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CSI President : Appeal

 

I was a bit surprised to see that public money was spent appealing the President’s decision in Re Z Children 2014  which I wrote about here:-

https://suesspiciousminds.com/2014/06/23/csi-president/

 

The case involved a dad who wouldn’t give a DNA sample, but was in prison for murder. The police had two DNA samples – a DNA sample of the perpetrators blood from the crime scene and the one dad gave that matched it. They were prevented by law in giving the second one to the Court to be used as a paternity test sample. The President decided that they weren’t prevented in law in giving the first sample (which we all know is a match and is dad’s DNA)

I actually thought it was a very clever and intricate solution and one that won’t really cause problems for later cases.

 

Nonetheless, it was appealed, and the Court of Appeal over-ruled the President.

 

Re X and Z Another  http://www.bailii.org/ew/cases/EWCA/Civ/2015/34.html

As a result, any samples held by the police ought to only be used for the purposes of criminal law enforcement.

If you were hoping for the President to get a come-uppance, this judgment is not it. The closest they come to a criticism is this bit:-

35. Parliament cannot, when replacing Part V of PACE in 2012, have intended that Part II DNA profiles could be used outside the sphere of criminal law enforcement but that Part V DNA data could not be so used. That would be arbitrary and would make no sense. The court should be very slow to impute to Parliament an intention to legislate so as to produce results which are arbitrary and irrational.

  1. In order to avoid such absurdity and to reflect Parliament’s clear intention in POFA to legislate to remove the incompatibility between English law and the requirements of the Convention, I consider that section 22 should be construed in a way which is consistent with the scheme of Part V. That is to say, section 22 should be construed as meaning that, if the police consider that it is necessary to retain Part II DNA material for criminal law enforcement purposes, they may not use it for any other purpose

 

Given that the Court of Appeal didn’t like the President’s somewhat elastic use of statutory construction (stretch it as far as you can unless it actually snaps) he is perhaps fortunate that all of the parties in Re  X (a child: Surrogacy) 2014 liked his decision (and hence weren’t going to appeal it), because that one for me went beyond snapping point.

 

https://suesspiciousminds.com/2014/10/06/conjurers-and-childrens-birthday-parties/

 

When the President decided that a valid interpretation of THIS piece of statute

“the applicants must apply for the order during the period of 6 months beginning with the day on which the child is born.”

was

“unless the Court is okay with it”

 

The President doesn’t lose many though – this one and Cheshire West are the only ones that I can remember.  (And I have some sympathy for him on this one, I think it was a child-focussed attempt to resolve a problem)

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About suesspiciousminds

Law geek, local authority care hack, fascinated by words and quirky information; deeply committed to cheesecake and beer.

5 responses

  1. *Cough* Burke v GMC *Cough* (re the President – or plain old Munby J as he then was) getting spectacularly overturned on appeal…

    • Oh, I wasn’t count pre Prez stuff. But I will look at that one because it sounds like it might be a belter.

      http://www.bailii.org/ew/cases/EWCA/Civ/2005/1003.html

      Oh yes, I found this in the first minute

      There are great dangers in a court grappling with issues such as those that Munby J has addressed when these are divorced from a factual context that requires their determination. The court should not be used as a general advice centre. The danger is that the court will enunciate propositions of principle without full appreciation of the implications that these will have in practice, throwing into confusion those who feel obliged to attempt to apply those principles in practice. This danger is particularly acute where the issues raised involve ethical questions that any court should be reluctant to address, unless driven to do so by the need to resolve a practical problem that requires the court’s intervention. We would commend, in relation to the Guidance, the wise advice given by Lord Bridge of Harwich in Gillick v West Norfolk and Wisbech Area Health Authority [1986] AC 112 at 193-4:

      “… the occasions of a departmental non-statutory publication raising … a clearly defined issue of law, unclouded by political, social or moral overtones, will be rare. In cases where any proposition of law implicit in a departmental advisory document is interwoven with questions of social and ethical controversy, the court should, in my opinion, exercise its jurisdiction with the utmost restraint, confine itself to deciding whether the proposition of law is erroneous and avoid either expressing ex cathedra opinions in areas of social and ethical controversy in which it has no claim to speak with authority or proffering answers to hypothetical questions of law which do not strictly arise for decision.”
      The judge himself cited this passage with approval. Unfortunately he did not follow it.

      Oh, and this bit

      The first three declarations were extraordinary in nature in that they did not purport to resolve any issues between the parties, but appeared to be intended to lay down propositions of law binding on the world.

  2. Pingback: CSI President : Appeal | Children In Law | Sco...

  3. Munby overuled by his “brother judges” to show him that his attempts to open up the family courts and stop unecessary adoptions would be resisted if in future he laid down general guidelines instead of sticking to the case he was trying……………??

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