I came across this Court of Appeal case this evening.
Director of Legal Aid Casework v the Queen on the application of Sunita Sisangia 2016
It all hinges on whether wrongful arrest is an ‘abuse of power’ and thus covered by the provisions of LASPO as something you can get legal aid to sue for. It is all a bit dry and technical, but where it ends up is the Court of Appeal having a legal geek out about words and phrases that can’t really be tied down to a definition, but you know them when you see them.
I had not realised that things as simple as ‘building’, ‘income’ ‘trade’ ‘invention’ and ‘gaming’ come into that category. And so, we learn today, does ‘abuse of power’
[The fact that our tax law can’t define income might explain why Google and Facebook have such meagre taxbills… thank you, I’m here all week. Try the chicken.]
- In my judgment the fact that a definition of “abuse of position or power” of universal application cannot be extracted from the authorities does not mean that the term defined can be ignored. It is equally possible, indeed probable, that Parliament’s intention was that it should be left to the courts to develop what the phrase means. In other areas of the law this is clearly so. For example in the field of taxation Parliament has never attempted to define “income” or “trade”. In the intellectual property world neither Parliament nor the drafters of the European Patent Convention have ever tried to define the word “invention”. As Pumfrey J said in Shoppalotto.com Ltd v Comptroller General of Patents, Designs and Trade Marks  EWHC 2416 (Pat) 396,  RPC 293 at :
“A moment’s thought will show that it is not possible to provide an exhaustive definition of “invention”. The Convention does not attempt to interpret the word but provides a list of things which are excluded, whether or not they would be regarded as inventions.”
“The imperfection of human language renders it not only difficult, but absolutely impossible, to define the word “building” with any approach to accuracy. One may say of this or that structure, this or that is not a building; but no general definition can be given; and our lexicographers do not attempt it.”
- The natural meaning of the term defined may be its meaning in ordinary discourse, or it may be its meaning as a legal concept. This is illustrated by McCollom v Wrightson  AC 522 where the meaning of “gaming” as a defined term in section 55 of the Betting, Gaming and Lotteries Act 1963 was coloured by the meaning given to the word “gaming” by the common law.
- The fact that “abuse of position or power” cannot be given a hard-edged definition does not mean that the concept itself is meaningless. A number of judges have, in different contexts, explained what they perceived to be the ingredients of an abuse of power. In R (Puhlhofer) v Hillingdon LBC  AC 484, 518 Lord Brightman (with whom the other Law Lords agreed) said obiter:
“The ground upon which the courts will review the exercise of an administrative discretion is abuse of power – e.g. bad faith, a mistake in construing the limits of the power, a procedural irregularity, or unreasonableness in the Wednesbury sense – unreasonableness verging on an absurdity.”
Given that it is the twentieth anniversary of the film “Trainspotting”, it tickled me that one of the lead authorities on abuse of power happens to be called Begbie
- In R (Begbie) v Secretary of State for Education and Employment  EWCA Civ 2100,  1 WLR 1115 Laws LJ said:
“ Abuse of power has become, or is fact becoming the root concept which governs and conditions our general principles of public law. It may be said to be the rationale of the doctrines enshrined in Associated Provincial Picture Houses Ltd v Wednesbury Corporation  1 KB 223 and Padfield v Minister of Agriculture, Fisheries and Food  AC 997, of illegality as a ground of challenge, or the requirement of proportionality, and of the court’s insistence on procedural fairness. It informs all three categories of legitimate expectation cases as they have been expounded by this court in R v North and East Devon Health Authority, ex parte Coughlan  2 WLR 622.
 The difficulty, and at once therefore the challenge, in translating this root concept or first principle into hard clear law is to be found in this question, to which the court addressed itself in the Coughlan case: where a breach of a legitimate expectation is established, how may the breach be justified to this court? In the first three categories given in Ex parte Coughlan, the test is limited to the Wednesbury principle. But in the third (where there is a legitimate expectation of a substantive benefit) the court must decide ‘whether to frustrate the expectation is so unfair that to take a new and different course will amount to an abuse of power.'”
The Court of Appeal conclude that you can’t tie down abuse of power to a definition.
As I have said it is a flexible and fact-specific concept which may be incapable of definition. We should certainly not try to do so. What we can say is that something more than an intentional tort is necessary before the impugned act becomes an “abuse of power” even if we cannot say precisely what that “something more” is.
I might offer this, as an example of abuse of power that is pretty unmistakeable…
A social worker who threatened foster carers with the loss of children in their care if they did not describe him as ‘supportive’ has been struck off the register.
A Health and Care Professions Council (HCPC) panel heard the Peterborough social worker believed the foster carers, who cared for the younger two of three siblings, had made a complaint about him.
He also told the birth mother of all three children, cared for by two sets of foster carers, to contact his manager and make a complaint about the foster carers looking after her first child.
He told her to tell his manager he was a “brilliant social worker”, adding that if she reported him to the police, she would “never see her children again”.
He called the mother on her mobile phone two or three times a week without any professional reason to do so, called her overweight and told her if she lost weight she would “stop having epileptic fits”, the HCPC panel reported
Yes, that’s what abuse of power looks like.