I welcome the Minister for Justice, Equality and Law Reform and his officials to the meeting, the purpose of which is to resume our consideration of Committee Stage of the Criminal Justice Bill 2004. It is proposed that the meeting will continue no later than 12.30 p.m. Is that agreed? Agreed.
Criminal Justice Bill 2004: Committee Stage (Resumed).
On a point of order, I wish to make a suggestion to improve the manageability of the business. There is mutuality of interest in managing Committee Stage as effectively as possible. We are dealing with section 24 and the firearms and explosives heading under which there are 106 amendments. We might be able to deal with the amendments on firearms in particular in a more constructive manner if the Minister gave us a brief thumbnail sketch of what he proposes.
I would be glad to do so except that I do not have it straight in my head. I would not like to mislead the committee with a thumbnail sketch.
An outline would be fine. We accept that the Minister does not have a script.
I do not have the exact few paragraphs the Deputy would like, but I agree it would be helpful to provide an overview of the provisions rather than to hack our way through the jungle. To make sense of the legislation, my officials have had to prepare the Firearms Acts as they will appear after the Bill is enacted. It would be very useful for members, including me, to see the composite Firearms Acts and to understand how the legislation will appear in its final form.
Is the Minister referring to the restatement?
That would be helpful.
It is an informal version of what we think the restatement will look like.
It would be useful if the Minister would run through it and provide copies to the members.
I agree. As a member of the ICT sub-committee of the Houses of the Oireachtas Commission, I am aware that it is intended to improve our ICT structures to provide all legislation on members' screens, including consolidated Acts as they are expected to look. It will probably not happen in the course of this Dáil but it is important for the future. I have tried to cross-reference all the legislation affected by this Bill but it is hard to read it coherently.
At my first meeting last week, I said it is difficult to deal with this legislation. Three new lists of amendments, one of which is mine, have arrived since last week, when we received an initial consolidated tome. I am concerned that when we are dealing with issues, we are pushing them back to Report Stage. This Bill will last forever unless we find a method for handling it.
I point to the comments made yesterday by the Chief Justice, who pointedly said that hastily prepared legislation can cause more long-term problems than it solves. He spoke about the courts having to interpret such legislation and counselled the Parliamentary Counsel to take care. The way this is evolving, with amendments to amendments to amendments, we must be careful it does not fall foul of that admonition.
We have now had this discussion twice and this is the Deputy's second meeting.
I am sorry, it is very tedious to attend a committee of the Parliament when the Minister could be at a press conference.
We have work to do. We should be doing it, not talking about it.
We will be here for a few hours and Deputy Howlin is just saying a few words for a few minutes.
I am sorry the Minister is looking at his watch. If he has another engagement, or a press conference to hold, away with him and let another Minister attend who might have some regard for Opposition views on these matters. Experienced parliamentarians might have a view of some relevance. The Chief Justice could be saying something that even the Minister for Justice, Equality and Law Reform should listen to.
We must go to the Bill now.
I spoke to my Fine Gael colleague about the structure of this section. It would be helpful if the Minister gave us the over-arching intention. We would not then have to deal in detail with the individual amendments and might make progress in that way.
This Bill is now two years in gestation. I have been coruscated by people saying it is taking too long and asking where it is. The Deputy may be unaware but I came to this committee in September 2005 and outlined all of these matters to it. I am not rushing anything but I am determined we will get this into law. I have told this committee, and I reiterate now, that I will sit from morning to night, for as long as it takes, and I will make myself and the Ministers of State available to push this Bill through.
The Deputy referred to amendments to amendments; those are what a committee should be examining. Even amendments involving commas must be dealt with because they have been put down. I want this Bill to be as good as possible. No reasonable person could say this Bill has been drawn up on the back of an envelope and produced. Although it is complex and three lists of amendments have arrived in the past few days, that is part of the process of the Houses — to get the legislation right and to give everyone the right to amend even other people's amendments as they see fit.
I am not getting tetchy but this Bill has been two years in preparation and I take the Chief Justice's point that we must get it right. It will take time to get through on Committee Stage but I am willing to devote the time necessary to achieve that.
Deputy Jim O'Keeffe asked for an overview as to what is intended.
On the firearms issue. We should focus on firearms.
An amendment list was circulated since last Wednesday. Amendment No. 59, in the Minister's name, restates an amendment related to the firearms issue that was discussed last week.
I do not know where that has come from or how it is there. I have not circulated any amendments since last week.
Deputy Connolly, the Independent Deputy for Cavan-Monaghan, posed a question in the Dáil in the last few days. I set out an overview of my intentions in the written reply to that question and will repeat it now before this committee.
Included in the new proposals will be measures which create mandatory minimum sentences of between five and ten years for certain firearms offences, including possession of a firearm in suspicious circumstances, possession of a firearm with criminal intent, possession of firearms with intent to endanger life or cause serious injury to property, possession of a firearm while hijacking a vehicle and use or production of a firearm to resist arrest. The Bill will also require all persons wishing to legally hold a firearm to satisfy the Garda Síochána that they have provided secure accommodation for it. A number of recent High Court decisions held that Garda superintendents were acting ultra vires if they took into account arrangements in a house in deciding whether to allow somebody to obtain a firearms certificate.
The Bill also allows the Minister to deem certain firearms as restricted by reference to specific criteria, including the calibre, action, type and muzzle energy of the firearm. In future, any person wishing to obtain a certificate for such a firearm will have to apply directly to the Garda Commissioner. Superintendents will be out of the equation in that respect. If a person is seeking a certificate for a restricted firearm, such as a high-velocity weapon, he or she will have to apply directly to the Garda Commissioner. There will be a category of restricted firearms and once a weapon falls into that category, an applicant for a certificate for such a weapon will have to apply directly to the Commissioner of the Garda Síochána. Such applicants will no longer apply to the local superintendent. The reason is that we want a clear policy, right across the country, which is subject to central control.
Deputies may remember that in the course of the Troubles, most hand guns and high-velocity weapons were called in and kept, in a procedure which was a source of some degree of dissatisfaction for the people involved. Such action was considered wise at that time. Now, with regard to restricted firearms, there will be a simple application to one central authority for permission to hold such weapons.
The Bill will also introduce new offences concerning the modification of firearms, such as sawing off a shotgun. It will increase fines and penalties generally for offences under the Firearms Acts. There will be a statutory basis for an amnesty, during which firearms can be surrendered to the Garda Síochána before the new penalties and minimum mandatory sentences are introduced.
I agree with the Association of Garda Sergeants and Inspectors that serious hardened criminals are, in all probability, not going to avail of the firearms amnesty. However, it is not for them, it is for people who have a weapon in a drawer or in a shed, perhaps left there by a relative, for which they have no use. If this House is going to introduce mandatory minimum sentences, it is only fair that people who will find themselves on the wrong side of that in the future are given a last opportunity to hand over their weapons. I am referring to people whose brothers or uncles left a weapon in their possession, ten or 15 years ago. I wish to ensure that such people will not find themselves facing mandatory minimum sentences without having had the opportunity to do something to clear the decks, so to speak. I am sorry I have had to quote from the reply to a parliamentary question, but I will prepare a memorandum in which I will outline where everything fits in. I will also make arrangements for the Deputies to receive — I stress it is a rough draft — the consolidation document in order that they will see what the firearms Act will look like when we are finished.
I have two questions. First, is the Minister's outline encapsulated in the amendments on pages 29 to 88 of the list of amendments to the Bill?
Yes. That is a fair summation. It covers amendments Nos. 101 to 144, inclusive. The amendments that follow deal with explosives.
We will consider those amendments separately. I am aiming to clear those dealing with firearms first. My second question is more substantive. In general, I broadly support, subject to the amendments I have tabled, the proposals included in the Bill. On minimum mandatory sentences, I understand there are clauses in the Misuse of Drugs Act that account for 94% of get-out cases. Are similar get-out clauses applicable in all circumstances? In other words, is judicial discretion retained in all cases and, if so, what about minimum mandatory sentences? If judicial discretion does not apply in all cases, where are the exceptions?
First, on the general point raised by the Deputy, I confirm that amendments Nos. 101 to 144, inclusive, relate to the Firearms Act, followed by amendments dealing with explosives. The next Part deals with organised crime.
In response to the Deputy's question on minimum mandatory sentences — wearing my hat as a former Attorney General — under the Irish system, justice should be administered in courts established by law by judges who are independent and appointed under the Constitution. The extent to which it is permissible for the Legislature to tell the Judiciary exactly what to do in relation to sentences is a grey area. If we had an absolutely prescriptive system, the sentence would be not a day less or a day more than that set down. Let us suppose that, in an Alice in Wonderland world, somebody sets out a grid of crimes and the appropriate sentences in the purported statute law, the Deputies opposite would agree that it would very likely be the subject of a massive challenge. Whereas one can never be sure of anything, if there were a categorical, comprehensive sentencing law which left no discretion to the Judiciary, it would be struck down. Arguing from that extreme position, we have mandatory sentences for murder, in some cases mandatory minimum fines where there is no case of a lower fine and in others, to ensure fines and penalties apply, the probation of offenders Act does not apply to persons dealt with under those provisions. One can never say there is no mandatory minimum sentence because there is one for murder and for a number of other offences. At the very least — and this point was raised by some of the Deputies opposite when the committee last met — it would be highly imprudent to come forward with a formulation which was suspect as entrenching too heavily on the independent discretion of judges in a comprehensive way. I do not want to see this Bill referred to the Supreme Court pursuant to Article 26 of the Constitution and struck down on the basis that it is unduly prescriptive and unduly restrictive of the judicial function in regard to sentencing. The common law system, particularly in Ireland, sets maximum sentences for judges and in nearly every case, apart from the cases I mentioned earlier, allows judges to work back from those to practically nothing, depending on the seriousness of the offence. That is not the case in many countries. In many systems there are fairly standard sentences.
Two issues arise as to Deputy Jim O'Keeffe's point on the possession of commercial drugs with intent to supply, dealt with in section 15(1). First, there is concern as to whether it is constitutionally permissible to set a mandatory sentence of ten years with no judicial discretion. Second, it might be counterproductive to do so in circumstances where somebody is found in possession of, say, three kilos of heroin and the authorities want to cut a deal with that person and get him or her to co-operate in various ways such as informing on the other people involved in the conspiracy, or in a case where somebody who is only peripherally involved, say, an elderly person doing a favour for their son-in-law. The reason there must be a let-out is that successive Attorneys General have been of the view that it is not tenable constitutionally to simply set a mandatory minimum sentence regardless of the circumstances. I do not think any Attorney General would say that could never happen. We are dealing with firearms offences which could be committed in a broad range of circumstances by a broad range of people. To say that in every case, no matter what the circumstances, a person must serve a sentence determined by the Oireachtas would be dangerous, to say the least. I cannot take the risk, and the Attorney General would not allow me to take the risk, of saying that an absolute minimum sentence will apply.
Having said that, the question is whether this is really mandatory and what we mean by the term "mandatory". A mandatory sentence is the minimum set by law which can be departed from only in certain circumstances. It cannot be departed from just because the judge thinks it is a nice day and the birds are singing in the trees. There must be a statutory basis for doing so.
The second question is whether it is worthwhile to do this or whether it is a case of politicians codding themselves that they are taking a macho stance and that there will be no practical consequences. In regard to the section 15(1) drugs offence, according to a study by the Department, until about two years ago approximately 94% of relevant sentences were for ten years or less.
While questions regarding separation of powers sometimes arise, it is noticeable that between 10% and 20% of sentences for drug-related offences have, since the beginning of a wider public debate on the effect of drugs, been above ten years. As with politics, unless one repeats a point until one is sick of hearing it, it will not be put across. In the relationships between public opinion and sentencing policy and the Oireachtas and the Judiciary, solid debate on the issue has not been a bad thing. Debate alerts the Judiciary to the policy laid down by the Oireachtas and strengthens the hands of judges. While they may feel impelled to be merciful to individuals, it is important that they bear in mind the consequences of offences for society.
The same applies to firearms offences such as those before the committee. The fact that someone is found with a loaded revolver may or may not appear to be serious if he or she is charged with the offence in isolation. His or her background facts may make it appear to a judge that the incident will not be repeated. However, people are being gunned down for the most trivial reasons and the firearms culture must be confronted. Without wishing to use a trivial phrase, the background mood music for sentencing should reflect social realities rather than allow events to be dictated by circumstances in which a judge may be confronted with a powerful advocate seeking mercy for an individual without regard to the social dimension of an offender's actions.
It helps to clarify the position to explain that while we are talking about mandatory minimum sentences, such sentences are not being imposed. We should not lead ourselves, the public or, most importantly, criminals up the garden path. I also hear what the Minister termed "macho references" to mandatory minimum sentences but we have not seen, in effect, the imposition of mandatory minimums. I stand for tougher sentencing for serious crimes and I am prepared to explore the ground to establish whether we can achieve that within the constitutional limitations to which the Minister referred when speaking about his experience with and advice from the Attorney General. I have not been Attorney General and it is unlikely that I will serve in that capacity. I am, however, prepared to seek an approach that achieves tougher sentencing and stands up constitutionally. Like the Minister, I do not want to see the Bill fall foul of the Constitution.
I have tabled many amendments to the section under discussion, some of which are technical and others that are minor in nature. I would like the Minister to consider, now and before Report Stage, my central amendment that seeks to deal with the constitutional issue and, in that context, provide for mandatory minimum sentences. I propose that where there is a second conviction for the serious offences under discussion, judicial discretion should be removed and the will of the Oireachtas should be upheld by the courts through the imposition of mandatory minimum sentences. My amendment represents a way to establish a realistic, effective mandatory minimum sentence that complies with the Constitution.
