Irish Olympic target shooting

Joint Oireachtas Committee Interim Report on Firearms Review (and response)

Late last week the Joint Oireachtas Committee published its Interim Report on its review of Irish Firearms Legislation. It’s a bit of a mixed bag. Some of its recommendations are just good; some could be good but how they’re implemented will determine if they’re good or bad; and at least one of them is actually not legal.

Here’s the shortlist of the recommendations:

1. The Committee strongly recommends that the Minister request that the Garda Inspectorate carry out an independent review of the current firearms licensing regime;
2. The Minister should establish a national firearms control and advisory licensing authority with an associated central database also accessible by an Garda Síochána;
3. A ballistics record of all license firearms should be created and maintained;
4. The Committee recommends that the licencing of point 22 calibre short firearms and centre fire semi-automatic rifles be temporarily restricted;
5. The Committee recommends that all firearms be stored in a gun safe;
6. It is recommended that holders of restricted firearms are required to have time control locks fitted to their gun safes only allowing access at pre-determined times;
7. The Committee recommends the establishment of a structured and graduated licensing scheme.

And here’s my comments on them, as sent to the Committee:

Re: Review of Firearms Licensing – Interim Report

Dear Chairman and Committee,

While the interim report of the committee on its review of firearms licencing contained many excellent and well-received points, there were some points that contained serious errors and some others where the recommendation did not seem to align with available data or was of questionable efficacy or even legality. I would like to submit some thoughts on the Interim Report in the hope of contributing constructively to the Final Report.

Recommendation 1 :

The Committee strongly recommends that the Minister request that the Garda Inspectorate carry out an independent review of the current firearms licensing regime;

This is an excellent suggestion, one which has been widely received in positive terms in the shooting community. I would only suggest to the Committee that as part of the independent review’s terms of reference, special consideration be made for an audit of the data contained within PULSE. As the committee will be aware from previous correspondance from myself (REF 2015/267a) and others, the recent figures of 5 March were shown to have significant flaws by the subsequently released detailed data in response to a parlimentary question tabled by Committee member Deputy Collins.

This detailed data revealed that the figure of approximately 1700 firearms stolen between 2010 and 2014 in fact included several firearms which could not be licenced by ordinary civilians under 91/477/EEC or under Irish firearms law, as well as large numbers of unlicenced firearms; almost 20% of the items listed were not firearms even under our legal definition of the term “firearm” (which is, as you know, the widest such definition in Europe), and the list also contained many other items which would not be considered to be a firearm by a member of the public and which could not reasonably be said to constitute a danger to public safety, but which are nonetheless strictly speaking firearms under the law.

These anomalies combined resulted in a figure being released which was misrepresentative of the situation, and these anomalies also raise questions over the validity of the remaining data. For example, there is a category within the data for shotguns, and four seperate categories for different kinds of shotgun, but no way to tell if there has been inadvertent duplication within the data should someone record a firearm under several categories believing this would lead to a more accurate record when in fact it would lead to an inaccurate final tally of events. For example, shotgun and double-barrelled shotgun and under-and-over shotgun are three of the available categories in PULSE and one firearm could be legitimately described by all three categories, but this would lead to a final tally of three entries for one event.

I would also point out that many of those in the shooting community, including myself, have personally experienced errors on our firearms certificates, ranging from errors in the make, model or serial number of our firearms on the certificate; to being listed multiple times in PULSE for a single firearm; or indeed being listed as that firearm’s owner in PULSE years after having sold it and having correctly notified the Gardai of the sale. This last error would imply at best that that firearm had multiple certificates attached to it in PULSE; a situation which would not be detected automatically as an error because it is legally permitted for one firearm to have multiple certificates (in fact the training firearms certificate is dependant upon this legal principle).

A critical audit of the data should be sought as a matter of urgency so that the quality of the data within PULSE might be assessed and made known.
Recommendation 2:

The Minister should establish a national firearms control and advisory licensing authority with an associated central database also accessible by an Garda Síochána;

This recommendation has also been met with approval, though with more reserve compared to recommendation 1 because this recommendation’s merit will be very dependent on the details of its implementation.

The establishment of a national authority for licencing would permit effective and economical training of those responsible for the administration of the licencing process, which is currently not feasible. It would allow for standardisation in the process and would have several other advantages. But it would also place the authority at the centre of a great deal of examination from the community. Perceived bias or unprofessionalism in the authority would be enormously damaging to the entire system. This should be borne in mind from the outset.

