Determination by Sheriff Principal Duncan L Murray WS in the FAI into the death of Fearne Adger [2022] FAI 18

Ampersand’s Una Doherty QC acted for Greater Glasgow Health Board at the Fatal Accident Inquiry before Sheriff Principal Murray into the death of 8-month old Fearne Adger at Royal Alexandra Hospital, Paisley on 29 April 2017. The inquiry heard evidence over nine days. Fearne had presented to hospital with symptoms diagnosed as gastroenteritis and was only admitted on her third presentation. Several hours after her admission, she suffered a sudden cardiac event and died.

Whilst there were recognised failings in Fearne’s care, the submission on behalf of Greater Glasgow Health Board was that the cause of death was disseminated parechovirus infection which gave rise to myocarditis, which in turn gave rise to a fatal cardiac arrhythmia. There was no other contributing cause of death. This cause of death was not predictable from the clinical information and was not avoidable. Disseminated parechovirus was only identified on post-mortem. Despite contrary submissions by the Crown and the family on the basis of their expert evidence, the Sheriff Principal accepted the submission on behalf of the Board as to the cause of death. He also concluded that there were no reasonable precautions which might have avoided the death, nor were there defects in the system of working which contributed to the death, in terms of sections 26(2)(e) and 26(2)(f) of the Inquiries into Fatal Accidents and Sudden Deaths Etc (Scotland) Act 2016. He made no recommendations in terms of s26(1)(b) of the Act.

The determination can be found here.

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Jamie Dawson QC one of eleven QCs appointed to UK Covid-19 Inquiry legal team

Ampersand is pleased to hear that Jamie Dawson QC  has been appointed along with ten other Queen’s Counsel (QCs) to join the UK Covid-19 Inquiry legal team. The eleven QCs will support Hugo Keith QC, Lead Counsel to the Inquiry, and Martin Smith, Solicitor to the Inquiry, with the preparation and delivery of the Inquiry’s investigative work.

The full news item can be viewed here.

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Michael Stuart QC one of 5 new judge appointments announced

Ampersand Advocates is proud to hear the news that Michael Stuart QC is one of 5 new Senators of the College of Justice announced today. We offer our warmest congratulations to Michael along with Sheriff Lorna Drummond QC, Jonathan Lake QC, John Scott QC, Michael Stuart QC, and Andrew Young QC and wish them the very best.

Michael takes up his new appointment on 16th May 2022.

The full news item can be found here.

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New Article published “Duty of candour in clinical negligence litigation”

We are pleased to see the article co-written by Kay Springham QC and Ampersand’s Jennifer Nicholson-White is now published. The article “Duty of candour in clinical negligence litigation” is in the Reparation Bulletin (Rep. B. 2022, 165, 6-8).

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Judicial Review on Scottish census sex question refused

A judicial review Petition by Fair Play for Women Limited challenging the Scottish Census guidance to allow people to identify as male or female regardless of what is on their birth certificate has been refused at first instance and now on Appeal

Lord Sandison’s Opinion of 17th February 2022 said an answer given in “good faith and on reasonable grounds” should not be seen as false. Lady Dorrian, the Lord Justice Clerk, delivered the Inner House Opinion, published on 24th February 2022, endorsed all the reasoning of the Lord Ordinary.

News coverage from the BBC can be found here. Lord Sandison’s Opinion can be found here. The Inner House Opinion can be found here.

Ampersand’s Douglas Ross QC and Paul Reid, acted for the Scottish Government.

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UK Supreme Court allows appeal in James Craig US Extradition case

The UK Supreme Court has unanimously allowed the appeal of James Craig, a British citizen living in Scotland. In May 2017, the US Government made a request for his extradition to the US, where he is accused of committing an offence relating to securities fraud.

