The High Court ruled that an original complaint against Alan Considine remained valid after a defective summons was struck out, and that the District Judge had wrongly refused to sign a replacement summons.
In a judgment delivered on 24 February 2010, Mr Justice Hedigan granted the declaration and order sought by the Director of Public Prosecutions (DPP) in judicial review proceedings against District Judge Mangan. The court found that the refusal rested on an error of law which led to the mistaken conclusion that the complaint no longer existed.
Considine had been arrested on 2 February 2008 by Garda Rosaleen O’Connor on suspicion of Road Traffic Acts offences. The judgment says O’Connor formed the opinion that he was in control of his vehicle while under the influence of an intoxicant, and that he was found over the legal limit. Following instructions from the DPP, she made a complaint on 22 July 2008.
A summons was issued that day under the Courts (No. 3) Act 1986. The judgment says the procedure required a summons under the Petty Sessions (Ireland) Act 1851. After Considine’s counsel objected to its form, the summons was struck out on 19 May 2009.
The DPP later asked Judge Mangan to issue a fresh summons based on the original complaint. Considine’s counsel argued that, under Carpenter v Kirby, striking out the first summons had also struck out the complaint. The judge accepted that submission and declined to issue a new summons on 24 July 2009. The DPP challenged that refusal, arguing that the complaint was valid and that Kirby concerned an indictable offence.
Justice Hedigan distinguished the present case from Kirby and Kennelly v Cronin. He said a summons is a process to compel a person’s attendance, while jurisdiction to hear a charge derives from the complaint. In this case, the first summons had been struck out; the complaint itself had not been heard or determined.
The judgment concluded that striking out the summons did not extinguish the complaint. It held that Judge Mangan’s mistaken interpretation of the law led him to conclude incorrectly that the complaint no longer existed, thereby unduly restricting his jurisdiction. The court granted the order and declaration sought in the judicial review. The judgment does not record a trial or determination of the alleged offences, nor does it state that a replacement summons was issued.