The Committee’s recommendation that a standing consultative forum be formed including all major stakeholders is one I personally feel is of great merit; the previous such forum (the Firearms Consultation Panel) was of enormous benefit to all stakeholders and such a format would be perhaps the best way to approach the longer-term project of rectifying some of the difficulties and anomalies within Irish firearms legislation. However the nature of the forum’s relationship with the authority would be of critical importance. Its predecessor was successful because it brought all parties to the same table on an equal footing under the aegis of the Minister; should the proposed forum report to the authority and be organised in a hierarchial fashion, instead of the authority being a stakeholder in the forum with standing equal to the other stakeholders under the aegis of the Minister, then this forum would be doomed to fail from the outset as it would be felt by all that its function was to provide a forum to raise problems with the implementation of the Act, which could then be ignored by the authority in the name of expediency and never raised with the Minister.

Further, when the Committee expresses the opinion that this national authority would propose standards, competencies and tests, it must be stressed that there are no bodies currently extant in the State who possess the competency to do so in the context of civilian firearms ownership, other than the civilian shooting bodies themselves. The Gardai and Defence Forces training in the use of firearms is centered around their tactical use against human beings; Civilian firearms ownership and standards are so different from this as to be an entirely different field of endeavour, as has been evidenced in every club in Ireland for decades whenever a new member joins that club having been trained in the Defence Forces or the Gardai beforehand, and several range safety protocols must be unlearned by these new members and more appropriate ones learned for civilian ranges.

As a result of this, it would be necessary from the outset that expertise be brought into the authority, either from the civilian shooting community (which could be seen as a conflict of interest) or from outside the state. A possible alternative is available with precedent; the Firearms Consultation Panel successfully compiled the standards used for licencing firearms ranges in Ireland by combining the expertise from the shooting community with the oversight of public safety from the Gardai and the policy direction from the Minister via the Department. Such a process is not fast, but the end result is far less troublesome and error-prone. Perhaps the Committee could consider such technical endeavours as being suited to the forum rather than the authority, thus allowing seperation between the drafting of standards and their application.

Seperately, it must be kept in mind that while all target shooters should have a basic standard of competence in the interests of safety, licencing tests should never be based on proficiency. As Minister for Justice Michael McDowell commented on several occasions during the framing of the 2006 Criminal Justice Act (which rewrote vast swathes of the Firearms Act), it should not be a requirement for someone participating in the sport that they be devoted to achieving the highest standard in the sport at the cost of all other considerations; after all, not every golfer needs to be Tiger Woods to enjoy golfing safely. The safe pursuit of the sport of target shooting at a lower proficiency level must never be seen as second-class or unacceptable by the licencing system, so long as sufficient basic competency is maintained to ensure safety. We should, in shorter terms, ensure that all the rounds go into the backstop, rather than counting how many hit the bullseye. Furthermore, for any new shooter entering the sport, a practical test emphasising proficiency would require someone to have proficiency so that they could obtain the licence with which to develop that same proficiency. This would not be an ideal situation.

I would also commend the Committee’s recommendation of an independent body of appeal in licencing decisions outside of the Courts, but the idea of this being a body of final appeal is troubling. While the Courts are not an option to be undertaken lightly and a non-judicial first step in the appeals process would be very welcome, it would be a great step backwards for firearms legislation to remove the Section 15A appeals process from the Firearms Act. This removal would revert us to the situation prior to 2006, when appeals in the licencing process were required to be taken as Judicial Reviews in the High Court; a process that is prohibitively expensive and which ultimately is an unnecessary use of the High Court’s limited time. While Section 15A is not ideal as it requires the applicant to appeal in the Courts directly with no prior step being available for an independent non-judicial review, it represents a vast improvement on the situation prior to the introduction of 15A. I would appeal to the Committee to reconsider the finality of the nature envisaged for the independent appeals mechanism suggested.

Recommendation 3:

A ballistics record of all license firearms should be created and maintained;

As I mentioned in my original submission to the Committee:

Other jurisdictions have indeed attempted this practice. Maryland and California have done so in the United States. However, their experiences have done more to prove that the CSI effect lamented by professional forensic analysts has not diminished, than they have to prove that the concept works. A study carried out by the National Institute for Forensic Science for the California Department of Justice in 2003 indicated that in 68% of cases, the system was unable to determine if two bullets had been fired from the same firearm if the bullets were made by different manufacturers, and in 38% of cases if made by the same manufacturer (success in these tests was defined as the correct gun being in the top fifteen possibilities chosen by the system).

