Round Up 31.08.20 – Few new judgments, but still some controversy…

31 August 2020 by Thomas Hayes

Image: Screenshot of the Home Office’s twitter feed (now deleted).

It was not an overly exerting bank holiday weekend for the author of this week’s round-up. The influence of the summer holiday appears to have resulted in relatively few judgments from the senior courts, with particularly little in the field of human rights law. However, the week was not wholly without incident…

In response to the growing numbers of migrants seeking to cross the English Channel in small boats, the Home Office tweeted a short video explaining that “current return regulations… (allow) activist lawyers to delay and disrupt returns”. The video was helpfully illustrated with little pictures of planes taking off from the English coast bound for Europe, although why the Home Office would seek to return migrants to Europe following the UK’s withdrawal from the Dublin Regulations was unclear.

In the interests of fairness, despite being removed from the Home Office’s twitter feed following numerous complaints, the video can still be viewed here. Readers will without doubt form their own opinions. It is submitted however, that the following statements are uncontroversial:

1. that upholding the law and ensuring it is correctly applied would appear to the be the very job of courts/lawyers;
2. that if a court were to rule in a way it knew to be incorrect, in order to achieve an outcome desirable to one particular party to legal proceedings, that would represent corruption;
3. that applying the law correctly is usually considered a good thing, particularly in a country that values the rule of law;
4. that it is usually better for governments (and indeed people generally) to act within the law;
5. that the Home Office’s track record on ejecting from the country people who later turn out to have the right to be in the UK, including on occasion British citizens, isn’t great;
6. that the Home Office could avoid such delays and disruptions by acting in compliance the law;
7. that conveniently for the Government, it gets to decide what the law is by writing new laws and passing them in Parliament, where it currently enjoys a large majority. 

With uncanny timing, one of the few cases in which judgment was handed down this week provided an illustration of the risks faced by those working within the judicial system when its legitimacy comes under attack. In Oliver v Shaikh [2020] EWHC 2253 (QB) (24 August 2020), a judge succeeded in bringing committal proceedings against an individual held to have committed numerous breaches of the terms of an interim injunction restraining him from harassment. Shaikh had appeared before the judge concerned in 2014 in relation to proceedings concerning his dismissal from his role as a trainee cardiac physiologist for gross misconduct. Upon judgment in those proceedings being entered against him, he proceeded to launch a wide variety of online attacks amounting to abuse and harassment. 

The week’s news also illustrated the consequences when a Government chooses to stop acting within the law and seeks to denigrate those working to ensure compliance with it. Once again, in the interests of fairness, it is the view of some (including a “Government source”) that “there’s a bunch of particularly loudmouthed lawyers and barristers who seem to spend more time on social media than representing their clients, who think even the mildest criticism of their profession will bring about the destruction of democracy” (The Times, 28th August). Conversely, on the UK Human Rights Blog, Joanna Curtis wrote this week about the European Court of Human Rights exercising its powers to secure information pertaining to the condition and medical treatment of Russian opposition leader Alexei Navalny, who was allegedly poisoned on a flight to Moscow last week (here). Sceptics may wish to type “Russia, Lawyer and Window” into google.

Finally, to conclude this week’s (short) round up, in a noteworthy case the Court of Protection ruled that a young woman suffering with anorexia nervosa should not have feeding or further treatment imposed upon her – Northamptonshire Healthcare NHS Foundation Trust v AB [2020] EWCOP 40 (16 August 2020). This was notwithstanding the fact that the court held her to lack capacity to make decisions in this regard. On balance, the likelihood of death could not justify the extreme suffering which would be imposed on her by way of further forcible treatment. For a further examination of the case, see Rosalind English’s blog post here.