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FIRST DIVISION, INNER HOUSE, COURT OF SESSION
[2024] CSIH 1
XA21/23
Lord President
Lord Malcolm
Lord Pentland
OPINION OF THE COURT
delivered by LORD CARLOWAY, the LORD PRESIDENT
in the remit from the Sheriff Appeal Court under section 112 of the Courts Reform (Scotland)
Act 2014
in the cause
GALBRAITH TRAWLERS LIMITED
Pursuers and Respondents
against
THE ADVOCATE GENERAL FOR SCOTLAND (as representing the HOME OFFICE)
Defender and Appellant
____________
Pursuers and Respondents: Howie KC; Irvine; Burness Paull LLP
Defender and Appellant: Lindsay KC; Anderson Strathern LLP
10 January 2024
Introduction
[1]
The sheriff at Campbeltown found the Advocate General, representing the Home
2
Office, liable to pay to the pursuers, a fishing company, damages of £284,227, plus interest,
for losses which arose when the Home Office unlawfully detained three of the pursuers'
fishing vessels between 2015 and 2016. The Advocate General contends that, owing to the
particular circumstances of the case, the sheriff ought to have restricted his award to a
nominal amount. That contention flowed, in essence, from the reasoning in Parker v Chief
Constable of Essex Police [2019] 1 WLR 2238 (Sir Brian Leveson at para 104) that the test, when
assessing damages in a wrongful detention case, is 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. This test, which was said to be the product of R (Lumba) v Home Secretary
[2012] 1 AC 245, has been criticised both by the High Court of Australia (Lewis v Australian
Capital Territory [2020] 271 CLR 192) and the Supreme Court of Ireland (GE v Commissioner of
the Garda Síochána [2022] IESC 51). In order to determine the appeal, the court must decide
whether Parker is in line with Scots law or whether it should follow the Australian and Irish
jurisprudence.
The Immigration Act 1971
[2]
Section 25 of the 1971 Act makes it an offence to do any act which facilitates a breach
of immigration law by an individual who is not a UK national. When a person is convicted
on indictment, section 25C allows the court to forfeit a vessel which has been used in
connection with the offence. Prior to forfeiture, section 25D (as applied to Scotland) allows
the vessel to be detained, as follows:
"25D Detention of ship ...
3
(1)
If a person has been arrested for an offence under section 25 ... a senior
officer or a constable may detain a relevant ship...
(a)
until a decision is taken as to whether or not to institute criminal
proceedings against the arrested person for that offence; or
(b)
if criminal proceedings have been instituted against the arrested
person--
(i)
until he is acquitted or ... or the trial diet is deserted simpliciter;
(ii)
if he has been convicted, until the court decides whether or not
to order forfeiture of the ship ...
(2)
A ship ... is a relevant ship ... in relation to an arrested person, if it is one
which the officer or constable concerned has reasonable grounds for believing could,
on conviction of the arrested person ... be the subject of an order for forfeiture made
under section 25C.
...
(6)
`Court' means--
...
(b)
in Scotland, the sheriff ...
(8)
`Senior officer' means an immigration officer not below the rank of chief
immigration officer."
Background and previous decisions
[3]
The Advocate General does not challenge the sheriff's finding that the vessels were
detained unlawfully. He confines his appeal to a contention that only nominal damages
ought to have been awarded. This is on the basis that the mistakes, which were made by the
Home Office in detaining the vessels, were procedural or technical errors. Had the Home
Office been aware of the correct method of detention, they could and would have lawfully
detained the vessels. Therefore, the Advocate General argues, the unlawfulness of the
detention did not cause the loss. The detentions could have been executed lawfully, and the
same loss would have occurred if they had been. In order to understand this ground of
appeal, it is necessary to look at the background to the detentions and the previous decisions
of the sheriff and the Sheriff Appeal Court.
4
Home Office investigation and Mr Rennie's arrest
[4]
In 2015, the pursuers owned a fleet of prawn fishing vessels, including the Amy
Harris IV, the Sapphire IV and the Fear Not II. These vessels were worth, respectively,
about £100,000, £520,000 and £100,000. The pursuers used the vessels to fish within UK
territorial waters. In August of that year, the Home Office were engaged in Operation Void.
This was an investigation into the facilitation of illegal working within UK waters by the
fishing industry; notably that in Scotland. The Home Office team, which was based in
Glasgow, was headed by Carolyne Lindsay, who held the rank of Her Majesty's Inspector
for Criminal and Financial Investigations of the Home Office. The team included a police
officer, Detective Constable Steven Livingstone, and an Immigration Officer, John, known as
Jack, Linton.
