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Scottish High Court of Justiciary Decisons
You are here: BAILII >> Databases >> Scottish High Court of Justiciary Decisons >> APPEAL UNDER SECTION 103 OF THE EXTRADITION ACT 2003 BY JAMES CRAIG AGAINST HER MAJESTY'S ADVOCATE [2020] ScotHC HCJAC_22 (03 June 2020)
URL: http://www.bailii.org/scot/cases/ScotHC/2020/2020_HCJAC_22.html
Cite as: [2020] ScotHC HCJAC_22, 2020 JC 258, 2020 SCCR 266, 2020 SLT 691, 2020 GWD 19-268, [2020] HCJAC 22
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APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Justice Clerk
Lord Brodie
Lord Turnbull
[2020] HCJAC 22
HCA/2019/009/XM
OPINION OF LADY DORRIAN, the LORD JUSTICE CLERK
in
APPEAL UNDER SECTION 103 OF THE EXTRADITION ACT 2003
by
JAMES CRAIG
Appellant
against
HER MAJESTY’S ADVOCATE
Respondent
Appellant: O’Neill QC, Macintosh QC; Dunne Defence, Edinburgh
Respondent: M Richardson QC, AD representing the Lord Advocate on behalf of the American
Authorities; Crown Agent
3 June 2020
Introduction
[1] The appellant, a United Kingdom national, is the subject of an extradition request
under Part 2 of the Extradition Act 2003 by the United States of America, accused of the
commission of an offence relating to securities fraud. It is alleged that although the
appellant benefited only slightly from the scheme, shareholders in the companies to which
the fraud related sustained losses in the region of $1.6 million. Extradition proceedings were
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commenced in June 2017 but continued, among other reasons, in order to allow the
appellant to bring an application for judicial review of the failure to bring into force in
respect of Scotland certain amendments to the 2003 Act, legislated for by section 50 of, and
schedule 20 to, the Crime and Courts Act 2013 (the “forum bar provisions”).
[2] In the proceedings for judicial review the Lord Ordinary (Lord Malcolm)
pronounced a declarator dated 12 December 2018 holding that in its continuing failure to
bring into force in Scotland the forum bar provisions, the United Kingdom government was
acting unlawfully and contrary to its duties under section 61 of the 2013 Act (the decision is
counsel did not insist on that part of the petition seeking an order for specific performance,
seemingly on the basis that it was anticipated that the UK government would act upon the
declarator, although no doubt other matters relating to the form, nature and practicality of
such an order may have played a part. In a subsequent extradition hearing the appellant
relied on this finding to resist extradition. He also argued that extradition would be
oppressive, given the role of the Lord Advocate in contributing to the decision of the UK
government not to commence the forum bar provisions in relation to Scotland. The sheriff
rejected his arguments, concluding that extradition of the appellant would be compatible
with his Convention rights and that there was no basis for discharging him. That decision is
challenged in this application for leave to appeal under section 103. In addition, it is
submitted that the sheriff had erred in granting an extension of the required period within
which the Scottish Ministers might make an order for the appellant’s extradition.
Statutory context
[3] As is familiar, where a request is made for the extradition of a requested person to a
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category 2 territory, such as the United States of America, whether that person’s extradition
is ordered will depend on the outcome of a series of sequential decisions made at the
appropriate points in the sequence by the executive (in Scotland the Scottish Ministers) and
by the court (in Scotland, at first instance a designated sheriff). The framework for this
process of decision-making is set out in part 2 of the Extradition Act 2003, as amended. A
purpose of this statutory framework is to protect the various interests of the requested
persons. Thus, if the Scottish Ministers receive a valid request for extradition, unless
section 70(2) applies, they must issue a certificate to that effect and send the request and the
certificate to the sheriff: section 70(9). On receipt of these documents the sheriff may issue a
warrant for the arrest of the requested person if he has reasonable grounds to believe the
matters set out in section 71(2). If a requested person has been arrested under a warrant
issued under section 71 he must as soon as practicable be brought before the sheriff who
must give him certain information, remand him in custody or admit him to bail and fix a
date on which the extradition hearing is to begin (sections 72 and 75). When the requested
person appears before the sheriff for the extradition hearing the sheriff must make the first
of what I have described as the series of sequential decisions which are required before a
requested person can be lawfully extradited. These decisions are whether the documents
sent to him by the Scottish Ministers consist of or include the materials listed in section 78(2);
and whether the requirements set out in section 78(4) are met, namely that the person before
the sheriff is the person whose extradition has been requested, that the offence specified in
the request is an extradition offence and that the documents sent to the sheriff by the
Scottish Ministers have been served on the person. If he decides these questions in the
affirmative, the sheriff must then proceed under section 79.
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[4] If the sheriff is required to proceed under section 79 he must then decide whether the
extradition of the requested person to the category 2 territory is barred by reason of one or
other of the considerations listed in the relevant paragraphs of section 79(1). If the sheriff
decides that the person’s extradition to the category 2 territory is barred by one or other of
these considerations, he must order the requested person’s discharge (section 79(3)). It is
only if the sheriff decides the question of the application of the listed considerations in the
negative that the sheriff may proceed further. I shall have to return to section 79(1) and the
implications of the fact that whereas in the subsection as it applies to Scotland there are four
listed considerations by reason of which extradition is barred ((a) the rule against double
jeopardy; (b) extraneous considerations; (c) the passage of time; and (d) hostage-taking
considerations), in the subsection as it applies to England and Wales and Northern Ireland
there is a further consideration: “(e) forum”, but for present purposes it is sufficient to note
that the scheme for extradition under part 2 of the Act includes within it a recognition that
there are interests of the requested person which require protection and which may
outweigh the broad policy considerations favouring extradition which underlie the
arrangements made with category 2 territories. The mechanism for providing that
protection is the power conferred on the sheriff by section 79(1) to decide that extradition is
“barred”.
