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

Ms Sisangia wished to bring proceedings against the Commissioner of Police for the Metropolis for false imprisonment and assault arising out of her arrest and detention on 7 January 2011. She applied to the Director of Legal Aid Casework for legal aid. However, following a review of an initial refusal, the Director maintained the refusal of her request on the ground that she had not shown that the proposed action was within the scope of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (“LASPO”) and in particular paragraph 21 of Schedule 1 to that Act. No other paragraph of that Schedule was or is relied on. Dingemans J held that the Director had misinterpreted paragraph 21 and quashed that decision. We were told that following the quashing of his decision the Director did allow Ms Sisangia legal aid to pursue her claim. But he is concerned about the wider implications of the judge’s decision. Hence this appeal.

Under LASPO the Lord Chancellor must secure that legal aid is made available in accordance with Part I of the Act: section 1 (1). Legal aid includes civil legal services required to be made available under section 9: section 1 (2). Section 9 provides that one condition for qualification is that the civil legal services in question fall within the descriptions in Part 1 of Schedule 1 to LASPO: section 9 (1) (a). Section 11 of LASPO introduces two further tests for qualification for legal aid, which can conveniently be labelled the means test and the merits test.

The immediately relevant parts of Part 1 of Schedule 1 to LASPO provide:

“Abuse of position or powers by public authority

21 (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 1, 2, 3, 4, 5, 6, 8 and 12 of that Part, and

(b)

the exclusion in Part 3 of this Schedule.

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);

“public authority” has the same meaning as in section 6 of the Human Rights Act 1998.”

Part 2 of the Schedule provides so far as relevant:

“The services described in Part 1 of this Schedule do not include the services listed in this Part of this Schedule, except to the extent that Part 1 of this Schedule provides otherwise.

1 Civil legal services provided in relation to personal injury or death.

2 Civil legal services provided in relation to a claim in tort in respect of negligence.

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

4 Civil legal services provided in relation to a claim in tort in respect of trespass to goods.

5 Civil legal services provided in relation to a claim in tort in respect of trespass to land.

6 Civil legal services provided in relation to damage to property.

…

8 Civil legal services provided in relation to a claim in tort in respect of breach of statutory duty.

…

12 (1) Civil legal services provided in relation to a claim for damages in respect of a breach of Convention rights by a public authority to the extent that the claim is made in reliance on section 7 of the Human Rights Act 1998.

(2)

In this paragraph—

“Convention rights” has the same meaning as in the Human Rights Act 1998;

“public authority” has the same meaning as in section 6 of that Act.”

It is also pertinent to note paragraph 19 of Part I of the Schedule, which encompasses claims for judicial review of an enactment, decision, act or omission. This is subject to the same exceptions to the exclusions as paragraph 21, but it contains no equivalent to paragraph 21 (4). Paragraph 22 encompasses damages claims for an act or omission by a public authority that involves “a significant breach” of Convention rights. Like paragraph 19, it is also subject to the same exceptions to the exclusions as paragraph 21; and it too contains no equivalent of paragraph 21 (4).

In essence the judge held that paragraph 21 (4) of Schedule 1 was a comprehensive definition of what was entailed in a claim for abuse of position or power rather than a statement of the minimum criteria for such a claim. He had three main reasons for his conclusion:

The judge went on to hold that for the purposes of the definition, as applied to the facts of our case, it was only the arrest itself that had to be deliberate. It was not necessary to allege that the arresting officers knew that they had no power of arrest, because if that had to be alleged then every request for legal aid for false imprisonment would have to amount to a claim for misfeasance in public office. Since any claim for misfeasance in public office is, in effect, a claim of dishonesty any other interpretation would give no effect to the alternative conditions of dishonesty and deliberateness.