I want to ask some questions about this section but I will wait because we should deal first with mandatory sentencing. We all recall that when we debated the mandatory ten years for drug offences when the Minister was Attorney General, many of the issues put forward now by the Minister as real difficulties were rehearsed on this side of the House.
With some degree of passion.
Yes, and they were recycled somehow as a degree of weakness and less than enthusiastic support for serious sentencing.
Certainly the Opposition has displayed consistency.
I try to be consistent but we must evolve as society does to deal with different and more serious challenges. I strongly support the general Fine Gael position that we take a clear and strong line on people using firearms. We must signal that we will not stand for the casual use of firearms and the brutality that is a regular feature of daily life in Dublin, as we have seen again in the past 24 hours. We must, however, find a way to do that while keeping checks and balances. We do not have the same liberty to deal with it as other jurisdictions because of the constitutional issues involved and the consistency of the separation of powers, which is very strong in our tradition. That is a good thing because although we need to tailor law to the current social needs, we do not want to be populist. Criminal law must be robust in all circumstances.
I have more trust in the Judiciary than in the notion of mandatory sentencing. There will be situations where deals will involve the mindless thugs who went out with a gun leading to the godfathers who sent them out and that might require flexibility. I would prefer to approach this from a different angle, with a more structured dialogue within the Judiciary so that sensitivities are not dependent on our debate or a particular television or radio programme. That dialogue must hear the views of society and involve in-service training on current practices for the Judiciary. That would be preferable to our imposing on the Judiciary something that will be resisted.
Although the stand taken by Fine Gael and I on the mandatory ten year jail sentence was a political weakness in terms of the Government side of the House being able to say we did not stand up for mandatory sentences, something the Minister has done on occasion, the proof of the pudding is that only 4% of sentences made use of them until recently. I would prefer a concrete result and I support the Minister in strengthening the law.
I apologise if I was overheated in my original contribution but I got a list of amendments dated 25 April last night. Are these new amendments?
These are not additional amendments, they are re-organised amendments.
They are all the same. This amendment is a substitute for an amendment on the composite list. Without rereading and comparing every single amendment to the composite list, I am not to know this. I ask the Minister, therefore, to outline the general position.
I fully accept that proposition but I ask Deputy Howlin to remember that I do not prepare these lists and have nothing to do with the time at which they reach Deputies' desks. Sometimes I am also taken aback by the amendment lists. We have a very good service in the Bills Office of this House. The staff there do Trojan work and I do not want to sound like I am trying to distance myself from what they do, but they are independent of me and do their work in their own time and at their own pace.
I would like to know if they are the same amendments or whether I need to reread them again.
As far as my side of the equation is concerned, there is nothing new here. We have not produced new rabbits from the hat.
That is a help.
With regard to section 24 and the issue of the gun amnesty, the general public want this to be moved on. They do not see it as part of the solution, but as a preventive measure. Last Sunday I spoke to the father of Ms Donna Cleary, the young woman who was murdered at a party in Coolock. He asked me to raise the gun amnesty and his concern that it be progressed quickly. He also expressed his concern with the pervasive presence of illegal guns, particularly on the northside of Dublin. The kind of people involved in his daughter's murder and in the recent incident in Donaghmede will not be affected by the gun amnesty. They will continue with their vicious acts. Basically, the message from Mr. Cleary was that the Minister must deal with the issue of guns and violent crime. I raise these matters out of respect for the Cleary family.
The Minister referred to sawn-off shotguns and dealing with those who deliberately alter firearms. The position on that issue must be a strong one and I support sensible amendments to deal with it. Possession of a sawn-off shotgun is a very serious offence.
The Minister's reference to the drugs issue concerns me. He spoke about being understanding and lenient with those who assist with intelligence gathering about drug barons and drugs gang leaders. However, drug addicts feel vulnerable and exposed and if they assist the Garda Síochána they believe there is a very good chance they will be killed. I am concerned, from a human rights and humanitarian point of view, about how vulnerable people with addiction problems are treated in difficult situations, caught as they are between the drug barons and the Garda Síochána.
I will support sensible and strong amendments dealing with the issue of firearms. However, the issue of violent crimes involving other weapons such as knives and glass has not been dealt with. I regularly receive complaints from people at my clinics regarding incidents in pubs or at social occasions where a person looks sideways at somebody else and suddenly finds a glass stuck in his or her face or a knife is wielded at him or her. The vast majority of such violent incidents are not reported to the Garda Síochána. Such violent crime must be strongly dealt with. We need a justice system that is fair and balanced but strong on violent crime.
Chairman, I do not want to delay the committee any longer than is necessary but only this morning I heard a report on the radio about a man who was hospitalised and in a wheelchair and the only weapon used in the attack on him was a foot. I agree with Deputy Finian McGrath that glasses, kitchen knives and so forth are being used for violence. Kicking a man about the head when he is on the ground is lethal and no weapon is required. The gun culture is different from kicking people on the ground or from using glasses and knives as weapons.
In the event that a judge might read the report of these proceedings, I wish to state that I do not launch broadsides against the Judiciary. However, it is a major mistake to take the view that we should deal leniently with small players in the big game. That plays straight into the hands of the godfathers — the people who are making millions out of this. They are able to advise a person who carries 20 kg of cannabis or 3 kg of heroin or other drugs through the streets of Dublin that if, when caught, he or she confesses to being a small player with a problem, he or she will be out after serving two or three years in Mountjoy Prison, but that if he or she crosses a godfather, he or she will be killed. A defence counsel will use the defence that his or her client is not one of the big organisers of this trade. Such big organisers depend on situations where weak people will do their footwork for them and counsel will stand up and point out that an individual is insignificant in the context of the entire operation. The big players could not function without their smaller counterparts. Small players are just as important as the "Mister Bigs" who live in villas in the Costa del Sol, who organise the whole shooting match and who depend on mules to do their work. Submissions to court from counsel which state that particular clients are only small players and that the godfathers remain at large are rubbish.
The Minister is speaking from experience.
Fundamentally, it is rubbish. The Mister Bigs cannot function without the "Mister Smalls" and the latter are just as important to the whole operation as the former, even if they are not making the money.
I see a glorious future for the Minister on the Bench.
That has been helpful. I hope we will be able to deal with some of these amendments at a faster rate than previously.
As already stated, I will provide all the relevant material I can to the Deputies opposite.
I move amendment No. 103:
In page 25, before section 24, but in Part 4, to insert the following new section:
"26.—Section 2 of the Principal Act is amended—
(a) by the substitution of the following subsection for subsection (2A):
"(2A) A person who is guilty of an offence under this section is liable—
(a) in case the firearm is a restricted firearm or the ammunition is restricted ammunition—
(i) on summary conviction, to a fine not exceeding €5,000 or imprisonment for a term not exceeding 12 months or both,
(ii) on conviction on indictment, to a fine not exceeding €20,000 or imprisonment for a term not exceeding 7 years or both, and
(b) in any other case—
(i) on summary conviction, to a fine not exceeding €2,500 or imprisonment for a term not exceeding 12 months or both, and
(ii) on conviction on indictment, to a fine not exceeding €10,000 or imprisonment for a term not exceeding 5 years or both.",
(b) by the deletion of subsection (2B),
(c) in subsection (4)—
(i) by the deletion, in paragraph (c), of “this Act” and the insertion of “the Firearms Act 1964”,
(ii) by the substitution of the following paragraph for paragraph (d):
"(d) the possession, use or carriage of a firearm or ammunition during a competition or target practice at a club or shooting range that stands authorised under this section or section 4A of this Act”,
(iii) by the substitution of the following paragraphs for paragraph (j):
"(j) the possession or carriage of a firearm or ammunition by a person, or the employee of a person, authorised under section 10(4A) of this Act,
(k) the possession, use or carriage of a firearm or ammunition for the purpose of bird control at an airport by an employee or agent of the airport authority who stands authorised in that behalf under this section.”,
(d) in subsection (5)(a), by the deletion of “or (h)” and the insertion of “, (h) or (j)”,
(e) in subsection (5)(c), by the deletion of “rifle or other gun”, and
(f) by the addition of the following subsection:
"(6) In subsections (3)(g) and (4) (other than paragraphs (d), (i) and (k)), references to a firearm or ammunition do not include references to a restricted firearm or restricted ammunition.”.”.
This amendment amends section 2 of the Firearms Act 1925. It substitutes a new subsection for subsection (2A), deletes subsection (2B), amends subsections(4) and (5) and inserts a new subsection (6).
Section 2 of the Firearms Act makes it an offence to possess a firearm without having a valid firearm certificate. The existing subsection (2A) provides that a person committing such an offence is liable on summary conviction to a fine of up to €254, that is £200 or 12 months imprisonment or both or on conviction to £500 or €635 or five years imprisonment or both.
The new subsection (2A) provides that in a case involving a restricted firearm — this does not relate to shotguns, air rifles, etc., but rather to high velocity weapons and short firearms — a person will be liable on summary conviction to a fine of €5,000 or 12 months imprisonment or both and on conviction on indictment to €20,000 or seven years imprisonment or both. In any other case, the person will be liable on summary conviction to €5,000 or 12 months imprisonment or both and on conviction on indictment to €10,000 or five years imprisonment or both. There is a heavier fine and a heavier prison sentence provided for somebody who is found in unlicensed possession of a firearm that is a restricted weapon. Subsection (2B) of the 1925 Act, which provides penalties in respect of sporting firearms, is being deleted consequent on this change in section (2A).
As it stands, the existing subsection (4) provides exceptions to the requirement to hold a firearm certificate. One of these relates to persons who are members of gun clubs, authorised by a superintendent, when using guns while engaged in competitions at ranges that are also authorised by a superintendent. Under the law as it stands, there is no obligation on gun clubs to be authorised and most are not. The only advantage of authorisation is that it confers an exemption on members from holding firearm certificates while engaging in competitions also authorised by a superintendent. The norm is that all members of gun clubs should have firearm certificates. However, under amendment No. 109 in my name, all rifle and pistol clubs and all shooting ranges will in future require to be authorised. Consequently, subsection (4) is being amended to include such clubs and shooting ranges. This means that if one goes to an organised competition, one can take up a weapon that another competitor is using and have it in one's possession and fire it without having a separate certificate in respect of that weapon.
Subsection (4) is also being extended to provide that persons authorised to trade in restricted firearms, such as firearm dealers and auctioneers, will not require a firearm certificate while engaged in their normal business. Airport employees or agents will not require a firearm certificate while engaged in bird control at airports.
The amendments being proposed to subsection (5) for the insertion of a new subsection (6) are technical amendments consequent on the other amendments.
These amendments update the fines and penalties. That is a sensible and long overdue development. The other arrangements the Minister has made in regard to sporting clubs also make sense.
I also support the amendments. On a point of clarification in respect of sporting events, clay pigeon shoots are often incorporated in field day events. Will some sort of licensing regime be required for each location consequent on this change?
We are talking about rifles and target shooting as requiring authorisation. Clay pigeon shooting is not included. I will check on the point the Deputy raises. If I go to a hotel for a weekend and one of the recreations is clay pigeon shooting, am I breaching the law——
Is a clay pigeon not a target?
That is a good point. It is not a target for me. I will check regarding whether there should be some provision covering casual clay pigeon shooting as a recreational activity.
I move amendment No. 104:
In page 25, before section 24, but in Part 4, to insert the following new section:
"27.—The following section is inserted after section 2 of the Principal Act:
"2A.—(1) The Commissioner, on application and payment of the prescribed fee (if any), may issue to a person over 14 years of age a certificate (in this Act referred to as a "firearms training certificate") authorising the person to possess a firearm and ammunition (except a restricted firearm and restricted ammunition) only while—
(a) carrying and using the firearm for hunting or target shooting—
(i) under the supervision of a specified person over 18 years of age who holds a firearm certificate in respect of it, and
(ii) where the firearm is used for target shooting, on the premises of an authorised rifle or pistol club or at an authorised shooting range,
(b) complying with such other conditions (if any) as the Commissioner may impose in the interests of public safety and security.
(2) Where the applicant is under 16 years of age, the application for a firearms training certificate shall be accompanied by the written consent of the applicant's parent or guardian.
(3) The firearms training certificate shall be in the prescribed form. New section 2A in Principal Act.
(4) Where such an application is refused, the Minister shall inform the applicant in writing and give the reasons for the refusal.
(5) A firearms training certificate shall continue in force for a period of 3 years from the date on which it was granted, unless revoked.
(6) The Commissioner may revoke a firearms training certificate if of opinion that the holder is not complying, or has not complied, with the conditions subject to which the certificate was granted.
(7) A holder of a firearms training certificate who, without reasonable excuse, does not comply with the conditions subject to which the certificate was granted is guilty of an offence and liable on summary conviction—
(a) for a first offence, to a fine not exceeding €500, and
(b) for any subsequent offence, to a fine not exceeding €1,000.
(8) It is an offence under this Act for the holder of a firearm certificate in respect of the firearm to which the firearms training certificate relates to permit, without reasonable excuse, the holder of that certificate to carry or use the firearm while not under his or her supervision.".".
This amendment inserts a new section 2A into the Firearms Act 1925. It provides for a firearm training certificate to allow for the training of persons over the age of 14 in the use of firearms. In the course of discussions with my Department, many of the shooting organisations strongly advocated that the age at which a person may hold a firearm should be reduced from the current age of 16 years. They argued, in the interests of safety, that it is important that people be trained in the use of firearms and that such training should take place when a person is young. They also pointed out that other countries have age limits as low as 12 years — some had no age limits — and because children are properly trained at a young age, such countries have considerable success in international shooting competitions, such as the Olympic Games.
