee is unfit to possess such a weapon and that it may constitute a danger to him/her or to others.

All of the organisations who commented on this issue thought that it would be unworkable to introduce a statutory requirement of that nature. It is regarded as an unreasonable imposition to impose on family members. Inspector Green of the New Zealand Police touched on the essence of the problem in his report, where he expressed the opinion that ‘‘any criminal culpability would be near impossible to establish given the emotional and family dynamics existing in such situations . . .’’.

Inspector Green went on to state that:

‘‘I suggest it is preferable that the licensing and other authorities establish credibility so that family members, and others, trust the processes that might be applied in such situations.

As part of the licensing process the spouse/partner/next of kin of the applicant are interviewed. This is the person who will be closest to the applicant and will know them best. New Zealand Police have found these people to be quite forthcoming with

any concerns they might have about the fit and proper status of the applicant.’’

In New Zealand the underpinning of this process is provided by a combination of the Declaration in the application form for a firearms licence, and the comprehensive Vetting Guidelines issued to police officers who deal with applications. They comprise an impressive, helpful yardstick for the benefit of such officers. I recommend that similar ‘‘Vetting Guidelines’’ should be introduced in this jurisdiction.

I agree with the general opinion that it is not practicable to impose a statutory obligation on adult family members to inform the police or other authority if they have reason to believe that a family member who possesses a licensed gun is unfit to have possession of it by reason of mental illness or other such disability and may be a danger to himself/herself or others. In my opinion it would be unfair and unworkable to do so. In practical terms it seems that it must be left to the good sense of an adult family member to report to the police or other authority in such circumstances.

(e) The final question on this module raised in my Opening Statement is whether in the event of an amendment of statute law to provide that a gun licence and right to possess a firearm may be revoked by the issuing authority in circumstances where the holder is believed to suffer from mental illness or disability, should the licensee have a statutory right of appeal?

In the course of submissions and evidence on this issue it was broadened and consideration was directed to whether there should be a general right of appeal by an applicant against any decision by the licensing authority either to refuse or revoke a gun licence.

As already stated, the present position is that in the event of refusal to grant or renew a gun licence the only possible right of redress which an applicant or licensee has is to pursue expensive judicial review proceedings in the High Court which of their nature are limited to an assessment of the fairness of procedures rather than an examination of the merits of the application or the decision.

The four comparable jurisdictions all provide a mechanism for an appeal in such circumstances; in England and Wales to the Crown Court; in Scotland to the Sheriff’s Court and in Northern Ireland to the Secretary of State. In New Zealand the appeal is to the District Court; in Victoria to the Victorian Civil and Administrative Tribunal and in Canada to the Provincial Court for a Reference Hearing.

In the United Kingdom (other than Northern Ireland) it has been specifically provided by statute that such an appeal shall be determined on the merits, and not by way of review, and that the court may consider any evidence or other relevant matter, whether or

not it was available when the decision of the deciding officer was made.

In Northern Ireland on appeal from a decision of the Chief Constable to the Secretary of State, he may make such order as he thinks fit having regard to the circumstances.

As to the Canadian position, Mr. William Baker, Commissioner for Firearms, indicated in his report to the Tribunal that in making a determination the Provincial Court judge will hear evidence which may include hearsay and opinion. The applicant must prove to the satisfaction of the judge that the decision at issue was not justified based on the information available to the Chief Firearms Officer in making his/her decision to refuse or revoke a firearms licence.

Regarding the current situation in this jurisdiction, it was urged on behalf of the National Association of Regional Game Councils that the right of appeal should be to a tribunal which includes in its membership a medically qualified person. In my opinion that would be an unnecessarily cumbersome appeal court. It has not been established that the inclusion of a health professional as a member of it is necessary — even in cases where the matter at issue is the health of the applicant. I believe that the most desirable approach is to provide a right of appeal to the District Court, which already hears appeals from the decisions of other bodies and authorities in the granting of statutory licences. I recommend that the ambit of such appeals should be similar to that in the United Kingdom (other than Northern Ireland). It is desirable that they should be determined on the merits and not by way of review.

I appreciate that the remit of this Tribunal concerns possible amendments in law relating to applicants and licensees who are alleged to suffer from mental illness or disorders which may give rise to licensing problems for the issuing authorities. However, it might well be regarded as unreal to limit a right of appeal to those who have been refused gun licences or the renewal thereof because of perceived mental illness or disorder. The probability is that if a statutory right of appeal is provided in respect of refusal of a gun licence or renewal thereof by the issuing authority it will include all refusals for whatever reason. Gun licences may be refused or revoked on many grounds which have no connection whatever with mental illness. Constitutional justice would seem to indicate that if a statutory right of appeal is granted it should be against the refusal of a gun licence or renewal thereof by the issuing authority for whatever reason. It would be surprising if the Oireachtas did not recognise the parameters of that right.