The cost of the system was also quite high, costing several million dollars to maintain (the Maryland estimate of $60 per firearm would suggest a cost in Ireland on the order of ten million euro). In 2005, the Maryland police department wrote a formal report to the state government recommending that the system be abandoned citing its cost, its unreliability and its failure in the five years since its introduction to yield a single conviction.

While I completely understand the Committee’s intent in this regard, the question of the cost of the system and it’s demonstrated efficacy in other states is such that I would suggest that perhaps a cost-benefit analysis should be carried out independently and that the experiences of California, Maryland and indeed Canada be considered when evaluating this recommendation during the preparation of the Committee’s final report. While many shooters would consider a one-off cost of similar levels seen in Maryland to be worth the price if it were to stop insinuations and outright statements that stolen licenced firearms are a main source of firearms used in gun crime (despite statements to the contrary being made by other sections of the Gardai), it is unlikely that such an affect would result from the creation of this system, and it is equally unlikely that such a system would be financially self-sustaining in the long term. This would lead to either a continuing escalation in one-off fees at the point of testing, or a continuing escalation in licencing costs for all firearms owners, despite the system being ineffective in preventing crime or convicting criminals.
Further, while it is understandable that the committee would believe that the 1968 Firearms Proofing Act should finally be enacted, it must be considered first that the practice of proofing firearms is not a universally accepted one and is not required in many countries because it is by nature a destructive test which could cause the very thing it seeks to prevent by introducing damage to the firearm that would not have occurred in normal use, but which would subsequently render normal use dangerous to the end user without such danger being detected by the test.

To suggest that 200,000 firearms should all be subjected to a potentially destructive proofing test despite the lack of a native proofing house or the local expertise to run such a facility would be expensive and would naturally expose the state to liability claims in the event that such a test was to cause damage to a firearm.

Furthermore, certain classes of firearm simply cannot be tested using the proofing process, such as airguns, crossbows and so forth; and some, such as custom made long range rifles from countries where proofing is not mandatory, would require reproofing several times a year as barrels are replaced, and the proofing test might well have a negative effect on their accuracy and thus net value, again exposing the state to liability claims.

Recommendation 4:

The Committee recommends that the licencing of point 22 calibre short firearms and centre fire semi-automatic rifles be temporarily restricted;

This recommendation has been the source of much concern in the shooting community, and there are several problems with it, which I want to explore in some detail.

Firstly, there is a degree of confusion arising from the unfortunate use of the term “restricted”, which has a defined meaning within firearms licencing with exceptionally serious implications for the firearms it applies to, especially in the case of pistols. If it were possible to use another term or to express the recommendation in more depth, this would be beneficial.

Secondly, there is no legal mechanism by which either the Minister or the Commissioner may legally cap licencing of a particular class of firearm under the Act in the manner set forth in the Committee’s recommendation. Section 27 has indeed allowed the Minister the power of prescribing and producing regulations for anything mentioned within the Act through statutory instruments, including the licencing function, but that power does not extend to blanket prohibitions on applications under Section 3, as was upheld both in Dunne-v-Donohue and in McVeigh-v-Minister for Justice Equality and Law Reform.

In both these cases, it was upheld by the Supreme Court that a blanket precondition added to those set forth in Section 4 of the Firearms Act was in effect an attempt to amend the Firearms Act, which was outside the authority of both the Gardai and the Minister and which would require the passage of an Act of the Oireachtas to effect. This precludes the possiblity of a temporary halt to licencing specific classes of firearm through statutory instrument (and declaring certain classes of firearm to be unlicencable, instead of introducing a temporary stoppage, would require the withdrawl of licences for all such firearms currently in force, which would surely not be the intent of the Committee’s recommendation).

Further, there is no part of the Act which would permit the concept of a national or local limit on the number of firearms certificates issued, either in total or for one specific class or classes of firearm. It would require extensive rewriting of the Firearms Act in order to allow this, and there would be constitutionality questions surrounding the idea of a numerical limit being applied to a licencing function in this manner, as well as practical ones given that it is perfectly natural to see more firearms licences issued in districts with shooting ranges than those who do not have such facilities. It simply would not be feasible to achieve this recommendation in the timeframe set forth in the recommendation.

