Robert Ivey v Firearm Licensing Authority
| Jurisdiction | Jamaica |
| Judge | Dunbar-Green JA (AG),Brooks P,Edwards JA |
| Judgment Date | 19 November 2021 |
| Neutral Citation | JM 2021 CA 127 |
| Docket Number | APPLICATION NO COA2021APP00098 |
| Year | 2021 |
| Court | Court of Appeal (Jamaica) |
[2021] JMCA App 26
IN THE COURT OF APPEAL
The Hon Mr Justice Brooks P
The Hon Miss Justice Edwards JA
The Hon Mrs Justice Dunbar-Green JA (AG)
APPLICATION NO COA2021APP00098
Hugh Wildman instructed by Hugh Wildman & Company for the applicant
Miss Courtney Foster instructed by Courtney N Foster & Associates for the respondent
On 19 June 2019, Mr Robert Ivey received a notice from the Firearm Licensing Authority (‘the Authority’) informing him that it had revoked his four firearm licences. The reason given in the notice was that “he was no longer considered fit and proper to retain a firearm licence”. On 28 May 2021, a judge of the Supreme Court refused Mr Ivey's application for leave to apply for judicial review of the Authority's decision. Mr Ivey sought leave from the learned judge to appeal her decision, but she also refused that application.
He has, therefore, renewed the latter application before this court. However, the Authority has resisted it. The Authority asserts that the learned judge properly refused Mr Ivey's application for judicial review, on the basis that there was a viable statutory alternative to that process. That alternative, the Authority asserts, is for Mr Ivey to have appealed to the Review Board, which is established for that purpose, by the Firearms Act (‘the Act’). The Authority contends that Mr Ivey failed to pursue the correct course and so he ought not to be given leave to appeal.
The major issue for determination in this application is whether Mr Ivey's proposed appeal has a real prospect of success. This issue turns on the questions of whether:
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(a) any arguable basis exists for challenging, by way of judicial review, the Authority's decision to revoke the licences, and in particular, whether:
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i. the Authority breached any of the procedural requirements of the Act;
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ii. the Authority breached the principles of natural justice; or
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ii. the Authority's decision was irrational;
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(b) a viable alternative to an application for judicial review existed, within the 90 days allowed to Mr Ivey to have filed an application for judicial review; and
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(c) the learned judge wrongly exercised her discretion in refusing Mr Ivey leave to apply for judicial review.
Before outlining the facts of this case it is necessary to outline the statutory framework against which the relevant events occurred. The Authority is the body that is established by the Act to regulate the licensing of firearms in Jamaica, and generally to execute the statutory duties assigned to it by the Act. It is comprised of five persons, who are appointed by the responsible Minister of Government (‘the Minister’). The Authority, as part of its duties, grants, renews, varies or revokes firearm licences.
For its due administration, the Authority has a staff, which is headed by a Chief Executive Officer (‘the CEO’). The CEO is appointed pursuant to paragraph 12 of the Third Schedule to the Act, and is “responsible for the day-to-day management of the affairs of the Authority”. The CEO is not a member of the Authority.
Any person who is aggrieved by a decision of the Authority may apply to the Review Board, for a review of that decision. The Review Board, having considered the application for review, is required to submit its findings and recommendation to the Minister. It is the Minister who, upon receipt and consideration of the report of the Review Board, directs the Authority on the steps that it should take in the matter.
In support of his application for leave to appeal, Mr Ivey contended that the CEO spoke to him on two occasions, in late 2017, asking him about other firearm licence holders, for whom Mr Ivey had previously collected packages from the Authority. Mr Ivey did not provide any information to the CEO in relation to his queries, and, according to Mr Ivey, they had no other discussions about anything else. In or about October 2017, the CEO directed Mr Ivey to bring his firearms in to the Authority. Mr Ivey, instead, sought legal advice, and his attorney-at-law wrote to the CEO requesting clarification of the CEO's request.
The next development was that police officers attended at Mr Ivey's home requesting his firearms. He refused to hand them over and the officers left. On 19 April 2018, Mr Ivey applied to the Authority for the renewal of his firearm licences. The Authority confiscated the weapons and the licences, ostensibly pending investigations. No details were provided.
