Scot wanted for US securities fraud allowed new extradition hearing by Supreme Court

Lord Reed

About this case:

• Citation:
  [2022] UKSC 6
• Judgment:
  External link
• Court:
  UK Supreme Court
• Judge:
  Lord Reed

It had been argued by counsel for the appellant, James Craig, that the UK government had unlawfully failed to bring “forum bar” provisions, inserted into the Extradition Act 2003 in 2013, into force in Scotland. Mr Craig had been accused of posting false information on Twitter in order to lower the value of shares in US-based companies to allow him to purchase and resell those shares to his own advantage.

The appeal was heard by the President of the Supreme Court, Lord Reed, sitting with Lord Lloyd-Jones, Lord Kitchin, Lord Burrows, and Lord Stephens. Aidan O’Neill QC and Fred Mackintosh QC appeared for the appellant and Kenny McBrearty QC and Lesley Irvine, advocate, appeared for the Crown on behalf of the US government. Andrew Webster QC appeared for the second respondent, the Advocate General for Scotland.

Continuing failure

The forum bar provisions were introduced to the 2003 Act by the Crime and Courts Act 2013 following a review of the UK’s extradition arrangements. It was the position of the Scottish Ministers, particularly the Lord Advocate, that parts of the provisions constituted an inappropriate interference with his independence, which led to the UK government not commencing the provisions in Scotland.

In May 2017, the US government made a request for the appellant’s extradition. Following his first court appearance in the UK, he raised proceedings for judicial review of the decision not to commence the forum bar provisions in Scotland so as to be able to mount a defence under them. In 2018, the Lord Ordinary hearing the petition determined that the UK government’s failure to bring the provisions into force in Scotland was unlawful.

No appeal was taken against that decision, however no commencement order was made as a result of it. At an extradition hearing in June 2019, the appellant argued that his extradition was incompatible with article 8 of the ECHR, and that any interference with that right was unlawful by reason of the government’s continuing failure to bring the forum bar into force. The sheriff did not accept this submission and sent the case to the Scottish Ministers for their decision.

The appellant appealed to the High Court of Justiciary, which considered that the sheriff had taken into account any potential prejudice to the applicant from the failure to introduce the provisions in his decision. Nonetheless, it permitted an appeal to the Supreme Court solely on the article 8 issue. The forum bar provisions were later commenced in Scotland on 6 September 2021, however it was accepted that if the sheriff’s decision of July 2019 was valid the provisions would not apply to the appellant, as the existing extradition bar questions had already been decided.

Part of domestic law 

Delivering the sole opinion, Lord Reed said of declaratory orders generally: “The government’s compliance with court orders, including declaratory orders, is one of the core principles of our constitution, and is vital to the mutual trust which underpins the relationship between the government and the courts. The courts’ willingness to forbear from making coercive orders against the government, and to make declaratory orders instead, reflects that trust.”

He continued: “A declaratory order itself has important legal consequences. First, the legal issue which forms the subject matter of the declaration is determined and is res judicata as a result of the order being granted. In addition, a minister who acts in disregard of the law as declared by the courts will normally be acting outside his authority as a minister, and may consequently expose himself to a personal liability for wrongdoing.”

Noting that there was “no dispute” that the appellant’s extradition would interfere with his right to a private life, Lord Reed said: “Although they accepted that the Home Secretary had acted unlawfully in failing to commence the forum bar provisions in Scotland, they did not treat that continuing breach of the law as meaning that the interference with the appellant’s article 8 rights would not be ‘in accordance with the law’. Instead, they treated the unlawfulness as a matter which could be fully taken into account as a factor in the balancing exercise between the public and private interests involved.”

He concluded: “The commencement provision, section 61 of the 2013 Act, was undoubtedly in force and formed part of domestic law. The procedure followed was not in compliance with section 61, as Lord Malcolm had declared. That remained the position following his decision and as the courts below accepted. The procedure was therefore not in compliance with domestic law. It follows that it was not ‘in accordance with the law’ within the meaning of article 8 of the Convention.”

For these reasons, the appeal was allowed. The case was remitted to the High Court of Justiciary as to allow orders to be made for a new extradition hearing before a different sheriff.

Lord Reed added: “At that hearing, it will be open to the appellant to rely on the forum bar provisions (in addition to any other arguments properly available to him), since the effect of this judgment is that the Sheriff has not yet decided the existing extradition bar questions, ie the questions in section 79(1) of the 2003 Act, as those questions stood before their amendment by the commencement order made in September 2021.”