[5]
The Home Office investigated the pursuers as part of the operation. They suspected
the pursuers of facilitating breaches of immigration law by employing Filipino workers on
their vessels. The pursuers accepted much of what was ultimately reported by the Home
Office to the Crown Office. They had sponsored Schengen Visas which had been applied for
by nationals of the Republic of the Philippines at the embassies of the Netherlands and the
Faroe Islands in Manila. The visas permitted entry into the Schengen Zone (which does not
include the UK). The pursuers used their vessels, over time, to transport about twelve
Filipinos from the Netherlands or the Faroes to the UK. The Filipinos worked on the vessels
at various times between September 2014 and September 2015. They were, according to the
pursuers, lawfully in the UK without leave because they were seamen (1971 Act, s 8). On
19 August 2015, during a routine port visit, Border Force Officers came across four of the
Filipino workers who were working aboard the Amy Harris at Ardrossan. They were
detained under the 1971 Act. The vessel was skippered by James Rennie. On 25 August
5
2015, he was arrested on suspicion of facilitating a breach of immigration law contrary to
section 25 of the 1971 Act.
Detention of the Amy Harris
[6]
On the day of Mr Rennie's arrest, DC Livingstone drafted a letter to him. This
advised that, consequent upon his arrest, the Amy Harris "has/will be been detained" (sic)
under section 25D of the 1971 Act. The justification for the detention, and those of the other
two vessels, will be explored in due course. The letter ran in Mr Linton's name and gave his
designation as an immigration officer. Mr Linton was only an "acting" Chief Immigration
Officer. The letter did not disclose this. Mr Linton was on leave when the letter was
drafted. He was unaware of it. On 26 August 2015, DC Livingstone emailed the letter to
Campbeltown police station with instructions to serve it on Mr Rennie. He phoned
Mr Rennie's solicitor to say that the Amy Harris had been detained. On the following day,
DC Livingstone was told that the police had been unable to serve the letter. He agreed with
Mr Rennie's solicitor that Mr Rennie would collect the letter from the police station.
Mr Rennie did so at some point prior to 7 September. On 4 December, the pursuers raised
proceedings under section 25C for the release of the Amy Harris. The Advocate General
defended the action.
Detentions of the Sapphire and the Fear Not
[7]
On 14 December 2015, John Galbraith, who was the controlling shareholder of the
pursuers and the skipper of the Sapphire, was arrested on suspicion of breaching
immigration control by facilitating unlawful working in UK waters. On 23 December,
Mr Linton, along with police officers and Home Office officials, went to Mr Galbraith's
home in Campbeltown. He served a letter on Mr Galbraith which stated that the Sapphire
6
and the Fear Not "have been detained" under section 25D. This time the letter was signed
by Mr Linton who was designated as an "Acting" Chief Immigration Officer.
The criminal proceedings and release of the vessels
[8]
Although Mr Rennie was arrested, he was not prosecuted. Mr Galbraith appeared
on petition at Campbeltown sheriff court on 10 March 2016. Although the sheriff found in
fact that an indictment was served on Mr Galbraith in due course, this may not be accurate.
Proceedings were subsequently raised by way of a summary complaint and then abandoned
on 14 November 2017. Parties were unable to assist the court on why the prosecution had
been discontinued. The Home Office agreed to release the vessels subject to consignation by
the pursuers of £30,000. This was lodged with the sheriff clerk and later repaid. The Amy
Harris and the Fear Not were released on 26 February 2016 and the Sapphire on 18 August
2016.
The sheriff and the Sheriff Appeal Court on lawfulness
[9]
The pursuers raised the present proceedings at Campbeltown sheriff court in 2018.
They challenged the lawfulness of the detentions on the basis, inter alia, that Mr Linton was
not a senior immigration officer and therefore (1971 Act, s 25D(8)) did not hold sufficient
rank to effect a detention. They had a separate case of deliberate misuse of statutory powers
(Micosta v Shetland Islands Council 1986 SLT 193) and one based upon negligence. The
Advocate General defended the action on the basis that the "decision to detain" had been
made by Inspector Lindsay, who was a senior immigration officer. He averred that she had
had reasonable grounds for believing that the Amy Harris could, on Mr Rennie's conviction,
be forfeited by the sheriff. This was covered by the pursuers' general denial. The letter of
25 August merely communicated Inspector Lindsay's decision to Mr Rennie. Alternatively,
7
because Mr Linton had been "acting up" as a CIO, he held the requisite rank. The Advocate
General also tabled a somewhat convoluted defence which was based on the maxim ex turpi
causa non oritur actio (a person cannot pursue an action based on his own illegal actings).