Thirdly, the Committee’s recommendation in regard to the licencing of .22 calibre short firearms states that it should be restricted to firearms suitable for competition under ISSF rules, which is a welcome use of an independent international standard; but it goes on to specify that the barrel length of such pistols should not be less than 12.7 centimetres. Several of the most common pistols seen in International ISSF competition and which will be seen on the firing line at the Rio Olympic Games in 2016 have a barrel length less than this – for example, the Walther GSP has a barrel length of 11.5 centimetres; the Pardini SP has a barrel length of 12 centimetres; and the Hammerli SP20 has a barrel length of 12.3 centimetres. It should be noted that all three of these examples were on the original list of examples chosen by the previous Garda Commissioner as being legal to licence in Ireland. It would appear that this is a simple error in the recommendation given the context – perhaps the Committee could correspond with the NTSA in this regard given that they are the national governing body for sports operating with this ruleset and all the accredited experts in this ruleset are members of that body?

It is to be noted however, that the Committee’s explicit mention of a magazine capacity limit of ten rounds should be praised as allowing the accomodation of all the pistol shooting sports currently practiced in Ireland while not in any way impacting negatively on public safety.

Fourthly, I would remind the Committee that while the ISSF rules do cover the majority of pistol events in the Olympic programme, the ISSF is not the only body approved by the IOC to administer events involving shooting, and the IBU (who administer Biathlon) and the UIPM (who administer the Modern Pentathlon event) should be remembered in any final drafting; while their rules and equipment bear many similarities to ISSF rules and equipment, there are notable differences also and these should be examined for any current or possible future conflicts with the law. The current wording of the Restricted Firearms SI avoids this by referring to IOC regulations; while this is confusing in that it does not specifically mention the delegation the IOC approves to the ISSF, IBU and UIPM, it might be easier to add this explicitly in the SI than to carry out an in-depth review of the differences and possible future evolutions of the rulesets of all three organisations.

Recommendation 5:

The Committee recommends that all firearms be stored in a gun safe;

I have no comment to make on this recommendation other than to note that due to the very wide definition of the term “firearm” in Irish law, there could be significant unintended effects if the final drafting of this recommendation is as brief as in the Interim Report, such as requiring a gun safe to be purchased if an applicant was to purchase a toy crossbow from several popular retail chains in Ireland at present (as crossbows do not have a minimum draw weight before being included in the normal firearm licencing system).

Recommendation 6:

It is recommended that holders of restricted firearms are required to have time control locks fitted to their gun safes only allowing access at pre-determined times;

While the Committee’s intent here is laudable, this recommendation is unfortunately hampered by technological limitations at this time. While a few gun safe manufacturers do offer timelocks as optional extras on their higher-end models, these manufacturers are themselves considered to be the luxury end of the market already. Brown Safe, for example, does offer gun safes with optional timelocks, but these timelocks are mechanical in nature and cannot be integrated into a monitored alarm system; and the safes themselves retail for prices in the five to fifteen thousand euro range, not including shipping from the continental United States and importation costs into the EU. This would mean that the safe in use for a restricted firearm would in fact be worth anything up to ten times the value of the contents of the safe itself. Aside from the obvious irony of such a situation, this has the unintended side effect of increasing the risk of theft given the monetary value of the safe.

Previous recommendations regarding security have addressed this issue by requiring that the door of the safe itself have a dedicated sensor attached to it in the alarm system, which is kept active at all times when the owner is not accessing the safe. This has the advantage that should a robbery take place during the hours which would be listed as safe by a timelock’s configuration, such a robbery would be immediately noticed as a robbery and not merely as the door of the safe being opened during expected hours. This reduces response time and heightens security, which is the main commercial reason behind the near-total lack of gunsafes on the market which have timelocks.

Recommendation 7:

The Committee recommends the establishment of a structured and graduated licensing scheme.

Again, this recommendation is one which has great potential, but whose merit is very closely coupled to its implementation, and a poor implementation would see this recommendation fail to achieve its potential and in face become a step backwards for Irish firearms legislation.

If implemented as – for example – a system whereby the applicant is licenced instead of the firearm and they are required to undergo safety courses for the specific class of firearm they are applying to licence; then this system would have considerable advantages in safety, efficacy and efficiency. In previous years the NTSA calculated that the manpower savings to the Gardai were such a system adopted to bring us into line with the norm in the UK would be on the order of 90% of those being spent on the current system. While changes made since mean that saving would now be lower, it would still exceed 50% of the current manhour budget. Such a saving would obviously be desirable.

However, there is a mention of an apprenticeship-style program in the Committee’s recommendation and a mention of a hierarchy of licencing. This is deeply troubling as it represents a well-known idea which has been long-studied and is fundamentally flawed for several reasons.

