A Court of Appeal ruling has today overturned an earlier decision, effectively preventing 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.
Lord Justice Elias, overturning the decision of Mr Justice Dingemans in the High Court in November 2014, found that unless an applicant is able to show that a public authority not only has acted unlawfully, but also intended to act unlawfully, they are not eligible for funding. In this case it was therefore not enough that the police intended to arrest the claimant, Miss Sisangia, an arrest which was in fact unlawful, since they did not deliberately arrest her unlawfully.
The judgment in R (on the application of Sunita Sisangia) v Director of Legal Aid Casework goes against the fundamental constitutional principle that members of the public should be able to hold public authorities to account for an unlawful loss of liberty. It is of concern that the decision applies not just to loss of liberty cases but also claims involving assault, battery and other torts.
The dispute 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).
The LAA has since agreed to fund Miss Sisangia’s case which she has now pursued to a successful conclusion. However, the LAA still fought the case on principle to prevent further cases being eligible for funding.
The test set out in LASPO is that claims against a public authority will be funded where there is a deliberate or dishonest act or omission causing 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 the claimant. She would now have to show in addition that the police arrested her knowing that they did not have powers to do so. This added an additional, and far higher, hurdle to qualify for funding.
This interpretation 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 by Ms Sisangia’s lawyers, Hodge Jones & Allen in a judicial review which was earlier successful at the High Court. However, Lord Justice Elias disagreed, upholding the LAA’s original decision.
Commenting on the decision, Sasha Barton, partner at Hodge Jones & Allen says: “The decision today is a considerable blow for civil liberties in this country. I am deeply concerned that as a result of this ruling, it will simply not be possible for victims to bring claims against public authorities for false imprisonment, assault and for other serious and significant breaches of their rights by public authorities, since there will be no funding available. The judgment has significant and far-reaching implications for access to justice and we intend to seek permission to appeal.
“The judge’s suggestion 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, is, with respect, fanciful. Due to other funding changes 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.
“Thankfully Miss Sisangia was able to bring her claim, funded by legal aid. However, as a result of this decision, she would now have no way of getting legal representation and there would be no way of her challenging the police.
“Being able to hold state authorities to account for unlawful loss of liberty is an important constitutional safeguard. Before LASPO, cases of false imprisonment were always 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.
“As the Legal Aid Agency increasingly focuses on reasons to refuse funding, presumably in a bid to further reduce the legal aid bill, we are left in a situation where the scope of funding has been narrowed way beyond what was intended by Parliament.”
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Notes for Editors
Hodge Jones and Allen
Hodge Jones and Allen employs over 220 staff, based in Euston NW1. The firm’s team of specialists deal with Personal Injury, Medical Negligence, Industrial Disease, Civil Liberties, Criminal Defence, Court of Protection, Dispute Resolution, Employment, Family Law, Military Claims, Serious Fraud, Social Housing, Wills & Probate and Property Disputes.