Judge Dingemans’ defiance: was he right to give Sunita Sisangia legal aid?

 Was Mr Justice Dingemans right to extend legal aid to Sunita Sisangia in her case against the UK’s Legal Aid Agency?  Or does this victory for legal aid indicate how far judges might be willing to go to defy the Government on this issue? His judgment was cleverly crafted to be within the bounds of judicial discretion regarding “statutory construction” – the judicial interpretation of legislation. But arguably it owes quite a lot to his willingness to turn a blind eye to the real intention of the UK Coalition Government’s notorious anti-legal aid LASPO legislation.

The case of R (on the application of Sunita Sisangia v Director of Legal Aid Casework is described here (and see materials below). Dingemans’ High Court judgment allowed legal aid for Ms Sisangia to take a false imprisonment claim against the police without the case having to involve police dishonesty or misfeasance. 

The argument of the Legal Aid Agency (LAA) lawyers had been that this was just the sort of claim (one allegedly involving negligence but not misfeasance) that Schedule 1 to the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO) intended to deny legal aid to along with the general run of private law damages claims. The lawyers offered proof in exchanges in the House of Lords in which the relevant minister made this clear: where the police had not been dishonest or had not intended unlawful detention, legal aid should not be available.

This is what Paragraph 21 of Schedule 1 says: legal aid will not be available for damages claims in general but “civil legal services [will be] provided in relation to abuse by a public authority of its position or powers”. However: 

“(4) For the purposes of this paragraph, an act or omission by a public authority [such as the police] 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.”

The LAA lawyers wanted those words to be read as if they said “(a) is deliberate and dishonest”. In other words there must be deliberateness as well as dishonesty (or misfeasance as Dingemans interpreted the word) before legal aid is offered. On such a reading legal aid would be reserved only for the more “serious” cases where, for example, police keep someone in detention with malice or for some ulterior motive. Dingemans preferred to stick to the words of the Act; since arresting Ms Sisangia was deliberate (how could it be otherwise?), her claim was covered even though the arrest was not dishonest.

It is axiomatic that, as a trespass, the basic tort of false imprisonment merely requires unlawfulness (no legal justification for the detention) – and the harm is the unlawful detention itself, not some other harm such as a psychological consequence. It does not require intent to act unlawfully. A simpler example is in trespass to property: if I enter your property without permission (or lawful excuse) intending to enter it, that is trespass, whether or not I intend the tort of trespass; if I am pushed on to your land, that is not trespass because I did not intend the act of entering your land. It was not “deliberate” or “intentional” in that sense.

So false imprisonment “is an intentional tort. It is established on proof of the fact of imprisonment [the intentional act] and the absence of lawful authority to justify that imprisonment, see Clerk & Lindsell on Torts, 21^stedition, at paragraph 15-23. Once imprisonment is proved, the burden is on those who detained the Claimant to justify that imprisonment [ie prove it is lawful].” (Dingemans para 22)

According to the LAA, such a basic tort, with an intentional act but no intention to behave unlawfully, would involve a run-of-the-mill damages claim of the sort LASPO meant to exclude from legal aid. Ms Sangia’s claim should therefore have been excluded.

The Pepper v Hart point
To support their position – and get over the fact that the legislation certainly says “or” not “and” – the LAA lawyers wanted Dingemans to consult material beyond the mere Act of Parliament. In short, they wanted ministers’ statements to Parliament to be adduced as evidence of the more restrictive reading of Paragraph 21(4): Hansard 18 Jan 2012 : Column 622 et seq. Here a member of the House of Lords, Lord Ramsbotham, appears to accept that non-deliberate torts are excluded from legal aid by the wording of the act and puts an amendment forward to remedy this. The amendment is rejected by the government minister and the wording stayed as we have it above.

The comments made by Lord Wallace, the Liberal Democrat peer putting the legislation through the Lords (see below), might be seen as enlightening us about the true intention of the words of the Act – but Dingemans refused to take them into account in his judgment. He found it was perfectly possible to take a literal view of the words in the Schedule (rather than a purposive view using extrinsic matter as urged by the LAA lawyers) and the literal meaning of the words was, in his view, that even the non-dishonest (let’s call it “innocent”) tort was covered by legal aid. He noted:

“In Pepper v Hart [1993] AC 593, at pages 620c-d and 634d, it was confirmed that the Courts might consider Parliamentary material as an aid to the construction [interpretation] of legislation where the legislation was ambiguous or obscure, or where the literal meaning led to absurdity. Reference should only be permitted where such Parliamentary material clearly disclosed the legislative intention behind the ambiguous or obscure words. It was noted that such a clear statement was only ever likely to be made by the minister or other promoter of the bill.”