[5] If the sheriff decides that none of the section 79(1) considerations apply and that the
requested person is accused of the commission of the extradition offence but is not alleged to
be unlawfully at large, then he must proceed under section 84. However, where the
requesting category 2 territory is designated for the purposes of section 84(7), as is the case
with the United States of America, and therefore there is no need to demonstrate a case for
the requested person to answer, the sheriff must then immediately proceed under section 87.
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Section 87 requires him to decide whether the requested person’s extradition would be
compatible with the Convention rights within the meaning of the Human Rights Act 1998. If
the sheriff decides that question in the negative, he must order the person’s discharge.
However, if the sheriff decides that the requested person’s extradition would be compatible
with his Convention rights, he must send the case to the Scottish Ministers for their decision,
in terms of section 93, whether the appellant is to be extradited. It is only then, if they do not
decide that they are prohibited from doing so by virtue of section 93(2), that the Scottish
Ministers must order the requested person to be extradited.
[6] On the sheriff sending a case to the Scottish Ministers, in the event that the Scottish
Ministers do not make an order for a requested person’s extradition or discharge within the
required period of 2 months starting with the date when the sheriff sends the case to the
Scottish Ministers for their decision (“the appropriate day”: section 102(7)), then
section 99(2) provides that if the requested person applies to the sheriff to be discharged, the
sheriff must order his discharge. In terms of section 99(4), if before the required period ends
the Scottish Ministers apply to the sheriff for it to be extended the sheriff may make an order
accordingly.
Forum as a reason for barring extradition: the 2013 amendment to the 2003 Act
[7] As appears from the opinion of Lord Malcolm in Craig v Advocate General, the Crime
and Courts Act 2013 was preceded by A Review of the United Kingdom’s Extradition
Arrangements by Sir Scott Baker, published on 30 September 2011. Part 6 of the Review
discussed the introduction into statute of a “so-called forum bar to extradition”. Here, the
Review noted, “forum” is used as meaning the most convenient or appropriate place for a
legal proceeding to be heard and determined. Where it is available, the underlying aim of
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forum bar is to prevent extradition where the extradition offence or offences can be fairly
and effectively tried in the requested state (here the United Kingdom), and it is not in the
interests of justice that the requested person should be extradited (Love v Government of the
USA [2018] 1 WLR 2889 at para 22). As at 2011, at least explicitly, this did not form part of
the law in any part of the United Kingdom. The proposal that forum bar should be
introduced was controversial, as consideration of part 6 of the Review demonstrates, and as
Lord Malcolm noted. The Review summarises the arguments for and against. Among the
arguments for was that interference with the right to respect for family life guaranteed by
article 8 of the Human Rights Convention must be exceptionally serious before this can
outweigh the importance of extradition and the introduction of forum bar would add an
extra layer of protection to the extradition process. Among the arguments against were that
prosecuting authorities are better placed than the courts to decide the question of forum;
that its introduction would undermine the prosecutor's independence; and that it would
generate satellite litigation, in particular applications for judicial review directed at
prosecutors seeking to compel a prosecution in the United Kingdom. The Review notes
particular concern over these latter considerations in Scotland.
[8] The Review concluded that forum bar provisions should not be implemented.
However, as Lord Malcolm observed at para [19] of Craig, the United Kingdom Government
disagreed with Scott Baker’s conclusion and invited the Westminster Parliament to legislate
accordingly across the whole of the United Kingdom. Parliament acceded, but left it to the
Government to decide when the forum bar provisions would come into force. Not long after
the 2013 Act received Royal Assent, the forum bar provisions were commenced in England,
Wales and Northern Ireland, in terms of the Crime and Courts Act 2013 (Commencement
No 5) Order 2023 (SI 2013/2349) but they were not commenced in Scotland.
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[9] For England, Wales and Northern Ireland the forum bar provisions add “(e) forum”
to the list of considerations in section 79(1) of the 2003 Act. They also introduce sections 83A
to 83E. Section 83A(1) provides that the extradition of a requested person (“D”) to a
category 2 territory is barred by reason of forum if the extradition would not be in the
interests of justice.
[10] Section 83A(2) provides that extradition will not be in the interests of justice if the
judge decides (a) that a substantial measure of D's activity which is material to the
commission of the extradition offence was performed in the United Kingdom; and (b),
having regard to the matters specified at section 83A(3), that the extradition should not take
place. The specified matters 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 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; and (g) D's connections with the
United Kingdom.
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[11] Subject to section 83D, which allows such a certificate to be questioned by the court
on judicial review principles at the stage of an appeal against an extradition decision,
sections 83B and 83C provide for the determination that extradition is not barred by forum
by the issue to the extradition judge of “a prosecutor’s certificate”. The particular matters
which are to be addressed in a prosecutor’s certificate are detailed in section 83C but,
broadly, a prosecutor’s certificate is a statement to the effect that, the issue having been
considered by a designated prosecutor, it has been decided not to prosecute the requested
person in the United Kingdom for an offence which corresponds to the extradition offence.
[12] Extradition is a reserved matter. Responsibility for commencing the forum bar
provisions lies with the United Kingdom Government. However, it is reasonable to
conclude that it has been decided not to commence them in relation to Scotland and that that
is because of sensitivity to the views of the Scottish Ministers and in particular the
Lord Advocate, as head of the prosecution service. Having considered material before him
including the written evidence submitted by the then Lord Advocate to the House of Lords
Select Committee on Extradition Law on 16 September 2014 and the answer given by the
responsible minister to certain Parliamentary questions on 21 December 2017, Lord Malcolm
concluded in Craig that the reason for the forum bar provisions not having been commenced
in relation to Scotland was “acceptance of the concern in Scotland that a forum bar defence
would amount to an inappropriate interference with the prosecutorial independence of the
Lord Advocate” (Craig v Advocate General supra at para [19]).
