R (Sisangia) v Director of Legal Aid Casework [2016] EWCA Civ 24, [2016] MHLO 4

Legal Aid This was a claim for false imprisonment and assault arising out of arrest and detention by the police. Paragraph 21 of Part 1 of Schedule 1 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 relates to Legal Aid for civil legal services under the heading "Abuse of position or powers by public authority". Following an initial refusal of Legal Aid, this case concerned the interpretation of sub-paragraph (4): "For the purposes of this paragraph, an act or omission by a public authority does not constitute an abuse of its position or powers unless the act or omission (a) is deliberate or dishonest, and (b) results in harm to a person or property that was reasonably foreseeable." The High Court had held that (a) paragraph 21(4) was a comprehensive definition of what was entailed in a claim for abuse of position or power (rather than a statement of the minimum criteria for such a claim), and (b) for the purposes of the definition in this case it was only the arrest itself that had to be deliberate (it was not necessary to allege that the arresting officers knew that they had no power of arrest). The Court of Appeal, allowing the appeal, held that: (a) the judge, in interpreting the words so that that any deliberate act by a public authority that causes reasonably foreseeable harm to another would count as an abuse of power, had ignored what it was that was being defined ("abuse of position or power") and gave no weight at all to the meaning of that phrase: abuse of position or power is a recognised juridical concept which, like many other public law concepts, is both flexible and context-specific and should, therefore, be given meaning in paragraph 21(4); (b) something more than an intentional tort (requiring only a deliberate act, such as, here, false imprisonment) is necessary before the impugned act becomes an "abuse of power": in this case it was not merely the fact of arrest, but the arrest without lawful justification, which had to be deliberate or dishonest. The Court of Appeal noted that a general policy not to fund purely money claims is what explains the anomaly that a claimant able to bring judicial review proceedings under paragraph 19 may add a claim for damages without having to satisfy any equivalent of paragraph 21(4). (There is also no equivalent in paragraph 20, for habeas corpus, or in paragraph 22, for significant breach of Convention rights.)

ICLR

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The WLR Daily case summaries

[2016] WLR (D) 37

Court of Appeal

Regina (Sisangia) v Director of Legal Aid Casework

[2016] EWCA Civ 24B

2015 Dec 16; 2016 Jan 27

Elias, Lewison, Christopher Clarke LJJ

Legal aid— Availability— Civil legal services— Claimant applying for legal aid to fund false imprisonment claim against police commissioner— Whether claim relating to “abuse by a public authority of its position or powers” so as to qualify for legal aid— Meaning of “abuse of position or power”— Legal Aid, Sentencing and Punishment of Offenders Act 2012 (c 10), Sch 1, Pt 1, para 21

The claimant was arrested and detained on suspicion of an offence of harassment but was released without charge later the same day. She applied for public funding to bring a claim in the tort of false imprisonment against the police commissioner. Her application was treated as having been made on the basis that the actions of the police officers in arresting and detaining her had amounted to an “abuse by a public authority of its position or powers”, within paragraph 21(1) of Part 1 of Schedule 1 to the Legal Aid, Sentencing and Punishment of Offenders Act 2012, thereby qualifying the claim for the grant of legal aid. Paragraph 21(4) provided that an act or omission by a public authority did not constitute an abuse of its position or powers unless the act or omission (a) was deliberate or dishonest and (b) resulted in harm to a person or property that was reasonably foreseeable. The Director of Legal Aid Casework refused the application, concluding that the proposed claim did not fall within paragraph 21. The judge allowed the claimant’s claim for judicial review, holding that paragraph 21(4) of Schedule 1 was a comprehensive definition of what was entailed in a claim for abuse of position or power, rather than a statement of the minimum criteria for such a claim; that for the purposes of the claimant’s proposed claim it was only the arrest itself that had to be deliberate and it was not necessary to allege that the arresting officers knew they had no power of arrest.

On the Director’s appeal—

Held, appeal allowed. The judge’s interpretation of paragraph 21(4) of Part 1 of Schedule 1 to the Legal Aid, Sentencing and Punishment of Offenders Act 2012 was wrong, his error being to ignore what it was that was being defined. It gave no weight at all to the meaning of the phrase “abuse of position or power”. Abuse of position or power was a recognised juridical concept which, like many other public law concepts, was both flexible and context-specific. It should therefore be given meaning in paragraph 21(4). Further, something more than an intentional tort was necessary before the impugned act became an “abuse of power” even if the court could not say precisely what that “something more” was (paras 10, 11, 14, 21, 23, 30, 32, 33, 34).

Decision of Dingemans J [2014] EWHC 3706 (Admin)B; [2015] 1 WLR 1891B reversed.

Martin Chamberlain QC and Sarah Ford (instructed by Treasury Solicitor) for the Director.

Phillippa Kaufmann QC and Jude Bunting (instructed by Hodge Jones & Allen LLP) for the claimant.

Nicola Berridge, Solicitor

CASES DATABASE

Full judgment: BAILII

Subject(s):

  • Miscellaneous cases🔍

Date: 27/1/16🔍

Court: Court of Appeal (Civil Division)🔍

Judge(s):

Parties:

  • Director of Legal Aid Casework🔍
  • Sunita Sisangia🔍

Citation number(s):

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Published: 28/1/16 16:34

Cached: 2024-02-26 14:59:28