Petition Of James Craig Against Lord Keen Of Elie Qc, Advocate General For Scotland And The Scottish Ministers For Judicial Review
| Jurisdiction | Scotland |
| Judge | Lord Malcolm |
| Neutral Citation | [2018] CSOH 117 |
| Date | 12 December 2018 |
| Docket Number | P220/18 |
| Court | Court of Session |
| Published date | 12 December 2018 |
OUTER HOUSE, COURT OF SESSION
[2018] CSOH 117
P220/18
OPINION OF LORD MALCOLM
in the Petition of
JAMES CRAIG
Petitioner
against
LORD KEEN OF ELIE QC, ADVOCATE GENERAL FOR SCOTLAND,
as representative of the UK government in Scotland
First Respondent
and
THE SCOTTISH MINISTERS
Second Respondents
for judicial review of decisions of the UK and Scottish governments concerning the
extradition forum bar provisions of section 50 of, and schedule 20 to, the Crime and Courts
Act 2013
Petitioner: O’Neill QC, Mackintosh; Balfour + Manson LLP
First Respondent: Webster QC; Office of the Advocate General
Second Respondents: Johnston QC, O’Neill (sol adv); Scottish Government Legal Directorate
12 December 2018
[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 section 50 of, and
schedule 20 to, the Crime and Courts Act 2013 which have been in force in the rest of the UK
2
since October 2013. The petitioner is the subject of an extradition request by the government
of the USA, 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 UK and it is not in the interests of
justice that the accused person be extradited: see Love v USA [2018] 1 WLR 2889 at
paragraph 22. The relatively complicated provisions are discussed in some detail in Scott v
The Government of the USA [2018] EWHC 2021 (Admin) at paragraphs 23-35.
The 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, amongst 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. The Baker review concluded that the forum bar provisions should not be
introduced in the UK, 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, amongst other things, a forum bar defence for the UK as a whole
(extradition being a reserved matter) was passed by the UK Parliament as section 50 of, and
schedule 20 to, the Crime and Courts Act 2013. Provision is made for the possibility of a
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