I am not prepared to reduce the age at which a person may own a firearm below its current minimum of 16 years. However, I am persuaded of the merit of persons being properly trained in the use of firearms before they are granted a firearm certificate and have provided under amendment No. 108 that a person seeking a permit for a firearm should satisfy the Garda Síochána of his or her competence in the use of a firearm. Accordingly, I am introducing a new firearm training certificate that will allow a person to be trained in the use of a firearm. It will not permit the holder to own a firearm, it will simply allow that person to use a firearm under specific conditions and under strict supervision for the purpose of being trained in its use. The amendment provides that the holder of a training certificate may use the firearm only and expressly for hunting or target shooting under the supervision of a specified person over 18 years old who holds a firearms certificate in respect of a firearm or where the firearm is used for target shooting on the premises of an authorised rifle or pistol club or authorised shooting range.
An incident which led to my particular interest in this matter was raised at my clinic a long time ago. A young fellow, who is probably over age now that the legislation has taken so long to come forward and who was a very skilled marksman — I hesitate to use the words "child prodigy" — pointed out that while Irish law allowed him to compete in foreign competitions, it did not permit him to operate in Ireland. I propose that persons over the age of 14 years may be granted a training certificate thereby enabling them to be properly trained in the use of firearms before attaining the age of 16 years, at which time they can legally own firearms. I propose to provide also that persons under the age of 16 years must produce the written consent of a parent or guardian before a training certificate can be granted.
Deputy Jim O'Keeffe proposes eight amendments to my amendment. His first proposes that the age at which a training certificate may be granted be increased from 14 to 16 years. His second amendment proposes that the age of persons supervising training be increased from 18 to 21 years. His third seeks to provide that the age at which the consent of a parent or guardian may be granted be increased from 16 to 18 years.
Under the law as it stands, a person aged 16 years is legally entitled to hold a full firearms certificate and own a firearm. To provide that a person may only be issued with a firearms training certificate having attained 16 years would defeat the purpose of my amendment which is to widen the scope of the legislation to provide the analogue of a provisional driving licence in respect of firearms. On the Deputy's proposal to raise the age at which firearms instruction can be provided by a person from 18 to 21 years, I point out that many shooting clubs are attached to colleges in which the membership may be 18 years and under. My proposal to allow persons of 18 years to act as instructors will facilitate such clubs. The aim of my amendment is to facilitate the training of persons in the safe use of firearms under very controlled circumstances by persons who are themselves members of established clubs. The proposed age at which persons may be trained in the safe use of firearms strikes a balance and ensures that a young person may be properly and safely trained before he or she is legally entitled to own a firearm. I am not persuaded of the merits of Deputy Jim O'Keeffe's amendments.
Deputy Jim O'Keeffe's amendment No. 4 seeks to provide that the period of validity of a firearms training certificate be reduced from three to two years. All of the licences and authorisations which can be granted under the current Firearms Acts are required to be renewed annually which creates a significant administrative burden on the Garda. I propose to reduce the burden through amendment No. 106 by extending the validity of licences and authorisations generally to three years. The provision on training certificates is in line with this proposal.
Deputy Jim O'Keeffe's amendments Nos. 5 to 8, inclusive, to my amendment are drafting amendments. I made a calculation on an envelope one time and, by multiplying the number of legally-held firearms by ten or 15 minutes, found that a significant amount of Garda time and an extraordinary number of gardaí must be devoted to the task of licence renewal every year. There is a great advantage to renewing on a three-year basis. In fact, if I were in radical rather than redundant mode, I would wonder if we should be thinking in terms of a firearms licensing agency separate from the Garda completely but with some level of Garda input. However, I want to get the legislation through rather than get into all sorts of outsourcing arguments. The three-year rule is a sensible one.
I move amendment No. 1 to amendment No. 104:
In the inserted section 2A(1), to delete "over 14 years of age" and substitute ", aged not less than 16 years,".
We will take the Minister's last thoughts as part of his legacy.
I favour the approach to firearms training certificates but I have tabled eight amendments. Four of them are of a technical nature and I am merely asking the Parliamentary Counsel to look at them to see if they improve the Bill.
The first four amendments, however, involve more serious issues. Do we want 14 year olds to be involved in firearms training? This is tied in with the firearms training certificate which can continue for three years. A provisional driving licence is only valid for two years so I cannot see the point in having a firearms training certificate for three years.
I spoke to some of those involved in sporting and gun clubs and some of them made a strong case for the age 14 limit. There is an urban-rural divide on the issue. It is interesting to hear a Minister from the capital city arguing a rural viewpoint while I, coming from west Cork, argue an urban viewpoint. People in urban areas cannot get their heads around the notion of 14 year olds being out with guns but in the past it was commonplace for children to shoot rabbits.
I agree that we come from different perspectives but rural people came to my constituency office in Ranelagh on this issue. If there are weapons in a house and a 14 year old boy in the house has an interest in them, and a parent says there are no circumstances under which he can touch them, it could invite unsafe behaviour or create a temptation that could be too great.
I understand that point and I do not want to be a spoilsport but I am worried about this notion. We are planning for the future and it is unlikely this proscription will be changed for the foreseeable future. Are we really anxious to have young children of 14 toting shotguns? Consideration should be given to issuing the firearms training certificate at age 16 and, consequently, from the point of view of the application, raise the age from 16 to 18.
There are international competitions in which 14 year olds compete.
I have put these amendments for serious consideration. We should address this issue.
This is the first opportunity I have had to reflect on these amendments. I consider 16 a fine age to start. The thrust of this section is that firearms are dangerous and training in their use is required. There are those who say we should teach young people to drive at 12 but society sets a standard for the use of such lethal machinery. A person must be physically developed to the extent he or she can handle the weight of a firearm and carry it properly. A person must be mature enough to understand that these are lethal instruments.
Under the Children Act we determine that people are children until 18 years of age. When bringing people into a culture of the responsible handling of weapons, 16 is an acceptable age. There are exceptional individuals who will be mature and able but we are not dealing with prodigies, we are dealing with the generality. The signal from this is that age 14 is acceptable to commence training people in the use of firearms. There is a greater possibility of accidents and we know from health and safety statistics that the two main areas for accidents last year were construction sites and farms. Firearms were not involved in too many cases but farms can be dangerous places and we must inculcate a sense of safety. A degree of maturity is required for that.
Generally I agree with the Minister and I would not argue with people being over 18 or 21 one way or another under supervision, but 18 year olds would be well able to do it. The Minister should reflect again, notwithstanding the good arguments he has heard in favour of setting the age at 14. Firearms are dangerous and even for recreational use we should set a standard involving a degree of physical and emotional maturity that would generally apply to 16 year olds.
I do not have a major problem with an age limit of 14, although there should be some more restrictions. A training certificate should only be for use at clubs. The Bill allows for the carrying of firearms for hunting or target shooting under the supervision of a person over 18 years of age. There is a similar structure for the provisional licence and while everyone I know with such a licence is supposed to drive with a full licence holder, it does not happen. At least if we restrict it to clubs, someone will be present who is trained in teaching young people to handle the firearms correctly and safety.
Although the Minister said this takes up a lot of Garda time, because it is a training certificate, it should be awarded annually. Gardaí would then have to take into account whether a person had been using the firearm properly. If someone gets a training certificate at 15, he or she will be an adult when the certificate expires and that person can then apply for a full certificate.
The application must be also accompanied by written consent from an applicant's parent or guardian. I have a difficulty with that and I believe the application should be made to a Garda station. I am not in favour of what the Minister is saying. The application should be made in person and in writing and the person should be accompanied by a guardian or an adult so that the Garda Síochána can see exactly who is making the application. We know, for example, that young people often prevail upon adults to buy alcohol for them. In the same way, an extra safety element is required to ensure that this section is not abused by young people and that such young people are properly restricted until they can apply for full licences at 18 years of age.
Section 2A deals with applications to the Commissioner. Certificates from the Commissioner are not going to be handed out like confetti. Furthermore, knowing the way the current Commissioner operates, applicants will be obliged to go through their local Garda stations. The Commissioner will not deal with applications coming directly to him through the postal system. He will require some local guidance and I imagine that he will not simply receive applications in the Phoenix Park and give them his approval. He will be obliged to carry out local checks as to whether the applicant was of good character and so forth. The idea is to centralise the process in his hands so that there will be a consistent national approach and to ensure that the issuing of firearms permits is regarded as an important process and not just a favour that local gardaí can do for people. Certificates will not be handed out on a routine basis.
I take the point made about people aged 14, 16, etc., but the fact is that there are international competitions. I have met young Irish people who participate in such competitions and it is strange that under the law as it stands they cannot even train in Ireland but they can win prizes in Europe.
There are seven year old children involved in shooting in Texas. However, that does not make a good law.
I am not suggesting that we return——
If an international competition was held here, would we recognise the permits of visitors or would we be obliged to issue temporary firearms certificates for——
Such a competition could not be held here.
I do not know whether a temporary firearm certificate could be issued to a child, but I do not believe it could. Such a certificate cannot be issued to anyone under 16, so Ireland will not be a venue for such competitions.
Deputy Howlin said that he represents a rural constituency but he commented earlier to the effect that it is urban in nature. Gorey, in particular, was mentioned as a built-up area.
It is building up. I expect to see much more of the Minister for Justice, Equality and Law Reform there.
I move amendment No. 105:
105. In page 25, before section 24, but in Part 4, to insert the following new section:
"28.—The following section is inserted after section 2A of the Principal Act:
"2B.—The Minister may, in the interests of public safety and security, by order—
(a) declare specified firearms to be restricted firearms for the purposes of this Act by reference to one or more than one of the following criteria:
(iii) working mechanism;
(iv) muzzle energy;
(b) declare specified ammunition to be restricted ammunition for the purposes of this Act by reference to one or more than one of the following criteria:
(iv) kinetic energy;
(v) ballistic co-efficient;
This amendment inserts a new section 2B into the Firearms Act 1925. That new section will allow the Minister to declare certain firearms as restricted by reference to a number of set criteria including category, calibre, action type, muzzle energy and description. For example, with regard to action type, one is referring to whether a firearm is automatic or otherwise. The law as it stands permits only superintendents to license firearms. However, amendment No. 106 in my name provides that only the Garda Commissioner, rather than a superintendent, may grant firearm certificates in respect of restricted firearms.
This new provision is being inserted in the context of a Supreme Court decision in Dunne and others v. Superintendent Kay Donohoe and others. Since the early 1970s, policies with regard to certification for ownership and use of firearms had been set on an administrative basis under directives issued by the Garda Commissioner. In other words, a direction was issued by headquarters in the Phoenix Park as to how it was to be operated. In the Dunne case, however, the Supreme Court ruled that the power to issue firearms certificates conferred on a superintendent by the Firearms Act was conferred on a persona designata and that it vested in the superintendent a discretion which could not be abdicated or directed by anybody else. The Supreme Court reached its decision on two counts. First, it found that the Commissioner’s directives were void in so far as they had the effect of fettering the discretion of a superintendent in the exercise of his or her functions under the Firearms Act 1925. Second, it found that a Garda superintendent was not empowered to impose a fixed condition on the granting of a firearm certificate, such as the acquisition of a firearms safe. The Supreme Court also made it clear that, in its judgment, a persona designata cannot adopt a fixed policy towards the exercise of his or her powers — in other words, he or she cannot say that he or she will never entertain an application in respect of a revolver — when making a determination because the powers are those laid down in the parent statute and any regulations made under it.
As a result of that decision, the Garda Commissioner no longer has a function with regard to the controlling and licensing of firearms. There is also no mechanism for uniformity. Different superintendents are entitled to take totally different views on this issue. This demonstrates the importance of what the Chief Justice said about being careful when one is drafting legislation. It is interesting that the Supreme Court effectively ruled that the Commissioner could not, within the context of a disciplined organisation, tell his superintendents the policy they were to follow with regard to restricted weapons.
We are dealing here with ammunition and firearms. We are stating that there will be restricted types and that, from now on, a person will be obliged to go to the top to obtain permission to possess such ammunition or firearms. I do not know whether anybody in Ireland privately owns an automatic firearm but it will not be a question for a person's local superintendent to decide whether he or she can have a machine gun in their house. That will be for the Garda Commissioner to decide.
Amendment No. 106 and the amendments thereto may be discussed together.
I move amendment No. 106:
In page 25, before section 24, but in Part 4 to insert the following new section:
"29.—The following section is substituted for section 3 of the Principal Act:
"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 be accompanied by—
(a) the prescribed fee (if any), and
(b) 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), 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.
(5) A firearm certificate shall be in the prescribed form and, subject to subsection (6) of this section, shall authorise the person to whom it is granted—
(a) to possess, use and carry the firearm specified in the certificate,
(b) to purchase ammunition for use in the firearm, and
(c) at any one time to possess or carry not more than the amount of ammunition specified in the certificate.
(6) Where the firearm is a shot-gun, the firearm certificate may, subject to subsection (11) of this section, authorise it 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 by the holder of the certificate either (as may be expressed in the certificate)—
(a) on land occupied by the holder, or
(b) on land occupied by another person.
(7) A firearm certificate which is in force shall continue in force for a period of 3 years from the date on which it was granted, unless revoked, and for any further such period for which it may be renewed.
(8) The holder of a firearm certificate may apply for renewal of the certificate within one month before it ceases to be in force.
(9) A decision on an application for a firearm certificate or its renewal shall be given within 3 months from the date on which the applicant submitted a completed application form.