There is no doubt that ever since the Magna Carta, if not before, the law has attached “supreme importance” to the liberty of the subject: Murray v Ministry of Defence [1988] 1 WLR 692, 703B (Lord Griffiths). It is a “fundamental constitutional principle”: R (Lumba) v Secretary of State for the Home Department [2011] UKSC 12 [2012] AC 245 at [219] (Lord Collins). The citizen ought, therefore, in principle to have unimpeded access to a court to vindicate his rights. A right of access to the court is itself a constitutional right: R (Witham) v Lord Chancellor [1998] QB 575. However, this case is not about access to a court. It is about whether the citizen is entitled to bring her claim with the aid of lawyers paid for at public expense. This is not analogous to, say, the requirement that an intending claimant should pay a court fee, as Laws J explained in Witham at 586:

“Mr. Richards submitted that it was for the Lord Chancellor's discretion to decide what litigation should be supported by taxpayers' money and what should not. As regards the expenses of legal representation, I am sure that is right. Payment out of legal aid of lawyers' fees to conduct litigation is a subsidy by the state which in general is well within the power of the executive, subject to the relevant main legislation, to regulate. But the impost of court fees is, to my mind, subject to wholly different considerations. They are the cost of going to court at all, lawyers or no lawyers. They are not at the choice of the litigant, who may by contrast choose how much to spend on his lawyers.”

Although Ms Kaufmann QC’s supplemental skeleton argument appeared to abandon reliance on the point, in her oral submissions she stressed the importance of what she called the “constitutional torts” protecting fundamental common law values such as inviolability of the person and of property. However, whatever we decide, a person in the position of Ms Sisangia is entitled to pursue her claim. She may be able to persuade a lawyer to take on her case pro bono or under a conditional fee agreement. Or she may present her case as a litigant in person. There is also the possibility that in a case of false imprisonment a claim may be funded under paragraph 22 of Schedule 1 as involving a “significant breach” of a Convention right. I do not, therefore, consider that the invocation of high constitutional principle helps in answering the questions of statutory construction posed by this appeal.

The effect of the judge’s characterisation of paragraph 21 (4) as an exclusive or comprehensive definition is that any deliberate act by a public authority that causes reasonably foreseeable harm to another counts as an abuse of power. The breadth of that proposition is apparent. Indeed Ms Kaufmann did not attempt to support that position, but instead offered a different interpretation of the paragraph. So it is common ground, in my judgment rightly, that the interpretation that the judge adopted was wrong.

In my judgment the judge’s error was to ignore what it was that was being defined. This is sometimes called “the potency of the term defined”: Bennion on Statutory Interpretation (6^th ed p 518). For example in MacDonald (Inspector of Taxes) v Dextra Accessories Ltd [2005] UKHL 47, [2005] 4 All ER 107 the House of Lords was concerned with the meaning of “potential emoluments” in the Finance Act 1989. Lord Hoffmann said at [18]:

“It is true that, as Charles J pointed out, 'potential emoluments' is a defined expression and a definition may give the words a meaning different from their ordinary meaning. But that does not mean that the choice of words adopted by Parliament must be wholly ignored. If the terms of the definition are ambiguous, the choice of the term to be defined may throw some light on what they mean.”

Likewise in Birmingham City Council v Walker [2007] UKHL 22, [2007] 2 AC 262 the House of Lords was concerned with the definition of “successor” in the Housing Act 1985. Lord Hoffmann said at [11]:

“Secondly, the word “successor” most naturally means successor to a secure tenancy. Although successor is a defined expression, the ordinary meaning of the word is part of the material which can be used to construe the definition.”

Lord Walker referred to both these cases with approval in Chartbrook Ltd v Persimmon Homes Ltd [2009] UKHL 38, [2009] AC 1101 at [94], saying:

“There is a good deal of authority, if authority is needed, to give weight to the natural meaning of words in a definition.”

In my judgment the fact that a definition of “abuse of position or power” of universal application cannot be extracted from the authorities does not mean that the term defined can be ignored. It is equally possible, indeed probable, that Parliament’s intention was that it should be left to the courts to develop what the phrase means. In other areas of the law this is clearly so. For example in the field of taxation Parliament has never attempted to define “income” or “trade”. In the intellectual property world neither Parliament nor the drafters of the European Patent Convention have ever tried to define the word “invention”. As Pumfrey J said in Shoppalotto.com Ltd v Comptroller General of Patents, Designs and Trade Marks [2005] EWHC 2416 (Pat) 396, [2006] RPC 293 at [6]:

“A moment's thought will show that it is not possible to provide an exhaustive definition of “invention”. The Convention does not attempt to interpret the word but provides a list of things which are excluded, whether or not they would be regarded as inventions.”

Likewise in the case of a “building”. As Byles J said in Stevens v Gourley (1859) 7 CBNS 99:

“The imperfection of human language renders it not only difficult, but absolutely impossible, to define the word “building” with any approach to accuracy. One may say of this or that structure, this or that is not a building; but no general definition can be given; and our lexicographers do not attempt it.”