[13] Nonetheless, as I have already stated, Lord Malcolm found the failure of the United
Kingdom Government to commence the forum bar provisions in relation to Scotland while
commencing them in relation to England and Wales and Northern Ireland, to have been
contrary to the intention of Parliament and accordingly unlawful.
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Proceedings before the sheriff in the appellant’s case
Preliminary procedure
[14] The appellant first appeared at Edinburgh Sheriff Court on 28 June 2017 following
the grant of a warrant under section 71 of the 2003 Act when he accepted that he was the
person named in the warrant but that he did not consent to extradition. The appellant was
admitted to bail. After a number of adjournments granted at the instance of the appellant,
on 12 April 2018 a minute was lodged on his behalf intimating his intention to raise a
devolution issue within the meaning of schedule 6 to the Scotland Act 1998 (“the devolution
minute”). Put short, the contention set out in the devolution minute was that the extradition
of the appellant would result in a contravention of his rights as guaranteed by articles 5, 6, 8,
13 and 14 of the European Convention on Human Rights by reason of the failure to
commence the forum bar provisions bar provisions (in subsequent proceedings the
appellant has maintained the contention that his extradition would result in a breach of his
Convention rights but before this court he expressly stated that this contention did not give
rise to a devolution issue).
The appellant’s submissions at the extradition hearing
[15] Among the reasons for adjourning the proceedings before the sheriff was to allow
the appellant to bring a judicial review of the failure to commence the forum bar provisions
in Scotland. Having succeeded in the judicial review and armed with the declarator
pronounced by Lord Malcolm on 12 December 2018, the appellant finally came before the
sheriff at an extradition hearing on 13 June 2019. The appellant gave evidence. The sheriff
then heard submissions under reference to the respective written cases and argument which
had been lodged on behalf of the appellant and by the Lord Advocate, as representing the
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judicial authorities of the United States of America. As the sheriff puts it in his report to this
court, the key question was the consequence of Lord Malcolm’s decision. The appellant did
not found on any of the bars to extradition listed in section 79(1) as it applied to Scotland.
He accepted that the forum bar provisions were not in force in Scotland. However, he
submitted that he would have had a real prospect of meeting the test contained in
section 83A had the forum bar provisions applied to Scotland and the fact that they did not
pointed to a breach of his Convention rights for the purposes of section 87 and oppression
on the part of the Lord Advocate as a matter of common law. Turning to the terms of
section 83A(2), the appellant submitted that a substantial part of his relevant activity (the
use of digital media while resident in Scotland) had been performed in the United Kingdom.
As far as the place where harm had occurred no information had been provided beyond the
assertion that shareholders of the named US corporations had sustained losses over
$1.6 million. The gain made by the appellant had been assessed at a mere $97. Prosecution
in the United Kingdom did not appear to have been considered as an option but much of the
evidence relied on appeared to have been seized from the appellant’s home in Scotland and
would therefore be available in the United Kingdom were he to be prosecuted there. Six
years had passed since the offence came to light; the decision to proceed in the United States
had therefore caused delay. The appellant’s connections were all with the United Kingdom.
It was his submission that, on balance, consideration of the matters specified in
section 83A(3) favoured the conclusion that were it open to a sheriff to do so, there was a
real prospect that he would decide that it was not in the interests of justice to extradite the
appellant. However, it was not necessary to come to concluded view, the court should look
to the broader issue of Convention compatibility. The appellant accepted that it is only in
exceptional circumstances that the court will be justified in not ordering extradition where
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that would otherwise be lawful (Calder v HM Advocate 2006 SCCR 609) but this was a case
where it had been held that the United Kingdom had acted unlawfully. The interference
with the appellant’s rights under article 8.1 of the Convention which would be the
consequence of extradition would not therefore be in accordance with law and thus not
compatible with these rights for the purposes of section 87 of the 2003 Act. Even if that
argument were not accepted the appellant submitted that the circumstances were
sufficiently exceptional to point to the incompatibility with Convention rights on carrying
at paras [15] to [17]. In addition, it was submitted that the proceedings for the extradition of
the appellant were oppressive and accordingly the appellant should be discharged. Just as
the court had power to prevent the Lord Advocate from acting oppressively in exercise of
his function of prosecuting crime (Stuurman v HM Advocate 1980 JC 111, McFadyen v Annan
1992 JC 53), the court had power to prevent the Lord Advocate from acting oppressively in
exercise of his function in conducting extradition proceedings. The present proceedings had
been brought by the Lord Advocate in exercise of the function conferred by section 191 of
the 2003 Act. That function included conducting extradition proceedings in Scotland and
advising on any matters relating to extradition proceedings in Scotland. Oppression arose
from the fact that on the one hand the Lord Advocate was insisting on these proceedings
while on the other he had manipulated the UK government into illegally restricting the bars
to extradition which were available to the appellant.
The sheriff’s decision of 4 July 2019
[16] The sheriff advised his decision on the issues raised at the extradition hearing, at a
continued extradition hearing on 4 July 2019.
