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.