Home Office loses Inner House appeal against damages award for unlawful boat detention

About this case:

• Citation:
  [2024] CSIH 1
• Judgment:
  External link
• Court:
  Court of Session Inner House
• Judge:
  Lord Carloway

It was accepted by the appellant that the vessels had been detained unlawfully. However, on behalf of the Home Office, the Advocate General for Scotland contended that the damages ought to be reduced to a nominal sum due to the circumstances of the detentions.

The appeal was heard by the Lord President, Lord Carloway, along with Lord Malcolm and Lord Pentland. Howie KC appeared for Galbraith Trawlers Ltd, the original pursuers and respondents to the appeal, while Lindsay KC appeared for the appellant.

What would have happened

In August 2015, the Home Office were engaged in Operation Void, an investigation into the facilitation of illegal working within UK waters by the fishing industry, notably that in Scotland. The pursuer was suspected of facilitating breaches of immigration law by employing Filipino workers on its vessels. On 19 August, Border Force officers came across some of these workers in Ardrossan, which led to the detention of the pursuer’s vessels.

The vessels were detained in the name of an acting Chief Immigration Officer, Mr Linton, however at the time he was on leave and the detention letters did not disclose that he was only an “acting” CIO. Proceedings were raised at Campbeltown Sheriff Court on the basis that Mr Linton was not a senior immigration officer and did not hold sufficient rank to effect a detention.

The appellant’s contention that damages should be nominal was based on the reasoning in Parker v Chief Constable of Essex Police (2019). In that case, it was said that the test when assessing damages in a wrongful detention case was not to compare the claimant’s position with what would have happened but for that detention, but with what would have happened if the relevant authority had appreciated what they ought to have done to effect a lawful detention.

For the respondents it was submitted that the Parker test did not fall into line with Scots law, noting previous criticisms of the decision by the High Court of Australia and the Supreme Court of Ireland. Damages for a delict, which was founded on the fact that a defender had acted unlawfully, were not to be computed as though he had actually acted lawfully.

No evidence of analysis

Lord Carloway, delivering the opinion of the court, observed: “The question here is what, in fact, would have happened if the vessels had not been wrongfully detained. The sheriff was not prepared to find in fact that they would have been detained lawfully. On the contrary, he considered that the Home Office had a flawed understanding of what was required in order to detain a vessel. He was unable to accept that, had the Home Office properly understood what was required, they could and would have lawfully detained the vessels.”

He continued: “The only purpose of detention is to enable the court to make a forfeiture order. Such an order is a financial punishment. For there to be reasonable grounds for believing that it is in prospect, the person detaining the vessel must have in mind: the nature of the crime, notably its seriousness; the likely penalty in financial terms; and the value of the vessels and any other assets owned by the potential accused. There was no evidence that any form of analysis of these issues or balancing exercise was carried out by the Home Office.”

Analysing the relevance of the Parker case, Lord Carloway said: “Although the present case is resolved on the basis that it has not been found in fact that, had the Home Office appreciated the tests for lawful detention, a lawful detention would have followed, the court disagrees with the reasoning in Parker in favour of that in Australia and Ireland. The correct counterfactual is simply what would, on the balance of probabilities, have happened; not what might or could have happened.”

In postscript, he added: “Had the court awarded only nominal damages it would have measured those in thousands of pounds and not in the shape of a £1.00 coin. The resultant figure ought to serve as a modest deterrent of unlawful detentions.”

The appeal was therefore refused, and the interlocutor of the sheriff at Campbeltown affirmed.