In a ruling that has been described as ‘a blow for civil liberties’, appeal judges have effectively limited legally aided claims against the police to situations where claimants can show there was dishonesty.
In R (on the application of Sunita Sisangia) v Director of Legal Aid Casework, the Court of Appeal this morning 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. The Legal Aid Agency (LAA) had refused to back 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) which restricts funding to claims against a public authority where there was a deliberate or dishonest act or omission causing harm.
According to Sisangia’s lawyers Hodge Jones & Allen, the ruling of Lord Justice Elias, overturning a decision of the High Court in November 2014, 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,’ HJA said.
‘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.’
Sasha Barton, partner at Hodge Jones & Allen
Sasha Barton, partner at Hodge Jones & Allen, described the judge’s suggestion that claimants in their client’s position could find a solicitor to represent them pro bono, under a conditional fee or represent themselves as a litigant in person, was ‘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,’ she said.
‘Being able to hold state authorities to account for unlawful loss of liberty is an important constitutional safeguard,’ Barton said. ‘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.’
The lawyer argued that as the LAA 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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