The argument was that the detentions had prevented the vessels from operating with an
illegal crew. The action proceeded to a debate before the sheriff.
[10]
In his judgment of 10 February 2020, the sheriff noted (para [59]) that the pursuers
had admitted that the crew had been illegally employed. The pursuers were not founding
on that illegality. They were founding on the illegality of the detentions of the vessels. The
only basis for such detentions would have been to ensure that forfeiture could follow a
conviction on indictment. Allegations of facilitating illegal entry had not been established.
The Crown had accepted that the alleged offences did not justify solemn proceedings. It
was not suggested that, after the detention of the crew, the vessels would engage in the
lawful pursuit of fishing with other unlawfully employed crews.
[11]
The sheriff allowed the misconduct case to go to proof, but determined that the
negligence averments were irrelevant. He agreed with the pursuers that the lawfulness of
the detentions was not dependent upon who might have made an earlier decision to detain,
but on who carried out the detentions. Detention involved control of the vessel passing to
the state (judgment para [94]). For that to happen, the detention had to be communicated to
the person in control of the vessel. What mattered was who communicated the decision.
The statute required the detaining officer to have reasonable grounds for believing that the
vessel was liable to detention under section 25D. It was not maintained that any constable
(eg DC Livingstone) had made the detentions. The Advocate General's position was that
Inspector Lindsay had made the decision to detain, but not that she had carried out the
detentions themselves. There was nothing which suggested that Mr Linton had applied his
8
mind to whether reasonable grounds existed. There were no averments about the
appointment and the functions of an acting CIO. Detentions were analogous to arrestment
of property on the dependence of an action, for which there was strict liability. For these
reasons, the detentions were ultra vires and unlawful. The relative declarators were granted.
[12]
On 15 April 2021, the Sheriff Appeal Court upheld (2021 SLT (Sh Ct) 211) the sheriff's
decision in large part, subject to one issue of fact. The Advocate General's averments based
on the maxim ex turpi causa were irrelevant. The Advocate General had accepted that the
detentions had been effected and that Inspector Lindsay had made the decision to detain.
However, he had denied the pursuers' averments about by whom and how the detentions
were carried out. Section 25D made no provision for detention by an "Acting" senior
officer. If the detentions had been effected by Mr Linton, they were ultra vires and unlawful
and thus the Advocate General was liable for any losses. Evidence was therefore required to
determine: (i) whether Mr Linton had carried out the detentions; (ii) causation; and
(iii) quantum. A proof before answer was allowed on these matters. The declarators granted
by the sheriff were recalled.
[13]
The SAC confirmed (at para [49] et seq) that the purpose of detention was to provide
security in the event of an order for forfeiture being made. It was akin to an arrestment on
the dependence of an action. It was not for the purpose of preventing crime. Detention,
according to the SAC (at para [67]), could be effected by the "delivery of letters". There was
no power to board vessels under the 1971 Act, and so the delivery of letters, which gave
notice to the owners or skippers, was an effective means.
9
The sheriff's decision following the proof before answer
How and by whom the detentions were effected
[14]
On 12 December 2022, having heard the proof, the sheriff found in favour of the
pursuers. Mr Linton had indeed effected the detentions. It is useful to look at the testimony
of Inspector Lindsay in order to understand what happened. She said that she had been
involved in discussions which had led to the detention of the Amy Harris, following upon
the arrest of the Filipino crew at Ardrossan. Subsequently:
"... there was a number of discussions around tactical options in terms of the
investigation, and that led up to the decision to detain the vessels".
In the discussion about exercising the power of detention, "... that was one of the tactical
options that was presented to me". Inspector Lindsay made the decision to detain because,
"... that was the best course of action, to try and drive compliance ...". The mode of
detention was to be a letter in an agreed form which was to be served on Mr Rennie by the
police at Campbeltown.
