Court of Appeal to decide whether public funding should be available to bring claims for unlawful imprisonment

In what will undoubtedly be a landmark judgment, the Court of Appeal is to rule on a person’s right to hold the state to account for the deprivation of their liberty.

The Court of Appeal has granted permission to the Legal Aid Agency for an appeal of the High Court’s decision that claims for false imprisonment arising from an unlawful arrest should be funded by legal aid.

The initial Judicial Review was brought by Hodge Jones & Allen on behalf of Sunita Sisangia, who we represent in a civil claim against the police for false imprisonment and trespass arising from her arrest.

In April 2013, changes to the legal aid regime under the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (“LASPO”) came into force. Under the new regime, claims in false imprisonment could be in ‘scope’ for public funding if they are claims against a public authority for an abuse of its position or powers (paragraph 21). The new regime also provides that the act or omission of the public authority must be deliberate or dishonest, and result in foreseeable harm, to constitute an abuse of position or powers for the purposes of qualifying for funding.

In December 2013, Ms Sisangia’s application for legal aid funding to pursue her claim against the police was refused. The Legal Aid Agency argued that her claim did not fall within the scope of LASPO as it failed the test in paragraph 21. That decision was challenged by way of judicial review, and Mr Justice Dingemans gave judgment in favour of Ms Sisangia in December 2014.

In his judgment, Mr Justice Dingemans recognised that “liberty of the subject is a fundamental constitutional principle” and commented that the tort of false imprisonment provides an important protection.

The judgment affirmed the general importance of these kinds of claims and the ability of ordinary members of the public to hold the state to account where they have been imprisoned without lawful authority. In a false imprisonment claim, the claimant need only show that he or she has been detained; once this is proved, it is for the defendant public authority to prove it had lawful authority to deprive the claimant of his or her liberty.

There were two key disputes between Ms Sisangia and the Legal Aid Agency:

The first dispute was whether the requirements in paragraph 21 subsection 4 (that there is an act or omission which is deliberate or dishonest and causes reasonably foreseeable harm) amount to a complete definition of ‘an abuse of power of position’ or whether it is necessary to show in addition to these requirements a separate abuse of power.

The second dispute concerned what act or omission needed to be deliberate or dishonest to qualify for funding. Ms Sisangia’s case was that it was the arrest which needed either to be deliberate or dishonest.

The Legal Aid Agency argued that both the arrest and the lack of lawful authority must be deliberate or dishonest. In other words, it is not enough that an officer intends to arrest you, the officer must intend to arrest you unlawfully, i.e. knowing that he does not have the power to do so. This interpretation would make the test for funding extremely high. A public officer who knowingly acts in excess of his powers would be dishonest for the purposes of the tort of misfeasance in a public office.

If correct, this interpretation would limit funding only to cases where claimants have a claim in misfeasance. In contrast to false imprisonment claims, misfeasance claims do not require a defendant public authority to justify the detention, but instead require the claimant to prove that the defendant’s officers acted in bad faith or with malice. These kinds of claims are therefore less likely to be effective in holding the state to account where a person has been unlawfully detained.

Mr Justice Dingemans found that paragraph 21(4) is a complete definition of ‘abuse of power’ for the purposes of LASPO, for three reasons:

• Firstly, there is no generally recognised definition of ‘abuse of position or power’; therefore it would be ‘surprising’ if Parliament had left this phrase to be added as an additional requirement.
• Secondly, the fact that section 21 (4) is headed ‘Definitions’ suggests it was intended to define the phrase an abuse of power. The Legal Aid Agency had argued that 21(4) stated the ‘minimum content’, but there would be little point, in the judge’s view, of defining only the minimum content and leaving the additional requirements undefined.
• Finally, the definition is only relevant where there is a claim against a public authority. Although the Legal Aid Agency had sought to argue that 21(4) had key elements missing, the judge’s third point in essence arises from the fact that if there is no unlawfulness, there is no cause of action for which public funding can be sought.

On the second dispute, Mr Justice Dingemans was satisfied that it was the arrest, and not an intention to arrest unlawfully, which needs to be shown to be deliberate or dishonest.

If the Legal Aid Agency’s interpretation was correct, every claim which qualified for funding would amount to misfeasance in a public office. This would conflict with the statute in two important ways; namely that LASPO makes clear that paragraph 21 was intended to cover at least some claims of false imprisonment, which goes against the suggestion that the intention was to restrict funding only to misfeasance claims. Secondly, an intention to arrest unlawfully is dishonest for the purposes of misfeasance. Therefore, the only claims which would be funded would concern acts which were deliberate AND dishonest, whereas the clear wording of the statute makes these separate, alternative requirements.

Although in argument the previous funding guidance, consultation document and Hansard debates were referenced, ultimately the judge found he had no need to resort to ‘anything other than the meaning of the words’.

The plain and clear meaning of the statute does not support the additional, undefined requirements the Legal Aid Agency argued should be read into it, in an attempt to introduce a higher threshold for funding than the one LASPO in fact provides.

The Legal Aid Agency repeatedly referred in its submissions to the statutory purpose of the changes introduced by LASPO, which was to restrict funding to the ‘most serious’ cases. The importance of the subject’s right to be detained only by law has been recognised since Magna Carta, however the Legal Aid Agency contends that it should not be considered a serious case.

We disagree; this would not only deny those unlawfully arrested access to funds to hold the police to account but has wider implications for many claimants who have been deprived of their liberty, often for lengthy periods of time, without lawful justification, who will also be left without redress.

The important protection of the tort of false imprisonment will inevitably be weakened if claimants cannot access funds to pursue such claims. Perhaps it is fitting, in this 800th anniversary year, for the Court of Appeal to have cause to consider the importance of a subject being able to hold the state to account for the deprivation of his or her liberty. The appeal is likely to be heard in July.