The Court of Appeal has dismissed Trevor Brennan’s appeal over the refusal of leave to challenge a firearm licensing decision on the ground that a Kildare superintendent improperly fettered his discretion.
The appeal concerned an application to license an ISSC MK 22 Point 22 rifle. Superintendent Curley refused it in January 2021, saying a report from the Garda Ballistics Section classified the firearm as prohibited under S.I. 420/2019. In April 2021, he gave further reasons, including the rifle’s resemblance to the FN SCAR family, its stated barrel length and a folding stock. He said he was precluded by law from considering the application further once he deemed the firearm prohibited.
Brennan argued that the superintendent had abdicated his decision-making role by blindly relying on the ballistics report or other communications, and had failed to consider the application on its merits. The High Court granted leave to pursue a number of other judicial review grounds but refused leave on this fettering ground. Brennan appealed that refusal.
The Court of Appeal noted that the ballistics officer had not examined the rifle and had relied on manufacturer information. The High Court judge had mistakenly said the officer examined it. The appeal court held that this error did not justify allowing the fettering ground: questions about the rifle’s dimensions and whether the law had been applied correctly could be pursued under grounds already allowed by the High Court.
The appeal court said there was nothing objectionable in the superintendent seeking specialist advice or relying on it. It also found that the superintendent’s reasons did not simply mirror the report. The report described the rifle as at least restricted and raised concerns about barrel length and a folded stock; the superintendent gave separate reasons for treating it as prohibited. The court said Brennan had not established even an arguable case that the superintendent blindly followed the advice or fettered his discretion.
The appeal was dismissed. The court’s provisional view was that the respondent should receive his appeal costs, with execution stayed until the High Court proceedings are finally determined. The parties had 14 days to notify the Court of Appeal if they wished to argue for a different costs order. The other judicial review grounds remain for determination in the High Court; the appeal did not decide whether the rifle was prohibited or whether the licensing refusal was legally correct.