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:-
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.
- 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.
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.”
“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)