Craig v HM Advocate
| Jurisdiction | Scotland |
| Judge | Lord Justice Clerk (Dorrian),Lord Brodie,Lord Turnbull |
| Judgment Date | 03 June 2020 |
| Neutral Citation | [2020] HCJAC 22 |
| Court | High Court of Justiciary |
| Docket Number | No 26 |
| Date | 03 June 2020 |
[2020] HCJAC 22
High Court of Justiciary
Lord Justice Clerk (Dorrian), Lord Brodie and Lord Turnbull
Advocate (Lord) v Mirza [2015] SC EDIN 32; 2015 SLT (Sh Ct) 89; 2015 SCL 481
Calder v HM Advocate 2006 SCCR 609; 2006 GWD 30–658
Cherry and ors v Advocate General for Scotland sub nom R (on the application of Miller) v Prime Minister [2019] UKSC 41; 2020 SC (UKSC) 1; 2019 SLT 1143; 2019 SCLR 1028; [2020] AC 373; [2019] 3 WLR 589; [2019] 4 All ER 299; The Times, 14 October 2019 and [2019] CSIH 49; 2020 SC 37; 2019 SLT 1097; 2019 SCLR 986; The Times, 15 September 2019
Chiş v Romania (3360/03) ECtHR, 14 September 2010, unreported
Craig v Advocate General for Scotland [2018] CSOH 117; 2019 SC 230; 2019 SLT 1
Love v USA [2018] EWHC 172; [2018] 1 WLR 2889; [2018] 2 All ER 911; [2018] Lloyd's Rep FC 217; [2018] ACD 33
McFadyen v Annan 1992 JC 53; 1992 SLT 163; 1992 SCCR 186; The Times, 11 February 1992
Polish Judicial Authority v Celinski [2015] EWHC 1274; [2016] 1 WLR 551; [2016] 3 All ER 71; [2015] ACD 125
R (on the application of Miller) v Secretary of State for Exiting the European Union [2017] UKSC 5; [2018] AC 61; [2017] 2 WLR 583; [2017] 1 All ER 593; [2017] NI 141; [2017] 2 CMLR 15; [2017] HRLR 2; The Times, 25 January 2017
R (on the application of USA) v Bow Street Magistrates' Court [2006] EWHC 2256; [2007] 1 WLR 1157; [2006] Extradition LR 216; 103 (37) LSG 33; 156 NLJ 1440; 150 SJLB 1189; The Times, 19 September 2006
Scott v USA [2018] EWHC 2021; [2019] 1 WLR 774; [2018] Lloyd's Rep FC 562; [2018] ACD 109
Stuurman v HM Advocate 1980 JC 111; 1980 SLT (Notes) 95
USA v B [2019] SC EDIN 45; 2019 GWD 25–405
Baker, TSG (Rt Hon Sir), Perry, D, and Doobay, A, A Review of the United Kingdom's Extradition Arrangements (Home Office, London, September 2011), paras 2.3, 2.5, Pt 6 (Online: https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/117673/extradition-review.pdf (27 June 2020))
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))
Justiciary — Extradition — Forum bar — Whether failure to bring forum bar provisions into force in Scotland rendered extradition unlawful — Whether sheriff entitled to consider forum bar provisions when determining whether extradition compatible with Convention rights — Extradition Act 2003 (cap 41), sec 79
Justiciary — Extradition — Extension of time — Whether sheriff entitled to allow Scottish Ministers extension of time without hearing submissions from appellant — Extradition Act 2003 (cap 41), sec 99
James Allan Craig appeared before the sheriff at Edinburgh on 28 June 2017, having been arrested on a warrant granted under sec 71 of the Extradition Act 2003, following an extradition request issued by the United States of America. On 4 July 2019, the sheriff held that there was no bar to extradition and sent the case to the Scottish Ministers. On 3 September 2019, the sheriff allowed the Scottish Ministers an extension of time for consideration of the extradition request. The appellant appealed to their Lordships in the High Court of Justiciary.