(10) Where the application is refused, the applicant shall be informed in writing of the refusal and the reason for it.
(11) The following provisions have effect in relation to a certificate in the form referred to in subsection (6) of this section (in this subsection referred to as a "limited certificate"):
(a) a limited certificate relating to land occupied by a person other than the applicant for the certificate shall not be granted unless the occupier of the land has given the applicant a nomination in writing for holding the certificate;
(b) a limited certificate relating to any land shall not be granted in respect of any period if there is a limited certificate relating to the land already in force in respect of that period;
(c) a limited certificate shall not be granted unless the whole of the land to which it would relate is occupied by one person;
(d) where a nomination referred to in paragraph (a) of this subsection is revoked, the limited certificate to which it related, if then in force, shall not be capable of being renewed.
(12) A firearm in respect of which a firearm certificate is granted shall be marked in the prescribed manner with a number or other prescribed identifying mark, and the number or mark shall be entered on the certificate.
(13) A person who—
(a) knowingly gives false or misleading information to an issuing person in relation to an application for a firearm certificate or for its renewal,
(b) forges a document purporting to be a firearm certificate or uses or knowingly possesses it, or
(c) with intent to deceive, uses or alters a firearm certificate or uses a firearm certificate so altered, is guilty of an offence and liable—
(i) on summary conviction, to a fine not exceeding €2,500 or imprisonment for a term not exceeding 6 months or both, or
(ii) on conviction on indictment, to a fine not exceeding €20,000 or imprisonment for a term not exceeding 5 years or both.
(14) Subsection (13) of this section is without prejudice to Part 4 of the Criminal Justice (Theft and Fraud Offences) Act 2001.
(15) Section 12 (limited use of shot-gun) of the Firearms Act 1964 is repealed.".".
This amendment substitutes a new section for section 3 of the Firearms Act 1925, which provides for the granting of firearm certificates by a Garda superintendent only. It prescribes the form and effect of the firearm certificate that may be granted. Section 12 of the 1964 Act provides for the granting of limited firearm certificates for the use of a shotgun only for killing birds or animals other than game. The new section repeals section 12 of the 1964 Act and restates, with amendments, the existing provisions in section 3 of the 1925 Act and section 12 of the 1964 Act.
The new section, in addition to providing for the form and effect of firearm certificates, provides that in addition to the granting of a firearm certificate by a superintendent, only the Commissioner may grant a firearm certificate in respect of restricted firearms. It also provides that a firearm certificate may be renewed every three years rather than annually and requires the time limit for considering applications to be restricted to three months because, in some cases, a go-slow approach was previously adopted.
The new section makes it an offence to give false information when applying for a firearm certificate or to forge a document purporting to be such a certificate. These offences are punishable by a €20,000 fine or a term of five years imprisonment, which means they are arrestable and detainable offences.
Deputy Jim O'Keeffe is proposing four amendments. The first three are drafting amendments and I have brought them to the attention of the Parliamentary Counsel, who is of the view that they are not necessary. The fourth amendment proposed by the Deputy involves the insertion of the words "where the permission of that person has been obtained" in section 3(6)(b), where a limited certificate for a shotgun is being sought. In this regard, I refer the Deputy to subsection (11)(a) of amendment No. 106, which provides that “a limited certificate relating to land occupied by a person other than the applicant for the certificate shall not be granted unless the occupier of the land has given the applicant a nomination in writing for holding the certificate”. I am sure the Deputy will agree that this provision meets his concerns. A person must have the permission of the landowner before he or she can avail of that particular clause.
I move amendment No. 4 to amendment No. 106:
In the inserted section 3(6)(b), after “person” to insert “, where the permission of that person has been obtained”.
This amendment deals with the issue of the use of shotguns and firearms on land occupied by a person other than the holder. It highlights that seeking the permission of the owner of such land should be a requirement. That is why I tabled it to provide that where a firearm certificate is issued, it is authorised to be used on the land occupied by the holder or on land occupied by another person where the permission of that person has been obtained. The Minister suggests this point is already covered in subsection (11)(a), but I am not totally satisfied that it is so covered. I will consider the issue further in the light of the Minister’s comment and will not press the amendment at this stage.
For clarification, subsection (9) provides that a decision on an application for a firearm certificate shall be given within three months. What is the consequence if it is not given within three months?
In regard to subsection (10) — this is something that in my personal experience has certainly caused angst — when the application is refused, the applicant should be informed in writing and the reason for it. Can this be amplified? I have seen very terse one-sentence reasons that are meaningless and which one cannot get behind. Some feel aggrieved and believe that somehow their integrity is impugned by a refusal, but there may be a very good reason for it. There is, perhaps, a practice in the Garda Síochána not to put too much in writing in matters such as this because it might leave the Garda open. However, the issue then ends up on a Deputy's desk with the person concerned stating he or she has a good record and wanting to know the reason for the refusal, but it is impossible to find out what is behind it. I do not know whether we can address that matter.
My third and final question concerns an appeals mechanism. Perhaps the Minister would point out where it is dealt with.
There is an appeals mechanism, to which I will draw the Deputy's attention. It is provided for in amendment No. 119.
In regard to what will happen if a decision on an application for a firearm certificate is not given within three months, the requirement to give a decision within three months is a directory provision. Theoretically, it would be unlawful not to do so within three months. A court would, therefore, direct that it be done. I will look at the possibility of providing that if it is not done within three months, the application will be deemed to have been refused to ensure there will be a right of appeal.
Can it be deemed that a certificate has been granted?
If planning permission was dealt with on that basis, it would focus the minds of planners.
On a more general point, in the case of a household where one or two members are suffering from psychosis or something similar, the local sergeant may think it would not be a good idea that there should be a shotgun in the house. It is required that the reason for a refusal be stated and it may be terse on occasion, given that in the case of persons who are extremely unstable, it might not be wise to send them a letter stating the Garda thinks they are off their rockers. Let us be merciful to gardaí who are obliged to live with the consequences of the letters they send.
I am sure they are often the types of people the Deputy sees at his clinic.
They do not get a reply from Deputy Howlin to the effect that he thinks they are——
That he thinks they are bonkers.
I move amendment No. 107:
In page 25, before section 24, but in Part 4, to insert the following new section:
"30.—The following section is inserted after section 3 of the Principal Act:
"3A.—(1) The Commissioner may, with the consent of the Minister, from time to time issue guidelines in relation to the practical application and operation of any provision of the Firearms Acts 1925 to 2006.
(2) In particular, the Commissioner may issue such guidelines in relation to applications for firearm certificates and authorisations under this Act and to the conditions which may be attached to those certificates and authorisations.".".
This amendment inserts a new section 3A into the Firearms Act 1925 and provides that the Commissioner can, after consultation with the Minister, draft guidelines on the practical applications of firearms legislation. This proposal brings Ireland into line with other common law countries such as New Zealand and Great Britain and Northern Ireland which provide guidance documents on the operation of their firearms licensing systems. It deals with the point raised in the Dunne case that there is a statutory basis on which the Commissioner can recommend that a firearm certificate should not be given to somebody suffering from chronic alcoholism.
I move amendment No. 108:
In page 25, before section 24, but in Part 4, to insert the following new section:
"31.—The following section is substituted for section 4 of the Principal Act:
"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,
(c) is not a person declared by this Act to be disentitled to hold a firearm certificate,
(d) has provided secure accommodation for the firearm and ammunition at the place where it is to be kept,
(e) where the firearm is to be used for target shooting, is a member of an authorised rifle or pistol club,
(f) has complied with subsection (3),
(g) complies with such other conditions (if any) specified in the firearm certificate, including any such conditions to be complied with before a specified date as the issuing person considers necessary in the interests of public safety or security, and
(h) in case the application is for a restricted firearm certificate—
(i) has a good and sufficient reason for requiring such a firearm, and
(ii) has demonstrated that the firearm is the only type of weapon that is appropriate for the purpose for which it is required.
(3) An applicant for a firearm certificate shall supply to the issuing person the information requested in the application form and such further information as the issuing person may require in the performance of the person's functions under this Act, including, in particular—
(a) proof of identity,
(b) proof of competence in the use of the firearm concerned,
(c) written consent for any enquiries in relation to the applicant’s medical history that may be made from a health professional by or on behalf of the issuing person, and
(d) names and addresses of two referees who may be contacted to attest to the applicant’s character.
(4) A member of the Garda Síochána may inspect the accommodation for a firearm provided by an applicant for a firearm certificate or require the applicant to provide proof of its existence.
(5) The Minister, in consultation with the Commissioner, may by regulations provide for minimum standards to be complied with by holders of firearm certificates in relation to the provision of secure accommodation for their firearms.
(6) In this section "health professional" means a person who is a doctor, psychiatrist, dentist, optician, chemist or nurse and registered under any enactments governing the profession concerned or a clinical psychologist.".".
I move amendment No. 1 to amendment No. 108:
In the inserted section 4(2), after paragraph (e), to insert the following:
"(f) is of sound mental and psychiatric health,
(g) has sufficient capacity to possess and operate a firearm responsibly and safely,”.
Amendment No. 108 provides for the substitution of section 4 of the 1925 Act. Under existing law, the section specifies conditions which must be met by an applicant for a firearm certificate before the certificate can be granted. As it stands, a Garda superintendent, before deciding whether to grant a certificate must be satisfied that the applicant has a good reason for acquiring it, is not a danger to public safety or the peace, and is not disentitled under the 1925 Act to hold one. A superintendent may not have regard to any other factors.
The amendment expands the conditions an applicant must meet before a firearm certificate may be granted. The new conditions include the following: that the applicant has provided secure accommodation for the firearm; where the firearm is to be used for target shooting, that the applicant is a member of an authorised gun club or pistol club; proof of identity; proof of competence in the use of the firearm concerned; written consent for any inquiries in regard to the applicant's medical history that may be required from a health professional by or on behalf of the issuing person; and names and addresses of two referees who may be contacted to attest to the applicant's character. There was a time when the local sergeant knew about everything that moved. We now live in a different world, a world where referees will more frequently be necessary. In addition, I am providing that where the application is for a certificate for a restricted firearm, the applicant must have a good and sufficient reason for acquiring it and can demonstrate that the firearm is the only type of weapon appropriate for the purpose for which it is required. If one has to have a high velocity weapon to compete in an international competition and that is one's reason for having it, one will have to prove that it is the only weapon that satisfies that purpose.
The purpose in introducing these new conditions is to ensure that before a firearm certificate is granted, there will be proper scrutiny of an applicant's fitness to hold a firearm. In the course of the tribunal of inquiry into the Abbeylara shooting being carried on by Mr. Justice Barr the question of the fitness of a person to hold a firearm was raised. In response to these concerns I am introducing a new provision which will require an applicant for a firearm certificate on the request of a Garda superintendent or the Commissioner to give written consent for inquiries in regard to the applicant's medical history to be made from a health professional. The consequence of this is that Mr. Justice Barr has not yet reported his findings. Consequently I propose, as soon as he does, to bring forward any necessary amendments arising from any recommendations he may make in this regard.
Deputy Jim O'Keeffe is proposing nine amendments to my amendment. Amendment No. 1 to the amendment proposes the insertion of two new conditions on which the Garda Commissioner or superintendent must be satisfied before deciding to grant a certificate, namely, that the person concerned is, first, of sound mental and psychiatric health and, second, that he or she has sufficient capacity to possess and operate a firearm responsibly and safely. The effect of the amendment, as drafted, would be to require the Commissioner or superintendent to make a judgment as to the mental or psychiatric capacity of an applicant — they could not object on the basis that they were unhappy with the application but would have to do a psychiatric assessment. I see where the Deputy is coming from, but he will appreciate that they are not qualified to make such a finding in respect of somebody. My amendment proposes, at subsection (3), that the applicant, on the request of the Garda Commissioner or superintendent, should provide written consent for any inquiries in regard to his or her medical history that may be made from a health professional. This will allow a third party to be brought in where there is a doubt about whether somebody is stable or suffering from mental illness. I do not suggest this in an arrogant way, but the Deputy is asking superintendents to make far-ranging findings about people. If it were to be put the way the Deputy suggests, it would amount to serious findings. If a superintendent said that a particular person was suffering from a psychiatric disorder and that he would not, therefore, grant a certificate——
I am not sure Deputy Jim O'Keeffe intends that a superintendent should make that judgment.
While I agree with the approach generally and while, as such, the majority of my amendments are technical and put forward for the Parliamentary Counsel to consider, I tabled amendment No. 1 to the amendment because I have serious concerns that inadequate consideration is being given to the mental stability of applicants for firearms certificates.
Surely, a doctor would be required to make the judgment.
The Minister made the point that a superintendent is not in a position to assess the mental and psychiatric health of an applicant, which I accept. However, the issue could be resolved by providing for a requirement by the applicant to produce a medical report, affidavit or declaration. If there are concerns, we must find a way of dealing with them. The same issue arises in the context of the revocation of firearms certificates. I was greatly affected by the case in Kilkenny and I am concerned about a system that could permit such circumstances to arise.
I want the Minister and his officials to give consideration to ensuring we have a structure that meets my concerns about people holding firearms being of sound mind and in good mental and psychiatric health. I am not sure the amendment I have proposed is ideal. There may be a better way of dealing with this, but as long as the issue is tackled, I will be happy. On that basis I will withdraw my substantive amendment on condition that it will be further discussed on Report Stage.
Subsection (3)(d) requires that the names and addresses of two referees be given, but there are no criteria as to who might qualify as a referee. I am tempted to say we should debar Deputies from being referees because I can see the queue coming. Apart from that, there should be some criteria. What is the point of requiring a referee if there are no criteria laid down as to who would be an appropriate person to give a reference?