Dingemans was happy to say “the claim for false imprisonment related to an arrest that was deliberate and that resulted in harm to Ms Sisangia that was reasonably foreseeable, thereby satisfying the provisions of paragraph 21(4)” (Sisangia, Para 33). He found nothing ambiguous in the wording and no need to swap “or” for “and”. But in the context of the law on tort, there is a very clear ambiguity – and it was seen by various members of the House of Lords: what on earth does the word “deliberate” mean? Dingemans says this:

“Mr Bunting [for Sisangia] submitted that in this case it was the arrest which needed to be ‘deliberate or dishonest’ and that in this case it was deliberate. Ms Ford [for the Director of Legal Aid Casework] submitted that it was both the arrest, and the absence of lawful authority which needed to be deliberate or dishonest. I am satisfied that in this case it was the arrest which needed to be shown to have been deliberate or dishonest. This is because, as was accepted in submissions, if Ms Ford’s interpretation was right every request for civil legal aid for false imprisonment would also need to amount to a case for misfeasance in public office.” (Sisangia, Para 32)

This is an incredibly circular argument amounting to saying that Ms Ford’s point would deny legal aid to claimants of “innocent” torts therefore Ms Ford must be wrong. What, after all, is a “deliberate” arrest as opposed to a “non-deliberate” arrest?  

“Deliberate”, in common parlance, can have the meaning “with intent” ie with intent to commit a tort. But the arrest of Ms Sisangia was “deliberate”, as far as Dingemans was concerned, merely in that the police intended to arrest her. (One wonders, though: how could there be an accidental arrest?) But was there a “deliberate” intention to hold her unlawfully? Not at all – it is not part of her case against the police. So the use of the word “deliberate” in the Schedule is ambiguous – and arguably absurd unless it means “with deliberate intent to commit a tort” – here the tort of false imprisonment. That would bring it into the “more serious” categories of abuse of power that the LAA argues are covered by legal aid – unlike Ms Sisangia’s case where there was neither an intent to hold her unlawfully nor any dishonesty involved in doing so.

Evans and ‘seriousness’
To take a slight diversion here: there is a problem, however, in seeing one category of case as a “serious” abuse and the other not. Detention, as noted above, is itself a harm unless it is lawful detention. Thus in R v Governor of Brockhill Prison (ep Evans) (from 1998) a prison governor had held on to an inmate 59 days beyond her release date owing to a wrong calculation. The governor had not made the calculation nor intended unlawful imprisonment but was held liable anyway – because retaining the prisoner was a deliberate ie intentional act – the axiomatic rule of the tort of trespass.

Under the LAA interpretation of Schedule 21(4) Evans would not now get legal aid funding. According to this view LASPO was certainly intended to exclude this kind of unlawful, “innocent” and deliberate (but not deliberately unlawful) act from legal aid – even though 59 days does seem a “serious” curtailment of liberty. 

According to the LASPO distinction, it can be argued (and was stated by the relevant minister – see below) that the seriousness is not decided by length of incarceration or consequences but by whether there was either “deliberate” intent to cause the tort or dishonesty. That is why several peers wanted the wording changed but were balked.

Dingemans did not choose to see the ambiguity regarding the word “deliberate”, so, under the Pepper v Hart rule, was able to forgo the opportunity of taking into account Hansard and the distinction made in parliamentary exchanges between the “innocent” tort (deliberate act, no intention to commit unlawfulness) and the “serious” tort (deliberate intention to act unlawfully or to deceive). But, if he had taken the parliamentary exchanges into account, would he have been able to come to the same judgment?

The Hansard exchanges
It is worth starting with amendment 60 from Lord Ramsbotham, presented during the Lords Committee stages of the LASPO bill: “60: Schedule 1, Page 127, line 33, after ‘deliberate’ insert ‘unlawful’; Page 127, line 39, at end insert ‘harm’ includes loss of liberty”. The purpose of the amendments was “to provide legal aid in relation to unlawful abuses of power, whether or not deliberate, including in relation to the unlawful exercise of powers to detain”. His concern was that “the extent of the meaning of the words ‘deliberate’ and ‘harm’ in the Bill is not defined. Unless it is, I fear that based on past experience, immigration authorities and police will continue to disregard unlawful or false imprisonment on the grounds that ‘deliberate’ means something more than merely unlawful, and ‘harm’ means injury.” Hansard 18 Jan 2012 : Column 622

So Ramsbotham saw ambiguity in the word “deliberate” where Dingemans didn’t and wanted to clear it up to allow legal aid for the wider definition of tort: to cover both “innocent” and “dishonest” false imprisonment (and other abuses of power). He wanted the tort point spelt out – that false imprisonment is harm in itself and needs no proof of injury. Furthermore he did not think “deliberate” imprisonment was sufficient to describe the tort so wanted “unlawful” added.