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[17] As appears from his decision, the sheriff considered that he was entitled to consider
the issue of forum bar in the context of his assessment under section 87, and to do so by
reference to the test which would apply under section 83A, had that provision been
introduced in Scotland. If application of the latter would not lead to the conclusion that
extradition would not be in the interests of justice, it may enable the court to discount forum
bar points in the consideration of Convention rights. However, if the court were satisfied
that the contrary result would follow, it would be necessary to see how that fitted with the
appellant’s Convention rights and the more traditional approach to forum considered in
Calder. The sheriff addressed the issue of forum bar and concluded that were he to be in a
position to apply section 83A extradition would not be barred by reason of forum. In these
circumstances, if the forum bar point lacked strength the remaining arguments as to
Convention rights and oppression, which hinged on establishing a case on forum bar, could
not succeed.
Subsequent procedure and the sheriff’s decision of 3 September 2019
[18] Having decided in the affirmative the question of whether the appellant’s extradition
would be compatible with his Convention rights, the sheriff was obliged to send the case to
the Scottish Ministers for their decision, in terms of section 93 of the 2003 Act, as to whether
the appellant was to be extradited. On the sheriff sending a case to the Scottish Ministers, in
the event that the Scottish Ministers do not make an order for a requested person’s
extradition or discharge within the required period of 2 months starting with the date when
the sheriff sends the case to the Scottish Ministers for their decision (“the appropriate day”:
section 102(7)), then section 99(2) of the 2003 Act provides that if the requested person
applies to the sheriff to be discharged, the sheriff must order his discharge. In terms of
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section 99(4), if before the required period ends the Scottish Ministers apply to the sheriff for
it to be extended the sheriff may make an order accordingly.
[19] The sheriff’s advised his decision on 4 July 2019 in open court. Both the appellant
and the Lord Advocate, on behalf of the government of the United States of America, were
represented at that hearing. The order of the sheriff included “in terms of section 87(3) and
141(1) of the Act sends the case to the Scottish Ministers for their decision whether James
Allan Craig is to be extradited.”
[20] Notwithstanding the terms of the sheriff’s order the Sheriff Clerk did not send a copy
of the sheriff’s decision to the Scottish Ministers until 9 August 2019. In answers lodged to
the note of appeal, the Scottish Ministers aver that they first became aware of the case on
6 August 2019 when contacted by Justiciary Office in connection with a proposed (but
premature) appeal by the appellant. Thereafter, enquiries were made and it was established
that the case had not been sent to Scottish Ministers. Papers were received by Scottish
Ministers from the Sheriff Clerk on 12 August 2019. On 30 August 2019 the Scottish
Ministers applied for an extension of time under section 99(4). The Scottish Ministers did
not intimate that application to the appellant or those acting for him. As the sheriff reports
in his Supplementary Report of 19 November 2019, he granted the application, it having
been placed before him on 3 September 2019, the day on which the required period was due
to expire. He considered that the delay by the Sheriff Clerk in sending the case to the
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Scottish Ministers provided a sufficient basis for an extension (until 9 October 2019). The
sheriff granted the extension without hearing the appellant.
The grounds of appeal
[21] The amended grounds of appeal are five in number:
(1) That the Sheriff’s approach in carrying out a “forum bar” assessment was ultra vires.
(2) Esto the Sheriff was entitled to carry out such an assessment, it was vitiated by error
in the conclusions he reached.
(3) That extradition in the circumstances would be incompatible with Convention rights,
(primarily article 8), as being without a lawful basis.
(4) It would be oppressive and a breach of the principles of substantial justice to allow
the Lord Advocate to secure the appellant’s extradition when the Lord Advocate bore “some
responsibility” for the unlawful failure to commence the forum bar provisions in Scotland.
(5) A decision to grant a section 99(4) extension application without intimation to the
appellant amounted to a breach of the appellant's article 6 rights.
Submissions for the appellant
[22] Senior counsel for the appellant made general over-riding submissions as to the
statutory extradition framework, the legal principles and associated case law relating to the
separation of powers, parliamentary sovereignty, and the respective roles within the rule of
law of the court, Parliament and the Executive. Reference was made inter alia to Cherry &
of State for Exiting the European Union 2018 AC 61. The respondent took no issue with these
general submissions and I do not repeat them here. They are contained more fully in a
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speaking note produced on the morning of the appeal in support of the written submissions
previously lodged. It was submitted that an essential part of the rule of law was that when
the court had made a final authoritative decision, such as the judicial review in the
associated proceedings, the Executive was bound by that ruling. Extradition was a coercive
power subject to the rule of law and required recognition of the decision in the judicial
review.
[23] Turning to the specific grounds of appeal the submissions were as follows:
(1) Ultra vires. The forum bar provisions having unlawfully not been commenced in
Scotland, the sheriff was not entitled to consider them in any capacity. Where the Executive
has acted unconstitutionally it is not for judges to fill in the gaps and maintain the substance
of the law. In the face of an un-remedied and continuing unlawfulness of the extradition
regime, then all extradition applications for those who could otherwise have prayed in aid
section 83A had to fall. The forum bar provisions were not there only for those who would
benefit from them. Parliament’s intention had been for anyone to have the opportunity to
try to persuade the court to consider the balancing factors, as long as they met the
requirements of section 83A(2)(a). The court should not attempt to squeeze the favourable
parts of the provisions into section 87: forum bar rights should be treated differently from
paragraph 22.
(2) The esto argument. The sheriff’s decision as to factors (b), (d) and (e), was incorrect.
So far as factor (g) is concerned, whilst the finding that this factor strongly favoured
discharge was correct, no sufficient reasons had been given for the determination. The
sheriff should have treated factors (b) to (f) as neutral; and factor (a) as only “favouring”
extradition rather than “strongly favouring” extradition.
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(3) Incompatibility with Convention rights. The Scottish Ministers and the Lord Advocate
had each “procured” the unlawful failure to make available the forum bar provisions which
was a breach of the appellant’s Convention rights. In pressing for the extradition in
knowledge of this procurement the Lord Advocate was acting incompatibly with the
appellant’s Convention rights, as were the Scottish Ministers in their decision to extradite.
