Accused mistakenly returned to custody after being granted bail awarded £3,325 in compensation

About this case:

• Citation:
  [2026] SC EDIN 6
• Judgment:
  External link
• Court:
  Sheriff Court
• Judge:
  Sheriff F C M Thomson

Duncan Welsh raised an action against the Scottish Courts and Tribunals Service following the incident, which he argued violated his rights under Article 5 ECHR and section 6 of the Human Rights Act 1998, seeking £10,000 in compensation. The respondent admitted liability, with the matter calling solely on the issue of quantum.

The case was heard by Sheriff Fergus Thomson at Edinburgh Sheriff Court. Swanney, advocate, appeared for the pursuer and Callendar, solicitor, for the defender.

No initial shock

On 6 December 2023, the pursuer appeared from custody in private at Glasgow Sheriff Court in connection with a petition matter. After he did not tender a plea, the Crown moved to have him committed for further examination. An application for bail was submitted, which was opposed by the Crown. However, the sheriff admitted the pursuer to bail. The pursuer was noted as having a lengthy record of detention, both before and after the events which led to his wrongful detention.

Despite the sheriff’s decision, what was communicated to cell officers at Glasgow Sheriff Court was that the pursuer’s application for bail had been refused. He was then taken to HMP Barlinnie, where he was detained for 7 days until the error was discovered. A bail order was subsequently issued, and the pursuer was released on 13 December 2023.

For the pursuer it was submitted domestic authorities established that damages should be assessed in the round and not mechanistically by way of a fixed daily tariff, with initial shock to be recognised in appropriate cases and the rate at which damages increased falling with the length of detention. A series of cases were cited including Grier v Chief Constable of Police Scotland (2022), in which £7,500 was attributed to three nights of wrongful detention, and Lloyd & Ors v UK (ECtHR, 2005), in which €7,000 was awarded for seven days. Taking account of inflation, £10,000 was appropriate in this case.

While the defender did not dispute that damages fell to be awarded, it was submitted that £1,500 would represent appropriate compensation. The pursuer had not been arrested unlawfully, there was no initial shock to consider, and his period of unlawful detention was preceded by a period of lawful custody. An appropriate comparative case would be the decision of the Inner House in NS v Home Secretary (2022), in which damages of £30,000 were awarded for one year’s unlawful detention, equating to a daily rate of £82.

Applying broad axe

In his decision, Sheriff Thomson said on the approach to quantification: “I have adopted the four-stage approach taken in Alseran v Ministry of Defence (2017) that is identifying the injuries suffered by the pursuer as a result of the relevant breach of his Convention rights, assessing the amount of compensation that would be awarded in accordance with the principles of Scots law applicable to delictual claims, considering whether to depart from or adjust that sum having regard to wider considerations of what is just and equitable in all the circumstances.”

He continued: “I do not agree with the defender’s submission that dismissal of the pursuer’s claim renders delictual awards, more generally, irrelevant as an aid to assessing what may be an appropriate award. If a breach of the 1998 Act has occurred, then domestic awards are relevant and not least for the reason identified in Alseran that where the basic right to bodily integrity or liberty is protected both by the 1998 Act and the law of delict the courts should strive for consistency of response.”

Considering the case law cited by the parties, Sheriff Thomson said: “Being mindful that damages are to be assessed in the round and not mechanistically, and adjusting for factors not present here, these decisions would suggest a daily rate, allowing for inflation, in a range of c. £200 - £750. Applying a broad axe, for the period under consideration, I consider that a daily rate of £475 per day is appropriate, equating to an award of £3,325. There is no reason to depart from that sum in the circumstances of the present case or because of the pursuer’s conduct.”

Cross-checking against European cases, he concluded: “In Lloyd the award of €7,000 (for 7 days’ detention, so identical to the pursuer’s position) equates to around £8,500, inflation adjusted. These are to be contrasted with Clift v United Kingdom (2010) in which €10,000 (around £13,000, inflation adjusted) was awarded for a 2-year period of unlawful custody, following a lawful period of custody. Clift can be distinguished both as regards the length of the period and in that the award was said to have been given in respect of ‘feelings of frustration, uncertainty and anxiety’, so something akin to initial shock.”

The sheriff therefore determined that £3,325 represented an appropriate level of compensation to afford just satisfaction to the pursuer in terms of section 8 of the 1998 Act.