On the point I made when we were dealing with people under the age of 16 or 18 years, I suggested there should be more conditions attached to the application for a firearm training certificate. These should reflect the conditions required of the Garda and a young person. There is nothing laid down regarding the granting of a training certificate in terms of the need for written consent to make inquiries into the applicant's medical history and the like. The section only deals with the firearm certificate. It includes conditions that should also apply to the training certificate, for example, that the applicant must have good reason for acquiring a firearm certificate, is not disentitled from holding a certificate, is a member of an authorised rifle or pistol club, and must provide proof of identity and written consent to inquiries about medical and mental health. Parts of this new section should be binding on those applying for a firearm training certificate.
Deputy Howlin made the point that no qualifications are specified for the referees. A referee will provide a reference to a superintendent or to the Commissioner of the Garda Síochána. I am tempted to repeat what I often say in my area of responsibility, namely, that there is an onus on people to check references. The onus rests on the recipient of a reference to be satisfied as to the bona fides of the referee. Were we to set out qualifications and categories of people in the statute, it would be to introduce further prolixity into what is already a very detailed measure.
I used the term "prolixity".
It is a lovely word. I must write it down.
To turn to Deputy Ó Snodaigh's comments, I note that a licence to train is distinct from a licence to own or have possession of a firearm. There are two entirely different regimes to govern these matters, which is why the conditions are not assimilated in each.
There are no conditions to be satisfied under the firearms training regime other than an age qualification and a requirement for written consent from the parents or guardian. We should provide here or in a previous section that these conditions should be adhered to when applying for the certificate. I will submit an amendment on Report Stage to address the issue and to be of help to the Minister of State.
If Deputy Ó Snodaigh submits his amendment, we will examine the matter further.
While I will withdraw amendment No. 1 to amendment No. 108, I would like the Minister of State and his officials to consider it in detail to ensure that we have addressed the matter adequately. I do not entirely accept the Minister of State's explanation.
Should a sanity clause be included? Everyone knows that there is no sanity clause.
I move amendment No. 109:
In page 25, before section 24, but in Part 4, to insert the following new section:
"32.—The following section is inserted after section 4 of the Principal Act:
"4A.—(1) A rifle or pistol club or the owner or operator of a rifle or pistol shooting range shall not allow any firearm or ammunition to be used or stored on the premises of or at the club or shooting range in connection with target shooting unless an authorisation under this section to do so is in force.
(2) An application for such an authorisation shall be made to the Commissioner in the prescribed form by an officer of the club authorised in that behalf or by the owner or operator of the shooting range.
(3) The application shall be accompanied by—
(a) the prescribed fee, and
(b) in the case of a shooting range, a firearms range certificate which is in force.
(4) The application form shall contain a copy of any regulations under subsection (13) or of the material part of them.
(5) The applicant shall supply in writing any further information that the Commissioner may need in the performance of his or her functions under this Act.
(6) The Commissioner shall grant an authorisation to the applicant for the use and storage of rifles, pistols and ammunition on the premises of the club or shooting range concerned, or on a specified part of those premises, for the purpose of target shooting only if satisfied—
(a) that their use or storage will not endanger public safety or security or the peace,
(b) that the club or shooting range is responsibly managed, and
(c) in the case of a shooting range, that a firearms range certificate in respect of it is in force.
(7) A decision on the application shall be given within 3 months from the date on which a completed application form was submitted.
(8) The Commissioner may at any time by notice in writing—
(a) attach to the authorisation such conditions as he or she thinks necessary for the purpose of securing that the operation of the club or shooting range and the use and storage of rifles, pistols and ammunition on the premises of or at the club or range concerned does not endanger public safety or security or the peace,
(b) at any time for that purpose vary any of those conditions, and
(c) require that some or all of them be complied with before a specified date.
(9) An authorisation which is in force shall continue in force for a period of 5 years from the date on which it was granted, unless revoked, and for any further such period or periods for which it may be renewed.
(10) A renewal of an authorisation may be applied for within 3 months before the authorisation ceases to be in force.
(11) The Commissioner may, if no longer satisfied in relation to any of the matters mentioned in paragraphs (a) to (c) of subsection (6), revoke the authorisation of the club or shooting range concerned by notice in writing addressed to the applicant or the person or persons for the time being responsible for its management.
(12) On receipt of such a notice the person or persons so notified shall forthwith surrender to the superintendent of the district in which the club or range is situated the authorisation and any rifles, pistols or ammunition stored on its premises.
(13) The Minister, in consultation with the Commissioner, may by regulations specify minimum standards to be complied with by a rifle or pistol club or shooting range before an authorisation under this section may be granted in respect of it.
(14) The minimum standards shall be determined—
(a) in the case of a club, by reference to any or all of the following matters:
(i) security of its premises;
(b) in the case of a shooting range, by reference to any or all of the following matters:
(i) security of the range;
(iv) design, construction and maintenance;
(v) types of firearms and ammunition to be used;
(vi) level of competence of persons using the range.
(15) For the purpose of ascertaining whether conditions attached to an authorisation under this section are being complied with, a member of the Garda Síochána authorised in that behalf may, on production if required of the authorisation or a copy of it, enter any premises occupied or used by the club or shooting range concerned and inspect the premises and anything in them.
(16) Any person who by act or omission impedes or obstructs a member of the Garda Síochána in the exercise of the member's functions under subsection (15) of this section is guilty of an offence and liable on summary conviction to a fine of €1,000 and imprisonment for a term of 3 months or both.
(17) The Commissioner shall cause a register of clubs and shooting ranges for the time being authorised under this section to be established and maintained.
(18) It is an offence—
(a) for a club or the owner or operator of a shooting range—
(i) to contravene subsection (1) of this section, or
(ii) without reasonable excuse, not to comply with any conditions attached to an authorisation under this section,
(b) for a person not to comply with subsection (12) of this section, or
(c) for a person, without reasonable excuse, to participate in the activities of such a club or shooting range for which an authorisation under this section is not in force.
(19) In proceedings against a person for an offence under subsection (18)(a)(i) of this section it is a defence to prove that the defendant took reasonable precautions and exercised due diligence to avoid committing the offence.
(20) A person guilty of an offence under this section is liable—
(a) on summary conviction, to a fine not exceeding €2,500 or imprisonment for a term not exceeding 6 months or both, and
(b) on conviction on indictment, to a fine not exceeding €20,000 or imprisonment for a term not exceeding 7 years or both.
(21) In this section—
"firearms range certificate" means a certificate issued under section 4B(3)(a) of this Act;
"rifle or pistol club" means a club established for the purpose of promoting skill in the use of rifles and pistols for target shooting;
"shooting range" does not include a range or shooting gallery referred to in section 2(4)(e) of this Act.".".
There are 17 amendments to amendment No. 109, all of which are minor and technical. While I will not press them, I would like the Parliamentary Counsel to consider them from the point of view of improving the Bill. As there is no issue of major substance to consider, I will not trouble the committee any further with the amendments.
I move amendment No. 110:
In page 25, before section 24, but in Part 4, to insert the following new section:
"33.—The following section is inserted in the Principal Act after section 4:
"4B.—(1) The Minister may by warrant appoint such and so many persons as he or she thinks necessary to be firearms range inspectors and may revoke any such appointment.
(2) It shall be the duty of a firearms range inspector—
(a) to examine applications for the authorisation of rifle and pistol shooting ranges, and
(b) to inspect rifle and pistol shooting ranges for the purpose of ensuring their compliance with the minimum standards provided for in regulations under section 4A(13) of this Act.
(3) After inspecting a rifle or pistol shooting range, an inspector may—
(a) if satisfied that the range complies with those minimum standards, issue a firearms range certificate in respect of it, and
(b) if not so satisfied, refuse to issue such a certificate or revoke any such certificate that is in force.
(4) An inspector who suspects, with reasonable cause, that any place is being used for rifle or pistol target shooting may enter and inspect it.
(5) The Minister shall issue to each inspector the warrant of appointment, or a copy of it, for production, on request, when an inspector is exercising any power conferred by this section.
(6) The terms and conditions of appointment of firearms range inspectors shall be determined by the Minister, with the consent of the Minister for Finance.".".
I move amendment No. 1 to amendment No. 110:
In the inserted section 4B(1), to delete "may" where it firstly occurs and substitute "may,".
I have also tabled a number of technical amendments to amendment No. 110. While I will not press amendments Nos. 1 or 2 to the amendment, the requirement to give notice in writing to the firearms range certificate inspector is relevant. I would prefer to see inspectors inspecting ranges on a more regular and ordered basis and ensure they have power to enter and inspect without prior notice or permission. My amendments seek to reinforce the powers of firearms range inspectors.
The inspection of ranges is an important issue in respect of which standards will be set out in regulations to be made under section 4A(13). In specifying the minimum standards, what advice will the Minister take? Perhaps I am still captured by my previous area of responsibility, namely, health and safety.
Deputy Jim O'Keeffe summarised, very fairly, that the purpose of his amendments is to strengthen the position of firearms range inspectors, in respect of whom provision is being made for the first time. The Deputy wishes to amend the relevant provisions to read "on an ongoing and regular basis and at any time and without prior notice" but I am advised by the Parliamentary Counsel that the section as drafted allows firearms range inspectors to enter and inspect as they see fit. The additional words proposed are unnecessary.
Deputy Jim O'Keeffe is also concerned with the power that must be given to revoke the appointment of a firearms range inspector. Again, I am advised by the Parliamentary Counsel that any appointments and terminations will be governed by the Civil Service Regulation Acts 1956 to 2005, as provided for in subsection (6). Accordingly, the Deputy's amendment in this regard is also unnecessary. While Deputy Jim O'Keeffe's concerns are understandable, they are covered by the provisions as drafted.
Deputy Howlin asked what minimum statutory standards would be required to apply at ranges by the new section 4A. The standards will be those that apply internationally in respect of safety of the location, security of firearms, construction standards and building materials at ranges, safety distances, proximity to housing or other buildings, visibility and remoteness of location.
How many ranges are there? Is it ten or 100? In responding the question on notice of revocation of an appointment, the Minister of State implied that the firearms range inspectors will be civil servants. I take it, therefore, that inspectors will be appointed by the Department of Justice, Equality and Law Reform. As they will be new appointments, can the Minister of State indicate how much inspectors will be paid and how many of them will be employed? Have the practical implications been thought through? I ask these questions to satisfy my curiosity, since the issue has been raised. I am prepared to accept the responses of the Minister of State to the issues I have raised and will examine them further. I will not press my amendments at this stage.
I have a question regarding standards, which are important. The Minister of State will lay down the conditions and regulations after consultation with the Commissioner. It is not clear exactly what constitutes a range under section 4A(13). For example, if a farmer provides an ad hoc practice ground on his or her own land, is that a range encompassed by the legislation? Are standards required if he or she invites his or her neighbour over to practise? Are we putting in place a very burdensome regime?
In reply to Deputy O'Keeffe, there are six ranges known to the Department within the State. It is envisaged that on the enactment of this legislation there could be a substantial increase. There is a tendency towards an increase in the number of such facilities.
Can the Minister of State say roughly where they are and why is it expected there will be an increase in the number?
I do not have information on the exact locations but there are six such ranges.
Why would an unregulated situation involve smaller numbers?
The clue lies in my reply to the Deputy that on the enactment of this legislation any target shoot involving rifles or pistols will require the place where it takes place to be subject to authorisation as a range.
Is the Minister of State saying that if a farmer in County Wexford wants to provide a temporary range to practise, either with a neighbour or by himself or herself, he or she needs to apply for a licence and have it inspected by an appropriate inspector and comply with health and safety standards?
As alternative land use it would figure in the Department of Agriculture and Food booklets.
It applies to pistols and rifles, not shotguns. If he or she is practising with a pistol or rifle, he or she must be on a range.
Will firearms inspectors be former Army personnel? What qualifications will they have?
No decision has yet been taken on that issue.
The practical implications have not yet been worked out.
I move amendment No. 111:
In page 25, before section 24, but in Part 4, to insert the following new section:
"34.—The following section is substituted for section 5 of the Principal Act:
"5.—(1) An issuing person may at any time revoke a firearm certificate granted by the person if satisfied that the holder of the certificate—
(a) has not a good reason for requiring the firearm to which the certificate relates,
(b) is a person who cannot, without danger to the public safety or security or the peace, be permitted to possess a firearm,
(c) is a person who is declared by this Act to be disentitled to hold a firearm certificate,
(d) where the firearm certificate limits the purposes for which the firearm to which it relates may be used, is using the firearm for purposes not authorised by the certificate,
(e) has not complied with a condition attached to the grant of the certificate, or
(f) where the firearm is authorised to be carried or used by a holder of a firearms training certificate, has, without reasonable excuse, permitted the holder of that certificate to carry or use the firearm while not under his or her supervision.
(2) The reason for revoking a firearm certificate shall be communicated in writing by the issuing person to the holder of the certificate.
(3) Where a firearm certificate is revoked or otherwise ceases to be in force, the issuing person may direct in writing that the holder surrender the firearm or ammunition concerned or both to the custody of the superintendent of the district where the holder resides or to a member of the Garda Síochána acting on the superintendent's behalf.".".
I move amendment No. 1 to amendment No. 111:
In the inserted section 5(1)(a), to delete “has not” and substitute “does not have”.
