England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		12th November 2014

Mr Justice Dingemans :

Introduction

1. This is the hearing of a claim for judicial review of the decision dated 4^th December 2013 ("the decision") of the Defendant Director of Legal Aid Casework ("the Director") to refuse to provide legal aid funding to the Claimant Sunita Sisangia ("Ms Sisangia"). Ms Sisangia sought legal aid for a claim that she intends to bring against the Commissioner of Police for the Metropolis ("Commissioner of Police") arising from her arrest on 7 January 2011. This case raises a short, but interesting, point of statutory construction of the provisions of paragraph 21 of Schedule 1 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 ("LASPO").

The alleged facts giving rise to the proposed claim

2. I have taken the alleged facts about Ms Sisangia's proposed claim against the Commissioner of Police from Ms Sisangia's "Statement of Case for Public Funding Application" and supporting documents. The Commissioner of Police has denied liability for Ms Sisangia's claim, and I am not in a position to make findings of fact relating to the proposed claim.
3. There had been a dispute between Ms Sisangia and the person who owned, but did not live in, the flat above where Ms Sisangia was living ("the owner of the neighbouring flat"). The flat in which Ms Sisangia was living was occupied by her brother under a tenancy agreement. Ms Sisangia's mother, and Ms Sisangia's children, then aged 2 and 4 years, also lived with Ms Sisangia in the flat.
4. The dispute with the owner of the neighbouring flat appears to have arisen in relation to building works being carried out at the flat above the flat in which Ms Sisangia was living. Ms Sisangia alleged that she had been threatened in late November 2010 by a man said to be the brother of the owner of the neighbouring flat. That man was arrested by police and bailed, although no further action was taken. A panic alarm was provided by the police for Ms Sisangia on 28 November 2010.
5. On 24 December 2010 the owner of the neighbouring flat reported an allegation of harassment against Ms Sisangia carried out against the owner, members of the owner's family, and the owner's tenants. The police noted a potential link between that allegation against Ms Sisangia, and Ms Sisangia's complaint about the brother of the owner of the neighbouring flat. It was noted that Ms Sisangia would not have known of the actual address of the owner of the neighbouring flat, and the owner was therefore not assessed to be at risk from Ms Sisangia. It was intended to monitor progress.
6. On 30 December 2010 the officer in the case recorded that a statement was needed from the owner of the neighbouring flat, and that the views of that owner should be sought on the action to be taken by the police. On 6 January 2011 a police officer, who was apparently new to the investigation, contacted the owner of the neighbouring flat who complained of continuing harassment and said that Ms Sisangia should be arrested, and that a statement would be provided to the police on 7 January 2011 at 1100 hours.
7. At 0410 hours on 7^th January 2011 a police constable and a Superintendent arrested and detained Ms Sisangia for an offence of harassment. Ms Sisangia claims that she was not told why she was under arrest. It appears that the arresting officer considered it necessary to arrest Ms Sisangia at that time in the morning because an invitation to the police station would have afforded Ms Sisangia an opportunity: (1) to interfere with the victims; and (2) to erase evidence from mobile telephones. Ms Sisangia complains that the police knew (or at least should have known from the earlier records) that she did not know the address of the owner of the neighbouring flat, and that in the event her mobile telephone was not investigated.
8. Ms Sisangia was taken to Wembley police station. 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.
9. After hearing Ms Sisangia's version of events, and looking at the details of the statement provided by the owner of the neighbouring flat, it appears that the police decided that the matter was a civil dispute, and that no crime had been committed.

Written complaints

10. In July 2011 Ms Sisangia made a written complaint about her treatment and arrest. On 23 November 2011 the Commissioner's Directorate of Professional Standards upheld Ms Sisangia's complaint about the timing of her arrest, but dismissed the rest of her complaint. Ms Sisangia appealed against the dismissal of the balance of her complaint to the Independent Police Complaints Commission ("IPCC"), and on 7 February 2012 the IPCC upheld part of Ms Sisangia's other complaints.

