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In this post, Clare Montgomery KC of Matrix Chambers comments on the decision in Craig v Her Majesty’s Advocate (for the Government of the United States of America) and another (Scotland) [2022] UKSC 6. The Government unanimously allowed Craig’s appeal, holding that a new extradition hearing may be held before a different sheriff.

 

Background

James Craig is charged in the United States with posting false information on Twitter in order to affect the price of shares and to trade in them to his own advantage. In 2017 the United States applied to extradite him. Mr Craig maintains that, since the conduct took place in Scotland, he should be tried in Scotland.  He seeks to invoke a ‘forum bar’ defence. This is a protection, recommended by the Committee reviewing US/UK extradition arrangements in 2012, to correct the arbitrary use of US long arm jurisdiction in extradition cases. It was considered to be in the interests of justice for decisions about forum, in cases where there was concurrent jurisdiction between States, 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 recommended that the Government introduce a forum bar as soon as possible. A forum bar was accordingly inserted into both parts of the Extradition Act 2003. In the case of the USA, which is governed by Part 2, section 83A contains the detailed forum protection provisions.

The forum bar was brought into force in England, Wales and Northern Ireland on 14 October 2013. It was not brought into force in Scotland. Mr Craig could therefore not rely on it in his defence in 2017. In 2018 the Outer House, Court of Session (Craig v Advocate General for Scotland [2018] CSOH 117) held that the refusal to bring the forum bar into force in Scotland (for which no adequate explanation was ever provided) was unlawful. Lord Malcolm made a declaration to that effect. The decision was not appealed but the Government continued to refuse to bring the forum bar into effect and Mr Craig was ordered to be extradited in 2020. In 2021 the forum bar provisions were finally brought into force in Scotland but without any retrospective effect.

 

Procedural irregularity or affront to the rule of law?

The Government argued that its failure to commence the forum bar provisions made no difference. However, as the courts observed, if that were true, it would be hard to see why they were enacted, and the Scottish Government opposed their commencement. The provision clearly provided an open justice protection from inappropriate long arm jurisdiction.

More troubling was the argument that the Government was entitled to act unlawfully in the absence of an order for specific performance. This was a startling submission. The Government had no lawful justification for refusing to bring in the forum bar protection. It had been told that in the 2018 declaration. It had a duty to act in conformity with that order. Its refusal to do so without compulsion threatened the constitutional expectation underpinning the relationship between the Government and the courts. The courts had always previously been willing to forbear from making coercive orders against the Government, and to make declaratory orders instead. But trust depended on the Government’s compliance with declaratory orders in the absence of coercion. As Lord Reed, President, writing for the Court said; “it is because ours is a society governed by the rule of law, where the Government can be trusted to comply with court orders without having to be coerced, that declaratory orders can provide an effective remedy.”

The Government claim that any illegality was of a merely procedural nature received equally short shrift from Lord Reed. The procedure followed was not “in accordance with the law” within the meaning of article 8 of the Convention so that the extradition process was incompatible with convention rights and therefore invalid.

There is an unfortunate similarity between the approach of the Government in Craig and the behaviour to the Government in R (on the application of Majera (formerly SM (Rwanda)) v Secretary of State for the Home Department [2021] UKSC 46. Mr Majera had been granted bail by the First Tier Tribunal which permitted him to carry out unpaid voluntary work. The Home Secretary ignored the order because it was considered to be unlawful. Lord Reed, President, again writing for the court, pointed out the legal duty to obey a court order which has not been set aside. “It is a basic principle that a decision of a court is binding as between the parties, and cannot be ignored or set aside by anyone, including (indeed it may fairly be said, least of all) the executive”. This applies to orders which are claimed to be invalid, as well as to orders which are merely irregular.

It might be thought that these cases illustrate a profound unwillingness on the part of the Government to respect individual rights where those rights appear to conflict with some popular policy objective. The case may also demonstrate the differences emerging between the executive and the courts about the importance of the rule of law. The new Lord Chancellor, whose oath requires him to respect the rule of law, is the same man who appeared to accept that the UK might nevertheless wish to “break international law in a very specific and limited way”. The Lord Chancellor will now need to reflect on whether the rule of law is still a central feature of the relationship between the executive and the courts.

 

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