The process for determining whether a person should be extradited from the UK is governed by the Extradition Act 2003 (“the 2003 Act“). By the Crime and Courts Act 2013 (“the 2013 Act“), Parliament inserted into the 2003 Act a number of provisions referred to as “the forum bar provisions”. These provisions aim to prevent extradition where the offences could be fairly and effectively tried in the UK, and it is not in the interests of justice that the requested person should be extradited. Section 61 of the 2013 Act provides that the forum bar provisions will “come into force on such a day as the Secretary of State may by order appoint”. The Secretary of State brought the forum bar provisions into force in England, Wales and Northern Ireland in October 2013, but he did not bring them into force in Scotland.

Mr Craig wanted to rely on the forum bar provisions in the extradition proceedings brought against him in Scotland. He therefore issued a claim against the Advocate General for Scotland and the Scottish Ministers, arguing that the Secretary of State’s failure to bring the forum bar provisions into force in Scotland was unlawful. In December 2018, the Outer House of the Court of Session found in Mr Craig’s favour and made an order in which it “declared… that in its continuing failure to bring into force in Scotland the extradition forum bar provisions… the UK Government is acting unlawfully and contrary to its duties under section 61 of [the 2013 Act]”.

Notwithstanding that order, the UK Government failed to bring the forum bar provisions into force in Scotland until September 2021. In the meantime, the Lord Advocate continued to pursue extradition proceedings against Mr Craig. In July 2019, a sheriff decided that there was no bar to Mr Craig’s extradition under the 2003 Act and that his extradition would be compatible with the European Convention on Human Rights (“the Convention“). The sheriff sent the matter on to the Scottish Ministers, who in September 2019 decided that Mr Craig should be extradited to the US.

Mr Craig appealed, unsuccessfully, to the High Court of Justiciary. He appealed to the UK Supreme Court.

Lord Reed’s sole judgment, with which the other Justices agree, said:

Section 57(2) of the Scotland Act 1998 provides that a “member of the Scottish Government has no power to… act, so far as the… act is incompatible with any of the Convention rights” [25]. This means that the Lord Advocate has no power to conduct extradition proceedings against Mr Craig, and the Scottish Ministers have no power to order his extradition, if those acts are incompatible with Mr Craig’s rights under the Convention [37], [47].

There is no dispute that the extradition of Mr Craig would interfere with his right to respect for his private and family life, as guaranteed by article 8(1) of the Convention. Such an interference could, however, be justified under article 8(2), if it is “in accordance with the law”, if it pursues a “legitimate aim”, and if it is “necessary in a democratic society”. To satisfy the first of those three requirements, the interference must be in conformity with domestic law and the domestic law must meet the requirements of the rule of law, so as to afford adequate legal protection against arbitrariness. This is an absolute requirement. The executive is afforded no margin of discretion in meeting it [48]-[50].

The interference with Mr Craig’s rights under article 8(1) was not “in accordance with the law”, within the meaning of article 8(2) [52]. The order made by the Outer House in December 2018 was expressed in the present tense, making clear that the Secretary of State was “continuing” to act in breach of section 61 of the 2013 Act by failing to bring the forum bar provisions into force. The Secretary of State had a duty to act in conformity with that order, and his failure to do so was unlawful [41]-[42]. The extradition procedure followed in Mr Craig’s case did not therefore accord with section 61 of the 2013 Act [52].

It is no answer to this that the order made by the Outer House was merely declaratory, rather than coercive [43]. It is firmly established that there is a clear expectation that the Government will comply with declaratory orders, and it is in reliance on that expectation that the courts usually refrain from making coercive orders against the Government and grant declaratory orders instead [44]. This is one of the core principles of our constitution. It is vital to the mutual trust which underpins the relationship between the Government and the courts [46].

Accordingly, the extradition proceedings against Mr Craig were not conducted “in accordance with the law” and so were incompatible with his rights under article 8 of the Convention. It follows that the extradition order made against him is invalid [53].

References in square brackets are to paragraphs in the judgment

A new extradition hearing may be held before a different sheriff, at which Mr Craig will be able to rely on the forum bar provisions (in addition to any other arguments properly available to him).

Ampersand’s Aidan O’Neill QC, leading Fred Mackintosh QC, instructed by Dunne Defence, represented the appellant.

The judgment of the UK can be found here.

 

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