Director of Legal Aid Casework v The Queen On the Application of Sunita Sisangia

Paragraph 21(4) of Schedule 1 to Legal Aid, Sentencing and Punishment of Offenders Act 2012 sets necessary conditions for conduct to constitute an abuse of a public authority’s position or powers. It is not a comprehensive definition. “Abuse of position or power” is a flexible, context-specific juridical concept. Deliberate or dishonest conduct causing reasonably foreseeable harm does not automatically establish abuse. Mere unlawfulness or the commission of an intentional tort is insufficient; something more is required. The statutory phrase cannot be read distributively so that deliberateness alone suffices for intentional torts.

The respondent sought legal aid to pursue claims in false imprisonment and assault against the Commissioner of Police for the Metropolis arising from her arrest and detention. The Director refused funding on the basis that the proposed proceedings fell outside paragraph 21 of Schedule 1 to Legal Aid, Sentencing and Punishment of Offenders Act 2012.

Dingemans J construed paragraph 21(4) as a comprehensive definition and quashed the refusal. The Director appealed, raising the wider question whether the statutory conditions were sufficient in themselves and what conduct had to be deliberate or dishonest.

1. Appeal allowed. The Court of Appeal unanimously held that the Administrative Court had adopted an erroneous construction of paragraph 21(4) of Schedule 1 to Legal Aid, Sentencing and Punishment of Offenders Act 2012.
2. Paragraph 21(4) is an exclusionary definition. The requirements that an act or omission be deliberate or dishonest and cause reasonably foreseeable harm are necessary conditions, but their satisfaction does not itself establish an abuse of position or power. The phrase being defined must retain operative meaning.
3. “Abuse of position or power” is a recognised public-law concept. It is flexible and context-specific, and should not be given an exhaustive hard-edged definition. The court relied on the distinction between abuse of power, excess of power and breach of duty explained in Three Rivers DC v Bank of England [2003] 1 AC 1, and on the observation in R (Lumba) v Secretary of State for the Home Department [2011] UKSC 12 that abuse involves more than mere unlawfulness.
4. The words “deliberate or dishonest” cannot be read distributively. A deliberate act constituting an intentional tort does not, without more, amount to abuse of power. That construction would add nothing to paragraph 21(4), would make it effectively comprehensive for intentional torts, and would produce anomalous results.
5. In construing a definition, the natural or legal meaning of the defined term remains relevant. The form “does not constitute Y unless” is not equivalent to “if the conditions are met, it is Y”. The court applied the reasoning in MacDonald (Inspector of Taxes) v Dextra Accessories Ltd [2005] UKHL 47 and related authorities on the potency of the term defined.
6. The constitutional importance of liberty and access to the courts did not determine the scope of publicly funded legal representation. Legal aid is a statutory subsidy distinct from the cost of access to court. Paragraph 21 is only a gateway; the means and merits tests under section 11 remain applicable. Differences between paragraph 19 judicial-review funding and paragraph 21 damages funding did not justify disregarding the statutory distinction.
7. The consultation material did not assist the disputed construction. Preliminary material must contain a clear and definite statement before it can materially support an interpretation. The appeal was therefore allowed.

• Court of Appeal (Civil Division): allowed the Director’s appeal from the Administrative Court.
• Queen’s Bench Division, Administrative Court: Dingemans J held that paragraph 21(4) provided a comprehensive definition of abuse of position or power, held that only the arrest had to be deliberate on the facts, and quashed the refusal of legal aid.