Inner House refuses alleged fraudster’s extradition appeal

James Craig was accused of an offence relating to securities fraud which caused losses of $1.6 million to US shareholders. In resisting extradition, he relied on an earlier finding that the UK government was acting unlawfully due to not implementing a ‘forum bar’ provision of the Extradition Act 2003 in Scotland.

The appeal was heard by the Lord Justice Clerk, Lady Dorrian, sitting with Lord Brodie and Lord Turnbull. Opinions were given by all three judges.

Failure to implement forum bar

It was alleged that the appellant had used fake Twitter accounts impersonating market research firms to spread false information about companies on the NASDAQ stock exchange, negatively affecting their value. Although the appellant was said to have benefited only slightly from the scheme, shareholders in the companies to which the fraud-related sustained losses in the region of $1.6 million.

Extradition proceedings were originally commenced in 2017 but continued, among other reasons, in order to allow the appellant to bring an application for judicial review of the failure to bring into force in respect of Scotland certain amendments to the 2003 Act, legislated for by Section 50 of, and Schedule 20 to, the Crime and Courts Act 2013, the so-called “forum bar provisions”.

As it applies to Scotland, the 2003 Act contains four considerations barring extradition: the rule against double jeopardy; extraneous considerations; the passage of time; and hostage-taking considerations. The listed amendments, which are in force in the rest of the UK, added a fifth consideration: “forum”, under which extradition should be barred where the offences can be fairly and effectively tried in the requested state, here the UK, and it is not in the interests of justice that the requested person be extradited.

It will not be “in the interests of justice” to extradite if the judge decides that a significant proportion of the offence was performed in the UK, with consideration for a number of factors including where most of the loss from the offence occurred, the interests of any victims, and the availability of evidence to prosecute the person for a similar offence in the UK.

In the original extradition procedure, the appellant argued that the failure to implement the forum bar provisions in Scotland breached his rights as guaranteed by ECHR Articles 5, 6, 8, 13, and 14. Proceedings were adjourned to allow for judicial review proceedings to be brought against the failure to commence the forum bar provisions in Scotland. These proceedings were successful.

When proceedings began again in 2019 after the judicial review, the appellant did not found his case on any of the bars to extradition that applied to Scotland, but instead submitted that he had a real prospect of meeting the forum bar criteria had it applied to Scotland. The fact that they did not pointed to a breach of his Convention rights for the purposes of section 87 and oppression on the part of the Lord Advocate as a matter of common law.

The appellant submitted that a substantial part of the offence had been committed in Scotland, and he had not gained any more than $97 from the commission of the offence. The evidence relied upon for prosecution had been seized from his home in Scotland and therefore would be available to UK prosecutors.

The sheriff considered that he would be entitled to assess the case using the forum bar provisions, but concluded that they would not prevent the extradition of the appellant. The remaining arguments as to Convention rights and oppression, which hinged on establishing a case on forum bar, could therefore not succeed.

On appeal, it was submitted for the appellant that the sheriff had acted ultra vires in considering the forum bar provisions, and as an esto argument that his decision was vitiated by error. It was also submitted that the extradition procedure would be incompatible with his Convention rights, particularly Articles 6 and 8, and that it would be oppressive for the Lord Advocate to secure his extraction when he bore some of the responsibility for failing to implement the forum bar provisions in Scotland.

Appropriate assessment

In her opinion, Lady Dorrian, with whom Lord Brodie and Lord Turnbull agreed, said of the ultra vires argument: “The sheriff’s power to consider the arguments did not hinge on an application of the forum bar provisions in legislative terms. The sheriff proceeded on the basis that the arguments which were effectively forum bar arguments were relevant to the assessment which he had to make and were available for consideration by him in that context; he made no attempt to rely in terms on the uncommenced legislative provisions. The sheriff already had power to consider these arguments and did not require to find separate legislative authority to do so.”

She continued: “In weighing the merits of associated forum related arguments under Section 87, the court would be entitled to assess the merits of any argument that, had the provisions been in force, they would have operated as a complete bar to extradition in the individual case. The fact that the state had acted unlawfully in failing to commence provisions which would have operated this way in favour of the appellant would be a powerful factor in assessing the effect on his convention rights and enabling a conclusion to be drawn that there were exceptional circumstances requiring his discharge. The sheriff in the present case was able to make an appropriate assessment and did so. In my opinion grounds 1 and 3 must fail.”

On whether the sheriff had erred in his assessment of the forum bar criteria, she said: “While I accept that the sheriff gave weight to considerations which he took to favour extradition which he should have left out of account, I do not consider that the sheriff was wrong in the conclusion he came to on the hypothetical question of what would have been the result had Section 83A applied in Scotland.”

On the argument for oppression by the Lord Advocate, she said: “I do not accept the underlying assumption that extradition is a remedy for the benefit of the Lord Advocate. The role of the Lord Advocate as representing the requesting authority is well understood. In any event, the decision not to commence the provisions is one made by the UK Government and the fact that the Lord Advocate might have made representations as to the suitability or otherwise of doing so does not shift responsibility from the UK Government to the Lord Advocate. It does not deprive a requesting authority of the opportunity to rely on existing extradition provisions which remain in legal force in Scotland.”

For these reasons, the appeal was refused.