Claim for public assistance

11. By letter dated 12 September 2013 Ms Sisangia's solicitors applied for civil legal aid on behalf of Ms Sisangia. In the application it was noted that the case was unsuitable for a CFA (although the wrong box had been ticked) because insurance premiums were likely to be as high as £40,000, and they would not be recoverable under the new costs provisions which had come into force on 1 April 2013. The "Application for Civil Legal Aid Certificate" referred to LASPO, stating the claim was not listed in schedule 1 of LASPO, but the Statement of Case for Public Funding referred at paragraph 27 to the Funding Code, which had ceased to have effect on 1 April 2013. In the event the Director's staff did not take a point about these matters and attempted to determine the application on the merits, having regard to the provisions of LASPO.
12. Correspondence was exchanged in which it was stated that the application did not fall within paragraph 21 of LASPO, and that civil legal aid would not be provided. This was challenged, and by letter dated 4 December 2013 the Director's decision was communicated. This noted the changes to the funding regime and stated that "abuse" by a public authority of its position or powers needed to be shown. The letter went on "Abuse is not defined but the ordinary use of that word requires that there has to be conduct which goes beyond the ordinary day to day performance of duty, or even simple negligence. My view is reinforced by the requirement in para 21 that to show "abuse" there has to be conduct which is deliberate or dishonest and which results in foreseeable harm. Frankly arresting someone in the normal course of one's duty is not abuse, and does not to my mind begin to satisfy the deliberate or dishonest test, even where there may be an argument over reasonable suspicion or necessity. Though 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 is such an example".
13. It might be noted that neither the Claimant's solicitors nor the Director's staff referred to the provisions of paragraph 22 of Part 1 of Schedule 1 of LASPO in the correspondence. It appears from the submissions that paragraph 22 might be relevant to whether Ms Sisangia has another basis for claiming civil legal aid.

Relevant statutory provisions

14. LASPO provides

1(1) The Lord Chancellor must secure that legal aid is made available in accordance with this Part.

(2) In this Part "legal aid" means (a) civil legal services required to be made available under section 9 …

9(1) Civil legal services are to be available to an individual under this Part if - (a) they are civil legal services described in Part 1 of Schedule 1, and (b) the Director has determined that the individual qualifies for the services in accordance with this Part (and has not withdrawn the determination)".

15. Part 1 of Schedule 1 of LASPO therefore determines which civil legal services qualify. They include services relating to claims set out in paragraphs 19, 21 and 22. Paragraph 19 provides for civil legal services to be provided in specified circumstances in relation to claims for judicial review. Paragraphs 21 and 22 are set out below:

21. Abuse of position or powers by a public authority

(1) Civil legal services provided in relation to abuse by a public authority of its position or powers.

General exclusions

(2) Sub-paragraph (1) is subject to-

(a) the exclusions in Part 2 of this Schedule, with the exception of paragraphs … 3 … of that Part …

Specific exclusion

(3) The services described in sub-paragraph (1) do not include services provided in relation to clinical negligence.

Definitions

(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

(5) In this paragraph –

"clinical negligence" means breach of a duty of care or trespass to the person committed in the course of the provision of clinical or medical services (including dental or nursing services).

22 Breach of Convention rights by public authority

(1) Civil legal services provided in relation to –

(a) a claim in tort ….

in respect of an act or omission by a public authority that involves a significant breach of Convention rights by the authority.

General exclusions

(2) Sub-paragraph 1 is subject to-

(a) the exclusions in Part 2 of this Schedule, with the exception of paragraphs … 3 …".

16. It might be noted that public authority in paragraph 21 has the same meaning as public authority within the meaning of the Human Rights Act 1998.
17. Part 2 of Schedule 1 is headed "Excluded Services". Paragraph 3 of Part 2 provides:

"3 Civil legal services provided in relation to a claim in tort in respect of assault, battery or false imprisonment."

18. The net effect of all these provisions is that: "civil legal services are to be available to an individual … if they are… described in Part 1 of Schedule 1".
19. Paragraph 21 of Part 1 of Schedule 1 requires civil legal services to be available in relation to "abuse by a public authority of its position or powers". Although Part 2 of Schedule 2 provides for general exclusions, and lists in paragraph 3 of Part 2 "a claim in tort in respect of assault, battery or false imprisonment", that general exclusion is itself excluded by paragraph 21(2)(a), meaning that a claim in tort in respect of false imprisonment might fall within paragraph 21.
20. There is a definition in paragraph 21(4). There is a dispute between the parties about whether that definition is comprehensive of what amounts to an "abuse of position or powers" or is a minimum to be satisfied together with other evidence showing an "abuse of position or powers".
21. Paragraph 22 of Part 1 of Schedule 1 requires civil legal services to be available in relation to "a claim in tort … in respect of an act or omission by a public authority that involves a significant breach of Convention rights by the authority". Although Part 2 of Schedule 2 provides for a general exclusions, and lists in paragraph 3 of Part 2 "a claim in tort in respect of assault, battery or false imprisonment" that general exclusion is itself excluded by paragraph 22(2)(a), meaning that a claim in tort in respect of false imprisonment might fall within paragraph 22.