[15]
Inspector Lindsay explained that, if she had been told that an acting Chief
Immigration Officer, such as Mr Linton, did not have the power to detain the Amy Harris,
she would have signed the letter herself. If it had been necessary for her to have served the
letter herself, she would have done so. In relation to the Sapphire and the Fear Not,
Inspector Lindsay had been told that they had been "put up for sale". Her opinion was that
there was "an attempt to dissipate assets". She did not seek legal advice. She was not aware
of any other members of the team having done so. She had asked the Crown Office about
"proactive restraint". They did not think that that would be successful. She decided to
detain the vessels. The relevant letter was signed by Mr Linton and served by him on
10
Mr Galbraith. Inspector Lindsay said in cross that she was unaware of the values of the
vessels.
[16]
The sheriff reasoned (at para [99]) that detention called for a decision to detain, a
communication of that decision to the relevant person and a passing of control from that
person to the state. An oral communication may suffice in urgent situations. The detaining
officer required to believe that, if the arrested individual were to be convicted, the vessel
could be forfeited. That belief had to be based upon objectively reasonable grounds. Once
satisfied that detention was permitted, the officer should draft, sign and serve a detention
letter on, or at least orally communicate the detention to, the vessel's owner or his agent.
The officer should state the nature of his authority to detain. In cases of urgency, police
constables could be requested to assist. If they were asked to do so, they too would require
to satisfy themselves that there were reasonable grounds for detention.
[17]
No such procedure was followed in respect of the Amy Harris. What procedure
there had been was "deplorably irregular" (para [100]). No detaining officer had been
present in the port where the vessel was berthed. The detention letter was unsigned.
Although Mr Linton was ignorant of its existence, it ran in his name. It was not served on
the pursuers. The cumulative acts of the Home Office created a "simulacrum" of a regular
detention, but one which had been irregularly executed and without warrant. The
procedure, which had been followed in respect of the Sapphire and the Fear Not, was less
problematic, but it was still flawed. Those detentions had been effected by Mr Linton's
service of the letter on Mr Galbraith at his home. Mr Linton believed that he had the power
to detain. His actions were in line with internal Home Office guidance. His belief about his
powers was honest, genuine and reasonable. The misconduct case failed. However, the
correct interpretation of section 25D had been resolved by the Sheriff Appeal Court;
11
Mr Linton was not a senior officer in terms of the legislation. Since Mr Linton had effected
the detentions, they were unlawful. As the SAC had also determined, comparison with
arrestment on the dependence was appropriate. The Advocate General was liable for any
losses caused by the detentions.
Causation and quantum
[18]
There was no dispute that the detentions had caused loss to the pursuers. The
dispute was about how that loss should be quantified. The sheriff rejected the Advocate
General's argument that damages should be restricted to a nominal amount of £1.00. That
argument relied on the application of a line of authority on false imprisonment in England
in which the detainees had not suffered patrimonial loss (R (Lumba) v Home Secretary; and R
(Kambadzi) v Home Secretary [2011] 1 WLR 1299). Here there had been patrimonial loss. In
any event, these authorities had not been applied in Scotland. Any reference to them (NS v
Secretary of State for the Home Department 2015 SC 295; and Shehadeh v Secretary of State for the
Home Department 2014 SLT 199) had been obiter. The Scottish decisions were that
compensatory damages would normally be payable in all but highly exceptional cases (NS
at para [40]).
[19]
The wrongful imprisonment cases in England were inconsistent with Bell v Black and
Morrison (1865) 3 M 1026. Bell made clear that, where a warrant had been issued unlawfully
because the judge did not have the power to grant it, the party who executed the warrant
was liable for the consequences. Using the arrestment analogy, a relatively minor flaw
could invalidate a warrant. The question was not what the position would have been if the
diligence had been properly executed. The Home Office:
"... had a flawed understanding of what was required to effect a Section 25D
detention. Yet the court [had been] invited to proceed on a counter-factual
12
hypothesis in which they had a correct understanding, and thus to presume that in
that hypothetical alternative situation all would have been done correctly"
(para [114]).
No such presumption was provided to non-state arresters. Extending a greater degree of
which it was said that the Crown's agents stood in the same position as its subjects.
[20]
There were policy considerations which counted against the restriction of any award
to nominal damages. It would mean that there was no real remedy for the wrongful
conduct. Lack of a deterrent would foster an undesirable culture of impunity. As a check
on the power in section 25D, which was capable of causing great and potentially irreparable
damage to businesses and livelihoods, Parliament had entrusted it only to senior officers.
That safeguard must be capable of being relied upon by affected parties.
