Court of Appeal legal aid ruling is a blow for civil liberties

Judges in the Court of Appeal dealt a considerable blow to civil liberties in this country last month with a ruling that will make it more difficult for victims to bring claims against public authorities for false imprisonment, assault and for other serious and significant breaches of their rights.

The ruling overturned an earlier decision by the High Court and will effectively prevent those bringing claims against the police and other public bodies for unlawful acts from accessing legal aid funding, unless they can show that the public body intended to act unlawfully or acted dishonestly. Without funding we are likely to see many claims that would have been successful not being brought at all, going against the fundamental constitutional principle that members of the public should be able to hold public authorities to account for fundamental breaches of their rights.

The dispute in R (on the application of Sunita Sisangia) v Director of Legal Aid Casework centred on the meaning of the test for public funding for claims against public authorities. The Legal Aid Agency (LAA) refused to fund Miss Sisangia’s false imprisonment claim against the Metropolitan Police on the basis that her claim did not meet the new test under the Legal Aid Sentencing and Punishment of Offenders Act 2012 (LASPO).

Fortunately for Miss Sisangia, the LAA has since agreed to fund her case which she has now pursued to a successful conclusion. The LAA however, still fought the case on principle to prevent further cases being eligible for funding, presumably in a bid to save legal aid costs.

The test set out in LASPO is that claims against a public authority for assault, battery, false imprisonment and other torts will only be funded where the public authority has abused is position or powers. LASPO states than an act or omission is not an abuse of the authority’s position or powers unless it is “deliberate or dishonest” and results in reasonably foreseeable harm.

It was common ground in Ms Sisangia’s case that the police had intended to arrest her and the claim was that they did not have grounds to do so. The Legal Aid Agency argued that it was not enough to show that the police deliberately arrested her. She would now have to show in addition that the police arrested her knowing at the time that they did not have the powers to do so. This added an additional, and far higher, hurdle to qualify for funding. The interpretation proposed by the LAA effectively excludes from scope for legal aid funding all claims which do not involve allegations of dishonesty or bad faith on the part of the state.

This was contested in a judicial review which was earlier successful at the High Court. However, Lord Justice Elias (the presiding judge, sitting alongside Lord Justice Lewison and Christopher Clarke QC) in the Court of Appeal disagreed and upheld the LAA’s original decision to refuse funding.

The Court of Appeal held that despite LASPO appearing on the face of it to define what an abuse of power is (under a heading labelled “definitions”), the definition set out did not in fact fully define an abuse of power. Parliament must therefore have intended the courts to determine the meaning of the phrase and for something more than an intentional tort to be necessary before there was an abuse power (not necessarily misfeasance, though it is difficult to see from the Court’s reasoning what lesser claims would get over the very high hurdle now set). The Court of Appeal rejected the High Court view that LASPO provided a full definition of an “abuse of power” rather than a statement of minimum criteria. The High Court had accepted that only the arrest must be unlawful, otherwise to obtain funding any false imprisonment claim would have to amount to a claim for misfeasance in public office.

This controversial ruling has far-reaching implications for access to justice. The judge’s suggestion was that claimants in Miss Sisangia’s position could find a solicitor to represent them pro bono, under a CFA or represent themselves as a litigant in person and therefore still had access to redress. This suggestion is fanciful. Other funding changes mean it is no longer possible in practical terms to fund cases under CFAs unless there is a personal injury element, which in cases like this there are not. With the best will in the world specialist lawyers cannot represent people un-funded. These cases involve complex legal arguments and there is no equality of arms if victims do not have legal representation.

Whilst Miss Sisangia was able to bring her claim, funded by legal aid, this decision means that if she were trying to bring a claim now, she would have no way of getting legal representation and there would be no way of her challenging the police, other than perhaps by way of exceptional funding, which is extremely difficult to get, and would likely be refused on the basis that parliament had not intended to fund claims such as hers.

This state of affairs is deeply worrying. Being able to hold state authorities to account for unlawful loss of liberty and breaches of other fundamental rights is an important constitutional safeguard. Before LASPO, cases of false imprisonment were routinely funded by legal aid (subject of course to satisfying the means and merits tests) and restricting funding so that it applies only to deliberate unlawfulness and dishonesty cases was never the stated intention of Parliament. A system where people who have been unlawfully detained or otherwise mistreated by the state have no means of redress, is totally unacceptable. We intend to seek permission to appeal.

This is a version of an article first published on The Justice Gap.