Articles 5, 6 and 8 in particular were engaged in the present case. The UK Government’s
failure to take steps to remedy the situation was itself a breach of Article 6 and a breach of
the general requirement of legality inherent in the Convention. Those in Scotland who
might otherwise benefit from the statutory protections had to rely on less effective
protection in line with Calder v HM Advocate 2006 SCCR 607 which required the meeting of
an exceptional circumstances test.
(4) Oppression. For similar reasons it would be oppressive and a breach of the principles
of substantial justice to allow the Lord Advocate to obtain the appellant’s extradition. The
ability of a sheriff to prevent oppression was an aspect of the power of the court not a right
of the accused or requested person.
(5) Granting an extension to the required period without hearing the appellant. The time limit
which the Scottish Ministers initially had available within which to make an order for
extradition or discharge (“the required period”) started on 4 July 2019 (“the appropriate
date”) and expired on 3 September 2019. The “permitted period” within which the Scottish
Ministers were required to consider any representations received from the appellant in
terms of section 93(5) expired 4 weeks from the appropriate date, on 1 August 2019. The
Scottish Ministers were aware that the appellant was represented by solicitors at least from
the date when they received the relevant papers from the Sheriff Clerk on 12 August 2019.
They nevertheless did not intimate their application for extension of the required period
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either to the appellant or his representatives. They therefore deprived the appellant of the
opportunity to be heard by the sheriff on his submission that the Scottish Ministers must be
taken to have been aware of the extradition proceedings before the sheriff and his decision
as at 4 July 2019 and in any event on 12 August 2019 and for that reason the circumstances
were not exceptional and the application for extension should not be granted.
Submissions for the Lord Advocate
[24] The appellant’s position before the sheriff was that there was a real prospect that had
the provisions applied, he could successfully have relied upon them and extradition would
have been barred. To argue on appeal that the sheriff had no power to determine that was
an oddity. To determine the arguments advanced to him, it was necessary for the sheriff to
assess whether section 83A, assuming it to be in force and if properly applied, would have
resulted in extradition being barred. The sheriff cannot be criticised for addressing the
arguments made to him. Turning to the individual grounds:
(1) Ultra Vires. In acting as he did, the sheriff was not making up for the failures of the
Executive, acting contrary to the rule of law or acting unconstitutionally. The sheriff
required to determine the effect of the failure to commence the forum bar provisions and
give a remedy in so far as it could be shown that the failure had an impact of the person
before the court. It was a legitimate means of assessing what that impact was to consider the
position under section 83A on a hypothetical basis using guidance issued by the High Court
of England and Wales.
(2) The esto argument. Although issue might be taken with some aspects of the sheriff’s
approach, his overall conclusion was correct. The appellant’s criticisms were misguided and
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in some respects the approach adopted by the sheriff erred in favour of the appellant. The
factors taken together pointed to extradition and this ground of appeal should be rejected.
(3) Incompatibility with Convention rights and (4) Oppression. Neither ground added
anything to the arguments already advanced. The issue of incompatibility only arose in the
event that the appellant could demonstrate that he had been prejudiced by the non-
commencement of section 83A. Unless he could show that, the section was irrelevant
because reliance on it would have made no difference.
(5) Granting an extension to the required period without hearing the appellant. The
circumstances which led to this arose from an administrative error by the Sheriff Clerk and a
concern that the delayed notification could cause confusion in respect of the timing available
to the appellant to make representations. This met the test of exceptional circumstances for
an extension which was in the interests of justice under section 99. Any prejudice from a
lack of hearing could be remedied and cured in the current appeal were any such prejudice
to be identified (which it had not been).
Analysis and decision
[25] Shorn of their rhetoric, the legality arguments (grounds 1 and 3) advanced on behalf
of the appellant may perhaps be summarised in this way: it was unlawful for the UK
government not to commence the forum bar provisions in Scotland; the failure to do so
meant that, in any case where an individual maintained that he would otherwise have been
able to bring himself within the scope of section 83A, the remaining provisions of the
Extradition Act 2003 could not lawfully be relied upon; and the individual in question, being
deprived of the opportunity directly to rely on the statutory provisions must be discharged.
There was no lawful basis upon which the extradition of the appellant could be insisted on
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while the legal protections enacted for his benefit have been denied him by Executive
inaction. In relying on the existing provisions of the 2003 Act in force in Scotland, and in
purporting to take account of the issue of forum, the sheriff had acted beyond the scope of
his powers. His decision could not stand and the appellant required to be discharged. For
similar reasons, the continuation of extradition proceedings against the appellant breached
the principle of legality which underpinned his Convention rights. The fact of the appellant
having been unlawfully deprived of the “possibility of directly relying in these proceedings
on the forum bar provisions” rendered the proceedings non-compliant with the
Convention’s principle of legality, and unlawful in terms of section 6 of the Human Rights
Act 1998 and required the appellant to be discharged.
[26] It is worth noting that this does not reflect the appellant’s position before the sheriff,
which was that he acknowledged that he required, and maintained that he could, show that
there was a real prospect that had the forum bar provisions been in force, he would have
successfully relied upon section 83A and his extradition would have been barred.
[27] In any event I am unpersuaded by the submissions for the appellant. In my view it
does not follow, from the unlawfulness of a failure to commence the forum bar provisions,
that the entire existing mechanism of extradition is itself rendered unlawful. In considering
what is in fact the result of an unlawful failure such as this, it is critical to consider the effect,
as a matter of fact, which the failure may have on an individual who may otherwise have
been able to argue that the additional legislative provisions applied to him. That in turn
requires consideration of (a) the purpose of the provision(s) in question and (b) the extent to
which the individual as a result of the failure, has been prohibited from relying on
arguments which could otherwise have been made. The addition of the forum bar
provisions in England and Wales did not make the existing legislation inapplicable, and it
Page 20 ⇓
20
did not alter the mechanism or procedure to be followed. Had the forum bar provisions
been introduced in Scotland, it would still be possible to seek extradition of the appellant
under the 2003 Act.
