Scott Clair

Scott Clair called to the Bar in 2022 as a Lord Hope Scholar.

He has experience in a wide range of commercial, private and public law litigation. In the course of devilling, Scott was involved in a variety of complex and high-value cases including commercial disputes, clinical and professional negligence claims, regulatory, human rights and constitutional law cases. Scott has a particular interest in the latter and, whilst devilling, worked on a number of high-profile judicial review cases including a legislative competence challenge to an Act of the Scottish Parliament, a challenge to Scotland’s Census 2022 and the first removal of a judicial office holder under the Courts Reform (Scotland) Act 2014.

He has assisted with the preparation of cases before the Sheriff Courts, the Sheriff Appeal Court, the Court of Session, the UK Supreme Court and the European Court of Human Rights.

Before calling to the Bar, as a solicitor and then associate with a well-known litigation firm in Edinburgh, he gained substantial experience of appearing in court and regularly conducted proofs, debates and complex opposed motions including for interdict. Scott also gained experience in fatal accident inquiries and various forms of alternative dispute resolution, including arbitration, adjudication and mediation.

Scott has particular interests in contract law, clinical and professional negligence, media law, private client litigation and judicial review.

Scott also has an interest in legal education. Since 2021, he has tutored in Commercial Law, Public Law and Individual Rights, and Evidence at the University of Edinburgh.

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Ayla Iridag

Ayla Iridag called to the bar after a career in private practice. As a solicitor Ayla specialised in defender personal injury litigation as well as public and administrative law, health and safety law, regulatory proceedings, firearms licensing, and orders under the Sexual Offences Act 2003. Ayla frequently acted as Edinburgh agent to local authorities and companies across Scotland.

During her devilling Ayla gained additional experience in clinical and professional liability, contractual disputes, fatal accident inquiries, and public inquiries.

Ayla has significant experience of appearing in the Sheriff Appeal Court and in Sheriff Courts across Scotland, including the All Scotland Personal Injury Court. She has conducted numerous proofs, evidential hearings and debates as well as opposed motions and procedural hearings.

Ayla has pre-qualification experience in pursuing personal injury claims and in regulation of social service workers. Ayla was also the Student Director of the Dundee Student Law Clinic, where she co-ordinated the caseload and appeared in employment tribunals for clients.

Selected cases (as solicitor or instructing agent):

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Katharine Muir

Katharine Muir called to the Bar in 2022 after 6 years as a solicitor in private practice. As a solicitor Katharine appeared regularly in the Sheriff Courts, where she gained considerable experience of running proofs and conducting contentious hearings.

Katharine’s principal area of practice is in commercial law. She has a particular interest in product liability. As a solicitor and while devilling, she worked on some of the most high-profile product liability cases in Scotland. She has also advised manufacturers on product compliance and safety, labelling and advertising.

Katharine also has experience in regulatory crime, particularly health and safety, anti-bribery and corruption, healthcare regulation and fatal accident inquiries. During her period of devilling, Katharine gained experience in judicial review, defamation, and professional and clinical negligence.

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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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Craig (Appellant) v Her Majesty’s Advocate (for the Government of the United States of America) and another (Respondents) (Scotland) [2022] UKSC 6

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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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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