Société Des Chasseurs De L'ile Maurice and Others v The State of Mauritius and another (Mauritius)
| Jurisdiction | UK Non-devolved |
| Judge | Lord Hughes |
| Judgment Date | 16 May 2016 |
| Neutral Citation | [2016] UKPC 13 |
| Date | 16 May 2016 |
| Court | Privy Council |
[2016] UKPC 13
From the Supreme Court of Mauritius
Lord Neuberger
Lord Mance
Lord Sumption
Lord Hughes
Lord Hodge
Appellants
Raymond d'Unienville QC Antoine Domingue SC
Yasser Caunhye
(Instructed by Sheridans)
Respondents
James Guthrie QC
(Instructed by Royds LLP)
Heard on 26 April 2016
In 2006 the Parliament of Mauritius passed new primary legislation for the control of firearms, the Firearms Act 2006 ("the 2006 Act"). It replaced an earlier statutory scheme which had been established by the Firearms Act 1940 ("the 1940 Act"), which Act was repealed by section 50 of the 2006 Act. Representatives of the hunting community in Mauritius mounted a legal challenge to section 4(2) of the new Act, which provides:
"(2) No individual shall hold more than two firearms at any time."
There had been no such numerical limitation in the 1940 Act.
The hunters who brought these proceedings are well established and entirely respectable citizens. They have for many years held not only firearms licences granted under the 1940 Firearms Act, and now under the 2006 Act, but also game licences granted under successive statutes regulating hunting, and now also provided for by the 2006 Act (section 17). There is no suggestion that they are unsuitable for any personal reason to be in possession of firearms. Their concern is that a legitimate game hunter has a reasonable need for several firearms of different types and calibres according to the different species of game which he is likely to hunt. The effect of the new section 4(2) is that a hunter, like anyone else, is limited to a maximum of two guns.
The legal challenge to the section, designed to preserve the freedom of hunting folk to possess an array of guns beyond two, was centred upon two key arguments:
(1) those who held firearms licences under the 1940 Act had accrued or vested rights which the repeal of the Act by the 2006 Act did not, as a matter of construction, take away;
(2) if the 2006 Act did take away such vested rights, it was unconstitutional and pro tanto void because contrary to section 8(1) of the Constitution, it amounted to the compulsory taking possession of property and/or the compulsory acquisition of rights over property.
The challenge succeeded before the first instance judge. The Court of Appeal, however, reversed his decision. Hence this further appeal by the hunting claimants to the Board.
Accrued rights
The claimants' argument is founded upon the principle of statutory construction set out in section 17(3)(c) of the Interpretation and General Clauses Act 1974. That provides that as a matter of general interpretation (and subject of course to express provision to the contrary):
"(3) … the repeal of an enactment shall not —
(c) affect any right, privilege, obligation or liability acquired, accrued or incurred under the repealed enactment."
There is no doubting this general principle of statutory interpretation, which applies unless clear statutory language commands the conclusion that the removal or modification of accrued rights was indeed intended. It is allied to the similar principle of statutory interpretation that a statute will be assumed to be prospective, rather than retrospective, in effect, unless the contrary necessarily appears. However, before section 17(3)(c) can be called into service, there must be a right acquired or accrued under the previous, now repealed legislation.
The Firearms Act 1940 provided for the issue of firearms licences, and, by section 3(1), made it unlawful to possess firearms except under the authority of such a licence. The grant of licences was dealt with by section 4. The issuing authority was the Superintendent of Police in the district where an applicant for a licence resided. Section 4(2)(a) provided that the Superintendent "shall … grant" a licence where satisfied that the applicant had a good reason for having a firearm in his possession and could be permitted to do so without danger to public safety. Supplemental provisions enabled the police to impose conditions on the licence and to specify the firearm(s) to which it applied. The practice was to issue one licence for each gun.
A firearms licence under section 4 of the 1940 Act was, by section 4(4)(a), to run until the end of the calendar year in which it was issued. Section 4(4)(a) went on to provide that a licence:
"… shall, subject to subsection (7) be renewable annually between 1 and 31 January."
Section 4(7) then provided that the Commissioner of Police could cancel, or refuse to renew, a firearms licence, but only for cause shown, such as where he was not satisfied that the holder had, or continued to have, good reason for possessing a gun, where he considered cancellation or refusal necessary for the maintenance of public safety and the peace, or where the holder was prohibited from holding, or unfit to be entrusted with, a gun. To the extent that the Court of Appeal proceeded on the basis that a 1940 Act licence could be cancelled or its renewal refused "at any time", it therefore fell into error; cause for non-renewal or cancellation was required. For the claimants, Mr d'Unienville QC submitted that for this reason the holders of 1940 Act licences had an accrued right to renewal of their licences unless cause were shown for refusing it. In consequence, he contended, the 2006 Act must, according to the principle of statutory construction set out in section 17(3)(c) of the Interpretation and General Clauses Act, be read as not affecting that right, despite its repeal of the 1940 Act.
The difficulty with that argument is that the 2006 Act expressly re-shaped the regime for the issue of licences. It expressly did not continue the 1940 Act scheme; rather, it replaced it with a different one. Under the 2006 Act, by section 8 the Commissioner for Police (now the issuing authority) "may grant", (rather than "shall … grant") a licence if satisfied that the applicant meets the same conditions of good reason and personal safety which were laid down in the earlier statute. Where previously section 3(1A) of the 1940 Act set out a number of types of person who were excepted from the requirement to hold a licence, including for example a carrier, a member of a rifle club and a person shooting game under the instruction of a licence holder, those exceptions are now much reduced in section 4(4) to police or prison officers and registered firearms dealers. The provisions for duration of licence and annual renewal are, although similar to those of the 1940 Act, re-enacted as part of the new scheme. By section 12 a new licence...
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