[21]
As a result of the detentions, the pursuers suffered financial losses of £284,227. This
amount comprised: (i) loss of profit of £118,238; (ii) management time, diverted from
revenue-raising activity, of £1,400; (iii) loss of profit as a result of deterioration of the Amy
Harris caused by non-use whilst detained in the amount of £27,865; (iv) repairs to the Amy
Harris of £3,854; and (v) a loss of £132,870, which arose from the respondents being forced to
sell a fishing licence in February 2016 in order to meet their debts. Had they not required
cash urgently, the pursuers would have retained the licence until 2018, when its market
value had risen by that amount. The sheriff separately granted decree for payment of
£8,397.97, being the legal expenses incurred in order to secure the release of the vessels.
Submissions
The Advocate General
[22]
The sheriff erred in failing to restrict damages to a nominal amount. If they had been
13
aware of the correct interpretation of the statute, the Home Office could have, and would
have, exercised their power under section 25D lawfully. The only error related to the use of
Mr Linton's name on the detention letters. All of the other requirements had been satisfied.
The skippers had been arrested for offences under section 25. There were reasonable
grounds for believing that, if the skippers were convicted, the vessels would be subject to
forfeiture.
[23]
The sheriff erred in holding that the line of authority, which had been relied upon by
the Advocate General (R (Kambadzi) v Home Secretary; OM (Nigeria) v Home Secretary
[2011] EWCA Civ 909; R (Lumba) v Home Secretary; NS v Secretary of State for the Home Department;
and Bostridge v Oxleas NHS Foundation Trust [2015] Med LR 113), should be distinguished.
The law differentiated between those who would have suffered the detriment in any event,
and those who would not. The pursuers had not sustained any substantive loss as a
consequence of the procedural failings. This approach had been adopted in relation to: the
unlawful detention of a mentally disordered patient (Bostridge at paras 23-26); unlawful
detention in Scotland (NS); and unlawful arrest (Parker v Chief Constable of Essex Police). The
test was not one of inevitability but probability (OM (Nigeria) at para 23). The relevant
principle was that, although procedural failings rendered detention unlawful, they did not
of themselves, merit substantial damages (Parker at paras 89-104). There was a limit in that it
had to have been possible for the detention to have been effected (R (Hemmati) v Home
Secretary [2021] AC 143, at paras 111- 112). The present case fell within that limit.
[24]
The pursuers did not argue, nor did they lead evidence, that a senior officer or a
constable could not have lawfully detained the vessels. Rather, they said that the power
under section 25D had been exercised by someone who was not a senior officer or constable.
The court had to consider what would have happened if the delict had not been committed.
14
There was no point of principle which required damages to be approached differently from
that of the detention of a person. Liberty of a person had generally been afforded greater
protection by the law than property rights. If unlawfully detained persons were only
entitled to an award of nominal damages, the same considerations should apply to property
owners.
[25]
There was no basis for the sheriff's assertion that the claimants in the Advocate
General's authorities had not suffered patrimonial loss. The issue of patrimonial loss was
not determinative. The Lumba line of authority did not extend a greater degree of
indulgence to public officials. It applied equally to private individuals. It involved the
straightforward application of well-established principles of causation. There was no
difficulty in reconciling Lumba with Bell v Black and Morrison. The difference was that, in
Bell, the warrants could never have been issued lawfully. The policy considerations raised
by the sheriff had been rejected in Lumba and Kambadzi.
[26]
The evidence demonstrated that the power to detain the vessels could have, and
would have, been exercised lawfully. The unchallenged evidence of Inspector Lindsay
established that, if she had been aware that it was necessary for her to draft, sign and serve
the letters on the skippers personally, she would have done so. The court should use this
unchallenged evidence to make additional findings in fact.
The pursuers
[27]
The authorities relied upon by the Advocate General were neither binding nor
germane to, and were distinguishable from, the present case. The legislation was different.
The present case involved infractions of rights in property. It was based on patrimonial loss,
through deprivation of an asset with an economic value (One Step (Support) v Morris-Garner
15
[2019] AC 649 at para 110). It mattered not that the deprivation could have been achieved
lawfully; it was not. In all forms of the wrongful detention of property, substantive
damages ought to be awarded (The Mediana [1900] AC 113). The sheriff found that the
pursuers had sustained a real loss.