Firstly, it utterly undermines the first part of the central test of the licencing system as laid out in Section 4(2) – namely, does the applicant have a good reason for wanting this firearm? If an applicant wants to partake in a form of target shooting that requires a restricted firearm, this proposal would require them to apply for licences for firearms which they do not want to own or use and so they would not have a good reason for applying for such a licence under Section 4(2). Indeed, depending on implementation, this might be the case for almost all applicants. Would an aspiring F-Class shooter be required to purchase and train with an air rifle and then a smallbore rifle before finally being able to purchase and commence training with an F-Class rifle? This would represent an outlay in excess of twenty thousand euros and several years of time wasted in sports other than the one they wished to partake in in the first place. This onerous requirement would have no bearing on public safety or the safety of the applicant and could not be seen as being fair or reasonable.

Secondly, the idea that by owning a succession of different firearm types, a person can become suitable to own the firearm they wish to own in the first place is flawed, because different firearm types are operated in different ways and the safety considerations for each is different. A shooter who has spent a year learning to shoot air pistols, for example, will not have learned the necessary safety techniques required to safely shoot smallbore pistols, or rifles, or shotguns; and they will have to learn the same things that a complete novice would have to learn to use them safely. Even worse, a complete novice would be safer in this because they would have no habits learned on other firearm types to unlearn.

Thirdly, the concept of progression of an applicant through a hierarchy demands that actual tests of competency be administered at each step; and at present the State does not have any body competent to administer such a program for reasons discussed earlier, nor does it have facilities to run such tests in, and not only would addressing these defects represent a considerable budgetary requirement, it would also represent an exceptional increase in the Garda manhour budget currently required to operate the existing licencing system.

Fourthly, the very troubling use of the word proliferation occurs in this recommendation. Give than Ireland has, at 4.3 firearms per 100 people, the fourth-lowest firearms ownership level in the EU where the average ownership level is 17.4 firearms per 100 people – and given the fact that this would in fact be an even lower level if we were to legally define the word “firearm” in Ireland the way that it is legally defined in the rest of the EU – and given that the current level of firearms ownership in Ireland represents a marked decline from ownership levels in previous years – it seems difficult to justify the use of this term, and far more difficult to base recommendations on the idea that we are seeing proliferation, when all the ownership levels are in fact decreasing, and an audit of PULSE data would in all liklihood reveal that even these low level of ownership are still the result of artifical inflation by errors in PULSE.

I would strongly advise the Committee to redraft this proposal so that its potential could not be lost through inadvartant misimplementation, so that we might see the manpower savings and safety improvements possible, instead of the manpower demand increases and the potential safety issues that could be caused by poor implementation.

Other Comments:

While most of the recommendations of the committee have positive aspects and contain significant potential (though that potential is critically dependant upon implementation details), there are several aspects to the original Working Group Review which the Committee has thus far not commented upon. It would be welcomed if the Committee would make a statement in their Final Report on these aspects, if only to prevent an omission from being read as tacit support instead of an absense of comment.

Specifically, the committee made no comment in regard to the proposed ban on licencing semiautomatic centerfire rifles, as well as shotguns manufactured to take more than three rounds (which would inadvertantly ban over eight thousand shotguns which have been licenced in Ireland for decades without difficulty or risk to public safety).

The committee also made no comment on the proposed addition of section 4(1A), a proposal which is in direct opposition to High Court judgements on this point of law. If the Courts considered the existing section 4(2)(b) and found it to be an error of law to focus on the firearm instead of the applicant, perhaps the Court’s point should be heeded instead of the legislative process being abused in this manner to bypass the judgement of the courts – who have at any rate in later judgements upheld that the Gardai could take account of the nature of the firearm as well as the character of the applicant; just not the nature of the firearm in isolation. The fact is, the Courts have not issued any statement that 4(1A) is necessary, or that 4(2)(b) is deficient in its current form. To add a redundant section duplicating an earlier section to an already unreadable body of law can do nothing but bring about unintended consequences.

And while it is a minor point, the committee also made no comment on the proposal to add a section to the Act stating that a certificate issued in contravention of the Firearms Act would not be null and void but would have to be explicitly revoked; which obviously implies that any private individual could issue such a certificate and it would require a Garda Superintendent to revoke this obviously invalid certificate.

I hope that these comments will be taken as constructive criticism of the Interim Report and will be of use in drafting the Final Report of the committee. Obviously, any member of the shooting community would be more than happy to answer any further questions the committee may have or to appear before the committee if so required.

Yours sincerely,

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