Sisangia, R (on the application of) v Director of Legal Aid Casework

Paragraph 21 of Schedule 1 to the Legal Aid, Sentencing and Punishment of Offenders Act 2012 contains a comprehensive definition of abuse of a public authority’s position or powers for legal-aid purposes. The act or omission constituting the abuse must be deliberate or dishonest and must result in reasonably foreseeable harm. The provision does not additionally require proof of a separate, undefined abuse of position or power. In a proposed false-imprisonment claim, the relevant act is the arrest, rather than the absence of lawful authority. A deliberate arrest causing reasonably foreseeable harm may therefore satisfy paragraph 21, without requiring a claim amounting to misfeasance in public office.

The claimant sought judicial review of the Director of Legal Aid Casework’s refusal to fund a proposed claim against the Commissioner of Police for the Metropolis arising from her arrest and detention. The proposed claim included false imprisonment and related complaints about her treatment in custody. The Director considered that paragraph 21 of Schedule 1 to the Legal Aid, Sentencing and Punishment of Offenders Act 2012 required abuse beyond ordinary police duties, including deliberate or dishonest conduct.

The central issues were whether paragraph 21(4) supplied an exclusive definition of abuse of position or powers, and whether the relevant deliberate or dishonest act was the arrest or the absence of lawful authority.

1. The claim succeeded. The proposed claim for civil legal aid fell within paragraph 21 of Part 1 of Schedule 1 to the Legal Aid, Sentencing and Punishment of Offenders Act 2012.
2. Paragraph 21(4) was a comprehensive definition of abuse of position or powers. There was no generally recognised meaning that required additional elements. The heading “definitions”, the absence of an established legal definition, and the fact that a viable underlying claim would already restrict the circumstances in which legal aid could arise supported that construction.
3. For a proposed false-imprisonment claim, the relevant act or omission requiring deliberate or dishonest conduct was the arrest. Requiring the absence of lawful authority also to be deliberate or dishonest would effectively confine paragraph 21 to claims amounting to misfeasance in public office. That would make the separate words “deliberate” and “dishonest” cumulative and would give insufficient effect to the exclusion of tort claims for assault, battery and false imprisonment from the general exclusions.
4. False imprisonment is established by proof of imprisonment and absence of lawful authority. The claimant’s proposed claim concerned an arrest which was deliberate and which resulted in harm that was reasonably foreseeable. It therefore satisfied paragraph 21(4).
5. The court did not need to determine the alternative route potentially available under paragraph 22, or the wider statutory-construction arguments based on access to justice. There was no relevant ambiguity, obscurity or absurdity justifying reliance on Parliamentary debates under Pepper v Hart [1993] AC 593.