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R (on the application of Sisangia) v The director of legal aid case work

Executive summaryThe claimant applied for judicial review of a decision dated 4 December 2013 of the Director of Legal Aid casework (“the…

R (on the application of Sisangia) v The director of legal aid case work

Executive summary

The claimant applied for judicial review of a decision dated 4 December 2013 of the Director of Legal Aid casework (“the defendant”) to refuse to provide legal aid funding for her claim against the Metropolitan Police (“the MPS”) arising from her arrest on 7 January 2011. Paragraph 21(1) of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (“LASPO”) requires civil legal services to be available in relation to “abuse by a public authority of its position or powers.”

The judge allowed the claimant’s application and held that her claim for false imprisonment fell within paragraph 21 as the claim related to an arrest that was deliberate and resulted in reasonably foreseeable harm to the claimant.

Background

There was a dispute between the claimant and the person who owned, but did not live, in the flat above the claimant (“the owner”).  The claimant alleged that she had been threatened by the owner’s brother, who was then arrested by the MPS and bailed, but no further action was taken. 

About a month later, the owner reported an allegation of harassment against the claimant.  A few weeks later, the claimant was arrested for harassment and detained in custody.  The MPS subsequently formed the view that the matter was a civil dispute as opposed to a crime. 

The claimant’s solicitors applied for legal aid in order for the claimant to bring a claim for false imprisonment against the MPS.  The case was unsuitable for a conditional fee agreement because insurance premiums were likely to be as high as £40,000.00 and they would not be recoverable under the new LASPO provisions. 

The defendant decided that the application did not fall within paragraph 21 of LASPO and refused civil legal aid for the claim. The defendant’s decision was communicated to the claimant in a letter which stated “Frankly arresting someone in the normal course of one’s duty is not an abuse and does not to my mind begin to satisfy the deliberate or dishonest test…….although I accept there may be some circumstances in which an arrest could be an abuse of position or power, frankly I do not consider this such an example”. 

The claimant challenged the defendant’s decision.

The first issue to determine was whether paragraph 21(4) provides an exclusive definition of what constitutes an “abuse of position or power” for the purposes of paragraph 21.

The second main dispute was what act or omission in the circumstances of this case had to be deliberate or dishonest.  The claimant submitted it was the arrest and that in this case it was deliberate.  The defendant submitted that it was both the arrest and the absence of lawful authority which needed to be deliberate or dishonest to satisfy the provisions. 

Decision

The judge held that paragraph 21(4) does constitute a comprehensive definition of abuse of position or power for the purposes of paragraph 21:

“….There is no generally recognised definition of “abuse of position or power” that can be derived from the authorities…..it would be surprising in such circumstances if the legislature had left the phrase “abuse of position or power” to be added as an additional requirement to a partial definition set out in paragraph 21(4). Secondly paragraph 21(4) is under the heading “definitions” suggesting that paragraph 21(4) was intended to define the phrase “abuse of position or power”. There does not seem to be much point to define a phrase with a minimum content, and then to leave the additional requirements undefined. Thirdly the definition in paragraph 21(4) is only relevant where there is a viable claim…which can be made against the relevant proposed defendant public authority which will already have limited the circumstances in which claims can be brought.”

The judge went on to find that, in this case, it was the arrest alone which needed to be shown to have been deliberate or dishonest.  He stated that if the defendant’s interpretation was right, every request for civil legal aid in a false imprisonment case would also need to be a claim for misfeasance in public office. 

The judge stated “It is common ground that there is a general principle of statutory construction to the effect that no citizen, should without clear authority, be shut out from the seat of justice.”

He further stated that the court will construct narrowly any enactment which appears to restrict the rights of parties and legal advisors in relation to litigation.

Comment

The judge’s decision is unwelcome news for the Ministry of Justice and the Legal Aid Agency but good news for civil liberties’ groups. The decision gives a wider definition to LASPO then contemplated by the Legal Aid Agency, whose more restrictive interpretation of the legislation has been understandable against the backdrop of swingeing government spending cuts.

For further information about any of the issues in this update, please contact Rose Linnane, Associate on 0151 242 6814 or email  rose.linnane@weightmans.com.