Appeal Court gives guidance on ‘abuse of position or powers’

27/01/16

In R (Sisangia) v Director of Legal Aid Casework the claimant challenged a decision of the Director of Legal Aid Casework to refuse legal aid for a false imprisonment claim against the Metropolitan Police.

Paragraph 21 of Schedule 1 to the Legal Aid, Sentencing and Punishment of Offenders Act 2012 provides public funding for claims in respect of ‘abuse by a public authority of its position or powers’. Paragraph 21(4) provides that 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.

In the Administrative Court, Dingemans J held that this amounted to a comprehensive definition of ‘abuse of position or powers’ and that any false imprisonment claim fell within the provision, provided only that the imprisonment was deliberate.

The Court of Appeal (Elias, Lewison and Christopher Clarke LJJ) allowed the appeal. The Director was right to submit that, in propositional logic, ‘Not A, unless B’ did not imply ‘If B, then A’. The Judge had also erred in ignoring the ‘potency’ of the term defined (‘abuse of position or powers’). It did not matter that the term had no universally applicable meaning. It was a flexible and context-specific juridical concept whose meaning could be elucidated by the courts.

The judgment is here.