So he was thoroughly aware that the issue was whether legal aid is extended to all false imprisonment or just the “serious” sort where there is dishonesty. Ramsbotham was seeing in the words of Schedule 1 an attempt to restrict legal aid only to misfeasance – exactly the interpretation that the Legal Aid Agency lawyers argued for in the Sisangia case. He gave a good example of where this might go wrong: a man held for 19 months in an immigration detention centre unable to prove he was British. He was released when a lawyer took his case pro bono.

“At this point, under the new proposals, no further legal aid would have been available because on the face of it, no harm – other than the loss of personal liberty for a period – had been caused by an inadvertent and honest mistake. However, after many hours of legal aid-funded work, evidence emerged of prolonged deceit on the part of the Home Office, resulting in substantial damages having to be paid.” (Hansard 18 Jan 2012 : Column 622)

The argument is that if prima facie “innocent” false imprisonment were excluded from legal aid, that work would never have been done and the “dishonest” false imprisonment would not have come to light. It would be wrong to try to separate the two.

Lord Phillips of Sudbury backed the amendment while acknowledging the point that “ipso facto, an abuse of power is unlawful” so adding “unlawful” might be otiose. But he also raises the “deliberate/intentional” point above, seeing the ambiguity that Dingemans doesn’t, and asks whether “deliberate” means the same as “intentional” and if so why “intentional” was not used:  “Does the definition as drafted exclude the careless exercise of power on the part of a public authority because there is a difference between a reckless or careless exercise of power and one that is deliberate or intentional?” (Column 624)

Later in the debate (Col 631) Lord Neill also wanted this clarified, saying: “What is a deliberate act intended to cover? Most people, when they do things, do them deliberately. Is that what it means, or anything beyond that?” So he is asking, in effect, is an arrest and detention “deliberate” by definition (as Dingemans asserted) or does it require more: intent to act illegally or cause harm.

Lord Wallace said in reply: “As I said earlier, when my noble friend asked whether deliberate meant intentional, that is what it means: it is an intentional act of a public authority.” That does not really clarify the point, but he goes on: “The question is: if it is a mistake that leads to considerable harm but is not deliberate or dishonest, will legal aid not be available? I hope that I have indicated that no, under paragraph 19 [now 21] it would not be available.”

That is pretty clear. It would have answered the issues raised in Sisangia. And it is likely that if Dingemans had been willing to take this statement into account, he would not have been able to have extended legal aid to Ms Sisangia. 

Conclusion
Dingemans has done everything a judge can by a literal construction of the legislation in front of him to make it read logically. It is his right and even perhaps his legal duty to do that so that he should only bring in external material as a last resort, when there is ambiguity or the literal wording gives rise to absurdity. The result is that he has, in effect, read Paragraph 21 as if it doesn’t really exist at all. Since all acts that constitute abuse of power are likely to be deliberate (even mistaken or negligent ones), Para 21 on this reading excepts nothing. All abuse of power is apparently covered by legal aid.

Yet the exchanges in the House of Lords show the minister had every opportunity to indicate legal aid would be available for the simple tort of false imprisonment (and other abuses of power) absent misfeasance, the sort of case that was the subject of Sisangia. He said the opposite.

Dingemans has set up a rather delicate sea wall against a torrent of evidence indicating that the intention of LASPO and Paragraph 21 was indeed to exclude the poorest people in society from getting legal aid to challenge the day-to-day assaults on their rights that they suffer through the carelessness or incompetence of public authorities. 

