Craig v HM Advocate
| Jurisdiction | Scotland |
| Judge | Lord Reed,Lord Stephens,Lord Lloyd-Jones,Lord Kitchin,Lord Burrows |
| Judgment Date | 23 February 2022 |
| Neutral Citation | [2022] UKSC 6 |
| Docket Number | No 2 |
| Court | Supreme Court (Scotland) |
[2022] UKSC 6
Lord Reed, President
Lord Lloyd-Jones
Lord Kitchin
Lord Burrows
Lord Stephens
Appellant
Aidan O'Neill QC
Fred Mackintosh QC
(Instructed by Dunne Defence)
1st Respondent (Her Majesty's Advocate (for the Government of the United States of America))
Kenny McBrearty QC
Lesley Irvine
(Instructed by International Co-operation Unit, Crown Office)
2nd Respondent (Her Majesty's Advocate General for Scotland)
Andrew Webster QC
(Instructed by Office of the Advocate General)
Heard on 25 November 2021
( with whom Lord Lloyd-Jones, Lord Kitchin, Lord Burrows and Lord Stephens agree)
This appeal concerns the powers of the Scottish Ministers. They exercise functions in relation to extradition proceedings in Scotland, but their powers are limited under the Scotland Act 1998 by a requirement not to act incompatibly with the rights guaranteed by the European Convention on Human Rights (“the Convention”). The appeal also raises issues under the constitutional law of the United Kingdom concerning the obligations of the Government in relation to the commencement of legislation which Parliament has enacted, and their obligations in relation to a declaration by a court that their conduct is unlawful.
The appeal arises from the unlawful failure of the Government (more specifically, the Home Secretary) to make a commencement order bringing into force provisions of an Act of Parliament which are designed for the protection of individuals whose extradition has been requested. That failure was successfully challenged by an individual whose extradition was sought, in proceedings in which the court issued a final order declaring that the Government were acting unlawfully and contrary to their duties under the Act of Parliament. Notwithstanding the court's order, the Government's failure to make the commencement order subsequently continued over a period of years, during which the extradition proceedings were pursued against the individual who had obtained the court order. The question which now arises is whether the conduct of the proceedings under those circumstances, and the extradition order made in those proceedings, are legally valid.
In October 2010 the Home Secretary appointed a panel chaired by the Rt Hon Sir Scott Baker to conduct a review of the UK's extradition arrangements, including the question whether a forum bar to extradition — that is to say, a bar to extradition on the ground that the UK was a more appropriate forum for prosecution — should be introduced. In the course of the review, the panel received representations on behalf of the Lord Advocate which opposed the introduction of a forum bar on the ground that it could involve the review by the courts of a prosecutorial decision. The review concluded that a forum bar should not be introduced.
In March 2012 the House of Commons Home Affairs Committee published its report, The US-UK Extradition Treaty (HC 644). It noted that the question of forum had been a significant issue in US-UK extradition cases, including cases concerned with the use of computers in the UK to commit alleged offences under US law. It concluded that the current arrangements for determining the forum in which a person should be tried were unsatisfactory. It appeared to be very easy to engage the jurisdiction of the US courts without ever entering the country, since activity on the internet could involve the use of communications systems based in the US. Decisions as to forum were made by prosecutors behind closed doors, without the accused having any opportunity to make representations. Fundamental principles of human rights, democracy and the rule of law required that justice was seen to be done in public. The Committee accordingly believed that it would be in the interests of justice for decisions about forum, in cases where there was concurrent jurisdiction, to be taken by a judge in open court, where the person whose extradition was requested would have the opportunity to put his case, rather than in private by prosecutors. The Committee therefore recommended that the Government introduce a forum bar as soon as possible.
Some months later the Government published The Government Response to Sir Scott Baker's Review of the United Kingdom's Extradition Arrangements (Cm 8458, October 2012), in which they rejected the review's recommendation in relation to forum bar, and announced that they would seek to legislate for a forum bar, for the reasons given by the Committee. They duly did so in February 2013, when they introduced a suitable amendment to the Crime and Courts Bill then before Parliament.