[28]
The Advocate General's argument was that, even if the Home Office had laboured
under a complete misapprehension as to the law, and conducted themselves in accordance
with that misapprehension, causation was to be approached as though there had been
proper compliance. There was no common approach in cases of delict. It varied according
to the basis and purpose of the liability (GE v Commissioner of An Garda Síochána
[2021] 2 ILRM 441 at para 102). An award could be made for a delict involving an infraction of
property rights, even although the wrong had caused no financial loss (One Step). If the
wrong caused a loss, compensation could still be payable even if that loss could have been
inflicted in the absence of the wrong (MVF
3
APS v Bestnet Europe [2017] FSR 5 at paras 79
common approach to causation were required, adopting a hypothetical comparator did not
achieve that. Causation had to be approached as a matter of fact looking at what would
otherwise have happened (Lewis v Australian Capital Territory at paras 39, 94 and 179-182).
[29]
The detentions involved a substantive error; detention by a junior immigration
officer. 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. Parker and
Hemmati considered what was legally possible; whether or not that was something which
had been appreciated by those involved. Scots law rejected that approach. Parker had been
criticised in Australia and Ireland for its circularity, for being founded on contradiction and
16
for diminishing the principle of legality and negating the cause of action for wrongful
imprisonment (GE [2021] at paras 92 and 148).
[30]
Adopting the Kambadzi approach would offend against the constitutional principle
that the Crown and its subjects stood on the same footing (Robinson v West Yorkshire Chief
Constable [2018] AC 736). A private individual was not protected from the consequences of
an invalid arrestment (Dramgate v Tyne Dock Engineering 1999 SLT 1392). It was not accepted
that only nominal damages were due for damage which could have been caused lawfully
(Bell; Anderson v Ormiston [1750] Mor 13949; Gibsons v Murdoch, 18th June 1817, FC; Aarons &
Co v Fraser 1934 SC 137; The United Horse Shoe and Nail Co; Erskine, Institutes, (8th ed) III.1.14).
In contrast to England, in Scotland egregious cases could not be made subject to an award of
exemplary damages. The absence of a substantive remedy would result in a culture of
carelessness by officials. The Kambadzi approach would fail to honour the principle that
there can be no wrong without a remedy (ubi ius, ibi remedium).
[31]
If the nominal damages rule applied, the pursuers were still entitled to substantive
damages. The purpose of the statutory power of detention was to obtain security for the
forfeiture of the vessel. The evidence did not disclose that the Home Office had any basis for
thinking that there was any need for such security. The Amy Harris was a fishing boat
operating inshore, in and out of British ports. It could not be concluded that, if the Home
Office had done everything it ought to have done, the Amy Harris would still have been
detained.
Decision
[32]
When a wrong has been committed, the court will order the wrongdoer to
compensate the person affected by assessing what, in monetary terms, will put that person
17
back into the same position as he would have been in had the wrong not occurred. This is a
well-known, longstanding principle of the law of damages (Livingstone v Rawyards Coal Co
3
APS v Bestnet Europe (2017) FSR 5,
Floyd J at para 79; cf Hutchison v Davidson 1945 SC 395, Lord Russell at 404). It was this
principle which was applied in Bostridge v Oxleas NHS Foundation Trust [2015] Med LR 113.
In Bostridge, it was said (Vos LJ at paras 20-23, following R (Lumba) v Home Secretary
[2012] 1 AC 245, Lord Dyson at para 93), that, in a detention situation, if a person would have been
detained anyway, or would have continued in detention, only nominal damages would be
payable. It is important to qualify that, as was done in Bostridge (Vos LJ at para 21, citing
Lord Kerr in Lumba), by emphasising that the substitute detention would have to have been
a lawful one. In Bostridge, the outcomes which would have occurred in Lumba and R
(Kambadzi v Home Secretary) [2011] 1 WLR 1299, had the unlawful acts not occurred, were
described (Vos LJ at para 23) as "obvious". In Kambadzi, the answer to the critical question
of "what would have happened in fact if the [wrong] had not been committed" (Vos LJ at
para 23) was that the claimants would still have been detained. They had then suffered no
actual loss. In Lumba, that factual question was remitted for determination by the High
Court. Thus far the court agrees.
[33]
Applying these straightforward principles, 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. The sheriff
18
was well entitled to reach this view and to find in fact, as he did (ff 25), that the wrongful
detention had had a "severely detrimental effect on the [pursuers'] financial situation".
[34]
It appears from the evidence of Inspector Lindsay that the decisions to detain were
tactical ones which were designed to "drive compliance". That is not a lawful ground for
detention. Section 25D makes it clear that 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 in order to determine whether detention was required so
that forfeiture could follow. The conclusion must be, as a matter of fact, that, had Inspector
Lindsay signed and served the letters herself (see infra), a detention may have followed, but
it too would have been unlawful.