The natural meaning of the term defined may be its meaning in ordinary discourse, or it may be its meaning as a legal concept. This is illustrated by McCollom v Wrightson [1968] AC 522 where the meaning of “gaming” as a defined term in section 55 of the Betting, Gaming and Lotteries Act 1963 was coloured by the meaning given to the word “gaming” by the common law.

The fact that “abuse of position or power” cannot be given a hard-edged definition does not mean that the concept itself is meaningless. A number of judges have, in different contexts, explained what they perceived to be the ingredients of an abuse of power. In R (Puhlhofer) v Hillingdon LBC [1986] AC 484, 518 Lord Brightman (with whom the other Law Lords agreed) said obiter:

“The ground upon which the courts will review the exercise of an administrative discretion is abuse of power - e.g. bad faith, a mistake in construing the limits of the power, a procedural irregularity, or unreasonableness in the Wednesbury sense - unreasonableness verging on an absurdity.”

In R (Begbie) v Secretary of State for Education and Employment [1999] EWCA Civ 2100, [2000] 1 WLR 1115 Laws LJ said:

“[76] Abuse of power has become, or is fact becoming the root concept which governs and conditions our general principles of public law. It may be said to be the rationale of the doctrines enshrined in Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 and Padfield v Minister of Agriculture, Fisheries and Food [1968] AC 997, of illegality as a ground of challenge, or the requirement of proportionality, and of the court’s insistence on procedural fairness. It informs all three categories of legitimate expectation cases as they have been expounded by this court in R v North and East Devon Health Authority, ex parte Coughlan [2002] 2 WLR 622.

[77] The difficulty, and at once therefore the challenge, in translating this root concept or first principle into hard clear law is to be found in this question, to which the court addressed itself in the Coughlan case: where a breach of a legitimate expectation is established, how may the breach be justified to this court? In the first three categories given in Ex parte Coughlan, the test is limited to the Wednesbury principle. But in the third (where there is a legitimate expectation of a substantive benefit) the court must decide ‘whether to frustrate the expectation is so unfair that to take a new and different course will amount to an abuse of power.’”

On the other hand in Three Rivers DC v Bank of England [2003] 1 AC 1, 235 Lord Millett said:

“Secondly, the core concept is abuse of power. This in turn involves other concepts, such as dishonesty, bad faith, and improper purpose. These expressions are often used interchangeably; in some contexts one will be more appropriate, in other contexts another. They are all subjective states of mind.

It is important to bear in mind that excess of power is not the same as abuse of power. Nor is breach of duty the same as abuse of power. The two must be kept distinct if the tort is to be kept separate from breach of statutory duty, which does not necessarily found a cause of action.” (Emphasis in original)

It has also been said that an error of law is not, without more, an “abuse of power”: see R (Page) v Lord President of the Privy Council [1993] AC 682, 693 (Lord Griffiths), 704 (Lord Browne-Wilkinson). In R (Lumba) v Secretary of State for the Home Department the members of the Supreme Court were all of the view that “abuse of power” meant something more than mere unlawfulness; and that some cases of false imprisonment would not amount to an “abuse of power”.

In my judgment the judge’s interpretation gave no weight at all to the meaning of the phrase “abuse of position or power”. If the judge were right, those words might just as well not have appeared in the text at all. I accept Mr Chamberlain QC’s submission on behalf of the Director that abuse of position or power is a recognised juridical concept which, like many other public law concepts, is both flexible and context-specific. It should, therefore, be given meaning in paragraph 21 (4).

In my judgment this conclusion is also supported by the language in which paragraph 21 (4) is phrased. There are well recognised techniques of drafting definition clauses. Thus a clause might say that “X means Y” in which case the definition is likely to be an exclusive one. Or it might say “X includes Y” in which case things within the natural meaning of X will be included in the definition. In our case the technique that the drafter used was that “X does not constitute Y” unless two conditions are satisfied. Simply as a matter of propositional logic “Not X unless Y” is not equivalent to “If Y then X”. Mr Chamberlain illustrated this by a syllogism. A flag is not a Union Jack unless it is red, white and blue. But it does not follow that if a flag is red, white and blue it is the Union Jack. The result of propositional logic has added force where the drafter has not used algebraic symbols but words. This form of definition, as the judge noted, is in marked contrast to the definition of clinical negligence where that expression is said to “mean” a breach of duty of care or trespass to the person etc. The same is true of the definition of “public authority” which is said to have “the same meaning” as in section 6 of the Human Rights Act 1998. The difference in drafting between these three sub-paragraphs is the reason why the judge was also wrong to draw support from the heading “Definitions”. In short there are different kinds of definition, and an exclusionary definition is not the same as a comprehensive definition.

