Failure to bring the "forum bar" provisions of the Extradition Act 2003 into force led to a breach of an individual's rights under the European Convention on Human Rights such that an extradition order against him in Scotland was invalid, the UK Supreme Court has ruled.
Lord Reed, Lord Lloyd-Jones, Lord Kitchin, Lord Burrows and Lord Stephens gave the decision in allowing an appeal by James Craig against a decision of the High Court of Justiciary, which had refused Mr Craig's appeal against a decision of the Scottish ministers that he should be extradited to the United States.
Mr Craig is accused in the USA of tweeting false information about two companies in order to buy shares in them at a lower price, which he denies. During the extradition proceedings he was unable rely on an amendment to the 2003 Act enacted in 2013, introducing the forum bar, which allows extradition to be refused if a trial could "fairly and effectively" take place in the UK, and it is not in the interests of justice that the requested person should be extradited. The provision was brought into force in the rest of the UK, but not in Scotland, at the request of Scottish ministers who believed it could interfere with the independence of prosecutors.
In 2018 Mr Craig obtained a declaratory order in the Outer House of the Court of Session that the UK Government was acting unlawfully and contrary to its duties under the 2013 Act in failing to bring the forum bar into force in Scotland, but the provision was not commenced until 2021. The Lord Advocate meantime continued to pursue extradition proceedings, and in July 2019 a sheriff decided that there was no bar to Mr Craig’s extradition under the 2003 Act and that his extradition would be compatible with his Convention rights. In September 2019 ministers decided he should be extradited, which led to the present appeal proceedings.
Lord Reed, with whom the other Justices agreed, said that in terms of the Scotland Act 1998 the Lord Advocate had no power to conduct extradition proceedings against Mr Craig, and the Scottish ministers have no power to order his extradition, if those acts were incompatible with Mr Craig’s rights under the Convention.
There was no dispute that extradition would interfere with Mr Craig's right to respect for his private and family life under article 8(1) of the Convention. Such an interference could be justified under article 8(2) if it was "in accordance with the law", if it pursued a "legitimate aim", and if it was "necessary in a democratic society". To satisfy the first requirement, the interference had to be in conformity with a domestic law that met the requirements of the rule of law, so as to afford adequate legal protection against arbitrariness. This was an absolute requirement. The executive had no margin of discretion in meeting it.
The interference with Mr Craig’s article 8(1) rights was not "in accordance with the law", as had been affirmed by the Outer House order, which made it clear that the Secretary of State was "continuing" to act in breach of the 2013 Act by failing to bring the forum bar provisions into force. The extradition procedure followed in Mr Craig’s case did not therefore accord with the 2013 Act.
It was no answer that the Outer House order was merely declaratory. It was firmly established that there was a clear expectation that the Government would comply with declaratory orders, and it was in reliance on that expectation that the courts usually refrained from making coercive orders against the Government. This was one of the core principles of our constitution, and vital to the mutual trust which underpinned the relationship between the Government and the courts.
Accordingly, the extradition proceedings against Mr Craig were not conducted "in accordance with the law" and so were incompatible with his rights under article 8 of the Convention. It followed that the extradition order made against him was invalid.
A new extradition hearing may now be held before a different sheriff, at which Mr Craig will be able to rely on the forum bar provisions, along with any other arguments properly available to him.