Twitter: alrich0660

See also R (Sisangia) Legal aid win for report and comment on the case
Pepper v Hart is considered/explained in a different context here   

Notes and materials

Lord Wallace’s statements
For those seeking further evidence of the Government’s intention to exclude legal aid in cases such as Ms Sisangia’s there follows a run-through of some of the questions in the House of Lords and Lord Wallace’s replies. First he rejected the Ramsbotham amendment, saying:

“Amendment 60 seeks to make civil legal aid available for claims in relation to any alleged unlawful act by a public authority that causes reasonably foreseeable harm. In general terms, Schedule 1 makes legal aid available for the most serious cases and for proceedings that seek to hold public bodies to account for their decisions. This includes civil legal services for judicial review of an act, decision or omission, and provides a means for people to challenge the lawfulness of a public authority’s actions on public grounds.” (Column 628)

So there is a distinction being made. There are “serious” unlawful  acts of false imprisonment and those not so serious: the deliberate or dishonest tort versus the “innocent” tort. That “civil legal service” (legal aid) is available for judicial review might not mean it is available for a simple private law tort claim against a public body’s abuse of power. He explains the issue thus:

“In terms of private law claims primarily for damages, while we consider that such claims do not generally justify funding, an important exception to the rule provided for in the Bill is for the most serious claims against public authorities. The Bill ensures that funding may be made available for tort and other damages claims against public authorities for an abuse of position or powers, a significant breach of human rights, allegations of the abuse of a child or vulnerable adult, or allegations of a sexual offence.” (Column 628)

So legal aid is available for “an abuse of position or powers” – and among such abuses is false imprisonment, the subject of Sisangia. But again he brings in seriousness by defining “abuse of position or powers” thus: “[for the purposes of legal aid the phrase] is intended to cover the most serious misuses of state power. That is why it is defined in the Bill as an alleged act that is deliberate or dishonest, and that causes reasonably foreseeable harm to a person or property.”

He is happy with the “or” in “deliberate or dishonest” – but at this stage we still need to know what “deliberate” means. Is it the “intentional tort” definition ie deliberately doing the unlawful act while not necessarily intending it to be unlawful; or is it, as Lord Phillips was wondering, another word for “with intent” ie intending the unlawfulness, not just the act? Wallace says that the wording is intended to exclude “slipping and tripping” – presumably those “compensation culture” cases that are so hated by parts of the media. But can being held unlawfully by the state be a mere slip – and is that what Sisangia was? He goes on to say:

“He [Phillips] asked if ‘deliberate’ abuse of position or power is the same as ‘intentional’. The answer is yes. As to the point raised by the noble Lord, Lord Beecham, who asked whether ‘deliberate’ referred to a deliberate act or deliberate consequences, the word refers to the act or omission that is complained of and for which legal aid is sought. Legal aid would therefore be available for deliberate or dishonest acts or omissions by a public authority that cause reasonably foreseeable harm.” (Col 629)

This is not particularly clear. In particular Dingemans might take consolation from the words “the word refers to the act or omission that is complained of and for which legal aid is sought”. That seems to be the simple “innocent” tort, not the serious “dishonest” tort. One can interpret this as saying illegality need not be intended. But Wallace goes on:

“Noble Lords will be interested to know that unlawful acts are already covered by paragraph 19 [now 21], which covers situations where an act is deliberate and dishonest, and results in foreseeable harm. However, the concern is that the amendment as tabled would widen the coverage beyond what we believe should be within scope.”

So that’s confusing. Wallace says “unlawful” acts are covered by what is now Paragraph 21 – so this suggests, since under the plain tort definition, false imprisonment is ipso facto unlawful, Para 21 would cover Ms Sisangia’s position. But this is muddied again, not least because Wallace goes on to use the “and” word. Is this just loose talk; or does he just think “and” is interchangeable with “or”? He does, however, feel Ramsbotham’s amendment 60 would extend legal aid to cases beyond those intended by the substantive Bill. He says:

“I accept that that approach [paragraph 19 and/or judicial review] means that public funding will not be available for each and every claim involving a public authority, but it is intended to be available for the most serious cases and to address serious abuses.” Again “seriousness” seems to be the issue. Wallace says: “By way of illustration, paragraph 19 [para 21] would allow for legal aid to be provided for a person to bring a false imprisonment claim where they had been unlawfully detained by a public authority and the actions of the authority were deliberate or dishonest.” (Col 630)

That isn’t really an illustration. It is just restating the words in the schedule. But crucially, Wallace has expressed the intention to exclude something from legal aid in abuse of power claims. In contrast, it is not clear from Dingemans’ judgment that anything would be excluded since all abuse of power is likely to be based on a deliberate act (particularly detaining people) even if not on a deliberate desire to act unlawfully. Wallace notes that legal aid will still be available for issues such as false imprisonment when there has been a breach of the European Convention on Human Rights (for as long as the UK is signed up, presumably) and for habeas corpus claims plus judicial review and “civil legal services in relation to immigration detention”.

