A woman has won a significant case giving her legal aid to pursue an allegation of false imprisonment against the London Metropolitan Police – despite a claim by lawyers that legal aid was barred by the Coalition Government’s draconian LASPO legislation [Note: see however Court of Appeal reversal at end of this piece].
The case of R (Sunita Sisangia) v Director of Legal Aid Casework means legal aid will not be restricted to tort claims in which police are accused of dishonesty in detaining people unlawfully. Legal aid will be available for a wider set of claims: when police detain someone deliberately (whether or not dishonestly) knowing harm might come to the detainee as a result of the detention.
Sisangia had been arrested just after at 4am one morning in January 2011 after a neighbour reported alleged harassment two weeks earlier. She was held for more than 11 hours. “Ms Sisangia says that she was not provided with permission to take her medication until she saw a doctor at 0810 hours, and was not provided with food or water until 0953 hours. Ms Sisangia alleges she was not provided with any further food apart from water and a cup of tea, was released from custody at 1545 hours.” Police decided there was no criminal case against her.
Sisangia’s claim for being wrongly detained is in part based on the police being aware of the history of her dispute with the neighbour during which she had been allegedly threatened and as a result of which she had been given a panic alarm by the police. She considers it was unnecessary to have arrested her in a “dawn raid”.
The legal issues
At issue was paragraph 21 of Schedule 1 to the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO). This allows restricted legal aid for claims of abuse of powers by a public authority but says:
“(4) For the purposes of this paragraph, an act or omission by a public authority [such as the police] 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 question before the High Court was: does this, in effect, provide a definition of abuse of power that would attract legal aid (as argued by Jude Bunting of Doughty Street Chambers for Sisangia). Or is it a minimal definition that also requires, separately defined, “abuse of position or power”, as claimed by Sarah Ford for the Director of Legal Aid Casework?
Mr Justice Dingemans decided the former. The words were a “comprehensive definition of abuse of position or power for the purposes of paragraph 21”. To attract legal aid, the tort does not require some additional claim of “abuse of power” – not least because there is no legal precedent giving a recognised definition of such a concept. If no accepted legal definition exists outside the Act, then the words of 21(4) provide that definition for the purposes of the Act. “There does not seem to be much point to define a phrase with a minimum content, and then to leave the additional requirements undefined.” (Para 31)
The judge was further asked to reject Sisangia’s claim by reading the word “or” in “deliberate or dishonest” as if it were actually an “and”. In other words the prima facie claim against the police would have to involve a harmful act or omission that was both deliberate and dishonest in some way. Dingemans could see no reason why he should do this:
“This is because, as was accepted in submissions, if Ms Ford’s interpretation was right every request for civil legal aid for false imprisonment would also need to amount to a case for misfeasance in public office.” It would make “the ‘deliberate’ and ‘dishonest’ cumulative requirements, rather than the separate requirements that they are shown to be in paragraph 21(4) (‘deliberate or dishonest’).”
In effect the judge is arguing that whole areas of tort claims against the police for false imprisonment would be barred as far as legal aid was concerned with only misfeasance claims being accepted. This could not have been the intention of the Act, as wording elsewhere in it confirms.
Dingemans concludes: “In these circumstances in my judgment Ms Sisangia’s claim for false imprisonment is a claim which would amount to ‘abuse by a public authority of its position or powers’ within the meaning of paragraph 21(1) of Part 1 of Schedule 1 of LASPO. This is because the claim for false imprisonment related to an arrest that was deliberate and that resulted in harm to Ms Sisangia that was reasonably foreseeable, thereby satisfying the provisions of paragraph 21(4).” (Para 33)
If we are to believe the head of the Legal Aid Agency, LASPO included an attempt by the Coalition Government to exclude legal aid in tort claims for “abuse of position or powers by a public authority”. The LAA’s lawyers wanted Mr Justice Dingemans to check parliamentary reports to prove the point. If they were right, that would be a shocking indictment of the purpose of LASPO. Nominally it was intended to cut the legal aid budget; in reality (on the LAA’s argument) it had a more ideological purpose: to curb citizens’ ability to bring the state to book when it steamrollers their rights.
This purpose would certainly be at one with the general feeling at least in the Conservative part of the Coalition – a strong sense that the state and its offshoots (public authorities in general) should be allowed a certain leeway to get away with breaches of individuals’ rights. And in particular, according to the LAA lawyers (by implication), the rights of the poorest people – the ones who might still qualify for legal aid to pursue those rights.
Thus a draft Conservative “UK Bill of Rights” was full of little let-out clauses for the state (see: Conservative Bill of Rights: the State v the People) and the actual thing is likely to retain them when the Conservative Party finally releases it. So one might quite reasonably believe that LASPO was intended to pursue the same aim of placing the state above the law – or at least setting quite a high financial bar before public bodies need answer for their misdeeds.
Dingemans found, however, that the crucial paragraph in LASPO did not do that. The words were clear: “deliberate” is not the same as “dishonest” nor should the two words be lumped together to give a cumulative meaning; “or” is not the same as “and”. There can be no confusion. The legislation could be interpreted literally (a method the “UK Bill of Rights” recommends as the only way to interpret human rights legislation, as it happens).
Only if “the legislation was ambiguous or obscure, or where the literal meaning led to absurdity” would judicial practice allow evidence from beyond the words of the Act (such as the Hansard reports of Parliament proffered by the legal aid director’s lawyers) to be adduced to guide a judge as to its purpose. (This is a Pepper v Hart point, explained in another context here.)
One cannot help but feel the director will not leave the matter here. There is too much at stake if ordinary people can sue the police for false imprisonment (or state bodies in general for abuses) using public funds without having to prove dishonesty or misfeasance. It is true that a tort such as false imprisonment is by definition based on a deliberate act – though in the sense of deliberate intention to detain, not intention to cause harm. Detention is itself the harm unless it is lawful detention. Thus in R v Governor of Brockhill Prison (ep Evans) a prison governor had held on to an inmate 59 days beyond her release date owing to a wrong calculation. The governor had not made the calculation nor intended unlawful imprisonment but was held liable anyway – because retaining the prisoner was a deliberate act.
Could LASPO have been seeking to exclude this kind of “innocent” but deliberate unlawful act from legal aid? After all, the Act was intended in general to remove legal aid for most damages claims. But it was also intended to except “abuse of position or power” from that exclusion.
Upon appeal in Sisangia we could see the bizarre contortions of lawyers of a government offshoot (the LAA) insisting the Government’s legislation was more disreputable than it looks on its face and that the legislation is so ambiguous that it needs glossing by a minister or some other document. But if the Government cannot get the difference between “and” and “or” right, or we can’t know from the word “deliberate” what the Government means, where would that leave us with any of its legislation?
Stop press: The Court of Appeal has now (27 January 2016) overturned Dingemans’ judgment so legal aid will be denied. Bailii version here
Note: A critique of the original judgment is here: Judge Dingemans’ defiance
Thanks to Bailii.org for its court reports