I note that in his submissions on this module, counsel for the Minister indicated that consideration is being given at present to the introduction of a statutory right of appeal in relation to the refusal of gun licences or renewal thereof for

whatever reason. It was intimated that appeals to the District Court in the first instance and then to the Circuit Court are in contemplation. I support that proposal.

Other proposed changes in the existing Statute Law and Procedure in Ireland relating to sporting firearms.

1 7. In addition to the foregoing issues which were raised in my Opening Statement, the Tribunal also considered other proposed amendments of the existing statute law and procedure. They are as follows:

i. That there should be a revised detailed application form (in accordance with the specimen contained in Appendix 8 to this Report) to be completed by the applicant for a new or renewed gun licence in which he or she is asked questions about, inter alia, medical history, including mental health. Where information in that area is revealed, the applicant is required to furnish the names and addresses of his or her general medical practitioner and specialist responsible for the provision of relevant treatment (see existing procedures in New Zealand, Victoria and the United Kingdom). The applicant may be requested to obtain a medical report from a doctor who treated or is familiar with his or her condition.

A difficulty in adopting the foregoing method of obtaining relevant information (as opposed to a requirement to furnish a certificate of fitness from a general practitioner or other medical advisor) is that the applicant may not disclose medical or other such information which he/she perceives may militate against obtaining the required gun licence.

ii. The evidence indicates that the foregoing apparent weakness may be a rarity in practice and that it can be avoided in many instances by a further requirement that the applicant shall furnish two referees’ reports, one from an adult close relative and the other from a person over thirty years of age resident in Ireland who has known the applicant for upwards of five years and is a person of good standing and repute. (See the specimen form in Appendix 8. It includes a part referable to referees.) It is anticipated that this requirement is likely to inhibit the applicant from omitting relevant medical details which may be known to a referee.

In view of the provisions in the specimen form relating to declarations by the applicant and the referees, I recommend that the proposed application form in Appendix 8 be supported by an amendment to the licensing code to provide that the provisions of section 3 of the Firearms (Firearm Certificates for Non-Residents) Act, 2000, relating to penalties for any person who knowingly gives false information in connection with an application for a firearm certificate sought by a non-resident, be extended to all applications for firearm certificates and renewals thereof.

Consistency in the operation of the gun licensing code is of fundamental importance. Mr. Desmond Crofton, Director of the National Association of Regional Game Councils, (NARGC) the primary body representing the public in the area of game shooting gave evidence (on behalf of NARGC and also the Irish Shooting Association and the National Rifle and Pistol Association of Ireland), that a practical difficulty which exists presently is an occasional lack of uniformity in approach by licensing superintendents, in consequence of which there are unexplained inconsistencies in rulings on licensing applications, perhaps in adjacent Garda areas, which gun clubs and others may regard as unfair and difficult to understand.

iv. In the interest of avoiding inconsistency in rulings on licensing applications I recommend that appropriate formal guidelines should be devised for the benefit of superintendents who have responsibility for issuing new gun licences and renewals thereof. The guidelines should be reviewed regularly and revised when necessary. They should be published, and thus become available to interested parties. The guidelines presently in operation in New Zealand and the United Kingdom comprise valuable models in this area.

v. It is also desirable that an officer of Chief Superintendent rank or higher should have overall Garda responsibility for the scheme relating to the issuing and renewal of gun licences to members of the public, including the preparation and revision of guidelines. I envisage that it would be his or her responsibility to liaise with the issuing superintendents and with NARGC, representing the public interest in this area, including that of local gun clubs.

Regarding the proposed guidelines; the judgement of the Supreme Court in Dunne and others-v-Donoghue and others [2002] 2 IR 533 does not appear to inhibit promulgation of guidelines which are intended to assist issuing superintendents in the performance of their functions and, where possible, to avoid inconsistencies in decision making. I note that the relevant concern expressed by the Supreme Court is that issuing superintendents should not be directed on how they shall carry out their functions. It seems to me that there is a fundamental difference between direction and recommendations which do not impinge on the issuing superintendent’s function to decide each case as he or she sees fit in the light of its own particular circumstances. It is highly desirable that there should be consistency in the performance of the issuing authorities and it seems that this is best achieved by appropriate guidelines. As to the content thereof: it is pertinent to indicate that several of those envisaged (e.g., the desirability of regular meetings between superintendents and representatives of gun clubs in their areas) do not relate to the superintendent’s licensing function as issuing authority in individual cases.