In January 2019, according to Mr Ivey, the CEO again unsuccessfully requested information from Mr Ivey about other people's firearms and licences. Mr Ivey said that he asked for the reason for the seizure of his firearms. The CEO's response, Mr Ivey said, was “you no throw lawyer pon me”.
On 19 June 2019, Mr Ivey received the revocation order from the Authority.
Whereas, the CEO has not denied any of the assertions made by Mr Ivey as to the conversations between the two, the CEO stated that the Authority conducted investigations into “activities associated with” Mr Ivey and that he met with Mr Ivey as part of those investigations. The investigations, the CEO said, included, but were not limited to, considering an “intelligence report from the Jamaica Constabulary Force”. The CEO deposed that while those investigations were underway, the Authority placed Mr Ivey's application for renewal of his licences “on hold”. The CEO deposed that, based on the findings of the investigation, the Authority decided to revoke Mr Ivey's licences. The CEO stated that the Authority “may revoke a licence where a holder is deemed to be of an intemperate nature”. He did not, however, specifically state that that was the reason for revoking Mr Ivey's licence. The CEO asserted that when the revocation notice was issued, Mr Ivey was informed of his right to “lodge a review of the decision with the Review Board”.
Mr Ivey did not file an application for a review by the Review Board, either within the time prescribed by the regulations established under the Act, or at all. He instead, applied for leave to apply for judicial review. It is that application that the learned judge refused.
Mr Wildman, on behalf of Mr Ivey, argued that there were ample bases for challenging the Authority's decision, by way of judicial review, and that the learned judge should not have denied Mr Ivey his right to institute that challenge. Before revoking a licence, learned counsel submitted, there is a duty to grant a hearing to the person to be affected, and a duty to provide reasons, at the time of revocation, for a decision to revoke. Learned counsel submitted that the Authority breached the principles of natural justice, in that, it did not comply with those requirements.
Mr Wildman submitted that the result of these breaches is that the Authority's decision is “procedurally improper, null and void and of no effect”. He relied on a number of authorities for those submissions, including R v Devon County Council, ex parte Baker and another; R v Durham County Council, ex parte Curtis and another [1995] 1 All ER 73 (‘ R v Devon County Council’), R v Westminster City ex parte Emakon [1996] 2 All ER 302, South Bucks District Council and another v Porter [2004] UKHL 33 Naraynsingh v Commissioner of Police (Trinidad and Tobago) [2004] UKPC 20 and Burroughs and Another v Rampargat Katwaroo (1985) 40 WIR 287.
Learned counsel also pointed to Mr Ivey's unchallenged evidence as to his exchanges with the CEO, and argued that it is plain that the Authority's decision was irrational. The learned judge, Mr Wildman submitted, should therefore have granted leave to apply for judicial review of such a decision.
Mr Wildman submitted that the learning on the requirements for executive decisions has evolved since the decision in Raymond Clough v Superintendent Greyson and Another (1989) 26 JLR 292, cited by Miss Foster, on behalf of the Authority. Such executive decisions, he submitted are now liable to judicial review. Learned counsel stridently stated that the new dispensation is that a decision maker must observe the principles of natural justice by not only affording a hearing to the party, which is likely to be affected by the decision, but also by giving reasons for the decision.
Miss Foster, in supporting the learned judge's decision, submitted that the Authority is not required to afford Mr Ivey any audience, either in writing or orally, or conduct a full hearing in respect of any matter, which could lead to the revocation of a licence. The Authority was also, she argued, not obliged to provide reasons at the time of informing Mr Ivey of its decision to revoke his licences. The obligation to allow audience and provide reasons, Miss Foster submitted, only arose when the statutory review process was activated. That process, she noted, has not been activated in this case. In any event, she argued, the Authority did provide Mr Ivey “with sufficient information on which [he] could reasonably have determined the basis on which [the Authority] considered that he was ‘ no longer considered a fit and proper person to retain a firearm licence’” (paragraph 20 of her written submissions — italics as in original).
On the issue of whether the Authority's decision was irrational, learned counsel contended that the CEO stated that the Authority relied on intelligence provided by the police. She contended that there was a need to balance the private interests of disclosure against the public interests of maintaining the integrity of the intelligence system. Miss Foster argued that the Authority was entitled to...
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