[28] The issues underlying and argument relating to forum bar are already arguments
which could be, and frequently have been, advanced in submissions based on the existing
legislation. The intention of the addition of section 83A was that forum bar should be
elevated to a separate and formalised basis for refusing extradition, and of course, an
argument on such a formalised basis is not available to the appellant or those in his position.
However, the arguments forming the underlying rationale for the forum bar provisions are
available to him, in terms of section 87, and were indeed considered in detail by the sheriff.
[29] The sheriff’s power (vires) to consider the arguments did not hinge on an application
of the forum bar provisions in legislative terms. The sheriff proceeded on the basis that the
arguments which were effectively forum bar arguments were relevant to the assessment
which he had to make and were available for consideration by him in that context; he made
no attempt to rely in terms on the uncommenced legislative provisions. The sheriff already
had power to consider these arguments (see for example Calder v HM Advocate 2006 SCCR
609) and did not require to find separate legislative authority to do so. For example, in
United States v B [2019] SC EDIN 45, the sheriff discharged an extradition under section 87(2)
on the basis that it would not be compatible with the appellant’s Convention rights under
articles 5, 6 and 8, taking account in so concluding of the issue of forum.
[30] I recognise that such an approach is not the same as direct reliance on legislative
forum bar provisions. However, in addressing the issue within the terms of section 87, the
sheriff would of course be expected to include as part of the balancing exercise the fact that
the non-commencement of the forum bar provisions in Scotland has been found to be
Page 21 ⇓
21
unlawful. This would not require the sheriff to act as if the provisions were in force. It
would be to take into account, in terms of the decisions he is required to make, the potential
prejudice to an applicant of the failure to introduce provisions. The court would be
searching for a remedy which does not involve a practical imposition of such prejudice. In
this case, in making his assessment under section 87, the sheriff had regard to guidance
which would apply in England and Wales regarding the correct approach to forum bar. In
weighing the merits of associated forum related arguments under section 87, the court
would be entitled to assess the merits of any argument that, had the provisions been in force,
they would have operated as a complete bar to extradition in the individual case. The fact
that the state had acted unlawfully in failing to commence provisions which would have
operated this way in favour of the appellant would be a powerful factor in assessing the
effect on his convention rights and enabling a conclusion to be drawn that there were
exceptional circumstances requiring his discharge. The sheriff in the present case was able
to make an appropriate assessment and did so. In my opinion grounds 1 and 3 must fail.
[31] The appellant’s contention in ground 2 is that, on the assumption that he was entitled
to engage in such an exercise with a view to determining the impact of the failure to
commence the forum bar provisions on the appellant’s case, the sheriff’s conclusion that, on
a consideration of the factors specified in section 83A, the appellant’s extradition would not
“not be in the interests of justice”, is fundamentally vitiated by error. I disagree
[32] The sheriff accepted that while the evidence as to the location of the appellant’s
activity which was material to the commission of the extradition offence was somewhat
vague, it could be inferred that a substantial measure of that activity (in the sense of logging
onto a computer or computers, creating accounts and posting material) had taken place or at
had at least been facilitated in Scotland. He accordingly turned to consider the matters
Page 22 ⇓
22
relating to the interests of justice which are specified in section 83A(3). The first of these is
“(a) the place where most of the loss or harm resulting from the extradition offence occurred
or was intended to occur”. The sheriff located the place where most of the harm resulted as
the United States. It is not argued that he was wrong to do so. In my opinion, on the
material before the sheriff, he could not have decided otherwise. The fraud of which the
appellant was accused involved the distortion of a United States securities market (the
NASDAQ exchange) by the dissemination of false information. That in itself was harmful
but, as the sheriff correctly stated, there will have been consequential harm for the US
registered companies whose securities were affected as well as financial losses for investors
who traded on the basis of the false information, many of whom, it might reasonably be
assumed, would be of US domicile. The Divisional Court in Love, at para 28, described
consideration (a) as a very weighty factor. I agree.
[33] Consideration (b) is “the interests of any victims of the extradition offence”. The
sheriff thought it reasonable to infer that there were significant United States victim
interests. The appellant submits that he did not identify what these interests were and how
they would be met by trial in the United States. He goes on to argue that the appellant’s
settlement with the SEC can be taken to have satisfied any such interests, making this
consideration neutral. I am not persuaded that the appellant’s settlement with the SEC, on
the basis of payment of a sum equivalent to his modest profit from the fraud advances his
position. It was not accompanied by any admission of culpability on the part of the
appellant. While I see there to be more substance in the appellant’s submission that the
sheriff did not identify what were the United States victim interests or how they would be
affected by trial in the United States, the submission does not, and in my opinion could not,
go the distance of arguing that there are no victim interests. If an example were required, I
Page 23 ⇓
23
would point to the interest of those having responsibility for the relevant securities market
in maintaining the integrity of that market as a reliable indicator of the value of the securities
traded on it, and accordingly in supporting the prosecution of those who unlawfully
undermine the integrity of the market. In Love at para 29 the Divisional Court saw it as self-
evident that the interests of victims are likely to favour trial in the jurisdiction where a trial
will take place. I would agree. The Divisional Court also stated in Love that victims of crime
may have an interest in having the case tried according to their own local laws and
procedures, and in any sentence being imposed following conviction reflecting the values of
their own legal system. I would take no issue with that. There was nothing before the
sheriff to suggest that there was any likelihood of a prosecution in the United Kingdom. A
trial in the United States would be according to the laws, procedures and values of such
victims as can be localised. Like the sheriff I consider that this factor clearly favours
extradition.
