Scot wanted by USA successfully challenges UK government’s ‘unlawful’ failure to provide ‘forum bar’ defence to extradition

A judge in the Court of Session ruled that the UK Government was acting “unlawfully” by failing to bring into force in Scotland the “extradition forum bar” provisions, which were introduced in the rest of the UK by the Crime and Courts Act 2013.

Lord Malcolm heard that the petitioner James Craig is the subject of an extradition request by the US government over accusations he tried to distort prices on the Nasdaq exchange by starting rumours on Twitter about two companies and buying shares when the price fell before selling them at a profit when the price recovered. 

Forum bar

He is challenging his extradition at Edinburgh Sheriff Court, but brought a petition for judicial review complaining that the UK government has failed to commence in Scotland the extradition forum bar provisions in section 50 of, and schedule 20 to, the 2013 Act, which have been in force in the rest of the UK for more than five years. 

The underlying aim of the provisions is to prevent extradition if the alleged offence can be fairly and effectively tried in the UK and it is not in the interests of justice that the accused person be extradited, and the petitioner believes he could mount an “additional defence” under and in terms of the forum bar provisions were they to apply in Scotland.

The court was told that the 2013 Act was the result of a review, during which the Crown Agent, on behalf of the Crown Office and Procurator Fiscal Service, expressed concern that the forum bar to extradition would be “a challenge to the independence of the Lord Advocate” as head of the prosecution system in Scotland, in that the court would be invited to consider the merits of a prosecutorial decision. 

While the courts in England and Wales were prepared to contemplate judicial review of such decisions, that was not the tradition in Scotland.

The review, which was chaired by Sir Scott Baker, concluded that the forum bar provisions should not be introduced in the UK because prosecutors were best placed to make decisions on forum.

However, the UK government did not accept that recommendation, considering that “enhanced protections” were needed, including scrutiny of decisions in open court. 

‘A surprising turn’

In due course a bill containing, amongst other things, a forum bar defence for the UK as a whole - extradition being a reserved matter - was passed by the UK Parliament as section 50 of, and schedule 20 to, the Crime and Courts Act 2013, which came into force in England, Wales and Northern Ireland in October 2013. 

In September 2014, the Lord Advocate gave evidence to the House of Lords Select Committee on Extradition Law, during which he stated that provisions relating to forum bar brought into force under the Crime and Courts Act 2013 will only be implemented in Scotland if the Scottish Ministers request it, adding that there was “no intention to do so for the foreseeable future”, consistent with the historic position in Scotland where prosecutors are “fully independent” and have a “fundamental discretion” on whether to raise a prosecution or not.

The court also heard that last December Alistair Carmichael MP table parliamentary questions asking the Home Office to confirm why the provisions had not been commenced north of the border and when they would be, to which Home Office Minister Brandon Lewis replied that the Scottish Government had decided that it did not wish section 50 of the 2013 Act to be commenced in full in Scotland and there was “no timetable for its commencement”, adding that this was “a decision for the Scottish Government” and there had been “no recent discussions on the issue”.

Lord Malcolm said: “The UK government has brought the forum bar provisions into force everywhere in the UK other than Scotland. The obvious question is, why not Scotland? Here is where the proceedings took a surprising turn. 

“The question is not answered in the pleadings. During the hearing, and on more than one occasion, the court inquired of counsel for the Advocate General for Scotland (who is the UK government’s representative in Scotland) as to the reason, but he was either unable or unwilling to provide an explanation.”

Government ‘acting unlawfully’

The judge held that the UK Parliament had intended that the forum bar provisions would be brought into law “throughout the UK” and that there was “no power” to do so in different parts of the country at different times. 

“Even if I am wrong on the latter point,” he added, “this does not mean that the petition should be refused”. 

On behalf of the Advocate General for Scotland, it was submitted that commencement in Scotland “could be delayed for as long as the executive chooses”. 

In response to questions from the court it was claimed that this would remain true if in 10 years, or even 50 years, nothing had changed. 

“I consider this to be a wholly unreal position, which…is clearly contrary to Parliament’s intention,” the judge said.

In a written opinion, Lord Malcolm concluded: “I shall pronounce decree of declarator that in its continuing failure to bring into force in Scotland the extradition forum bar provisions in section 50 of, and schedule 20 to, the Crime and Courts Act 2013, the UK government is acting unlawfully and contrary to its duties under section 61 of the Act.”

For the same reasons a contemporaneous petition brought Christopher Thomson, who is also challenging extradition to the US, was also upheld.

Declarators were also sought in both cases against the Scottish Government in respect of alleged illegality and oppression, and also interdict prohibiting the extradition of the petitioners to the USA, but the court refused to grant the orders on the basis that these were matters for the extradition court.