With the new Criminal Justice (Miscellaneous Provisions) Bill 2009 now past the Dail and Seanad and merely awaiting the near-formality of the Presidential signature, the only real decision as to when it comes into effect is the Minister’s.
However, one would hope that the Minister would utilise the granularity of the commencement process that was so heavily used in the Firearms section of the Criminal Justice Act 2006, as several aspects of the language in this new Act-to-be seem to be unfit for purpose at first reading. Consider, for our first example, Article 36 and Article 38.
In Irish Firearms legislation, imports and exports are considered separately, by Article 16 and Article 17 of the Firearms Act respectively, together with the additional regulations imposed on the system by EU directive 91/477/EEC and its corresponding SI in the Irish statute books (SI 362 of 1993). Article 16 deals with exports, and has not been modified by the recent Act-to-be. Article 17, however, has.
The history of Article 17 is a relatively straightforward one by comparison to the more byzantine amendment histories of more contentious sections of the Firearms Acts, and is germane to the point here, so let us relate it. The original Article written in 1925 has survived to this year with only one amendment, made in 1964. This 1964 amendment (Article 21 of the 1964 Firearms Act) is important as it introduced the following exemption from the importation controls that Article 17 defines, specifically stating that:
Quote: |
The restriction imposed by section 17 of the Principal Act on the importation into the State of firearms shall not apply in relation to the importation of a firearm by the holder of a firearm certificate in respect of the firearm which is in force.
| It is this exemption that underlines not merely the standard importation procedure for personal importation of licenced firearms in Ireland, but which also permits a firearms certificate holder to travel abroad and return home with their firearm, whether to hunt or to attend a target shooting competition, without needing to become a firearms dealer and obtain an importation licence from the Department of Justice each and every time. When the Firearms Acts were drafted in 1925, the phenomenon of international travel was not a typical affair, except in the all-too-common case of the permanent emigrant, who was sadly not going to come under the aegis of Article 17 (or indeed any of the Firearms Act) anyway. The hey-day of large international target shooting competitions, such as the famous Creedmore matches, was by that stage past; the average income of a shooter was relatively low, and the modern phenomenon of the cheap package holiday to Majorca simply did not exist, even in the minds of the best science fiction writers of the day. By 1964, this had sufficiently changed, and the proximity of major shooting centres like that at Bisley in the UK created a requirement for this exemption, and it has seen extensive duty since 1964, as Irish target shooters have brought home medals from almost every major shooting event in the World with the exception of the Olympics (where we have yet to repeat the 1904 gold medal won in the London Games that year).
However, Article 38 of the Miscellaneous Provisions Act-to-be will repeal this much-used exemption by repealing all of Article 21 of the 1964 Act; and Article 36 of the Act-to-be will replace completely Article 17 of the Firearms Act with a new Article 17. And in doing this, it is conceivable that the language chosen by the drafters will have some unintended – or worse, undefined – consequences.
Consider the proposed new Article 17(1) :
Quote: |
17.-(1) Without prejudice to the provisions of the Firearms (Firearms Certificates for Non-Residents) Act 2000, no person, other than a registered firearm dealer, shall import into the State any firearm, ammunition, or prohibited weapon.
| And contrast this to the original 17(1):
Quote: |
17.—(1) No person shall import into Saorstát Eireann any firearm, ammunition, or prohibited weapon unless such import is authorised by a continuing licence granted under this section and in force at the time, or by an occasional licence granted under this section and relating to the specific firearm, ammunition or prohibited weapon so imported.
| The rest of the new version of this Article is concerned with continuing and occasional import licences which can only be granted to Registered Firearms Dealers in Ireland. Contrasting the two articles however, one wonders if the rest of the Article is wasted in this regard. It seems an open question as to whether the complete lack of any mention in the new Article 17 of the requirement for an RFD to have authorisation for an import, or a licence to do so, would be grounds to argue in court that in fact no such licence is required for an RFD to import any firearm they so desire, regardless of it’s status as Restricted or otherwise. Obviously possession of such a Restricted firearm once the import was complete would be problematical for anyone not licenced to possess it, but this would suggest that a personal importation of a Restricted firearm could be carried out by means of an RFD importing the firearm and the licenced owner taking possession of it at the collection point from Customs; this would mean that the RFD would not require a Restricted firearms dealer’s licence to import a Restricted firearm, albeit under a closely defined set of circumstances.
If this assessment is correct, then a single successful test case would mean that the stated intent of this new Article 17, namely the elimination of personal imports where the individual does not leave the state to collect his or her firearm, will not have been realised. It must be emphasised for clarity that such a test case is both necessary, and would have to defend against Article 17(8), which states that it is an offence to import a firearm without a licence:
Quote: |
(8) If any person imports into the State a firearm or prohibited weapon or any ammunition without or otherwise than in accordance with a licence under this section authorising such importation or, in the case of ammunition, in quantities in excess of those so authorised, or fails to comply with any condition named in a licence granted to him or her under this section, he or she shall be guilty of an offence under this Act and shall be punishable accordingly.
| However, even without this test case, the officially-stated intent of the Minister would appear to be thwarted here by poor wording. The officially stated intent of the Minister in this area is to permit the personal importation of a firearm by an individual if that individual leaves the state to collect the firearm, as well as to not interfere with return journeys by target shooters to other countries for competitions or similar events. The proposed new Article 17(1), however, will not permit the importation of any firearm by any private individual – and with Article 21 of 1964 repealed, this no longer excludes returning to the State with a firearm for which that individual holds a valid firearms certificate. This would not only impact upon the in-person collection of firearms from abroad by an individual who has been granted the relevant firearms certificate by the Gardai; it would also mean that any target shooter leaving the state with his or her firearm to attend, say, the London Olympics in 2012, could do so with relative ease under the same procedures used today, but on their return journey would find themselves in breach of 17(1) should they attempt to enter the country with their firearm. Circumventing this would be impossible unless a friendly Registered Firearms Dealer should arrange an importation licence to facilitate their return. The cost of such service would of course have to include any importation licence processing fee.
Even the possession of a European Firearms Pass is of no benefit to the Irish shooter in this regard, as it makes provision only for Irish shooters travelling to other States, and no provision for the return journey; no such provision was necessary when Article 21 of the 1964 Act existed, as any Irish shooter with a European Firearms Pass had it by way of possessing an Irish Firearms Certificate and thus had automatic permission to return to the country with their firearm. Ironically, under the proposed new Article 17, a non-resident coming to Ireland to shoot would have no difficulties – both the new Article 17 and the European Firearms Pass SI make explicit provision permitting their entry to the State with their firearms. To most native Irish shooters, such a state of affairs would seem… unusually unbalanced.
Preventing this chaotic and embarrassingly disjointed situation was the entire point of Article 21 of the 1964 Act; repealing it would seem to serve little purpose but to undermine the Minister’s stated goals in this area, which is a curious state of affairs. Perhaps holding off on commencing Articles 36 and 38 until such time as the result of such commencement could be further considered would be the most prudent course.
|
11th July 2009
The curious case of Article 38 
Similar Threads 
Linear Mode
