Craig v Her Majesty’s Advocate (for the Government of the United States of America) [2022] UKSC 6 (23 February 2022)

Mr Craig faced extradition to the US for alleged share fraud. The UK Government unlawfully failed to commence forum bar provisions in Scotland, depriving him of a statutory defence. The Supreme Court held that extradition proceedings conducted during this unlawful period were incompatible with his Article 8 rights and therefore ultra vires.

Facts

The appellant, James Craig, a British citizen resident in Scotland, faced extradition to the United States on charges relating to an alleged fraudulent share manipulation scheme conducted via Twitter. The Crime and Courts Act 2013 introduced forum bar provisions enabling individuals to resist extradition where the UK was a more appropriate forum for prosecution. These provisions were brought into force in England, Wales and Northern Ireland in October 2013 but were not commenced in Scotland due to the Home Secretary’s deference to the Scottish Ministers’ objections, particularly those of the Lord Advocate who viewed the provisions as inappropriate interference with his prosecutorial independence.

In December 2018, Lord Malcolm in the Court of Session granted a declaratory order finding that the UK Government’s continuing failure to bring the forum bar provisions into force in Scotland was unlawful and contrary to its duties under section 61 of the 2013 Act. Despite this final, unchallenged order, the Government failed to make a commencement order for nearly three years, during which time extradition proceedings against Mr Craig continued.

Issues

The central issues before the Supreme Court were:

1. Constitutional obligations following a declaratory order

Whether the Government was obliged to comply with the declaratory order, and what the legal consequences were of its continued failure to do so.

2. Article 8 compatibility and legality

Whether the interference with Mr Craig’s Article 8 rights was ‘in accordance with the law’ given the Government’s unlawful failure to commence the forum bar provisions.

3. Vires of Scottish Ministers’ acts

Whether the Lord Advocate’s conduct of extradition proceedings and the Scottish Ministers’ extradition order were ultra vires under section 57(2) of the Scotland Act 1998.

Judgment

The Supreme Court unanimously allowed the appeal. Lord Reed, delivering the judgment, addressed several fundamental constitutional principles.

Effect of declaratory orders

The Court emphasised the constitutional importance of Government compliance with court orders, including declaratory orders:

The Government’s compliance with court orders, including declaratory orders, is one of the core principles of our constitution, and is vital to the mutual trust which underpins the relationship between the Government and the courts.

Rejecting the Advocate General’s submission that parties should seek coercive orders rather than relying on declaratory orders, Lord Reed stated:

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.

Article 8 and legality requirement

The Court held that the lower courts had erred in treating the Government’s unlawful conduct merely as a factor in the proportionality balancing exercise. Lord Reed clarified:

The requirement that an interference must be ‘in accordance with the law’ is an absolute requirement. In meeting it, Convention states have no margin of appreciation under the Convention, and the executive and the legislature have no margin of discretion or judgment under domestic public law. Only if the test of legality is satisfied does the question arise whether the measures in question are necessary for some legitimate purpose.

Citing European Court of Human Rights jurisprudence, Lord Reed noted that ‘in accordance with the law’ requires not only compliance with domestic law but also compatibility with the rule of law to afford adequate legal protection against arbitrariness.

Ultra vires acts

The Court concluded that since the commencement provision (section 61) was in force and the procedure followed was not in compliance with it, the extradition proceedings were not ‘in accordance with the law’. Consequently, the acts of the Lord Advocate in conducting the proceedings and the Scottish Ministers in making the extradition order were incompatible with Mr Craig’s Convention rights and therefore ultra vires by virtue of section 57(2) of the Scotland Act 1998.

Implications

This judgment has significant implications in several areas:

Constitutional law

The case reinforces the fundamental principle that Government must comply with declaratory orders without requiring coercion. The Court’s strong language about constitutional trust between Government and courts serves as a reminder of rule of law obligations.

Extradition law

The decision establishes that extradition proceedings conducted during a period of unlawful non-commencement of protective provisions may be rendered invalid, requiring fresh proceedings once the provisions are properly in force.

Devolution

The case clarifies that the Home Secretary cannot effectively delegate commencement decisions to Scottish Ministers where Parliament has not provided for such delegation, regardless of the Scottish Ministers’ views on the legislation.

Human rights

The judgment confirms that the ‘in accordance with the law’ requirement under Article 8(2) is an absolute threshold test that must be satisfied before any proportionality analysis, and that non-compliance with statutory duties by the executive can render subsequent proceedings unlawful.

Verdict: Appeal allowed. The acts of the Lord Advocate in conducting the extradition proceedings and the Scottish Ministers in making the extradition order were ultra vires as they were incompatible with the appellant’s Convention rights under Article 8. The case was remitted to the High Court of Justiciary to enable a new extradition hearing before a different Sheriff, at which the appellant would be entitled to rely on the forum bar provisions.

Source: Craig v Her Majesty’s Advocate (for the Government of the United States of America) [2022] UKSC 6 (23 February 2022)