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Abuse of power

 

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

http://www.bailii.org/ew/cases/EWCA/Civ/2016/24.html

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 [2005] EWHC 2416 (Pat) 396, [2006] RPC 293 at [6]:

 

“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.”

 

  • Likewise in the case of a “building”. As Byles J said in Stevens v Gourley (1859) 7 CBNS 99:

 

“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 [1968] 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 [1986] 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

 

 

 

“[76] 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 [1948] 1 KB 223 and Padfield v Minister of Agriculture, Fisheries and Food [1968] 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 [2002] 2 WLR 622.

[77] 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.'”

You wee radge...

You wee radge…

 

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…

 

http://www.communitycare.co.uk/2016/02/03/recommend-youll-never-see-children-social-worker-struck-abuse-power/

 

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.

Threats

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.

 

begbie 2

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About suesspiciousminds

Law geek, local authority care hack, fascinated by words and quirky information; deeply committed to cheesecake and beer.

17 responses

  1. The social worker’s behaviour deserves criminal sanction.
    On a lighter note I liked the name of one of the cases; Shoppalotto Ltd deserved better than to be a footnote

  2. Pingback: Abuse of power | Baronesslewisblog's Blog

  3. Not sure why they aren’t named?

  4. Shirley Buckley

    Here I am again – try to define the words “mental capacity Act ” What is an Act if it is declared “not fit for purpose” What are “good better best interests”. What is a Court of Law if it continues to make decisions illegally. What are the “rights” of “vulnerable adults” and their parents. What is the “mind” what is the “brain”. What is “accountability”. All these words rule Martin’s and my life. And what is “moral” and “ethical”???? Please discuss, Or go the Court

  5. Would it be considered an abuse of power on the part of the Local Authority, if a child gave information in a supervised contact, which contradicted a witness statement given by a parent in court – and when the Local Authority were invited to compile a Section 7 report on the overall situation, they chose to omit entirely what the child had said, and to maintain the reliability of the original statement?

    And if it is, what can be done about it?

    • The cases have no continuity with case number throughout the court case, Court case applications throughout one case can change as many times as the applicant applies allowing them to cover-up, change whatever the applicant decides, In my mind should be illegal within a case system, the first court case number allocated should remain throughout the case, illegal to change

      • Thanks for your response. In the case I cite, the numbers remained that same, so that could not be used as an excuse for the withholding of information from the Section 7 report. It is also interesting that in the Final Hearing the solicitor submitted to the court, all the supervised contact records with the exception of the one in which the child contradicts the witness report and confesses that she was asked to lie to the police.

      • The Court numbers used to change when cases moved from Magistrates to County Court, or if the proceedings were finished and new ones started. The first of those shouldn’t happen any more, now that it is a unified single family Court. Possible of course with the backlog in court admin and the huge staffing cuts at the Courts that a case gets a wrong number put on a fresh application within existing proceedings. The applicants have absolutely nothing to do with setting a Court number. They just use the ones that the Court assign.

    • Sounds more like potential perjury to me. It would depend if (a) what the child said was noted by the contact supervisor and (b) the author of the s7 had read the contact notes and given a different account. Otherwise it is simply a factual dispute between two witnesses as to what was said, and a Judge having to decide whose evidence they prefer (and not perjury, but possibly either inattentive listening, or inaccurate recollection, or even acknowledging that the child said X, but giving a reason why the child might have said X other than X being true, I suppose.)

      • Thanks so much for your response. In answer to your ‘depends’ – a) Yes, it was recorded by the contact supervisor, and b) the contact notes were brought to the attention of the author of the two Section 7’s and both chose to omit any mention. So – potential perjury…? The parent complained quite vociferously to the LA – but was told that the LA considered that his daughter was saying what she said – ‘because she loved him and wanted to please him’ – and so they discounted it. But surely the proper thing to have done would have been to include it in the s.7 with their analysis beneath, so that the court could assess. Omitting it entirely seems to be withholding significant info. from the court.

      • It is an omission, and one that can be properly taken up in cross-examination and submissions. But not perjury. That would have to be an actual deliberate lie. Misleading by omission is tricky, and a Judge can rightly be critical and it can affect the weight given to the other evidence provided, but as it is impossible to include absolutely everything in a report, one person’s vital omission is another’s ‘it wasn’t as important in my view’.

      • Thanks for your reply. Hmmm…. an omission. It coud not have been acidental, as the social worker knew… He could have considered it irrelevant, but I would have thought that consideration is the remit of the judge. In this case the omission has made a considerable difference, as it was the mothers testimony ( which was later contradicted by the child) that convicted the father, and has meant he has had strict limits placed on his access to his children. But I understand. However, in this case, there was a second Section 7 some months after the father had vociferously complained about the ‘omission’ from the first – and been told it was ‘fair’ ‘balanced’ and ‘honest’. In the second there is still no mention of what the daughter claimed. Same Local Authority conducting the Section 7, different social worker. Is that still only an omission, or is it beginning more sinister? As though it may be being deliberately withheld from the court? Interestinglythe bundle submitted to the court contained every contact supervision record except the one in which the girl ‘confessed’…

  6. @ Suesspicousminds2.44pm
    You have given the reason for change of Court numbers from Magistrates to County Court, do you have a reason for change of Childs birth registered certified name on application the only name in which evidence exists, from Magistrates to County Court

    • Sorry. It could be as simple as the application being lodged without knowledge of the child’s name being registered, in which case the parents would simply produce the birth certificate and the Court orders would be altered with judicial approval to reflect the correct name. There are some circumstances in which a child has not been registered or named (Freeman of the land stuff generally) and then the Court has to consider an application to give the child a name. Unless the particular case has been reported on Bailii and I know the facts, it is hard to give an answer as to why this happened on a specific case.

      • The case stands to date in the High Court of Appeal, Split case joined in the false name of child No further Appeal allowed to change childs name
        Redcar & Cleveland LA then split the case, changed the childs name back to birth certified name, using Judge Casalats second half of court case court order for adoption, obviously illegally changing childs name back to birth certified name

  7. In Leeds Court 3rd May 2000 presided over by a Judge Cazalat a prior judge involved in our family court case stated he remembered the case and wanted the court to know that we the family including the mother (name) were the most honest family to ever have come before him
    Question: Can this judge be called to court as a witness to our innocence in a further court case

    • Just to add the court case was a case brought by the Redcar &Cleveland Local Authority to gag us against any access to justice by court order which Judge Cazalet refused to do

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