[34] The sheriff took the view that consideration (c) was neutral in the absence of any
statement of belief on the part of a prosecutor in the United Kingdom. The appellant does
not suggest otherwise.
[35] Consideration (d) is that were the requested person 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. The sheriff considered that it was not clear how complex and demanding it would
be to obtain evidence of impact on the relevant market if the matter was to be prosecuted in
Scotland. I can see that that might well be so, but I also see force in the what was said by the
para 35: there is an air of unreality about considering the ease or otherwise with a
Page 24 ⇓
24
prosecution could be brought in the United Kingdom when the fact is that there is no real
prospect of such a prosecution. At para 50 in Scott the Divisional Court said:
“When the practical reality is that there will be no trial in this country it is hard to see
that this factor has any part to play in determining where the interests of justice lie
pursuant to section 83A.”
I would agree. It follows that while it is difficult to criticise the sheriff for following parties’
invitation to consider this factor, he should have left it out of account. A similar point can be
made in relation to consideration (e): any delay that might result from proceeding in one
jurisdiction rather than another. Where there is in fact no choice to be made, for the reasons
given by the Divisional Court, I would simply leave this consideration out of account. The
sheriff can therefore be said to have erred in finding that consideration (e), like consideration
(d), favoured extradition.
[36] Consideration (f) is the desirability and practicability of all prosecutions relating to
the extradition offence taking place in one jurisdiction. This matter does not arise. The
sheriff attached no weight to it.
[37] Looking to consideration (g), the requested person’s connections with the United
Kingdom, the sheriff accepted that that strongly favoured discharge. The appellant agrees
but nevertheless submits that the sheriff did not subject the clarity and strength of the
appellant’s connection with Scotland to a sufficiently rigorous analysis. Reference is made
to Love at para 40 where the Divisional Court held that “connections with the United
Kingdom” went beyond the legal connections of citizenship and right of residence. Having
accepted that the appellant’s connections with the United Kingdom strongly favoured
discharge, I do not see why the sheriff was required to go further. I do not understand it to
have been disputed that the appellant was thoroughly connected with the United Kingdom,
through citizenship, residence and no doubt many other ties. Such a person has a legitimate
Page 25 ⇓
25
expectation that, if he is to be prosecuted, he will be prosecuted in the United Kingdom.
However, for reasons of good policy, the United Kingdom allows the extradition of its
nationals who are resident in and otherwise connected with the United Kingdom where
their conduct has made them subject to the criminal jurisdiction of other territories. There is
nothing in the sheriff’s approach to consideration (g) which amounts to an error.
[38] As the court has been invited to do by the appellant, I have examined the way in
which the sheriff approached each of the statutory considerations bearing on assessment of
whether extradition would not be in the interests of justice. The appellant’s object in
adopting this approach has been to demonstrate that the sheriff gave weight to factors which
he should not have given weight to, with a view to inviting this court to consider the matter
afresh. The appellant has succeeded in his approach to the extent that whereas the sheriff
found considerations (d) and (e) to favour extradition, I would accept that these are
considerations which should have been left out of account in a case where there is no
practical alternative forum on offer to that which is proposed by the requesting state.
However, the question for this court is whether the sheriff was wrong in finding that
extradition would not “not be in the interests of justice.” While I accept that the sheriff gave
weight to considerations which he took to favour extradition which he should have left out
of account, I do not consider that the sheriff was wrong in the conclusion he came to on the
hypothetical question of what would have been the result had section 83A applied in
Scotland.
[39] So far as ground 4 is concerned, I do not accept the underlying assumption that
extradition is a remedy for the benefit of the Lord Advocate. The role of the Lord Advocate
as representing the requesting authority is well understood. In any event, the decision not
to commence the provisions is one made by the UK Government and the fact that the Lord
Page 26 ⇓
26
Advocate might have made representations as to the suitability or otherwise of doing so
does not shift responsibility from the UK Government to the Lord Advocate. It does not
deprive a requesting authority of the opportunity to rely on existing extradition provisions
which remain in legal force in Scotland.
[40] As for ground 5, I cannot detect any error in law on the part of the sheriff. In the
absence of any statutory requirements it was a matter of the sheriff to determine what
procedure he adopted when considering the application made to him in terms of
section 99(4). On the substance of the matter it cannot be said that the sheriff’s decision, in
what was an exercise of discretion, was not one which was open to him in the circumstances.
These circumstances, as the Lord Advocate submitted, were exceptional, there had been a
delay of more than a month in sending the sheriff’s decision to the Scottish Ministers.
Extension allowed additional time lest there had been confusion over when the appellant
had to make representations, should he have wished to do so.
[41] I propose that the appeal be refused.
Page 27 ⇓
27
APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Justice Clerk
Lord Brodie
Lord Turnbull
OPINION OF LORD BRODIE
[2020] HCJAC 22
HCA/2019/009/XM
in
APPEAL UNDER SECTION 103 OF THE EXTRADITION ACT 2003
by
JAMES CRAIG
Appellant
against
HER MAJESTY’S ADVOCATE
Respondent
Appellant: O’Neill QC, Macintosh QC; Dunne Defence, Edinburgh
Respondent: M Richardson QC, AD representing the Lord Advocate on behalf of the American
Authorities; Crown Agent
3 June 2020
[42] I respectfully agree with your Ladyship that this appeal should be dismissed for the
reasons that your Ladyship gives. I merely seek to add a few observations in relation to
what was said in support of the appellant’s grounds 1, 3 and 4.
