Sheriff Appeal Court refuses Advocate General’s appeal against decision that immigration official unlawfully detained fishing boats



Sheriff Principal Mhairi Stephen QC
Sheriff Principal Mhairi Stephen QC

An appeal by the Advocate General for Scotland against a decision to allow a proof to determine that the detention of three fishing boats by immigration officers was ultra vires has been refused by the Civil Division of the Sheriff Appeal Court.

The pursuer and respondent, Galbraith Trawlers Ltd, raised the action seeking damages in respect of liabilities arising from the unlawful action of the immigration officers. It claimed damages for loss of fishing profits over the period of detention as well as declarator that the detention was unlawful.

The appeal was heard by Sheriffs Principal Mhairi Stephen QC and Craig Turnbull, and Appeal Sheriff Fiona Tait. The appellant was represented by Lindsay QC and the respondent and original pursuer by Howie QC.

Did not have requisite rank

On 25 August 2015, a vessel owned by the pursuer, the Amy Harris IV, was detained in Campbeltown after its skipper was arrested on suspicion of facilitating a breach of immigration law in respect of the vessel’s Filipino crew. Another two vessels, the Fear Not II and the Sapphire IV, were detained in December 2015 following the arrest of the pursuer’s controlling shareholder, John Galbraith, on similar suspicions.

An application for the release of the Amy Harris, later amended to include the other two vessels, was made in December 2015, all of which were released by August 2016. An indictment was served on Mr Galbraith and then reduced to summary complaint, but proceedings were deserted at the trial diet in November 2017. No criminal proceedings were raised against the skipper of the Amy Harris.

It was averred that the immigration officer who detained the ships, a Mr Linton, did not have the requisite rank, given in Section 25D of the Immigration Act 1971 as a “senior officer” and meaning an officer not below the rank of Chief Immigration Officer, to do so. Therefore, he had acted ultra vires and thus unlawfully in detaining the vessels.

The Advocate General admitted the detention of the vessels but denied that Mr Linton effected the detentions. It was explained that Her Majesty’s Inspector, Carolyn Lindsay, made the decisions to detain the vessels, and communicated these decisions by two letters in the name of Mr Linton. In any event, it was averred that Mr Linton was a “senior officer” for the purposes of the 1971 Act.

Following debate at Campbeltown Sheriff Court, the sheriff repelled several of the Crown’s pleas and excluded some of its averments from probation, including its esto case that Mr Linton had the requisite authority for detention. A proof before answer was allowed, restricted to the issues of causation of loss and quantification of damages.

The Crown submitted on appeal that the sheriff had erred in holding that the maxim ex turpi causa non oritur actio offered no bar to the recovery of damages. Further, he had erred in holding that the respondent’s averments on misfeasance in public office were sufficiently relevant and specific to go to proof and that the appellant’s pleadings did not present a relevant defence to the respondent’s averments that the detentions were unlawful.

Not founded on own illegal acts

The opinion of the court was delivered by Sheriff Principal Stephen. Addressing the ex turpi causa argument first, she said: “The action does not depend on the activities of the respondent at all but relates solely to the purported detention of the vessels. In other words the respondent’s case is founded not on its own illegal acts but rather on the illegal acts of those for whom the appellant is vicariously liable.”

She continued: “Any alleged illegal activities on the part of the respondent do not form the cause of action although they may have a bearing on damages for example, in calculating loss of profit where adjustment may be required to assess the cost of EU Nationals. The detention of the vessels prevented the respondent from fishing lawfully and for profit.”

Turning to the misfeasance arguments, she said: “Standing the averments that Mr Linton held and would have known himself to have held a rank lower than that of Chief Immigration Officer and yet purported to detain each of the vessels there is a basis for holding that he lacked an honest belief in his power to act and also that he was at least reckless as to the probability that his actions would lead to loss for the respondent.”

On the defences presented by the appellant to the ultra vires case, Sheriff Principal Stephen said: “[Mr Linton] effected the detention by delivering the letters. The letters run in his name - Jack Linton, Immigration Officer (August letter) and Jack Linton, Acting Chief Immigration Officer (December letter). [The] difference in designation matters little. He is not of the rank of chief immigration officer or above.”

She continued: “The averment in answer that Mr Linton’s letter merely communicated HMI Lindsay’s decision appears to us to be patently irrelevant and also incorrect. There is no mention in Mr Linton’s letters of HMI Lindsay, far less her decision. If Mr Linton was a messenger in the sense advanced by the appellant he would be delivering HMI Lindsay’s letter and thereby effecting detention in the manner contended for by the appellant.”

Sheriff Principal Stephen concluded: “The appellant must know how the detention was effected. The detention procedure was initiated, planned and carried out by the Home Office. It is therefore reasonable to expect the appellant to plead by way of answer to the respondent’s averments how the detentions were effected. It follows from what we say that the sheriff, in our opinion, was correct in repelling those parts of the defence relating to HMI Lindsay’s decision to detain and its communication.”

For these reasons, the appeal was refused. However, parts of the sheriff’s interlocutor were withdrawn to allow a proof on the issue of whether Mr Linton carried out the detentions. A cross appeal by the respondent regarding another part of the sheriff’s decision was also allowed.

© Scottish Legal News Ltd 2021



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