[35]
The analysis carried out so far follows the well-known principle of determining
simply what would have happened if the unlawful act had not occurred. In Bostridge, the
claimant was schizophrenic, but he had been detained unlawfully. The answer to the
question, of what would have happened if he had not been unlawfully detained, was
supplied by his expert psychiatrist who said that he would have been lawfully detained,
given his mental state. A difficulty arises if a gloss is put on this exercise of determining the
fact of what would have happened. This occurred to a degree in Bostridge when, having set
out the correct test, the Court of Appeal added (Vos LJ at para 26) that the claimant suffered
no loss not because he would have been lawfully detained anyway, but because his
detention would still have occurred if the authorities had been aware of their error. This
19
type of approach became more acute in Parker v Chief Constable of Essex Police
[36]
Parker involved the arrest of a celebrity by a police surveillance officer, who had been
instructed by a senior colleague to effect the arrest, but who did not himself have reasonable
grounds for doing so (see O'Hara v Chief Constable of RUC [1997] AC 286; cf Borland v HM
Advocate 2016 SCCR 8). His senior colleague, who did have grounds to make the arrest, had
been held up in traffic. The judge at first instance (Stuart-Smith J) had found as fact that, if
the celebrity had not been unlawfully arrested by the surveillance officer, he would have
been unlawfully arrested by another such officer, who would also not have had the requisite
grounds for suspicion. Substantive damages would be avoided, not where the claimant
could have been lawfully arrested but where in fact he would have been (Parker at para 64;
the so-called counterfactual).
[37]
Sir Brian Leveson carried out an extensive review of the facts found at first instance
before examining in detail the dicta of Lords Dyson and Kerr in Lumba and Lady Hale and
Lord Kerr in Kambadzi. He concluded:
"104
The test therefore is not what would, in fact, have happened had [the officer]
not arrested [the celebrity] but what would have happened had it been appreciated
what the law required. To Stuart-Smith J this appeared circular: to assume
lawfulness was to assume what was sought to be proved. However, the
counterfactual scenario envisaged by Lord Dyson JSC and the accompanying
majority in Lumba did not require the court to assume the lawfulness of the
procedure whereby the detention was effected. Lying behind the decision in Lumba
therefore is the principle that although procedural failings are lamentable and render
detention unlawful, they do not, of themselves, merit substantial damages."
Sir Brian continued (at para 107) by stating that the arrest would have been lawful if the
police had appreciated what was required by way of reasonable grounds:
"The fact that there was no evidence about what would have happened is not to the
point ... it is clear that if either [surveillance officer] had been alert to the O'Hara
obligations, either the arrest would have awaited [the senior officer] or she would
20
have sufficiently briefed [the arresting officer] (or another officer present at the
scene)."
The Court of Appeal (Sir Brian at para 108) found that, had the police acted lawfully, the
celebrity would have been detained lawfully, even although Stuart-Smith J had found in fact
that a lawful detention would not have happened.
[38]
The UK Supreme Court revisited this area in R (Hemmati) v Home Secretary [2021] AC 143
in which Lord Kitchin stated (at para 112) that only nominal damages would flow if it
were established that the wrongfully detained person could have been lawfully detained.
[39]
The analysis in Parker, as derived from Lumba and Kambadzi, was the subject of
scrutiny in Lewis v Australian Capital Territory (2020) 271 CLR 192. The court at first instance
had found in fact that the claimant, who sought damages for the discontinuance of his
weekend periodic detention on the grounds of procedural unfairness, would inevitably have
suffered the same fate. He was not entitled to substantive damages. The High Court of
Australia agreed. The approach following Lumba was to compare the position in which the
claimant would have been, had the wrongful imprisonment not occurred (Gageler J at
para 38; Gordon J at paras 65-69).
[40]
However, (ibid Gageler J at para 39):
"It cannot simply be assumed that a power to detain that could have been exercised
lawfully would have been exercised lawfully if that power had not in fact been
exercised unlawfully; and it cannot simply be assumed that all conditions precedent
to the enlivening of a statutory duty to detain would have been met."
In reaching that view, Gageler J had regard to both Parker and Hemmati (see footnote 80).
Gordon J preferred the reasoning of Stuart-Smith J in Parker; commenting (at para 94) that:
"The correct counterfactual in the assessment of loss and damage is what would
have happened if the [wrongful act] had not been committed".
