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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Susanne Tanner QC has been commissioned as Assistant Principal Crown Counsel

Susanne Tanner QC
Susanne Tanner QC

Susanne Tanner QC has been commissioned by the Lord Advocate as Assistant Principal Crown Counsel. Ms Tanner, whose appointment has been planned for some time, called to the Scottish Bar in 2000 and took silk in 2016. From 2019 to 2021, she held the office of Director of Ampersand Advocates. She has a practice spanning civil, criminal and regulatory matters in Scotland, as well as England, where she is dual qualified as a barrister and is a door tenant of Crown Office Chambers.

She served as an advocate depute from 2011 to 2014 and, since that time, she has continued to prosecute for the Crown on an ad hoc basis, specialising throughout in cases involving in serious sexual offences. She is highly experienced in dealing with cases involving children and other vulnerable witnesses.

She holds judicial appointments as a tribunal chair in the First-tier Tribunal, Housing & Property, and Health & Education, chambers; and a regulatory appointment as chair in cases involving the SSSC.

She is a qualified arbitrator and certified mediator and is a panel member on a number of national and international alternative dispute resolution bodies.

She lectures at the University of Edinburgh, including a postgraduate course in ‘Sexual Offending and the Law’.

Most recently, she has held the position of independent chair for two year-long inquiries: the first a survivor-led inquiry into allegations of abuse and the way in which they were handled by City of Edinburgh Council; and a wider review to consider whether the authority’s whistleblowing and organisational culture is positive, open, safe and supportive.

Of her new role, Ms Tanner stated: “Despite re-joining Crown Office at an extremely difficult time following the passing of our dear friend and colleague, Stephen O’Rourke QC, I am looking forward to working together with the law officers and the Crown Counsel team to develop ideas and practices to make a significant contribution to the prosecution service in Scotland”.

During her period of appointment, Ms Tanner will continue to take instructions in some civil matters, as well as appointments as arbitrator or mediator. Any enquiries about availability should be made through the Ampersand clerking team.

Alan Moffat | Advocates’ Clerk
alan.moffat@advocates.org.uk – +44 (0)131 260 5710

Jennifer Dunn | Deputy Advocates’ Clerk
(working days Monday, Tuesday and Wednesday – 9am to 5pm)
jennifer.dunn@advocates.org.uk – +44 (0)131 260 5614

Sheena Hume | Deputy Advocates’ Clerk
sheena.hume@advocates.org.uk – +44 (0)131 260 5809

Shawn McArthur | Deputy Advocates’ Clerk
shawn.mcarthur@advocates.org.uk – +44 (0)131 260 5616

Kathryn Ferguson | Deputy Advocates’ Clerk
kathryn.ferguson@advocates.org.uk – +44 (0)131 260 5660

Emma Busby | Deputy Advocates’ Clerk
emma.busby@advocates.org.uk – +44 (0)131 260 5628

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Mary Ellen Stewart

Mary Ellen Stewart called to the Bar in 2021, after training and qualifying with Brodies LLP, and latterly working there as a senior solicitor.

As a solicitor, Mary Ellen had a busy practice dealing with a broad range of commercial disputes. Her practice had a particular focus on commercial contracts, banking and finance, insolvency and professional liability litigation. When in private practice, Mary Ellen appeared in the Sheriff Courts and instructed Counsel in Court of Session cases.

Mary Ellen has a particular interest in professional liability and regulation. She also has an interest in maritime and shipping law, and is the Advocate member of the Law Society of Scotland’s Marine Law Sub-Committee. Mary Ellen is also a part-time tutor of Contract Law and Unjustified Enrichment at Edinburgh University.

Mary Ellen was appointed to junior panel of Standing Junior Counsel to the Advocate General for Scotland in 2021.

Mary Ellen is fluent and fully literate in Scottish Gaelic and is well placed to undertake work involving consideration of documents in Gaelic.

 

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Ampersand’s Susanne Tanner QC and Una Doherty QC appointed as SSSC Legally Qualified Chairs

Arbitrator appointment to all-female ODR panel for Stable Director, Susanne Tanner QC
Susanne Tanner QC
Una Doherty QC
Una Doherty QC

Ampersand congratulates two of its silks, Stable Director Susanne Tanner QC and Una Doherty QC on their appointments as Legally Qualified Chairs by the Scottish Social Services Council (SSSC).

