Sexual Offences Review webpage and Terms of Reference launched
The Sexual Offences Review has published its webpage and Terms of Reference to give information to the public and professionals about its work on reviewing how the Crown Office & Procurator Fiscal Service in Scotland deals with reports of sexual offences.
The review was commissioned by Lord Advocate Dorothy Bain KC , in recognition of the profound impact that sexual violence crimes have on victims and on society, and the fact that sexual offences now account for at least 70 per cent of the casework of Scotland’s High Court prosecutors.
Ampersand’s Susanne Tanner KC has been appointed to chair the review, assisted by colleagues seconded from Crown Office and Procurator Fiscal Service. Ms Tanner KC will make findings and recommendations to improve the way in which reports of sexual offences are dealt with and they will be published on the webpage in autumn 2023.
Full article can be viewed on the COPFS website here.
Ayla Iridag acts predominantly for defenders in actions for personal injury and clinical negligence and appears frequently for participants in Fatal Accident Inquiries. Ayla also maintains a regulatory and public law practice. She is instructed in professional regulatory proceedings, firearms appeals and judicial reviews. In addition, Ayla has experience in the criminal courts, having conducted commissions for the evidence of vulnerable witnesses and having successfully obtained a variation of bail conditions in the High Court.
Ayla was appointed as a Standing Junior to the Office of the Advocate General in December 2022 and has been instructed to represent a number of UK Government departments.
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.
Katharine tutors on the Commercial Law course at the University of Strathclyde.
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.
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.
Susanne Tanner QC has been commissioned as Assistant Principal Crown Counsel
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.