vi. Another practical difficulty of some importance which, it is submitted on behalf of NARGC exists currently, is the absence of consistent public relations between the issuing superintendents and the local gun clubs which represent interested members of the public. It has not been contended that that difficulty exists in all areas. It has been specifically stated by Mr. Crofton that some issuing superintendents (including Superintendent Lyons) are concerned to maintain good relations with gun clubs in their areas and to consider any problems the latter may indicate from time to time. The difficulty is a contention that some superintendents are not disposed to liaise with local gun clubs or to collaborate with them in dealing with problems which are perceived to exist. It occurs to me that it would be helpful to expand the proposed guidelines to include a recommendation that each issuing superintendent shall meet, not less than twice each year, representatives of all gun clubs in their respective areas for the purpose of considering any problems which there may be regarding gun licensing in the relevant district.

vii. At a higher level, it is desirable that the Chief Superintendent or superior officer who has overall Garda responsibility for gun licensing, having consulted with the issuing superintendents, shall meet, at least once a year, a delegation from NARGC, which as already indicated, is the primary body representing gun clubs in Ireland and members of the public who are interested in shooting as a sporting activity. It is noted that gun clubs already have statutory recognition and, therefore, their umbrella association is the appropriate body to liaise with the Garda Sı´ocha´na in the matter of gun licensing. For example, it may emerge from time to time that NARGC and the Garda Sı´ocha´na agree that a certain change or changes are desirable in the existing statute law. The strength of the case for change in the context of presentation to the Minister would be much enhanced if it had the combined support of the association and the police.

viii. Another area in which there is a coercive case for the restructuring of Irish statute law in the area of gun licensing is the introduction of a requirement that before a full licence is issued to an applicant who has not had that benefit previously, he or she shall satisfy the issuing authority that he or she is competent in the use of the type of gun and ammunition for which the licence is sought and generally regarding its maintenance and storage. There is presently no such statutory requirement and a new applicant may have no experience whatever in the proper handling, use and maintenance of his or her gun and ammunition.

Mr. Crofton has stated in evidence that the great majority of gun clubs are affiliated to NARGC. Many clubs and also the association provide training courses, and/or operate a probationary system, for new licensees. His organisation has 27 qualified instructors/examiners

throughout Ireland which include 1 7 experts who are qualified up to the highest European standard. NARGC believes that there would be no difficulty in providing novice gun-applicants with appropriate professional instruction; to subject them to independent expert examination and, where appropriate, to certify the novice as being up to a minimum standard of proficiency acceptable to NARGC and the issuing superintendent. I envisage that a novice applicant who is deemed to be a person suitable to hold a gun licence shall be issued with a provisional licence for, say, six months which would entitle him or her to shoot the gun for which a full licence is sought only when under the direction and guidance of a qualified gun club instructor or NARGC examiner. In due course, if competence is certified on behalf of the latter to the satisfaction of the issuing superintendent, a full licence shall thereupon be issued to the applicant.

If following consultation between the Minister, the Garda Sı´ocha´na and NARGC, it is decided to adopt the foregoing recommendation and introduce a limited provisional licence for novice applicants pending certification of his or her proficiency in the use, maintenance and storage of their firearm and ammunition, it will be necessary to amend question 12 in the proposed revised application form to include reference to a supplementary application form for a temporary provisional licence with limited user pending certification of the applicant’s competence to the satisfaction of the issuing superintendent.

In my opinion it is imperative that the Garda Sı´ocha´na and NARGC should collaborate in establishing an appropriate firearms safety course of instruction, including safe storage of guns and ammunition. Applicants for gun licences should be obliged to attend and pass such courses and be duly certified as having done so.

In this area there is a real need for a fundamental improvement in Irish law which can be brought about by meaningful collaboration between the Garda Sı´ocha´na, NARGC and the Minister. Mr. Crofton has made it clear in evidence that his body is ready and willing to play its part and that it has the resources and expertise to provide the requisite structure.

ix. Sporting guns are vulnerable to robbery by criminal elements. It is important that licensed weapons are securely stored by the owners. It is desirable that all licensed guns should be examined annually in situ on behalf of the licensing authority to ensure that they are maintained in good condition and securely stored in an appropriate place. It is noted that section 30 of the Criminal Justice Bill, 2004 proposes to amend section 4 of the Firearms Act, 1925 by adding a requirement that the applicant shall satisfy the issuing superintendent that he or she has secure accommodation for the firearm at the address where it is to be kept. It is recommended that section 30 should also provide for an annual inspection of the licensed firearm and of its secure accommodation.