There is more that suggests a reading of Hansard would require a different judgment in Sisangia. Take the following exchange:

Lord Howarth of Newport: “The Minister is defending the Bill’s drafting against the proposal of the noble Lord, Lord Ramsbotham, in Amendment 60. Is he therefore saying that if someone is the victim of a mistake by a public authority – not a deliberate mistake or one dishonestly intended but none the less an egregious error arising from ignorance of the law, which ought to be known by the people working in the public authority– there is to be no legally aided redress for the citizen, even if the harm is considerable?”

Lord Wallace of Tankerness: “As I said to my noble friend Lord Phillips, the Bill does not include negligent actions of a public authority. I made very clear that it is intended for the serious-end range of abuse of power and the harm that results. It is not intended to include all that lies by way of negligence.”

So it is not to include “all that lies by way of negligence” – but certainly something: the serious-end stuff. But if he is saying deliberateness or dishonesty is the definition of serious rather than, say, length of time held and the knock-on effects of that, then this is, arguably, a pretty clear statement of the intention of the legislation – as required by Pepper v Hart rules. Wallace goes further and says he doesn’t want the “after ‘deliberate’ insert ‘unlawful'” part of the amendment because this “could lead to cases of damages for what are not by any stretch of the imagination serious consequences or serious harm for the individual” (Col 631). In other words cases of basic non-deliberate tort. The Sisangia case is just such a non-deliberate case – and even if negligence is claimed, it would not get legal aid, according to Wallace’s words. There’s more: “The paragraph covers the most serious abuses, which may not include mistakes but could include abuses such as misfeasance in public office. I think that that would fall within the definition here.” (Col 632) So the whole paragraph, correctly interpreted, excludes “mistakes”, according to Wallace.

While there are confusing elements to these exchanges in the Lords, there are clear principles that come out of them. “Deliberate” means “with deliberate intent to cause harm or act illegally”, not merely “a deliberate act”; seriousness means deliberate in this sense of intentionally unlawful or involving misfeasance; and serious torts thus defined are the only ones that should attract legal aid – not cases that mean staying unlawfully 11 hours or even 59 days in detention.

Sunita Sisangia’s complaint against the police
According to evidence, Sisangia had been arrested in the early hours at the behest of a neighbour possibly in a long-running dispute the police knew about between Sisangia and the owner of the next-door flat. “The police noted a potential link”; they had previously given Ms Sisangia protection in the dispute. She was released without charge after about 11 hours. The police deny liability in tort for false imprisonment. The Independent Police Complaints Commission has upheld in part a complaint by Sisangia.

The Legal Aid Director’s explanation of why legal aid was refused: 
“Abuse is not defined [in the legislation] but the ordinary use of that word requires that there has to be conduct which goes beyond the ordinary day to day performance of duty, or even simple negligence. My view is reinforced by the requirement in [LASPO Sched 1] para 21 that to show ‘abuse’ there has to be conduct which is deliberate or dishonest and which results in foreseeable harm. Frankly arresting someone in the normal course of one’s duty is not abuse, and does not to my mind begin to satisfy the deliberate or dishonest test, even where there may be an argument over reasonable suspicion or necessity. Though I accept there may be some circumstances in which an arrest could be an abuse of position or power, frankly I do not consider this is such an example”.

Dingemans on the 18 January exchanges
“Even if I had considered the statements made in the Parliamentary debate to be admissible, I did not derive any relevant assistance from them. I was shown extracts from a debate about LASPO in the House of Lords for the 18 January 2012 when relevant provisions of part 1 of schedule 1 were debated by both sides. The extracts I was shown related to proposed amendments to (what was to become) paragraph 21 and responses made by the Minister. This meant that the Minister was responding to proposed amendments, and statements about the amendments, at the same time making comments about paragraph 21. This in turn meant that it was sometimes difficult to attribute the Minister’s statement either to the amendment or to paragraph 21. The other difficulty was that the clearest statement made by the Minister was when the wording of paragraph 21 was repeated (columns 629/630). This meant that both sides submitted that the statement supported their respective interpretations, and made the whole argument circular on what was the proper meaning of paragraph 21.”

Note: The Court of Appeal has now (27 January 2016) overturned Dingemans’ judgment. See the Bailii version here

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