Craig v Advocate General for Scotland

JurisdictionScotland
JudgeLord Malcolm
Judgment Date12 December 2018
Neutral Citation[2018] CSOH 117
Docket NumberNo 13
CourtCourt of Session (Outer House)
Date12 December 2018

[2018] CSOH 117

Outer House

Lord Malcolm

No 13
Craig
and
Advocate General for Scotland
Cases referred to:

Adams v Guardian Newspapers Ltd 2003 SC 423; 2003 SLT 1058; 2003 SCLR 593

Carson v UK [2010] ECHR 338; (2010) 51 EHRR 13; 29 BHRC 22

Coulson v HM Advocate [2015] HCJAC 49; 2015 SLT 438; 2015 SCCR 219; 2015 SCL 588

Inco Europe Ltd v First Choice Distribution (A Firm) [2000] 1 WLR 586; [2000] 2 All ER 109; [2000] 1 All ER (Comm) 674; [2000] 1 Lloyd's Rep 467; [2000] CLC 1015; [2000] BLR 259; 2 TCLR 487; 74 Con LR 55; The Times, 10 March 2000; The Independent, 15 March 2000; (2000) 97 (12) LSG 39; 144 SJLB 134; [2000] NPC 22

Love v USA [2018] EWHC 172; [2018] 1 WLR 2889; [2018] 2 All ER 911; [2018] Lloyd's Rep FC 217; [2018] ACD 33

Magee v UK [2000] ECHR 216; (2001) 31 EHRR 35; 8 BHRC 646; [2000] Po LR 188; The Times, 20 June 2000; [2000] Crim LR 681

RM v Scottish Ministers [2012] UKSC 58; 2013 SC (UKSC) 139; 2013 SLT 57; 2013 SCLR 98; [2012] 1 WLR 3386; [2013] MHLR 412

R v Secretary of State for the Home Department, ex p Fire Brigades Union [1995] 2 AC 513; [1995] 2 WLR 464; [1995] 2 All ER 244; 7 Admin LR 473; [1995] PIQR P228; The Times, 6 April 1995; The Independent, 6 April 1995; (1995) 145 NLJ 521; 139 SJLB 109

R (on the application of A (A Child)) v Secretary of State for Health [2017] UKSC 41; [2017] 1 WLR 2492; [2017] 4 All ER 353; [2017] HRLR 9; [2017] Med LR 347; 156 BMLR 1; The Times, 19 June 2017

Scott v USA [2018] EWHC 2021; [2018] Lloyd's Rep FC 562; [2018] ACD 109

Singh v Secretary of State for the Home Department 1993 SC (HL) 1; 1993 SLT 115; [1992] 1 WLR 1052; [1992] 4 All ER 673; [1993] Imm AR 112; The Times, 26 October 1992; (1992) 142 NLJ 1575

Toussaint v Attorney-General of St Vincent and the Grenadines [2007] UKPC 48; [2007] 1 WLR 2825; [2008] 1 All ER 1; 22 BHRC 790

Wilson v First County Trust Ltd (No 2) [2003] UKHL 40; [2004] 1 AC 816; [2003] 3 WLR 568; [2003] 4 All ER 97; [2003] 2 All ER (Comm) 491; [2003] HRLR 33; [2003] UKHRR 1085; The Times, 11 July 2003; The Independent, 3 November 2003; (2003) 100 (35) LSG 39; 147 SJLB 872

Textbooks etc referred to:

Baker, S (Rt Hon Sir), A Review of the United Kingdom's Extradition Arrangements (Home Office, London, September 2011) (Online: https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/117673/extradition-review.pdf (1 March 2019))

Mulholland QC, F (Rt Hon), Written evidence to the House of Lords Select Committee on Extradition Law (EXL0065) (16 September 2014) (Online: http://data.parliament.uk/writtenevidence/committeeevidence.svc/evidencedocument/extradition-law-committee/extradition-law/written/12847.html (3 April 2019))

Administrative law — Judicial review — Provisions in Act of UK Parliament brought into force in rest of United Kingdom, but not Scotland — Whether lawful — Crime and Courts Act 2013 (cap 22), secs 50, 61, sch 20 — Crime and Courts Act 2013 (Commencement No 5) Order 2013 (SI 2013/2349 (C 96))

James Craig lodged a petition for judicial review in the Court of Session against acts of the UK Government and the Scottish Ministers impacting upon his extradition proceedings. After sundry procedure the petition called for first hearing, on 31 October 2018.

Section 50 of and sch 20 to the Crime and Courts Act 2013 (cap 22) (‘the 2013 Act’) contains provisions barring extradition (“forum bar provisions”). Extradition might, under those provisions, be prevented if the alleged offence can be tried fairly and effectively within the United Kingdom and it is not in the interests of justice to extradite the individual. Section 61 contains provisions on the commencement and extent of the Act. There is no explicit provision (unlike for some other parts of the Act) permitting sec 50 or sch 20 to be brought into force only in respect of certain areas.

