Overcoming the public funding hurdles
Whether you can get legal aid for claims against the police depends on meeting the cost/benefit ratio and showing that the case isn’t suitable for a conditional fee. Fiona McGhie explains.
Civil legal aid may be down, but it’s not out completely – at least not yet. Legal Action’s ‘Use it or lose it’ series aims to highlight what remains of legal aid post-LASPO, and to show practitioners how they can make the most of it to help their clients obtain much-needed access to justice.
Any action against the police (AAP) practitioner will know that although our area of practice has been largely unaffected by changes to legal aid, at times it hasn’t felt that way. Regardless of the type of claim being pursued, the availability of legal aid will depend on the costs/benefit ratio being satisfied and on the case being unsuitable for a conditional fee agreement (CFA).
Costs benefit criteria
Claims for damages are required by The Civil Legal Aid (Merits Criteria) Regulations 2013 SI No 104, reg 41, to meet the costs benefit criteria (set out in reg 42) as follows:
Very good prospects: likely damages must exceed likely costs
Good prospects: likely damages must exceed likely costs by a ratio of 2:1
Moderate prospects: likely damages must exceed likely costs by a ratio of 4:1
In AAP cases, this ratio can be hard to achieve because of the relatively low level of damages being sought, particularly for claims under the Human Rights Act 1998 and because of the propensity of police defendants to fail to take a commercial view of claims against them, forcing costs higher.
However, the cost benefit ratio is not used to assess proportionality where there is a significant wider public interest in the case. In these cases, the Legal Aid Agency (LAA) must be satisfied that the costs are proportionate (reg 42(4)). Even if your case falls within the costs benefit ratio, it is worth considering whether the wider public interest test is met when you make your application for legal aid.
Availability of CFAs
The Civil Legal Aid (Merits Criteria) Regulations 2013 reg 39(b) require the LAA to be satisfied that the case is unsuitable for a CFA. The changes to CFAs brought in by the Jackson reforms disproportionately affect AAP claims because in many cases, damages are low and Quantified One Way Costs Shifting does not apply because of the absence of a personal injury. It took some repeated persuasion to convince the LAA that this meant that many cases are now unsuitable for CFAs, largely because ATE premiums can no longer be recovered from the other side and so wipe out damages completely in many cases.
Claims under the Human Rights Act 1998
AAP claims for breaches of rights under the European Convention on Human Rights (the convention) remain in scope by virtue of the Legal Aid, Sentencing and Punishment of Offenders Act (LASPO) 2012 Sch 1, para 22.
Typical claims under the Human Rights Act 1998 for AAP claims involve the following convention rights:
Article 2 right to life.
Article 3 freedom from torture and ill-treatment.
Article 5 right to liberty.
Article 8 right to private and family life. Article 2 encompasses the following substantive obligations:
A negative duty not to take life unless necessary.
A positive duty to put in place procedures and systems to prevent life being unlawfully taken.
A positive duty to take all preventative steps, which if taken, might prevent the loss of life where that risk to life was known or ought to have been known (see Osman v United Kingdom App No 23452/94, (1998) 29 EHRR 245, 28 October 1998).
A procedural obligation to carry out an effective investigation into a violation of article 2 (see R (Amin) v Secretary of State for the Home Department [2003] UKHL 51, 16 October 2003).
The most common article 2 claims against police forces engage breaches of the substantive obligations.
Article 3 also imposes a positive obligation on states to investigate allegations of ill-treatment or torture. It is accepted that allegations of serious sexual assault fall within the ambit of this right (see MC v Bulgaria App No 39272/98, (2005) 40 EHRR 20, 4 December 2003). The duty to investigate allegations of this type is triggered when there is a credible or arguable claim (see Sizarev v Ukraine App No 17116/04, 17 January 2013). Further, the investigation carried out by police must be capable of leading to the identification of the perpetrator in order to attract liability (see DSD and another v Commissioner of Police for the Metropolis [2014] EWHC 436 (QB), 28 February 2014).
There is a crossover between article 5 and the tort of false imprisonment (see below). Traditionally, damages sought in tort are greater but there may be cases where it is worth pleading both. Article 8 has more general application in AAP work and can often include issues such as breach of data protection and interference with property.
False imprisonment
It was widely thought that false imprisonment claims remained in scope until the approach of some LAA caseworkers to applications for funding cast doubt on that view. The matter has now been clarified through the judicial review of R (Sisangia) v Director of Legal Aid Casework [2014] EWHC 3706 (Admin), 12 November 2014. The LAA sought to argue that Sisangia’s claim for false imprisonment was excluded by virtue of LASPO 2012 Sch 1, para 21, because she was not alleging any abuse of power or misfeasance on the part of the arresting officer.
Paragraph 21(4) sets out that:
(4) For the purposes of this paragraph, 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.
The LAA’s case was that both the arrest and the absence of lawful authority needed to be deliberate or dishonest in order for para 21 to be satisfied. However, Mr Justice Dingeman effectively accepted that if this was the case, it would take all false imprisonment cases out of scope of LASPO altogether, unless claimants could show that the arrest itself was dishonest. This is not what was intended by LASPO. Mr Justice Dingeman agreed with the claimant that the arrest was the ‘deliberate’ act and the wording of para 21(4)(a) did not require the act or omission to be both deliberate and dishonest.