Edelman J agreed (at para 178), adding that:
21
"The `but for' or counterfactual approach `directs us to change one thing at a time
and see if the outcome changes' ... The change is the removal of the wrongful act. If
the loss would lawfully have occurred but for the wrongful act then the wrongful act
was not necessary for the loss. The counterfactual approach thus involves a
hypothetical question where no other fact or circumstance is changed other than
those which constituted the wrongful act."
He added (at para 182):
"If the counterfactual approach in Parker were applied generally then it would ...
result in nominal damages in most cases of honest but unlawful imprisonment ...
The correct counterfactual approach, which removes only the wrongful act, does not
require the court to ask what would have happened if it had been appreciated what
the law required".
[41]
A similar view was taken in GE v Commissioner of An Garda Síochána [2022] IESC 51.
The Supreme Court of Ireland commended (at paras 13 and 30) Murray J's analysis in the
Court of Appeal that Lumba "fitted `clumsily' into the counterfactual model that typically
applies in the context of the `but for' test." This was because it presumed a circumstance in
which the loss was avoided through a hypothesis whereby a new event should enter the
matrix; a non-wrongful act by the entity which had acted unlawfully.
[42]
The court accepts the outcomes in both Lumba and Kambadzi. 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. The remitted appeal will be refused. The court affirms
the interlocutor of the sheriff at Campbeltown dated 12 December 2022 (as revised by
interlocutor dated 9 January 2023).
22
Postscript
Detention
[43]
Although it was not an issue which fell to be determined in the appeal, the court was
anxious to understand the Home Office's view on what is required to detain a vessel under
the Immigration Act 1971, assuming that they did have reasonable grounds for believing
that the vessel could be forfeited by the court in due course. As the Sheriff Appeal Court
correctly observed (at para [65]) detention "involves a serious incursion into the property
rights of the owner or charterer". Yet the SAC had (at para [67]) "little difficulty in accepting
the ... proposition that detention can be effected by delivery of letters" from a senior
immigration officer or a constable to the owners or the skippers. The reasoning behind this
appears to have been partly because the SAC accepted that the Home Office had no power
to board the vessel. The SAC derived support from Bristol Airport v Powdrill [1990] Ch 744 to
the effect that no particular procedure or form was required, but there had to be some form
of overt act, such as a notice, designed to prevent an aircraft from taking off. No doubt that
is correct.
[44]
It would be surprising if detention could be effected in the absence of the authorised
person attending upon the vessel and declaring either orally or, preferably and in any event
subsequently, in writing that the vessel was thereby detained and informing whoever
appeared to be in control of the vessel, which may or may not be the skipper or owner, the
source of the authority to carry out the detention and the reason for it. That detention has
occurred ought to be apparent to anyone who might intromit with the vessel. By analogy
with the arrestment of a ship on the dependence of an action, some form of notice ought to
be attached to a prominent part of the vessel and intimated to the harbourmaster.
23
Nominal Damages
[45]
One significant feature in the case has been the Home Office's view that any error on
their part has been only procedural or technical. The court does not agree. Even if it had
been established that the pursuers' vessels would inevitably have been detained, the
detention of commercial vessels by a person, who is not authorised to do so, must be
regarded as a serious matter; and the purported detention of the Amy Harris by an
immigration officer who was unaware of a letter issued in his name even more so. In such a
situation, the wrongful act would have merited an award of damages given that it would
have caused at least inconvenience to the pursuers.
[46]
Care must be taken when adopting the term "nominal damages" to cover this type of
situation. The availability of damages in wrongful retention situations, even when no
patrimonial loss is proved, was made clear in Aarons & Co v Fraser 1934 SC 137 (LJC
(Aitchison) at 140 following Webster & Co v Cramond Iron Co (1875) 2 R 752, LP (Inglis) at 754
and adopting The Mediana [1900] AC 113, Halsbury LC at 117). Although in The Mediana, the
Lord Chancellor referred to nominal damages, he pointed out that nominal damages for the
infringement of a right did not mean small damages. In United Horse Shoe and Nail Co v
Division and restored the Lord Ordinary's award of substantive damages. Had they not
done so, the Division's award of damages for inconvenience of £50 (see Lord Mure at
(1886) 14 R 266 at 278) would have stood. That is the equivalent of about £8,000 in modern terms.
The award in Aarons, which was not described as nominal, but general (actual or special
damage not having been proved), was only £10, but that was in 1933; being worth about
£1,000 now. Similarly, the entitlement of an award for trouble and inconvenience in Webster
was described (at 755) as something more substantial than nominal and set at £10 in 1875;
24
now about £1,500. 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.
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