Appeal Under Section 103 Of The Extradition Act 2003 By James Craig Against Her Majesty's Advocate
| Jurisdiction | Scotland |
| Judge | Lord Turnbull,Lord Brodie,Lord Justice Clerk |
| Neutral Citation | [2020] HCJAC 22 |
| Court | High Court of Justiciary |
| Date | 03 June 2020 |
| Docket Number | HCA/2019/009/XM |
| Published date | 03 June 2020 |
APPEAL COURT, HIGH COURT OF JUSTICIARY
[2020] HCJAC 22
HCA/2019/009/XM
Lord Justice Clerk
Lord Brodie
Lord Turnbull
OPINION OF LADY DORRIAN, the LORD JUSTICE CLERK
in
APPEAL UNDER SECTION 103 OF THE EXTRADITION ACT 2003
by
JAMES CRAIG
Appellant
against
HER MAJESTY’S ADVOCATE
Respondent
Appellant: O’Neill QC, Macintosh QC; Dunne Defence, Edinburgh
Respondent: M Richardson QC, AD representing the Lord Advocate on behalf of the Ame rican
Authorities; Crown Agent
3 June 2020
Introduction
[1] The appellant, a United Kingdom national, is the subject of an extradition request
under Part 2 of the Extradition Act 2003 by the United States of America, accused of the
commission of an offence relating to securities fraud. It is alleged that although the
appellant benefited only slightly from the scheme, shareholders in the companies to which
the fraud related sustained losses in the region of $1.6 million. Extradition proceedings were
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commenced in June 2017 but continued, among other reasons, in order to allow the
appellant to bring an application for judicial review of the failure to bring into force in
respect of Scotland certain amendments to the 2003 Act, legislated for by section 50 of, and
schedule 20 to, the Crime and Courts Act 2013 (the “forum bar provisions”).
[2] In the proceedings for judicial review the Lord Ordinary (Lord Malcolm)
pronounced a declarator dated 12 December 2018 holding that in its continuing failure to
bring into force in Scotland the forum bar provisions, the United Kingdom government was
acting unlawfully and contrary to its duties under section 61 of the 2013 Act (the decision is
counsel did not insist on that part of the petition seeking an order for specific performance,
seemingly on the basis that it was anticipated that the UK government would act upon the
declarator, although no doubt other matters relating to the form, nature and practicality of
such an order may have played a part. In a subsequent extradition hearing the appellant
relied on this finding to resist extradition. He also argued that extradition would be
oppressive, given the role of the Lord Advocate in contributing to the decision of the UK
government not to commence the forum bar provisions in relation to Scotland. The sheriff
rejected his arguments, concluding that extradition of the appellant would be compatible
with his Convention rights and that there was no basis for discharging him. That decision is
challenged in this application for leave to appeal under section 103. In addition, it is
submitted that the sheriff had erred in granting an extension of the required period within
which the Scottish Ministers might make an order for the appellant’s extradition.
Statutory context
[3] As is familiar, where a request is made for the extradition of a requested person to a
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category 2 territory, such as the United States of America, whether that person’s extradition
is ordered will depend on the outcome of a series of sequential decisions made at the
appropriate points in the sequence by the executive (in Scotland the Scottish Ministers) and
by the court (in Scotland, at first instance a designated sheriff). The framework for this
process of decision-making is set out in part 2 of the Extradition Act 2003, as amended. A
purpose of this statutory framework is to protect the various interests of the requested
persons. Thus, if the Scottish Ministers receive a valid request for extradition, unless
section 70(2) applies, they must issue a certificate to that effect and send the request and the
certificate to the sheriff: section 70(9). On receipt of these documents the sheriff may issue a
warrant for the arrest of the requested person if he has reasonable grounds to believe the
matters set out in section 71(2). If a requested person has been arrested under a warrant
issued under section 71 he must as soon as practicable be brought before the sheriff who
must give him certain information, remand him in custody or admit him to bail and fix a
date on which the extradition hearing is to begin (sections 72 and 75). When the requested
person appears before the sheriff for the extradition hearing the sheriff must make the first
of what I have described as the series of sequential decisions which are required before a
requested person can be lawfully extradited. These decisions are whether the documents
sent to him by the Scottish Ministers consist of or include the materials listed in section 78(2);
and whether the requirements set out in section 78(4) are met, namely that the person before
the sheriff is the person whose extradition has been requested, that the offence specified in
the request is an extradition offence and that the documents sent to the sheriff by the
Scottish Ministers have been served on the person. If he decides these questions in the
affirmative, the sheriff must then proceed under section 79.
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