The Crime and Courts Act 2013 (Commencement No 5) Order 2013 (SI 2013/2349 (C 96)) was made by the Secretary of State for the Home Department in exercise of the powers conferred by sec 61(2) of the 2013 Act. The Order brought into force the forum bar provisions in England, Wales and Northern Ireland with effect from 14 October 2013, no provision in that Order or otherwise bringing those provisions into force in Scotland.

Article 14 of the European Convention on Human Rights and Fundamental Freedoms provides that the other rights and freedoms of the Convention shall be secured without discrimination.

The petitioner was the subject of an extradition request by the United States of America. He considered that the forum bar provisions, which were not in effect in Scotland but were in effect for the rest of the United Kingdom, might provide him with a defence to those extradition proceedings. The petitioner petitioned the Court of Session to judicially review the decision of the UK Government and the Scottish Ministers not to bring the forum bar provisions into effect in Scotland.

In written evidence to a House of Lords select committee, the Lord Advocate stated that the forum bar provisions would only be brought into force in respect of Scotland at the request of the Scottish Ministers, and that there was no intention to make such a request in the foreseeable future. A minister of state in answer to a question put in the House of Commons stated that the Scottish Government had decided that it did not wish sec 50 of the 2013 Act to be commenced in full in Scotland, there was no timetable for its commencement, and that this was a decision for the Scottish Government.

The petitioner argued that: (1) there was no power for the UK Government to bring sec 50 of and sch 20 to the 2013 Act into force for the rest of the United Kingdom, but not Scotland; (2) it was discriminatory, and consequently a breach of the petitioner's Art 14 rights, for the defence afforded by sec 50 of and sch 20 to the Act to be available to residents of the rest of the United Kingdom, but not residents of Scotland; (3) it was unlawful for the Scottish Ministers to have decided that sec 50 of and sch 20 to the Act should not come into force in Scotland; and (4) it would be oppressive of the Scottish Ministers to extradite the petitioner.

The UK Government argued that: (1) comments made by the minister of state were protected by parliamentary privilege and should not be considered by the court; (2) sec 61 of the 2013 Act permitted the commencement of sec 50 of and sch 20 to that Act at different times in different areas of the United Kingdom; and (3) it was lawful for the UK Government to have brought sec 50 of and sch 20 to the Act into force for the rest of the United Kingdom, but not Scotland.

The Scottish Ministers argued that: (1) the view expressed by the Scottish Ministers was not habile to judicial review; and (2) the question of oppression in relation to extradition was premature.

Held that: (1) there was no power to bring into force the forum bar provisions in different parts of the United Kingdom at different times (paras 21–24); (2) the question of oppression in relation to extradition was premature (para 32); and petition granted to the extent of pronouncing decree of declarator of an unlawful act by the UK Government.

Observed that: (1) parliamentary privilege would not have prevented the court from considering the comments made by the UK minister of state in Parliament (paras 10–16); and (2) the view expressed by the Scottish Ministers to the UK Government was not a decision habile to judicial review (para 31).

The cause called before the Lord Ordinary (Malcolm) for a substantive hearing, on 31 October 2018.

At advising, on 12 December 2018—

Lord Malcolm— [1] At the heart of this petition for judicial review is a complaint that the UK Government has failed to commence in Scotland the extradition forum bar provisions in sec 50 of, and sch 20 to, the Crime and Courts Act 2013 (cap 22) (‘the 2013 Act’) which have been in force in the rest of the United Kingdom since October 2013. The petitioner is the subject of an extradition request by the Government of the United States of America, which he is currently challenging in Edinburgh Sheriff Court. He considers that he could mount an additional defence under and in terms of the forum bar provisions were they to apply in Scotland. The underlying aim of the provisions is to prevent extradition if the alleged offence can be fairly and effectively tried in the United Kingdom and it is not in the interests of justice that the accused person be extradited (see Love v USA, para 22). The relatively complicated provisions are discussed in some detail in Scott v USA (paras 23–35).

Background to the forum bar provisions in the 2013 Act

[2] The 2013 Act was preceded by a review chaired by Sir Scott Baker. In the course of his review he received a letter, dated 31 January 2011, from the then Crown Agent. On behalf of the Crown Office and Procurator Fiscal Service she advised that forum bar to extradition would, among other things, be a challenge to the independence of the Lord Advocate as head of the prosecution system in Scotland, in that the court would be invited to consider the merits of a prosecutorial decision. While the courts in England and Wales were prepared to contemplate judicial review of such decisions, that was not the tradition in Scotland. Sir Scott Baker concluded that the forum bar provisions should not be introduced in the United Kingdom, generally because prosecutors were best placed to make decisions on forum. The UK Government did not accept that recommendation, considering that enhanced protections were needed, including scrutiny of decisions in open court. In due course a Bill containing, among other things, a forum bar defence for the United Kingdom as a whole (extradition being a reserved matter) was passed by the UK Parliament as sec 50 of, and sch 20 to, the 2013 Act. Provision is made for the possibility of a prosecutor's certificate to the effect that a decision has been...

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