Relevant legal principles

22. It is established that the liberty of the subject is a fundamental constitutional principle, see R(Lumba) v Secretary of State for the Home Department [2011] UKSC 12; [2012] 1 AC 245 at paragraph 219. An important protection for the liberty of the subject is provided by the tort of false imprisonment. This is an intentional tort. It is established on proof of the fact of imprisonment and the absence of lawful authority to justify that imprisonment, see Clerk & Lindsell on Torts, 21^st edition, at paragraph 15-23. Once imprisonment is proved the burden is on those who detained the Claimant to justify that imprisonment.
23. 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. It is also common ground that the court will construe narrowly any enactment which appears to restrict the rights of parties and legal advisors in relation to litigation, see Bennion on Statutory Interpretation, A Code, Sixth Edition, at pages 772 and 773.
24. It is also common ground that the Court may have regard to any item of the enacting history of an act as an aid to its construction, although Courts should be wary about the spurious use of legislative history, see Bennion on Statutory Interpretation, at pages 559-561. The enacting history is the surrounding body of public knowledge relative to its introduction in to Parliament as a bill, subsequent progress through, and passing by, Parliament.
25. Both parties made reference in their submissions to Hansard and to an extract from the Parliamentary debate on LASPO in the House of Lords. In Pepper v Hart [1993] AC 593, at pages 620c-d and 634d, it was confirmed that the Courts might consider Parliamentary material as an aid to the construction of legislation where the legislation was ambiguous or obscure, or where the literal meaning led to absurdity. Reference should only be permitted where such Parliamentary material clearly disclosed the legislative intention behind the ambiguous or obscure words. It was noted that such a clear statement was only ever likely to be made by the minister or other promoter of the bill.

The enacting history

26. The relevant enacting and past legislative history is that provision was made by section 1 of the Access to Justice Act 1999 for the Legal Services Commission. Section 6(8) provided that the Lord Chancellor might by authorisation or direction require the Commission to fund the provision of any of the services specified in schedule 2, in the circumstances set out in the direction. The Lord Chancellor's authorisation given under section 6(8) of the Access to Justice Act 1999 provided at paragraph 8(b) for "proceedings under section 8 of the Code (proceedings against public authorities concerning serious wrong doing, abuse of position or power, or significant breach of human rights)". The "Code" was a reference to the "Funding Code". This provided (at section 8) that "this section applies to application for legal representation in relation to proceedings or proposed proceedings against public authorities concerning serious wrong doing, abuse of position or power, or significant breach of human rights…". It can be seen that the phrase "abuse of position or power" has been used before its appearance in paragraph 21 of Part 1 of Schedule 1 of LASPO.
27. There was Guidance published in relation to the Funding Code which said (at paragraph 17.2.1) that in order to show that a case concerned serious wrong doing or abuse of position or power it was necessary to show that it concerned something more than a straight forward claim against a public authority such as a simple claim for negligence or breach of contract. It also provided that abuse of position or power arose when the public authority having responsibility for protecting or serving the public acted in a way that fell so far short of the standards which could be reasonably expected of that body that its conduct amounted to an abuse of its position. It also (at 17.2.3) went on to provide that "to constitute abuse of position or power it will usually be necessary to show that there has been a deliberate and dishonest wrongful abuse of the powers given to a public officer, who either knows that the client or some other person will suffer loss as a result, or is recklessly indifferent whether or not harm is suffered" (emphasis added). It might be noted that this Guidance is materially different from the terms of paragraph 21 of Part 1 of Schedule 1 of LASPO in which the phrase "deliberate or dishonest" is used. In these circumstances I have not derived assistance from the legislative history.
28. In R(on the application of G) v Legal Service Commission [2004] EWHC 276; [2004] PIQR P26 the Court decided that negligence might, in certain circumstances, amount to "serious wrongdoing". It appears, from the consultation paper "Proposals for the Reform of Legal Aid in England and Wales", that a major reason for the proposed legislative changes was to reverse, by legislation, the effect of the decision in R(G) v Legal Services Commission, and to make it clear that simple negligence was insufficient to fall within the category of serious wrong doing.
29. Both Counsel referred in the submissions before me to some paragraphs of the consultation paper, in particular around paragraph 4.45, to support their respective interpretations of paragraph 21 of Part 1 of Schedule 1 of LASPO. I did not derive much assistance from those passages because they offered no insight into the meaning of the phrase in paragraph 21.