False imprisonment claims usually arise following an unlawful arrest. A claim for false imprisonment is actionable per se which means that claimants do not have to prove that they were caused damage. Proportionality will come into play when making applications for legal aid for claims for false imprisonment.
The LAA generally take a strict approach to the proportionality requirement.
Stop and search
The most commonly used powers to stop and search individuals come from the Police and Criminal Evidence Act 1984 and the Misuse of Drugs Act 1983. The first can be exercised in a public place where the police officer has reasonable suspicion that the individual stopped is in possession of stolen or prohibited articles such as weapons. The second requires the officer to have a reasonable suspicion that the individual stopped is in possession of a controlled drug. Searches of this nature can amount to false imprisonment if the ‘reasonable suspicion’ requirement is not met.
However, damages will ordinarily be relatively low which can pose difficulties for the proportionality requirement unless there are other grounds of claim. These claims remain in scope as they are essentially false imprisonment claims.
Assault and battery
These claims remain in scope by operation of LASPO 2012 Sch 1, para 21. It is not necessary for injury to have been caused by the assault or battery, but actual and serious injuries will increase the amount of damages available.
Proportionality can be an issue with some of these cases, particularly if the injuries sustained are relatively minor. The costs of pursuing these cases can often be disproportionate to the likely damages, particularly when defendant police forces refuse to take a commercial view on settlement and where costs are incurred obtaining medical evidence. It can be difficult to obtain legal aid for these cases if you do not provide a persuasive answer on why a CFA is not suitable.
Malicious prosecution
These claims remain in scope by operation of LASPO 2012 Sch 1, para 21.
Claims for malicious prosecution are more complex cases to bring because the burden of proof lies fully on the claimant. In addition, the hurdles that the claimant needs to overcome can be evidentially unachievable.
The claimant must show that he or she was prosecuted and that the prosecution was resolved in their favour. These are relatively simple requirements to meet. The difficulty arises in proving malice and want of reasonable and probable cause, both required elements of the tort (see Martin v Watson [1996] AC 74, 13 July 1995). A lax investigation will not attract a claim for malicious prosecution unless it can be shown that the officers acted maliciously and without supportive independent evidence.
Legal aid remains available for this cause of action and, although proportionality needs to be established, as for most other heads of claim, the costs/benefit ratio is likely to be satisfied for these claims which attract a likely higher level of damages.
Misfeasance in public office
These claims remain in scope by operation of LASPO 2012 Sch 1, para 21.
Claims for misfeasance are often brought alongside claims for malicious prosecution and attract many of the same difficulties.
The first requirement is the easiest of the three, that the person whose conduct is being questioned holds a public office and is acting in their capacity as a public officer. A police officer holds a public office.
The second requirement is that the person whose conduct is being questioned must have intended to cause the claimant harm and this, inevitably, requires the claimant to prove that the officer acted in bad faith. Bad faith can be inferred in some circumstances but this still leaves the claimant with a very high hurdle to overcome (see Three Rivers District Council v Bank of England (No 3) [2000] 2 WLR 1220, 18 May 2000).
The final requirement is for damage to have been caused which was reasonably foreseeable by the officer whose conduct is being questioned. As with malicious prosecution, legal aid is available but proportionality needs to be carefully considered given the difficult nature of these causes of action.
Trespass to property/land
Legal aid remains available for these types of claim against the police provided, as above, the exclusion in LASPO Sch 1, para 21, is satisfied. It is unlikely that the LAA will take the same point as they did in Sisangia in relation to these types of claim and, therefore, practitioners only need to satisfy the LAA that the act or omission is deliberate or dishonest.
Claims of this type include situations where the police have seized property in relation to the investigation of an offence but have failed to return it within a reasonable period of time. Claims also exist if the police had no lawful power to seize the property in the first place, or that it should have been returned to the individual much sooner than it was.
It is worth noting that these claims may be thwarted by the rules on proportionality and costs/benefits ratio and so claims cannot be brought for less valuable property. It is likely that claims meeting these tests will need to include some form of loss of earnings or aggravating factors which make them proportionate claims to bring.
Judicial review
These claims remain in scope by operation of LASPO 2012 Sch 1, para 19.
Judicial review remains in scope for AAP-related cases, including for decisions made by chief constables, the Crown Prosecution Service (CPS) and the Independent Police Complaints Commission (IPCC). Claims for judicial review against chief constables and the IPCC often relate to the complaints system and issues relating to misconduct.
The IPCC considers itself functus officio so even when it accepts it has erred in its decision-making during pre-action correspondence, it cannot retake its decision without a quashing order from the court. Often, the IPCC will accept pre-issue a costs order against it but such an agreement is not sufficient for the LAA to grant funding. The application will still be subject to the merits criteria which will need to be satisfied prior to a certificate being granted.
Practitioners should be reminded of the general unfavourable changes to funding for judicial review brought in in April 2014 where the general rule is that the LAA will not pay any costs incurred on a certificate for full representation if permission is not granted by the court. There are circumstances where the LAA has discretion to depart from that general rule.
AAP work has avoided the reductions in scope that have occurred in other areas of practice. However, overall, practitioners have seen the number of claimants being granted access to justice reduce as a result of the combination of the changes to CFAs and the changes to the financial eligibility criteria for legal aid.

About the author(s)

Description: Fiona McGhie
Fiona McGhie is a solicitor in the public law department at Irwin Mitchell, Bristol.