The Extradition Act 2003 (cap 41) (‘the 2003 Act’), sec 79, provides that a sheriff must order a requested person's discharge if one of the bars to extradition set out in subsec (1) applies, namely, “(a) the rule against double jeopardy; (b) extraneous considerations; (c) the passage of time; [and] (d) hostage-taking situations”. In England and Wales there is an additional bar, “forum”, that has not been brought into effect in Scotland. Section 99 provides that once a case is referred to the Scottish Ministers by a sheriff, they must decide whether to order extradition within a period of two months. The sheriff may grant an order extending that period.
The appellant was arrested following an extradition request under Pt 2 of the 2003 Act by the United States of America, where he was accused of securities fraud. The appellant was brought before the sheriff on 28 June 2017 and admitted to bail. The extradition proceedings were adjourned in order to allow the appellant to bring a petition for judicial review of the UK Government's failure to bring the forum bar provisions of sec 79 of the Act into force in Scotland. The appellant succeeded in his petition for judicial review, and the Lord Ordinary held that the failure to bring the forum bar provisions into force in Scotland was unlawful (Craig v Advocate General for Scotland[2018] CSOH 117). Before the sheriff, the appellant argued that he would have successfully invoked the forum bar provisions had they been in force in Scotland, and, accordingly, it would be a breach of his rights under the European Convention on Human Rights and Fundamental Freedoms and oppressive for him to be extradited. The sheriff held that he was entitled to consider the question of forum bar when considering whether extradition would be a breach of the appellant's Convention rights. The sheriff found that there was no bar to extradition and sent the case to the Scottish Ministers. It subsequently came to light that there had been an administrative delay in referring the case to the Scottish Ministers, and the sheriff granted an extension of the two-month time-limit for the Ministers to decide whether to order the appellant's extradition, without holding a hearing. The appellant appealed.
The appellant argued that the lack of forum bar provisions in Scotland had been held to be unlawful and, therefore, it had been ultra vires for the sheriff to have considered them. It was also contended that it was a breach of the appellant's Art 5, 6 and 8 Convention rights for the respondent to have procured the appellant's extradition while the unlawful failure to implement the forum bar provisions remained, and that the sheriff had erred in allowing an extension of time as there were no exceptional circumstances.
The respondent submitted that the sheriff required to determine the effect of the failure to bring the forum bar provisions into force and to give the appellant a remedy if it could be shown that the failure had an impact on him. Extradition was not unlawful as the appellant could not have successfully relied upon the forum bar provisions.
Held that: (1) the court required to consider the extent to which the appellant had been prohibited from relying on arguments that he would otherwise have made, and the sheriff was entitled to consider the merits of any argument that could have been made by the appellant had the forum bar provisions been in force (paras 25–30, 45–49); (2) on the facts, the sheriff had been entitled to decline to hold that the appellant's extradition would not be in the interests of justice, and that the appellant could not have satisfied the forum bar provisions (paras 31–38); (3) the procedure for considering an application for an extension of time was a matter for the discretion of the sheriff and it was open to the sheriff to hold that there were exceptional circumstances justifying an extension (para 40); and appeal refused.
Craig v Advocate General for Scotland 2019 SC 230 considered and Love v USA[2018] 1 WLR 2889applied.
The cause called before the High Court of Justiciary, comprising the Lord Justice Clerk (Dorrian), Lord Brodie and Lord Turnbull, for a hearing, on 23 January 2020.
At advising, on 3 June 2020—
Lord Justice Clerk (Dorrian)—
[1] The appellant, a UK national, is the subject of an extradition request under Pt 2 of the Extradition Act 2003 (cap 41) 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 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 sec 50 of, and sch 20 to, the Crime and Courts Act 2013 (cap 22) (‘the forum bar provisions’).
[2] In the proceedings for judicial review the Lord Ordinary (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 UK Government was acting unlawfully and contrary to its duties under sec 61 of the 2013 Act (the decision is now reported as Craig v Advocate General for Scotland). Before Lord Malcolm, 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 rights under the European Convention on Human Rights and Fundamental Freedoms and that there was no basis for discharging him. That decision is challenged in this application for leave to appeal under sec 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...
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Craig v HM Advocate
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