Katharine Muir
Katharine Muir called to the Bar in 2022 after 6 years as a solicitor in private practice. She has a varied civil practice which includes professional regulation, clinical negligence, product liability, judicial review, defamation, construction litigation and contractual disputes. She appears regularly in the Sheriff Courts and Court of Session and has been instructed in group proceedings.
Katharine has a particular interest in product liability. She has worked on some of the most high-profile product liability cases in Scotland as solicitor and since coming to the Bar. She has also advised manufacturers on product compliance and safety, labelling and advertising.
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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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Fair Play for Women Limited for Judicial review of the guidance issued by National Records of Scotland to accompany the “sex question” in the 2022 Scottish census [2022] CSOH 20; [2022] CSIH 7
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 and first instance and on Appeal.
Lord Sandison’s Opinion can be found here.
Inner House Opinion can be found here.
Ampersand’s Douglas Ross QC and Paul Reid, acted for the Scottish Government.
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Ian S. Forrester KC LLD
Ian Forrester KC is a renowned practitioner in the field of European law, specialising in competition, intellectual property, customs, antidumping, pharmaceutical regulation, football, the precautionary principle, broadcasting, computer software and due process. He was educated and trained in Scotland, Louisiana, New York and Brussels and has been a member of the bars of Scotland, New York, England and Brussels.
Mr Forrester returned to practice at the Scots Bar in 2021. From 2015 until 2020 he was the judge from the UK on the General Court of the European Union hearing about 200 cases concerning competition, access to documents, trademarks, plant varieties, public procurement, employment, and other European Union questions. His mandate came to an end with Brexit.
He has been an arbitrator, counsel, and expert Arbitral proceedings under the auspices of the International Chamber of Commerce, International Centre for the Settlement of Investment Disputes, Court of Arbitration for Sport and has argued cases before courts in Scotland, England, Belgium, Serbia and France, as well as the EFTA court, the ECtHR in Strasbourg, and the EU courts in Luxembourg. He has acted for a number of important entities, including BBC, Canon, DuPont, European Commission, Fujitsu, Intel, Liberal Democrat Party, Microsoft, Scottish Football Association, Toyota, UEFA, as well as a number of indigent prisoners.
He has extensive experience in arbitration or mediation matters, either as advocate for a party, or as expert witness on European law, or as arbitrator/ mediator, from 1983 to 2014, and since his departure from the General Court of the European Union in 2021. The arbitrations have mostly been conducted under the auspices of the ICC in Paris, or the CAS in Lausanne; and once before the ICSID in Washington. The ICC cases involved disputes about investment contracts, trade secrets, hotel construction, stolen technology, and a variety of other commercial conflicts. The CAS matters involved player transfers, treatment of injured players, broadcasting rights and the conduct of elections to governing bodies.
His leading competition cases include Magill (compulsory copyright licensing); Bosman (football transfers); Microsoft (computer servers); IMS (compulsory licensing); GlaxoSmithKline (parallel trade in pharmaceuticals); Les Laboratoires Servier (settlement of patent disputes); Chalkor/Halcor (due process and judicial review).
European Court of Human Rights cases concerned forcing a citizen to speak on pain of punishment even if the answer itself reveals punishable conduct (Al Fayed and Harrods: Fayed v The United Kingdom); press sources (Hans Martin Tillack v Belgium); prisoner’s rights (Kalashnikov v Russia); fair trial and right to property (Karic and Djordjevic v Serbia). He helped to achieve the liberation of Louis Henry Burns, an indigent prisoner, on appeal to the Second Circuit Court of Appeal from a conviction based upon a coerced confession.
During his practice he has been a consistently top ranked counsel by the leading Legal Directories in the UK and European editions of the guides. In the 2023 Chambers and Partners UK Bar Guide he is Band 1 ranked in Public Law matters. Chambers say: “Ian Forrester KC’s return to private practice is a highly significant development for the Scottish Bar. Until 2020 he sat for the UK on the bench of the General Court of the European Union. To the Faculty of Advocates he brings immense experience of legal practice in a host of areas including competition and international trade law.”
Further detail about his practice, visit: ianstewartforrester.com.
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