I would hold, therefore, that the judge was wrong in his interpretation of paragraph 21 (4).

The second question before the judge was the nature of the act or omission which had to be deliberate or dishonest. Was it, as the judge held, merely the fact of arrest? Or was it the arrest without lawful justification? In view of my conclusion on the meaning of paragraph 21 (4) this question has less significance than it would have had if the judge’s interpretation were correct, because in either case the facts alleged must be capable of amounting to an abuse of position or power.

The judge reasoned that it was only the fact of arrest, since otherwise every request for civil legal aid for false imprisonment would amount to a claim for misfeasance in public office. I would accept that to make an arrest knowing that there was no power to do so would amount to a claim for misfeasance in public office. But it is not so clear that making an arrest in the honest belief that there was power to do so, where that belief was not founded on reasonable grounds, would amount to misfeasance in public office. Moreover, false imprisonment is only one category of case which might fall under the rubric of abuse of position or power and the description in paragraph 21 (4) must have been intended to apply across the board.

Ms Kaufmann QC rightly argued that the causes of action that could potentially amount to abuse of position or power included both intentional and unintentional torts. The intentional torts are false imprisonment, battery and assault, trespass to goods and trespass to land. The unintentional torts include breaches of statutory duty and breach of a Convention right. Claims for breach of contract are not within the exclusions in Part 2 of the Schedule, so in principle they too are potentially within the scope of paragraph 21. She argued that an intentional tort merely requires that the act complained of is intentional (in the sense of being a deliberate act). Thus in the case of an assault it is enough that the tortfeasor deliberately touches the victim. He does not need to know that the touching is unauthorised. In the case of false imprisonment the tortfeasor must intend to detain the victim. He does not need to know that the detention is unauthorised. In the case of trespass to land, the tortfeasor must deliberately and voluntarily cross the boundary of the victim’s land. He need not know where the boundary is, and even if he makes a genuine mistake about where the boundary is, that will not stop his deliberate act from being a trespass. I accept all these propositions as a matter of the civil law of torts.

The next step in the argument is that the phrase “deliberate or dishonest” in paragraph 21 (4) should be interpreted distributively. In the case of an intentional tort all that is needed is that the impugned act should be deliberate; but in the case of any other cause of action is it necessary for the impugned act to be dishonest. In so far as the phrase “abuse of power” needs to be given any separate meaning, the common factor to all judicial descriptions of what it involves is the existence of some unlawfulness. It follows, therefore, that unlawfulness satisfies this part of the description in paragraph 21. Accordingly, once it is alleged that an intentional tort has been committed it falls within the scope of paragraph 21.

There are a number of reasons why, in my judgment, this argument must fail. First, there is no support for the distributive interpretation in the words of paragraph 21 (4) itself. Second, since an intentional tort is by definition unlawful, the selection of unlawfulness as the core content of the phrase “abuse of power” adds nothing. Indeed any cause of action is necessarily based on some unlawful conduct. In other words this interpretation gives no content to the meaning of the phrase “abuse of power”. Suppose that a local authority makes an honest and reasonable mistake about the location of a boundary between two plots of land. Under that mistake it erects a fence on the wrong side of the boundary. The erection of the fence was undoubtedly deliberate and the tort of trespass to land has undoubtedly been committed. But to describe that as an abuse of power stretches language beyond breaking point. Third, even in the case of the intentional torts, unless the act complained of is deliberate there is no tort at all. In the case of conversion for instance, Lord Nicholls said in Kuwait Airways Corp v Iraqi Airways Co [2002] UKHL 19, [2002] AC 883 at [39] that one of the conditions for tortious liability was that the conduct “was deliberate, not accidental”. Similarly, in the case of trespass to land there is no tort if the entry onto land is unintentional and non-negligent: Clerk & Lindsell on Torts (21^st ed para 19-07). So the requirement in paragraph 21 (4) that the act in question be deliberate again adds nothing in the case of an intentional tort. Fourth, having accepted that paragraph 21 (4) is not an exhaustive or comprehensive definition, it seems to me to be forensic sleight of hand to say that if an act amounting to an intentional tort is deliberate it amounts, without more, to abuse of power. That would have the effect that paragraph 21 (4) is indeed an exhaustive definition at least in the case of intentional torts, despite the common ground that it is not. Fifth, although it is true that the various judicial descriptions of “abuse of power” all have a common theme of unlawfulness, that merely means that unlawfulness is a necessary condition. It does not mean that unlawfulness is a sufficient condition to amount to “abuse of power”. Sixth, confining the adjective “deliberate” to intentional torts and requiring “dishonest” to cover everything else produces very odd results. Ms Kaufmann accepts that a cause of action in negligence is potentially within the scope of paragraph 21. But the concept of dishonest negligence is one that, to me at least, is novel. I also find it difficult to understand what might turn a deliberate breach of contract into a dishonest one.