In their new roles, they will chair panels with social service and lay members to decide whether workers’ fitness to practise is impaired.

Their appointments have increased the extensive work that Ampersand members undertake in the regulatory field.

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Petition to the nobile officium by RR v HM Advocate and LV [2021] HCJAC 21

Full bench of High Court of Justiciary determined that a nobile officium petition made by a complainer in a rape case after she was not notified of an application by the accused to lead evidence of their sexual history is competent under the doctrine.

The petitioner, RR, is the complainer in criminal proceedings in which the second respondent is charged with, inter alia, raping her. The second respondent made an application under section 275
of the Criminal Procedure (Scotland) Act 1995. It was heard during the course of a preliminary hearing at the High Court in Glasgow on 2 October 2019. The petitioner was not advised that the application had been made. She was only told of it some four months later, after it had been granted in part, when the Crown sought to precognose her. An intervention in the case was made by Rape Crisis Scotland.

The petitioner applied to the nobile officium of the court for orders: (i) declaring the decision to grant the section 275 application to have been “wrong, unjust and contrary to law”; (ii) quashing the decision; and (iii) refusing the application. Much of the petition involves a challenge to the merits of the decision at first instance. It addresses its competency under reference to Article 8 of the European Convention. It then avers that, in terms of section 1(3)(d) of the Victims and Witnesses (Scotland) Act 2014, the petitioner had, and has, a right to participate effectively in the proceedings. That right required that she be advised of the application in advance in order to enable her to discuss her position with the Crown and to challenge the application. The latter would, at least in certain circumstances, include a right to appear at the hearing of the application. The petition raises an important issue of principle in relation to a complainer’s right to participate in criminal proceedings. The court convened a Full Bench to consider it

The court concluded that there is no doubt that a complainer’s Article 8 rights are likely to be engaged when a section 275 application is allowed and relates to, for example, conduct remote from the
events forming part of the libel. Whether what is allowed amounts to a breach of these rights will depend upon the circumstances. The right is to have a person’s privacy respected. It is not one which prohibits questioning, or the leading of evidence, about private aspects of a complainer’s life, where that is in accordance with the law and necessary in order to protect the rights and freedoms of others. An accused’s right to a fair trial, including the Article 6(1)(d) right to examine witnesses, may be an important factor in determining an application. At this preliminary stage it is not possible to assert that the petitioner’s Article 8 rights will be, or are even likely to be, breached.

Given the protections which are built into criminal procedure, both at common law and by sections 274 and 275 of the 1995 Act, a court ought, if it correctly applies the law, to be able to ensure that a complainer’s Article 8 rights are duly respected whilst securing a fair trial for the accused at the same time. Evidence of matters which are irrelevant or collateral to the offence libelled is inadmissible. Evidence of bad character is normally excluded as collateral. In terms of sections 274 and 275, questioning or evidence, which is designed to show that a complainer is not of good character, has engaged in sexual behaviour not forming part of the events libelled or has, at a point remote from these events, behaved in a manner from which an inference of consent or lack of credibility/reliability, is not generally admissible.

The upshot of this is that, quite apart from section 1(3)(d) of the 2014 Act, in order to respect a complainer’s Article 8 rights, the court must be given information on the complainer’s position on the facts in, and her attitude to, any section 275 application. Neither the statutory provisions nor Article 8 carry with them a right for a complainer to be convened as a party. In the absence of statutory intervention, the system of criminal prosecution remains an adversarial one between the Crown and the accused. The complainer’s status is still that of a witness to the facts libelled.

For the reasons given, it is the duty of the Crown to ascertain a complainer’s position in relation to a section 275 application and to present that position to the court, irrespective of the Crown’s attitude to it and/or the application. This will almost always mean that the complainer must: be told of the content of the application; invited to comment on the accuracy of any allegations within it; and be asked to state any objections which she might have to the granting of the application. The court may require to adjust its preliminary hearing procedure, and the relative form (Forms 9.3A and 9A.4) accordingly. It is only by doing this that the principle that the complainer should be able to obtain information about the case and to participate effectively in the proceedings, along with her Article 8 right of respect for her privacy, can be upheld.

Ampersand’s Dorothy Bain QC, with ArnotManderson’s Paul Harvey, instructed by Livingstone Brown represented the Petitioner.

The full Opinion of the court can be viewed here.

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