In 2013 Parliament enacted the Crime and Courts Act 2013 (“the 2013 Act”). Paragraphs 1 to 3 of Schedule 20, to which effect is given by section 50, amend Part 1 of the Extradition Act 2003 (“the 2003 Act”), concerned with extradition to category 1 territories, so as to introduce a forum bar defence. Paragraphs 4 to 6 make similar amendments to Part 2 of the 2003 Act, concerned with extradition to category 2 territories, including the US. I shall refer to these provisions as the forum bar provisions.
In particular, paragraph 5 of Schedule 20 to the 2013 Act inserts into section 79(1) of the 2003 Act, which requires the judge to decide whether a person's extradition to a category 2 territory is barred by reason of one or more of a number of considerations, an additional consideration, namely “(e) forum”. In that regard, section 79(2) is also amended so as to provide that sections 83A to 83E (in addition to sections 80 to 83, in the unamended version) apply for the interpretation of section 79(1). Paragraph 6 of Schedule 20 to the 2013 Act also inserts into the 2003 Act the new sections 83A to 83E.
Section 83A provides in subsection (1) that the extradition of a person (“D”) to a category 2 territory is barred by reason of forum if the extradition would not be in the interests of justice. For that purpose, subsection (2) provides that the extradition would not be in the interests of justice if the judge (a) decides that a substantial measure of D's relevant activity was performed in the UK and (b) decides, having regard to the matters specified in subsection (3) (and only those matters), that the extradition should not take place. The matters specified in subsection (3) are:
“(a) the place where most of the loss or harm resulting from the extradition offence occurred or was intended to occur;
(b) the interests of any victims of the extradition offence;
(c) any belief of a prosecutor [defined by section 83E(2) as meaning a person who has responsibility for prosecuting offences in any part of the United Kingdom] that the United Kingdom, or a particular part of the United Kingdom, is not the most appropriate jurisdiction in which to prosecute D in respect of the conduct constituting the extradition offence;
(d) were D to be prosecuted in a part of the United Kingdom for an offence that corresponds to the extradition offence, whether evidence necessary to prove the offence is or could be made available in the United Kingdom;
(e) any delay that might result from proceeding in one jurisdiction rather than another;
(f) the desirability and practicability of all prosecutions relating to the extradition offence taking place in one jurisdiction, having regard (in particular) to —
(i) the jurisdictions in which witnesses, co-defendants and other suspects are located, and
(ii) the practicability of the evidence of such persons being given in the United Kingdom or in jurisdictions outside the United Kingdom;
(g) D's connections with the United Kingdom.”
The Divisional Court has described section 83A as “clearly intended to provide a safeguard for requested persons, not distinctly to be found in any of the other bars to extradition or grounds for discharge, including section 87 and the wide scope of article 8 of the Convention”, and has identified its underlying aim as being “to prevent extradition where the offences can be fairly and effectively tried here, and it is not in the interests of justice that the requested person should be extradited”: Love v Government of the United States of America [2018] EWHC 172 (Admin); [2018] 1 WLR 2889, para 22. The court also observed (ibid) that the matters listed in section 83A(3) “do not leave to the court the task of some vague or broader evaluation of what is just. Nor is the bar a general provision requiring the court to form a view directly on which is the more suitable forum, let alone having regard to sentencing policy or the potential for prisoner transfer, save to the extent that one of the listed factors might in any particular case require consideration of it”.
The forum bar provisions enable the domestic prosecution authorities to have an input into the question whether a requested person should be extradited in one of two ways. First, under section 83A(3)(c), a prosecutor can express a belief that the UK, or a particular part of it, is not the most appropriate jurisdiction for a prosecution. Such a belief is a matter to which the court must have regard, but it is not conclusive. Secondly, sections 83B to 83D make provision for a “prosecutor's certificate” to be given by a designated prosecutor (an expression which includes a prosecutor who is designated by subordinate legislation, or is within a description of prosecutors so designated) where (a) a formal decision has been made that the requested person should not be prosecuted, on the ground that there would be insufficient admissible evidence or that the prosecution would not be in the public interest, or (b) the prosecutor believes that the...
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