My amendments are of a minor technical nature for consideration by the officials and Parliamentary Counsel as to whether they might improve the section. My major concern is whether we are providing sufficiently for situations where somebody is suffering from an illness, particularly a mental illness. Where there is a report and a Garda superintendent or, more likely, a sergeant is concerned, does this new provision adequately provide for revocation of a firearm certificate in an expeditious but fair manner? In the past there was concern regarding paramilitaries but that is one that, I hope, has totally faded. It is more the issue of mental instability and the possibility of danger to others that cause me concern, and whether they are adequately covered by this provision.
On a related question which I am sure is dealt with elsewhere, if a member of the Garda Síochána believes he or she is required in the interests of public safety to immediately seize a firearm, is there power to do this without going through the prescribed procedure at the time and to complete it later?
That presents no difficulty. There is an existing power in regard to the seizure of firearms.
Where is it provided?
Is it provided in the existing Bill?
Once a person has a certificate——
I am talking about force majeure, where it is necessary to do something immediately.
I understand the point. The Deputy is talking about pre-revocation power.
Yes, instant action.
There is power to do that in general law.
Not under the 1925 Act.
No. The 1925 Act provides for a licensing regime. It does not deal expressly with powers of that type.
Could an individual who fears that somebody might do something rash confiscate a firearm?
No. An individual might commit the tort of conversion. The courts have recognised circumstances in which peace officers can seize weapons where danger is apprehended.
Deputy Howlin has raised a very interesting point. If, for example, there are two brothers on a farm where there are a couple of firearms for which certificates have been issued and there are indications of trouble between them or, perhaps between them and their neighbours and, in addition, the issue of mental instability is raised because one of the brothers has been certified and possibly compulsorily dealt with under the Mental Health Acts, can a Garda superintendent or sergeant go in and take the shotguns on the basis of averting an immediate danger and follow the prescribed procedures, the serving of notices and so on, later? That is the point about which we are concerned.
A garda can at any time seize a firearm where he or she apprehends there is danger to the life of a person.
Is there a legal basis for this or is the Minister of State talking about common law?
That is common law.
A provision might be considered on Report Stage to cater for such emergency seizures to be incorporated into this legislation.
The Minister is prepared to examine the issue, but it is a well established principle of common law dating back decades that peace officers have wide powers of seizure in circumstances where there is danger to life or an apprehension of a breach of the peace.
Can a citizen not do it?
The position of a citizen is different. However, in the case canvassed by Deputy O'Keeffe, within the umbrella of the concept of self-defence, a citizen would be entitled to take measures to protect himself or herself.
I hope, having covered for him, I received honourable mention in the Minister's press conference.
The Deputy will be pleased that when we were asked whose seat we were targeting, we said we had no specific seat in mind.
That is such a relief.
I move amendment No. 112:
In page 25, before section 24, but in Part 4, to insert the following new section:
"35.—Section 6 of the Principal Act is amended—
(a) by the deletion of “When a Superintendent revokes a firearm certificate” and the insertion of “When a firearm certificate is revoked”, and
(b) in paragraph (a), by the insertion of “of the district in which the person resides” after “Superintendent”.”.
At present, the legislation provides that a Garda superintendent must approve a sale. It is being changed to include the term "issuing person" to ensure that the Commissioner, where he is the issuing person, is also covered.
I move amendment No. 113:
In page 25, before section 24, but in Part 4, to insert the following new section:
"36.—Section 8 of the Principal Act is amended in subsection (1) by the deletion of paragraphs (d) and (e) and the insertion of the following paragraph:
"(d) any person who has been sentenced to imprisonment for—
(i) an offence under the Firearms Acts 1925 to 2006, the Offences Against the State Acts 1939 to 1998 or the Criminal Justice (Terrorist Offences) Act 2005, or
(ii) an offence under the law of another state involving the production or use of a firearm, and the sentence has not expired or it expired within the previous 5 years, and".".
Amendment No. 113 seeks to amend section 8 of the Firearms Act 1925 by extending the categories of persons who are disentitled to hold firearm certificates. These categories currently include persons under the age of 16, persons of intemperate habits, persons of unsound mind and persons who have been sentenced for any crime to a term of penal servitude which has not expired or which expired within five years of an application. My amendment will additionally disentitle from holding a firearm certificate persons who have been sentenced to imprisonment for an offence under the Firearms Acts, Offences Against the State Acts or Criminal Justice (Terrorist Offences) Acts and an offence under the law of any other state involving the production or use of a firearm where the sentence has not expired or expired with the five years prior to an application. We want to be in a position to exclude a person who comes here from England and who has a firearms conviction that was applied in the recent past.
Deputy Jim O'Keeffe proposes two amendments, the first of which seeks to include, in addition to my provision, persons committing offences under some 15 statutes. The general thrust of his amendments seems to be to disentitle from holding a firearms licence persons who have been sentenced to imprisonment for offences against the person or property or whose sentences have not expired or expired within the previous five years. While I sympathise with the Deputy, up to a point, regarding the Misuse of Drugs Acts, we must ask if someone who smoked a joint five years ago should be obliged to give up his or her shotgun now. In the first instance, sections 3 and 4 of the Firearms Act 1925, which govern the granting of firearm certificates and set out the conditions that apply to such grants, provide that before a certificate is granted, the Garda must be satisfied that the applicant is not a danger to the public safety or peace. In deciding whether to grant a firearm certificate, the Garda must have regard to whether the applicant has committed any serious offences and the nature of such serious offences, and must weigh such matters in the balance.
With the strengthening of sections 3 and 4 of the 1925 Act as provided for in amendments Nos. 106 and 108, the Garda will be obliged to have regard to the list of offences mentioned in Deputy Jim O'Keeffe's amendment in considering whether or not an applicant for a firearm certificate is a danger to the public safety and peace. It is not necessary, therefore, to list every statute under which an applicant may have been convicted in circumstances where the Garda is generally required under the law to take a view about the suitability of a person. That includes the taking into account of a person's convictions.
A further difficulty with the Deputy's amendment is that it includes statutes which have been substantially repealed, such as the Offences Against the Person Acts 1826 and 1861, as well as Acts that have been provided for offences which need not constitute an automatic bar to the holding of a firearms licence. For example, there are very technical offences under the Misuse of Drugs Acts such as the issuing of a controlled drug without a prescription. While I sympathise with the Deputy's aims, we should focus on the Garda's general duty to assess the character of the applicant rather than set out a series of statutes. If one mentions specific statutes, some gardaí may feel that their discretion ends with an assessment of only those offences committed under the legislation set out. The broader the series of statutes that serve to preclude applicants, the more gardaí will be tempted to conclude that persons who pass the test such legislation constitutes are not a danger to public safety or the peace.
I felt it would be helpful to be more explicit but the Minister argues to the contrary and I see merit in the points he makes. I would still like to consider the matter on Report Stage. However, I will not press it now.
I am concerned by new paragraph (d)(ii) which refers to offences under the law of another state involving the production or use of a firearm. It is understandable to cover offences committed in the UK where we know the law, but the reference is to any other state. I do not know the laws of Islamic states, for example, and I am sure the Department is not familiar with every legal system. I take it the intention is that such offences may debar an applicant as opposed to create a mandatory bar in the parent Act. I would like the Minister to share his thoughts on circumstances in which a technical breach of a firearms law in another state might occur which would have no application in this jurisdiction or which would not be comprehended by what we understand as an acceptable standard to debar from having a licence a person who might otherwise and quite reasonably be issued with one.
While Deputy Howlin was speaking, I thought about whether we should include the phrase "possession, production or use". It is precisely that point around which the issue of unfairness arises. If a person were convicted on foot of having forgotten to renew his or her permit in Spain, should we knock them on the head?
A person might inadvertently go shooting at a reserve.
The debarring offence must be one which results in imprisonment.
That would cover the Spain issue but it may not be sufficient. One could be sentenced in some jurisdictions to a term of imprisonment in circumstances that would not attract the same level of punishment here.
If a person has served a prison sentence within five years of applying for a licence in Ireland, the section provides that he or she will be disentitled. It is a good rule of thumb according to which a person should not be granted a licence if he or she has been imprisoned in another state.
There may be the odd exception.
One could be in jail in Myanmar under a concocted firearms offence. The leader of the democracy movement there has been under house arrest for 20 years.
I bet that only €10,000 would get one out.
Yes. I do not want to delay the committee.
I move amendment No. 114:
In page 25, before section 24, but in Part 4, to insert the following new section:
"37.—Section 9 of the Principal Act is amended—
(a) by the substitution of the following subsection for subsection (4):
"(4) The registration of a person in the register of firearms dealers shall continue in force for a period of 3 years from the date of the registration, unless previously revoked and, if renewed, for a further period of 3 years from the expiration of that period or, as the case may be, of any subsequent such period for which the registration was renewed.",
(b) by the insertion of the following subsections after subsection (9):
"(10) The Minister, after consultation with the Commissioner, may by regulations specify minimum standards to be complied with in relation to premises in which a firearms dealer carries on business or proposes to do so.
(11) The minimum standards shall be determined by reference to—
(a) the security of the premises,
(b) their safety, and
(c) their standard of construction, and having regard to their use for, as the case may be, the manufacture, repair, testing, proving or sale of firearms or ammunition.
(12) Applicants for renewal of registration shall satisfy the Minister that their premises comply with the minimum standards specified in any regulations under subsection (10) of this section.
(13) Without prejudice to subsection (3) of this section, the following persons are declared to be disentitled to be registered in the register of firearms dealers:
(a) a person under the age of 18 years;
(b) a person of unsound mind;
(c) a person who has been sentenced to imprisonment for an offence under the Firearms Acts 1925 to 2006, the Offences Against the State Acts 1939 to 1998 or the Criminal Justice (Terrorist Offences) Act 2005;
(d) a person who is bound by a recognisance to keep the peace or be of good behaviour, a condition of which is that the person shall not possess, use or carry a firearm or ammunition.”.”.
Section 9 of the Firearms Act 1925 provides for the registration by the Minister of firearms dealers. Amendment No. 114 provides for the substitution of new subsection for section 9(4) and for the insertion of the new subsections (10), (11), (12) and (13) in section 9 of the 1925 Act. The new section 9(4) will facilitate administrative efficiency by providing for the renewal of registration every three years rather than annually. The new subsections (10), (11), (12) and (13) provide that the Minister may make regulations specifying minimum safety and security standards for firearms dealers' premises. Under the existing law, there are no specified safety and security standards, which is remarkable. It is proposed that the Minister may specify the minimum standards by reference to the safety, security and construction of firearms dealers premises.
The new section 9(13) provides that certain persons are disentitled to be registered as firearms dealers. At present, no person is automatically disentitled to be registered as a firearms dealer under the law. While the 1925 Act provides that persons are disentitled to hold firearm certificates, there are no provisions on the registration of firearms dealers. The strange position exists that a person wholly unsuitable to own a shotgun by reason of convictions could be a wholesaler of firearms. I am providing for a disentitlement of certain persons being registered as firearms dealers and the provisions mirror those for the disentitlement to hold a firearm certificate under the previous section.
Deputy Jim O'Keeffe is proposing seven amendments to my amendment. Amendments Nos. 1 to 5 to the amendment are drafting in nature. Amendment No. 6 to the amendment refers to the age at which a person may become a firearms dealer and seeks to have it increased from 18 to 21 years. At present, there is no age restriction and I am proposing one of 18 years. The important point to consider when deciding to register a person as a firearms dealer is his or her suitability. I am open to being pressed on that amendment. It is very young to be a firearms dealer when one is between 18 to 21 years and the likelihood of this happening is open to question. In fact, one must provide evidence of age to be served drink when one is in that age range.
I am open to persuasion on amendment No. 6 to my amendment. The general rule should be that when one is old enough to vote, one has reached the age of majority. However, the idea of a 19 year old firearms dealer is slightly frightening.
My general approach is that a firearms dealer has a very responsible job and, therefore, we should ensure that anybody who seeks to be recognised as such a dealer is someone on whom we can rely. I am concerned about people being too young to be firearms dealers. Obviously, I want to ensure that firearms dealers would be of sound mind. In my view, a person with a criminal record should not be recognised as a firearms dealer. Not everybody is suitable to be a firearms dealer.
This Bill will provide for applications to be rejected on the general grounds that some people are not suitable to apply.
There will be a discretionary power in the case, for example, of former paramilitaries who escaped the rigors of the law and who might not have criminal records.
And who were elected to the Dáil.
I would not look forward to such people being licensed as firearms dealers.
After decommissioning, they might have a hankering to see a rack of rifles again.
They might have the expertise, but I would be concerned, in the short to medium term, if they were in control of firearms. If the Minister is satisfied that the new position is watertight and that undesirables will not be licensed, I will not press these amendments.
The Bill requires the Minister to issue the certificate to a firearms dealer and he or she must be satisfied about the character of the applicant. There is direct ministerial responsibility and I cannot imagine circumstances in which somebody of bad character or a person who was the brother-in-law of a major drugs dealer would come in under the radar and have his bona fides carefully examined.
I would not expect people to get through the net under the Minister. Who knows, however, what might happen after an election, when a person who holds a different outlook to that of the Minister might be appointed to the Department of Justice, Equality and Law Reform?
On the question of the age, I ask the Minister to accept my amendment No. 6 to his amendment or I will retable it on Report Stage.
I am prepared to deal with it on Report Stage to ensure that I get the position right.
I welcome the new regulation in regard to dealing in arms. The term "arms dealers" sounds somewhat more grandiose and encourages one to think in terms of the Jackal and other such characters.
On the question of age, I am inclined to agree with Deputy Jim O'Keeffe but what strikes me is that it might arise when a family business is being passed on. Apart from that anomaly, I am happy with the amendment.