Ms Kaufmann urged on us that satisfaction of paragraph 21 was only a “gateway” and that it would still be necessary for a would-be claimant to satisfy the means test and the merits test. I agree that that is so; but I do not think that it casts much light on how wide the gateway is. That is a matter of interpretation of paragraph 21 itself. Ms Kaufmann also pointed to potential anomalies between paragraph 21 and paragraph 19 (dealing with claims for judicial review). Suppose that for wholly understandable reasons a prison governor makes a mistake about how to calculate the length of a sentence of imprisonment (as was the case in R (Evans) v Governor of Brockhill Prison (No 2) [2001] 2 AC 19). Suppose that as a result of the mistake one prisoner is released later than he should have been and another prisoner remains in prison when he ought to be released. The second prisoner can bring a claim for judicial review with funding under paragraph 19 (or for habeas corpus with funding under paragraph 20). As I have said, paragraph 19 contains no equivalent of paragraph 21 (4). If he chooses to bring a claim for judicial review he may add a claim for damages to his claim without having to satisfy the conditions in paragraph 21 (4). But the prisoner who has already been released can only bring a damages claim; and it would be anomalous if the former prisoner had to satisfy a more onerous test under paragraph 21 (4) before he could obtain public funding for his claim. I agree that this an anomaly. However, I think that Mr Chamberlain had an adequate answer to it; namely that the essential claim in judicial review in these circumstances would be the quashing of the decision and a money claim would be parasitic on that claim. By contrast in the case of a claim for damages the recovery of money is the whole point of the claim, and many of the exclusions that apply to the various paragraphs in Schedule 1 reflect a general policy not to fund purely money claims. Moreover, it is an undeniable fact that paragraph 21 contains paragraph 21 (4) (whatever it means) and that paragraph 19 does not contain an equivalent. So Parliament must have intended that there should be some difference in scope between the two paragraphs.

The final point under this head is Ms Kaufmann’s submission that Mr Chamberlain’s definition of “abuse of power” contained everything within it leaving no work for paragraph 21 (4) to do. In my judgment the error in this argument was that, as he explained in the course of his reply, Mr Chamberlain was not seeking to define the expression “abuse of power”. As I have said it is a flexible and fact-specific concept which may be incapable of definition. We should certainly not try to do so. What we can say is that something more than an intentional tort is necessary before the impugned act becomes an “abuse of power” even if we cannot say precisely what that “something more” is. But for the reasons I have given the same criticism may be levelled at Ms Kaufmann’s interpretation. In addition, as Shoppalotto.com Ltd shows, an exclusionary definition may often exclude things from a general and undefined expression “whether or not” they would be regarded as falling within the scope of the undefined expression.

We were referred to the Ministry of Justice Consultation Paper proposing changes to the legal aid regime which ultimately made their way into LASPO. Both sides accepted that these were admissible aids to interpretation as part of the enacting history. Mr Chamberlain argued that certain passages supported his interpretation while Ms Kaufmann argued that those passages were not inconsistent with hers. I did not derive anything out of that material, except perhaps for the proposition that changes were not intended to broaden the scope of legal aid. In order for a consultation paper or other preliminary material to provide real support for a disputed interpretation, it is necessary to find some clear and definite statement. As Lord Steyn put it in relation to analogous travaux préparatoires in Effort Shipping Co Ltd v Linden Management SA [1988] AC 605, 623:

“Only a bull's-eye counts. Nothing less will do.”

For these reasons I would allow the appeal.

I agree.

I also agree.