The proper interpretation of paragraph 21

30. The first issue to determine is whether paragraph 21(4) provides an exclusive definition of what constitutes an abuse of position or power for the purposes of paragraph 21, as submitted by Mr Bunting on behalf of Ms Sisangia, or provides minimum requirements to be satisfied together with a requirement that there be an abuse of position or power, as submitted by Ms Ford on behalf of the Director.
31. It is right to note that the wording of the definition in paragraph 21(5) for clinical negligence ("clinical negligence means …") is different from the wording of the definition in paragraph 21(4) for abuse of position or power ("an act or omission … does not constitute an abuse of its position or powers unless …"). However I consider that paragraph 21(4) is a comprehensive definition of abuse of position or power for the purposes of paragraph 21 for three main reasons. First there is no generally recognised definition of "abuse of position or power" that can be derived from the authorities. This is best illustrated by R(Lumba) at paragraph 69 where Lord Dyson referred to two different meanings of abuse of power in public law and the tort of misfeasance. 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, in this case in tort, which can be made against the relevant proposed Defendant public authority which will already have limited the circumstances in which claims can be brought.
32. The second main dispute on the interpretation of paragraph 21 was what "act or omission" in the circumstances of this case had to be "deliberate or dishonest". Mr Bunting submitted that in this case it was the arrest which needed to be "deliberate or dishonest" and that in this case it was deliberate. Ms Ford submitted that it was both the arrest, and the absence of lawful authority which needed to be deliberate or dishonest. I am satisfied that in this case it was the arrest which needed to be shown to have been deliberate or dishonest. 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. This is because acting deliberately knowing that there was no legal power to arrest would amount to misfeasance in public office, as defined by Three Rivers District Council and others v Governor and Company of the Bank of England (No.3) [2003] 2 AC 1 at page 191e. As Lord Hutton made clear at page 227f a public officer who acts knowing that he had no power to do the act complained of involves bad faith because the public officer did not have an honest belief that his act was lawful, which in those circumstances would amount to dishonesty. Such a construction cannot be right for two main reasons. First it makes the "deliberate" and "dishonest" cumulative requirements, rather than the separate requirements that they are shown to be in paragraph 21(4) ("deliberate or dishonest"). Secondly it does not explain why the reference to paragraph 3 of Schedule 2 in the general exclusions in paragraph 21(2) makes it clear that paragraph 21 is intended to cover at least some cases of false imprisonment if the reality is that paragraph 21 is restricted to cases which would amount to misfeasance in public office.
33. 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).
34. It might be noted that I have not had to have resort to anything other than the meaning of the words, in the particular context of this statutory provision. This means that I have not had to deal with Mr Bunting's submission that clear words would be needed to prevent someone in Ms Sisangia's position from having legal assistance to bring her case to Court, and the possibility, raised in submissions, that paragraph 22 might be another route by which such a claim could be brought. As I did not hear full submissions on paragraph 22 and because it is not necessary to do so, I have not addressed the proper interpretation of paragraph 22.
35. I should also record that, for the reasons set out above, in my judgment there was no relevant ambiguity or obscurity in the wording of paragraph 21 or absurdity arising from a literal interpretation of paragraph 21, which would have justified reliance on statements made in the Parliamentary debates about legislative intention. However even if I had considered the statements made in the Parliamentary debate to be admissible I did not derive any relevant assistance from them. I was shown extracts from a debate about LASPO in the House of Lords for the 18 January 2012 when relevant provisions of part 1 of schedule 1 were debated by both sides. The extracts I was shown related to proposed amendments to (what was to become) paragraph 21 and responses made by the Minister. This meant that the Minister was responding to proposed amendments, and statements about the amendments, at the same time making comments about paragraph 21. This in turn meant that it was sometimes difficult to attribute the Minister's statement either to the amendment or to paragraph 21. The other difficulty was that the clearest statement made by the Minister was when the wording of paragraph 21 was repeated (columns 629/630). This meant that both sides submitted that the statement supported their respective interpretations, and made the whole argument circular on what was the proper meaning of paragraph 21.

Conclusion

36. For the reasons set out above I find that the proposed claim for civil legal aid made by Ms Sisangia falls within the provisions of paragraph 21 of Part 1 of Schedule 1 of LASPO.