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

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.)

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