Mr Craig’s extradition to the US was challenged because the UK Government unlawfully failed to commence forum bar provisions in Scotland enacted by Parliament. The Supreme Court held this failure meant the extradition proceedings were not ‘in accordance with the law’ under Article 8 ECHR, rendering the Lord Advocate’s conduct of the proceedings and the Scottish Ministers’ extradition order ultra vires.
Background
The appellant, Mr James Craig, a British citizen resident in Scotland, faced extradition to the United States under Part 2 of the Extradition Act 2003. He was accused of a fraudulent share manipulation scheme involving the posting of false information on Twitter to deflate the value of US-based companies’ shares, allegedly causing losses exceeding $1.6 million.
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Parliament enacted the Crime and Courts Act 2013, which introduced ‘forum bar’ provisions (section 50 and Schedule 20) designed to protect individuals from extradition where the UK was a more appropriate forum for prosecution. Section 61 of the 2013 Act provided that the Act would come into force on such day as the Secretary of State may by order appoint. While these provisions were commenced in England, Wales and Northern Ireland in October 2013, they were not commenced in Scotland, owing to the UK Government’s deference to the Scottish Ministers’ opposition — particularly the Lord Advocate’s objection to provisions allowing judicial review of a prosecutor’s certificate.
In December 2018, the Court of Session (Lord Malcolm) declared that the UK Government’s continuing failure to bring the forum bar provisions into force in Scotland was unlawful and contrary to duties under section 61 of the 2013 Act. No appeal was taken and the order became final. Despite this, the Government did not make the commencement order until September 2021, by which time the Sheriff had already purported to decide the extradition bar questions, potentially rendering the forum bar provisions inapplicable to Mr Craig under the transitional provisions.
The Issue(s)
The central legal issues were:
- Whether the Lord Advocate’s conduct of the extradition proceedings and the Scottish Ministers’ extradition order were incompatible with Mr Craig’s rights under Article 8 of the European Convention on Human Rights, and therefore ultra vires under section 57(2) of the Scotland Act 1998.
- Specifically, whether the interference with Mr Craig’s Article 8 rights was ‘in accordance with the law’, given the Government’s unlawful failure to commence the forum bar provisions in Scotland.
- The constitutional implications of the Government’s failure to comply with a final declaratory order.
The Parties’ Arguments
The Appellant
Mr Craig argued that the extradition proceedings and order were incompatible with Article 8 ECHR because the Government’s continuing unlawful failure to commence the forum bar provisions meant the interference with his private and family life was not ‘in accordance with the law’. He submitted that the courts below erred in treating this unlawfulness merely as a factor in the proportionality balancing exercise, rather than addressing the threshold requirement of legality.
The Respondents
The Lord Advocate and the Advocate General submitted that the extradition had been conducted in accordance with the provisions of the 2003 Act that were in force. The forum bar provisions, not being in force, did not form part of domestic law requiring compliance. The Advocate General also argued that, following the declaratory order, it was for the appellant to seek a coercive order (specific performance) to compel commencement, and that the declaratory order did not require immediate action absent such further application.
The Court’s Reasoning
The Declaratory Order and Government Compliance
Lord Reed, delivering the unanimous judgment, firmly rejected the Advocate General’s characterisation of the declaratory order’s effect. The order was expressed in the present tense, declaring that the Government ‘is acting unlawfully’, and it became final without appeal. Lord Reed stated:
The Government’s compliance with court orders, including declaratory orders, is one of the core principles of our constitution, and is vital to the mutual trust which underpins the relationship between the Government and the courts.
Lord Reed recalled Lord Woolf’s reasoning in M v Home Office [1994] 1 AC 377:
Because of this, it is normally unnecessary for the courts to make an executory order against a minister or a government department since they will comply with any declaratory judgment made by the courts and pending the decision of the courts will not take any precipitous action.
The court expressed concern at the Government’s suggestion that a declaratory order had no practical implications absent a further coercive order:
It is to be hoped that the submissions made on behalf of the Government in the present case do not represent a fully considered departure from that longstanding approach.
The ‘In Accordance with the Law’ Requirement
The court held that the courts below had adopted a mistaken approach by failing to address the legality threshold under Article 8(2) and instead treating the Government’s unlawful failure to commence the forum bar provisions merely as a factor in the proportionality balancing exercise. Lord Reed emphasised:
the requirement that an interference must be in accordance with the law is an absolute requirement. In meeting it, Convention states have no margin of appreciation under the Convention, and the executive and the legislature have no margin of discretion or judgment under domestic public law. Only if the test of legality is satisfied does the question arise whether the measures in question are necessary for some legitimate purpose and represent a proportionate means of achieving that purpose.
The flaw in the respondents’ argument was identified clearly: the commencement provision, section 61 of the 2013 Act, was undoubtedly in force and formed part of domestic law. Lord Malcolm had declared the Government’s failure to comply with it unlawful, and that position continued. Accordingly, the extradition procedure was not in compliance with domestic law and therefore not ‘in accordance with the law’ for Article 8 purposes.
Ultra Vires
The consequence was that the acts of the Lord Advocate in conducting the extradition proceedings and the Scottish Ministers in making the extradition order were incompatible with Mr Craig’s Convention rights and therefore ultra vires by virtue of section 57(2) of the Scotland Act 1998. In Schedule 6 terminology, they were merely ‘purported’ acts and therefore invalid.
Practical Significance
This judgment is of considerable constitutional importance in several respects. First, it reaffirms and reinforces the principle that the Government is bound to comply with declaratory orders and cannot treat them as having no practical effect absent a coercive order. The court’s observations about the rule of law, mutual trust between Government and judiciary, and the constitutional significance of compliance with court orders are powerful restatements of fundamental principles.
Secondly, the case clarifies that where the Government’s unlawful failure to commence legislation enacted for the protection of individuals results in a defect in the legal framework governing an interference with Convention rights, the ‘in accordance with the law’ requirement under Article 8(2) ECHR is not met. This is an absolute threshold that cannot be circumvented by treating the unlawfulness as merely one factor in a proportionality assessment.
Thirdly, the decision has practical implications for extradition law in Scotland, ensuring that forum bar provisions are available to individuals whose extradition is sought and that the Government cannot indefinitely defer commencement of protective legislation enacted by Parliament through deference to devolved ministers who have no statutory role in the commencement decision.
The Supreme Court left the High Court of Justiciary to make the orders needed for a fresh hearing before a different Sheriff. Craig could rely on the forum bar at that hearing because the earlier decisions on the extradition bars were invalid.
Verdict: The appeal was allowed. The Supreme Court held that the Lord Advocate’s conduct of the extradition proceedings and the Scottish Ministers’ extradition order were ultra vires under section 57(2) of the Scotland Act 1998, as they were incompatible with Mr Craig’s Article 8 ECHR rights because the interference was not ‘in accordance with the law’. The case was remitted to the High Court of Justiciary to make orders enabling a new extradition hearing before a different Sheriff, at which the appellant would be entitled to rely on the forum bar provisions.
Source: Craig v Her Majesty’s Advocate (for the Government of the United States of America) [2022] UKSC 6
Reported citations [2022] 1 WLR 1270, [2022] 4 All ER 175, 2022 SC (UKSC) 27, 2022 SLT 323, 52 BHRC 693, [2022] WLR(D) 100.