I move amendment No. 115:
In page 25, before section 24, but in Part 4, to insert the following new section:
"38.—Section 10 is amended by the insertion of the following subsections after subsection (4):
"(4A) It is an offence for—
(a) a registered firearms dealer (notwithstanding subsection (1) of this section),
(b) a person engaged in the business of carrying or warehousing goods for reward, or
(c) an auctioneer who stands authorised under section 13 of the Firearms Act 1964,
to possess, use, carry, sell or expose for sale a restricted firearm in the ordinary course of business, unless authorised to do so by an authorisation under this section which is in force.
(4B) Application for such an authorisation shall be made to the Minister in the prescribed form by a person mentioned in subsection (4A) and be accompanied by the prescribed fee (if any).
(4C) The applicant shall supply in writing any further information that the Minister may require in the performance of his or her functions under this section.
(4D) An application for renewal of an authorisation may be made within 3 months before it ceases to be in force.
(4E) An application for an authorisation or its renewal shall be refused if granting it would, in the opinion of the Minister, prejudice public safety or security.
(4F) A decision on an application for an authorisation or its renewal shall be given within 3 months from the date on which the applicant submitted a completed application form.
(4G) An authorisation under this section which is in force shall, unless earlier revoked, continue in force for a period of 3 years from the date on which it was granted and, if renewed, for a further period of 3 years from the expiration of that period or, as the case may be, of any subsequent such period for which the authorisation was renewed.".".
The Firearms Act 1925 provides that it is not lawful for any person to manufacture, sell, repair, test or prove or expose for sale or have in their possession for sale, repair, test or proof by way of trade or business any firearm or ammunition unless such person is a registered firearms dealer. It also exempts from the requirement to hold a firearm certificate, auctioneers and persons engaged in the warehousing of firearms and auctioneers while engaging in their normal course of business. Section 10 of the 1925 Act is being amended to provide that such persons must obtain from the Minister a specific authorisation to use, carry, sell or expose for sale restricted firearms. The purpose of this authorisation is to ensure that all restricted firearms are properly controlled and that the persons wishing to trade in restricted firearms do not prejudice public safety or security. Deputy Jim O'Keeffe proposes five amendments, all of them drafting in nature.
I have no problem with the new section. My five amendments to the amendment are of a minor technical nature for consideration by the Parliamentary Counsel.
I move amendment No. 116:
In page 25, before section 24, but in Part 4, to insert the following new section:
"39.—The following section is inserted after section 10 of the Principal Act:
"10A.—(1) A person (except a registered firearms dealer or the holder of a licence under this section) who reloads ammunition is guilty of an offence.
(2) An application for a licence under this section shall be in the prescribed form, be accompanied by the prescribed fee (if any) and be made to the superintendent of the Garda Síochána of the district in which the applicant resides.
(3) A superintendent shall not grant a licence under this section unless satisfied that the following conditions are complied with:
(a) the applicant holds a firearm certificate;
(b) the reloading of ammunition will not, in the particular circumstances, endanger public safety or security or the peace;
(c) the person has a special need which, in the opinion of the superintendent, is sufficient to justify granting the licence;
(d) the applicant is competent to reload ammunition;
(e) the premises where the reloading is to take place are sufficiently safe and secure for that purpose.
(4) The superintendent may at any time—
(a) attach to the licence such further conditions as he or she considers necessary for the purpose of preventing danger to members of the public or the peace or for ensuring that ammunition is reloaded only to satisfy the special need of the applicant, and
(b) for that purpose vary any of those conditions.
(5) The licence—
(a) shall be in the prescribed form,
(b) shall be granted for a specified period not exceeding 3 years, and
(c) may be revoked by the superintendent if he or she is no longer satisfied that any condition mentioned in subsection (3) of this section is being or will be complied with.
(6) A person who, without reasonable excuse, does not comply with a condition mentioned in subsection (3) or (4) of this section is guilty of an offence and liable—
(a) on summary conviction, to a fine not exceeding €5,000 or imprisonment for a term not exceeding one year or both, or
(b) on conviction on indictment, to a fine or imprisonment for a term not exceeding 5 years or both.
(7) The Minister may by order specify the maximum quantity and type of component parts of ammunition that may be purchased, sold, stored or used to reload ammunition by an individual who holds a licence under this section or a registered firearms dealer.
(8) In this section "reloading ammunition" means making ammunition from spent ammunition, and cognate expressions shall be construed accordingly.".".
This amendment inserts a new section 10A into the 1925 Act to provide a statutory basis for the reloading of ammunition and the phrase "reloading" is one with which people are not familiar. Reloading of ammunition is the process by which spent ammunition cartridges are reused by the insertion of a new primer, gunpowder and lead or other slug. This activity is defined as manufacturing ammunition, which under existing law may only be undertaken by a registered firearms dealer.
We are providing that anybody who holds a firearm certificate may apply for a certificate to reload ammunition for his or her own use. The new section provides that a person may apply to a Garda superintendent for a licence to reload ammunition. The superintendent shall not grant the licence unless satisfied that the applicant holds a firearm certificate, that the reloading will not in the particular circumstances endanger public safety, security or the peace, that the person has a special need, which, in the opinion of the superintendent, is sufficient to justify granting the licence, that the applicant is competent to reload ammunition and that the premises where it will happen are safe and secure for the purposes. In addition, the superintendent may attach such conditions as he or she considers necessary to ensure public safety and security. The section provides that it is an offence to reload without a licence. The maximum penalty is €5,000 on summary conviction and a fine on conviction on indictment. The maximum prison sentence is one year on summary conviction and five years on conviction on indictment. It is an arrestable offence. Subsection (7) provides that the Minister may make an order specifying the maximum quantity and types of component parts of ammunition that a person may buy, sell, store or use to assemble complete rounds of ammunition.
Deputy O'Keeffe is proposing 14 drafting amendments to the amendment.
I have no difficulty with the section. The amendments are of a technical nature and I ask that they be considered.
I have to start from a basis of ignorance. I do not understand what this is about, what "reloading ammunition" means, for example. It strikes me that it is a dangerous procedure. How many engage in this activity? Perhaps it is a regular occurrence, but it strikes me that there would be planning and health and safety issues involved. Is it necessary to provide for this in any way?
This arises from people coming to my Department and clinic. I had never heard of the phrase before and was not aware of the activity involved. If a person is an Olympics marksman, just as a billiards player chalk his or her cues, he or she will disassemble munitions to ensure the correct velocity or power. It is arcane in some respects but it does happen. Under the law, such a practice is illegal and regarded as the manufacturing of firearms. The people concerned have to test bench operations where they carry out these activities, all done in good faith. Specialised equipment is required. A person would not yank off the top of a bullet, shake out the powder and proceed in a crude way. It is a state-of-the-art process for the marksmen involved. They pointed out that technically what they were doing was illegal.
Am I misreading the amendment? I understood the purpose of this section was to allow firearms dealers to do this work.
No, it covers anybody who has a firearm certificate, which a person must have to carry out the work involved.
The new section 10A(1) reads: "A person (except a registered firearms dealer or the holder of a licence under this section) who reloads ammunition is guilty of an offence."
Yes, without a licence, it is an offence.
Could firearms dealers do this work?
If they have a firearm certificate, they can.
How many will be affected by this?
I cannot put a number on it, but I am sure it is——
Is the number entirely composed of competition marksmen, or are there others who may be reloading?
I do not know how many have firearms and for what purpose. The number who would dream of pulling apart a bullet and fiddling with the contents would be very small.
I hope so.
They are high class shots who participate in competitions with a pistol.
By this definition an ordinary decent thug who wants to shoot somebody's head off will not reload cartridges. Only those who have a particular reason to do such as accuracy, muzzle velocity and related issues wish to have their ammunition at the peak of perfection.
It is legitimate.
Yes, nobody who is bad-minded would be interested in this provision. If they were, they would be prosecuted for possession of firearms and ammunition.
They would not be looking for a licence anyway.
Premises must be defined as being separate or distinct from living quarters. There should be a secure workshop. From the description of the Minister, I do not know where——
I will deal with those issues by way of regulations.
Is there a section in the principal Act dealing with the repair of weaponry and associated matters?
We dealt with that matter in the previous section.
This would not come under it; that is why I am asking.
This section relates specifically to ammunition. It deals with a quasi-manufacturing process for ammunition.
Clearly, it has the same implications for the storage of equipment — the accelerant, gunpowder, etc.
If a person has a licence, a superintendent is entitled to apply conditions to it. I have no doubt these would be stringent.
I move amendment No. 117:
In page 25, before section 24, but in Part 4, to insert the following new section:
"40.—Section 11 of the Principal Act is amended—
(a) in subsection (2), by the substitution of the following paragraph for paragraph (d):
"(d) has become a person who is declared under section 9(13) of this Act to be disentitled to be registered in the register of firearms dealers,”,
(b) by the substitution of the following subsections for subsection (3):
"(3) A person whose name is removed under this section from the register of firearms dealers shall, on such removal, forthwith deliver up to the Minister—
(a) the person’s certificate of registration or renewal, and
(b) the register kept by the person under subsection (1) of section 12 of this Act.
(4) A person who contravenes subsection (3) of this section is guilty of an offence and on summary conviction is liable to a fine not exceeding €1,000.".".
This amendment relates to section 11 of the Firearms Act 1925 which provides that the Minister may remove the names of persons from the register of firearms dealers in certain circumstances. The amendment inserts a new subsection (4) into section 11 which provides that on removal, a person must surrender all of his or her records to the Minister. Currently, there is a loophole in the law. If a person is put out of business, the Minister will want to know to whom the person sold all of his or her weapons and the serial numbers on the weapons. The fine is being increased to €1,000. Deputy O'Keeffe's has proposed a number of drafting amendments.
The Minister may have a view on this question or consider it before Report Stage. Is a fine of €1,000 sufficient for a breach of the provisions of subsection (3)? If there is a good criminal reason for not surrendering material, it appears to be a token fine.
I will consider that matter before Report Stage. The fine may be made more robust.
Amendments Nos. 118, 133 to 137, inclusive, and 141 are related and may be discussed together.
I move amendment No. 118:
In page 25, before section 24, but in Part 4, to insert the following new section:
"41.—The following section is substituted for section 15 of the Principal Act:
"15.—(1) Any person who possesses or controls any firearm or ammunition—
(a) with intent to endanger life or cause serious injury to property, or
(b) with intent to enable any other person by means of the firearm or ammunition to endanger life or cause serious injury to property,
shall, whether any injury to person or property has or has not been caused thereby, be guilty of an offence.
(2) A person guilty of an offence under this section is liable on conviction on indictment—
(a) to imprisonment for life or such shorter term as the court may, subject to subsections (4) to (6) of this section, determine, and
(b) at the court’s discretion, to a fine of such amount as the court considers appropriate,
and the firearm or ammunition concerned shall be forfeited.
(3) The court, in imposing sentence on a person for an offence under this section, may, in particular, have regard to whether the person has a previous conviction for an offence under the Firearms Acts 1925 to 2006, the Offences against the State Acts 1939 to 1998 or the Criminal Justice (Terrorist Offences) Act 2005.
(4) Where a person (except a person under the age of 18 years) is convicted of an offence under this section, the court shall, in imposing sentence, specify a term of imprisonment of not less than 10 years as the minimum term of imprisonment to be served by the person.
(5) Subsection (4) of this section does not apply where the court is satisfied that there are exceptional and specific circumstances relating to the offence, or the person convicted of it, which would make a sentence of imprisonment of not less than 10 years unjust in all the circumstances, and for this purpose the court may have regard to any matters it considers appropriate, including—
(a) whether the person pleaded guilty to the offence and, if so—
(i) the stage at which the intention to plead guilty was indicated,
(ii) the circumstances in which the indication was given,
(b) whether the person materially assisted in the investigation of the offence.
(6) The court, in considering for the purposes of subsection (5) of this section whether a sentence of not less than 10 years imprisonment is unjust in all the circumstances, may have regard, in particular, to—
(a) whether the person convicted of the offence has a previous conviction for an offence under the Firearms Acts 1925 to 2006, the Offences Against the State Acts 1939 to 1998 or the Criminal Justice (Terrorist Offences) Act 2005, and
(b) whether the public interest in preventing the unlawful possession or use of firearms would be served by the imposition of a lesser sentence.
(7) Section 27C of the Firearms Act 1964 applies in relation to proceedings for an offence under this section and to any minimum term of imprisonment imposed in those proceedings.".".
I have a long speaking and note that we are coming to the end of our allocated time. I intend to give committee members a copy of my speaking note as some of it is complicated.
Amendments Nos. 118, 133 to 137, inclusive, and 141 provide for mandatory minimum sentences of five and ten years, respectively, for possession of a firearm with intent to endanger life, possession of a firearm while hijacking a vehicle, possession of a firearm to resist arrest or aid escape, possession of a firearm in suspicious circumstances, possession of a firearm with criminal intent, and altering a firearm. We will return to the phrase "mandatory minimum sentence" at a later stage, but if somebody wants to use the term "normative minimum sentence", I will be happy to call it by that name. It does not matter. I agree a mandatory——
I do not want to weaken the concept. I do not want to send a message to the Judiciary that I am less keen on the matter.
Amendment No. 137 makes specific provisions for the application of mandatory minimum sentences. Amendment No. 118 substitutes a new section for section 15 of the Firearms Act 1925. This new section provides for a maximum sentence of life imprisonment and a minimum mandatory sentence of ten years' imprisonment for the offence of possession of firearms with intent to endanger life or cause serious injury to property.
Amendment No. 133 substitutes a new section for section 26 of the Firearms Act 1964. The new section provides for a maximum sentence of 14 years' imprisonment and a minimum mandatory sentence of five years' imprisonment for the offence of possession of a firearm while taking a vehicle without authority.
Amendment No. 134 substitutes a new section for section 27 of the Firearms Act 1964. The new section provides for a maximum sentence of life imprisonment and a minimum mandatory sentence of ten years' imprisonment for the offence of the use or production of a firearm to resist arrest or escape from custody.
Amendment No. 135 substitutes a new section for section 27A of the Firearms Act 1964. The new section provides for a maximum sentence of 14 years' imprisonment and a minimum mandatory sentence of five years' imprisonment for the offence of possession of a firearm or ammunition in suspicious circumstances.
Amendment No. 136 substitutes a new section for section 27B of the Firearms Act 1964. The new section provides for a maximum sentence of 14 years' imprisonment and a minimum mandatory sentence of five years' imprisonment for the offence of carrying a firearm with criminal intent.
Amendment No. 137 inserts a new section 27C into the Firearms Act 1964 relating to mandatory minimum sentences. Specifically, it provides that the power to commute sentences under section 23 of the Criminal Justice Act 1951 or normal provisions governing the grant of temporary release from prison under the Criminal Justice Act 1960 and Prisons Act 1970 do not apply to mandatory minimum sentences. Under the Constitution, the power to pardon, remit or commute a sentence is vested in the President on the advice of the Government. The Constitution also allows for the power of commutation and remission to be vested in other persons. The Criminal Justice Act 1951 vests this power in the Minister for Justice, Equality and Law Reform, subject to decided court cases. This means the Minister cannot reverse sentencing decisions of the courts on a wholesale basis.
Amendment No. 141 inserts a new section 12A into the Firearms and Offensive Weapons Act 1990, which provides for new offences relating to the altering of firearms. It creates new offences of shortening the barrel of a shotgun or rifle, converting a deactivated or replica firearm into a live firearm, modifying a firearm to fully automatic and increasing the calibre of a firearm. It also makes it an offence to possess a firearm altered in any of these ways. It provides for a maximum sentence of ten years' imprisonment and a minimum mandatory sentence of five years' imprisonment for such offences.
My proposals for mandatory minimum sentences for firearms offences are in line with those already provided for in the Criminal Justice Act 1999 which gave a clear statement to the Judiciary that convictions for drugs offences should attract substantial custodial sentences. In so far as the illegal use of firearms is concerned, a similarly clear statement should be given by the Oireachtas to the Judiciary. Respecting the constitutional imperative that judges have discretion to consider not only the offence but also the circumstances of the individual, I am providing, as with drugs offences, that the mandatory minimum sentence need not be applied in certain circumstances. This would be where the court is satisfied that there are exceptional and specific circumstances relating to the offence or the person convicted of the offence which would make the imposition of a sentence of not less than the mandatory minimum sentence provided for unjust in all the circumstances. These circumstances include any matters the court considers appropriate, including an early guilty plea and material assistance to a Garda investigation. However, the legislation is clear in stating this is to happen only where there are exceptional and specific circumstances that would make a mandatory minimum sentence unjust.
I am also seeking to ensure the grounds for considering a sentence of less than the minimum mandatory sentence are clarified further. I am proposing that, as against mitigating factors such as co-operation and a guilty plea, the court will also be required to take account of the public interest and previous firearms offences. This will act as a counterbalance to any reduction that may have been felt to be appropriate. We cannot have a totally accused-focused system of sentencing. A balance must be held between the interests of society at large and those of the individual.
The firearms offences for which I am proposing the introduction of minimum sentences are of the gravest form. In line with my view on drugs offences, they should attract the severest penalties. It is appropriate that the House should indicate to the Judiciary its utmost abhorrence of such crimes and the view that severe sentences should be imposed. At the same time the House respects the Judiciary's independence and the constitutional requirement that it should never be tied to carrying out a manifestly unjust action. It has been suggested that to legislate for minimum sentences in some way interferes with its independence. I do not believe so, particularly where we are providing for it, in deciding whether to impose a minimum sentence, to exercise discretion in deciding whether a minimum sentence would be just in all the circumstances.
I have the greatest respect for the Judiciary. As a barrister for many years, many in the Judiciary are personal friends of mine. However, the House should express the clear view that it is serious about drug and gun crime. My proposals are simply indicating to the Judiciary that it cannot be the case that these matters are dealt with other than with the greatest severity. This is because the effects on society are corrosive and destructive of ordinary people's constitutional rights. We must ensure the criminal law is able to respond in a way that will retain the confidence of the public and that it provides a strong deterrent for those who seek to undermine the stability and good order of our society.
It is worth noting the 2001 decision of the Court of Criminal Appeal in DPP v. R:
Even where exceptional circumstances exist which would render the statutory minimum term of imprisonment unjust, there is no question of the minimum sentence being ignored. Perhaps the most important single factor in determining an appropriate sentence is the ascertainment of the gravity of the offence as determined by the Oireachtas. Frequently an indication as to the seriousness of the offence may be obtained from the maximum penalty imposed for its commission ... What is even more instructive is legislation which, as in the present case, fixes a mandatory minimum sentence. [The phrase "mandatory minimum sentence" has been used by the Judiciary, not just by me.] Even though that sentence may not be applicable in a particular case the very existence of a lengthy mandatory minimum sentence is an important guide to the courts in determining the gravity of the offence and the appropriate sentence to impose for its commission ... If the court is satisfied that factors exist which would render the mandatory minimum sentence unjust then the court is not required to impose it but the existence of such matters or circumstances does not reduce the inherent seriousness of the offence. It remains the task of the court to impose a sentence which is appropriate having regard to the relevant circumstances and also the fundamental gravity of the offence as determined by the Oireachtas and reflected in the sentences which it has prescribed.
It follows, therefore, that even where the court decides not to impose the minimum sentence, it remains relevant as a consideration in measuring the overall seriousness of the offence.
Some have argued that the application of mandatory minimum sentences for drugs offences has been a failure. Such comments misunderstand the effects the provisions have had. Some years ago it could have been said only 4% of cases, in which more than the threshold of drugs was present, produced a sentence of more than ten years. That situation has changed and the percentage of cases in which a sentence of more than ten years is imposed is over 20%, a significant advance. Talking about it helps; people are listening. I am grateful to the Judiciary for listening to what has been stated in the House. Although the courts have been reluctant to impose the minimum sentence of ten years provided for under the Criminal Justice Act 1999, in practice the provision has been successful in its operation. One of the factors taken into account by the court in declining to impose the minimum sentence is a plea of guilty. It is noticeable that there has been a high rate of pleas.
In research conducted by Mr. Patrick McEvoy, a barrister, into the effectiveness of the mandatory minimum sentence provisions, in all but one of the 55 cases researched, the accused pleaded guilty. As one of the probable effects of conviction on a plea of not guilty is the imposition of the minimum sentence, it seems accused persons and their advisers think long and hard before deciding to fight a particular case. It raises the stakes. Mr. McEvoy also noted that there was a high degree of co-operation by accused persons with gardaí in the investigation of offences and that even where the mandatory minimum sentence was not imposed, the resulting sentence was often severe, with most sentences falling in a range of six to eight years.
I am also providing for two minor technical drafting amendments, namely, the insertion of "or her" after "him" in section 26 of the Firearms Act 1964 and the substitution in section 27B(1) of "or an imitation firearm" for ", or an imitation firearm,".
Deputies Jim O'Keeffe and Ó Snodaigh are proposing a number of amendments to my amendments. I will deal first with those in the name of Deputy Jim O'Keeffe. He proposes a number of amendments to my amendment No. 118. His amendments Nos. 1 to 5, inclusive, to the amendment are drafting in nature and I have referred them to the Parliamentary Counsel. The Deputy's amendment No. 7 to the amendment proposes the insertion of "5" for "10" in the new section 15(5). However, ten years is provided for and not five.
Deputy Jim O'Keeffe's amendment No. 8 to the amendment is drafting in nature and the Parliamentary Counsel advises that it is unnecessary. His amendment No. 9 proposes the deletion of the phrase "the Firearms Acts 1925 to 2006,”. Section 6, as drafted, provides that a court, in considering a sentence of not less than ten years’ imprisonment unjust in all the circumstances, may have regard as to whether the defendant has a previous conviction under the Firearms Acts 1925 to 2006. As already stated, I propose that, as well as mitigating factors and a guilty plea, the court will also be required to take account of the public interest and previous firearms offences. In my view, this will act as a counterbalance to any reduction that may otherwise have been felt to be appropriate. We cannot have a totally accused-focused system of sentencing, but there must be a balance. To delete the requirement that the court take account of previous offences under the Firearms Acts would remove what I consider to be an appropriate balancing measure. Deputy Jim O’Keeffe may be proposing the amendment to the amendment because he wants to disapply it totally for repeat offenders.
In amendment No. 11 to the amendment Deputy Jim O'Keeffe proposes the insertion of a new subsection (7), the effect of which would be that subsection (5) could not apply where a person has been found guilty of a second or subsequent offence under the section. Subsection (5) provides that the court may not impose a minimum mandatory sentence where it is satisfied that there are exceptional and specific circumstances relating to the offence or the person convicted of it, which would make a mandatory minimum sentence of imprisonment unjust in all the circumstances. The effect of this amendment would be to remove the discretion of the courts in circumstances where a person was found guilty of a second or subsequent offence. Given the constitutional requirement that the Judiciary should never be tied to carrying out an action which is manifestly unjust, a provision that disallows the departure from a mandatory minimum sentence in the case of repeat offenders might require the Judiciary to do something manifestly unjust because a person is a repeat offender. I think the Deputy understands that it would be constitutionally dubious and might give rise to an Article 26 reference.
The provision requiring the courts to have regard to the public interest, which is a new provision in the Drugs Act 2005 and in this Bill, and to previous offences in deciding whether to impose a mandatory minimum sentence is the safer of the two legal courses. I am not being dogmatic about this. My heart sympathises with Deputy Jim O'Keeffe's argument but my head tells me I could be on the wrong side of the Supreme Court in an Article 26 reference if I went down that road.
Deputy Jim O'Keeffe proposes a number of drafting amendments to my amendments Nos. 133 to 136, inclusive. I am opposing his amendment to my amendment No. 133 for the reasons I have mentioned.
Deputy Ó Snodaigh is proposing the same amendment to each of my amendments Nos. 118 and 133 to 136, inclusive. He proposes the deletion of subsection (4) of each of the sections. In effect, he is simply proposing the deletion of the mandatory minimum sentencing provisions. Notwithstanding the fact that he wishes to delete the provisions relating to the imposition of mandatory minimum sentences, he is proposing the insertion of new conditions to which the court should have regard. As that is obviously a fall-back position, I am not trying to make a smart point in that regard. I have outlined in detail my reasons for introducing mandatory minimum sentences for the more serious firearms offences. It is imperative that this House sends the right signal to those engaged in drugs and gun crime, and not just to the Judiciary, on where we stand on this issue.
Deputy Jim O'Keeffe is proposing two amendments to my amendment No. 137, the first of which is drafting in nature. His second amendment would have the effect, in so far as prisoners on mandatory sentences are concerned, of suspending the normal rules whereby such individuals may earn remission of sentence through industry and good behaviour. These rules are designed for specific purposes, including the rehabilitation of prisoners, as incentives to good and orderly behaviour and are important for the overall security, safety and management of prisons and prisoners. To suspend such rules in respect of prisoners held on mandatory minimum sentences would have a serious and negative effect on both the rehabilitation of offenders and on the overall safety and security of prisons. The Judiciary knows well that at present there is a 25% remission rate for good behaviour and it takes that into account when handing out sentences.
To suggest that, no matter how badly a person behaves in prison, he or she will serve the same sentence may seem strict and many people might say it is good, tough law but in running a prison there must always be incentives for people to co-operate with the regime. If we took away the possibility of remission, prisoners could act as boorishly, obstreperously and thuggishly as they wanted, short of committing a criminal offence, and nothing could be done while they were in prison. Deputies might be interested to know that under amendments to the Prisons Bill, which is coming from the Seanad, I propose to make statutory provision for forfeiture of remission and the right of appeal for significant forfeiture of remission because we are somewhat worried about the European Convention on Human Rights. It is, at present, a decision for governors, which is not ideal.
Deputy Ó Snodaigh is proposing the deletion of the provisions concerning the power to commute sentences under the Criminal Justice Act 1951 and the temporary release provisions. I do not propose to accept his amendments. Removing temporary release provisions does not mean that a prisoner cannot attend his or her mother's funeral but it does mean that he or she must do so in the company of prison officers and that he or she should not get three days or a week away from prison to facilitate his or her attendance. This provision does not mean that prisoners can never leave a prison in any circumstances, rather it means that they are not entitled to avail of the statutory regime of temporary release. The purpose of this is to indicate to offenders that whatever sentence they receive — be it the mandatory minimum, more or less — they will serve it. There is no question of a Minister being told to let prisoners out after a short while. If it became necessary for some special reason to commute or remit a sentence, the Government would be obliged to make a decision and advise the President to authorise such a commutation or remission. There is a safety valve but it should only be opened in the most exceptional circumstances.
Deputy Jim O'Keeffe's amendment No. 5 to my amendment No. 141 would have the same effect as amendment No. 11. I am not keen on this amendment for the reasons I have outlined, namely, that I am genuinely concerned that I would be on the wrong side of an Article 26 reference.
The Minister will circulate that response to members and we will reconvene on Wednesday, 3 May at 2 p.m until 5.30 p.m. The following Wednesday, 10 May, we will meet from 5 p.m. until 8.30 p.m. The following day, Thursday, 11 May, we will meet from 9.30 a.m. until at least 1 p.m.