Ground 1
[43] This is an appeal in terms of section 103 of the 2003 Act. Strictly, it lies only with
leave but that is not of importance in that the practice of the court is to consider the question
of leave together with the substance of the appeal. However, the court’s powers to allow an
Page 28 ⇓
28
appeal are limited by the provisions of section 104. In terms of section 104(2) the court may
allow an appeal only if the conditions in subsection (3) or (4) are satisfied. The respective
conditions are as follows:
“(3) The conditions are that—
(a) the judge ought to have decided a question before him at the extradition hearing
differently;
(b) if he had decided the question in the way he ought to have done, he would have
been required to order the person's discharge.
(4) The conditions are that—
(a) an issue is raised that was not raised at the extradition hearing or evidence is
available that was not available at the extradition hearing;
(b) the issue or evidence would have resulted in the judge deciding a question
before him at the extradition hearing differently;
(c) if he had decided the question in that way, he would have been required to order
the person's discharge.”
[44] It is not entirely easy to fit ground of appeal 1 into the framework provided by
section 104(2), (3) and (4). A “question,” as that word is used in subsection (3) is clearly a
reference to one of the matters that the Act requires the judge to determine sequentially in
the course of the extradition hearing. Here the question the sheriff thought he was deciding
when he gave consideration to the hypothetical impact of section 83A was whether the
appellant’s extradition would be compatible with his Convention rights in terms of section
87. He answered that question in the affirmative. Had he answered it in the negative he
would have been obliged to discharge the appellant. However, what is complained of in the
ground of appeal is not that the sheriff ought to have answered the section 87 question in the
negative, rather the complaint is that he ought not to have answered the question at all;
according to the appellant for the sheriff even to address the question was “ultra vires –
indeed unconstitutional”. This is a surprising assertion, and all the more surprising in that
the appellant would seem to have expressly invited the sheriff to address the question at the
extradition hearing. However, if the appellant’s complaint is that the sheriff even asked the
Page 29 ⇓
29
section 87 question (or a hypothetical section 83A question) then there would seem to be no
scope, on the appellant’s approach, for the sheriff lawfully deciding the question “as he
ought to have done”, that being in a way that “he would have been required to order the
person’s discharge”. If the sheriff had no power to address and then decide the section 87
question, he had no power to discharge the appellant. Neither does this court have the
power to allow the appeal, at least on the basis that the subsection (3) conditions are
satisfied. The result is no different if it be supposed that the proposition that the sheriff had
no power to address and then decide the section 87 question (or a hypothetical section 83A
question) is regarded as “an issue [which has been] raised that was not raised at the
extradition hearing”, and therefore within the ambit of subsection (4). This court can only
allow the appeal under reference to subsection (4) if the subsection (4) issue would have
resulted in the sheriff deciding a question before him at the extradition hearing differently
and that if he had decided the question in that way, he would have been required to order
the person's discharge. The subsection (4) issue, on the appellant’s approach, would be the
absence of power to decide a question. At risk of repetition, if the sheriff had no power to
make a decision, he could not discharge the appellant.
[45] Now, it may be suggested that this is a rather pedestrian, or unduly literal, approach
to the submissions made on behalf of the appellant in support his ground of appeal 1. The
fact remains that if the sheriff did not have power to act, he certainly did not have power to
discharge the appellant. Equally, if the sheriff had no power to make decisions, this court
has no power to allow what is a statutory appeal. It is difficult to see what would be the
outcome of such a situation of judicial powerlessness, but, in my opinion, such a situation
does not arise. The 2003 Act is in force in Scotland, although the forum bar provisions
which apply in England and Wales and Northern Ireland and which Parliament must be
Page 30 ⇓
30
taken to have intended to apply in Scotland if they were commenced in England are not in
force. I accept that compliance with the rule of law would require the United Kingdom
government to commence the forum bar provisions and accordingly the government’s
continuing failure can properly be described as unlawful, but that does not have the effect of
invalidating all the other provisions of the Act. In so far as these provisions confer powers
on the sheriff and on this court, the sheriff and this court have these powers. They do not, of
course, have powers that are not conferred. Therefore, the appellant is entitled to argue that
the sheriff did not have power to act as if the forum bar provisions were in force. That is not
what the sheriff did (see report paras [43] to [45]). Rather, he applied his mind to what
would have been the outcome in the hypothetical situation where the forum bar provisions
had been commenced in Scotland, with a view to then considering how that outcome should
be regarded as impacting on the proportionality and legality of extradition from the
perspective of article 8 rights and section 87 of the 2003 Act. At risk of repetition, that is
what he was invited to do by the appellant but also, in my opinion, in proceeding in the way
he did the sheriff respected the rule of law by providing something very close to the
protection that Parliament intended requested persons should have, but within the
framework of the law as it actually applies to Scotland. As the sheriff assessed the various
section 83A considerations in relation to the appellant’s case, he did not consider that
extradition would have been barred by reason of forum (see report para [49]), he therefore
did not reach the stage of determining how a balance in favour of a hypothetical forum bar
would impact on whether the extradition of the appellant would be in accordance with the
law and proportionate, but by considering the issue he had afforded the appellant
equivalent protection to that which would have been afforded to the appellant had the
forum bar provisions been in force. I do not see how the sheriff can be criticised.
Page 31 ⇓
31
Ground 3
[46] The appellant’s submission in support of ground 3 comes to be that for the
Lord Advocate and the Scottish Ministers to press for the extradition of the appellant and
order his extradition when they know they had procured the unlawful failure to make
available the forum bar provisions is acting in a way which is incompatible with the
appellant’s Convention rights.
[47] Notwithstanding a number of references to authority, just why “pressing” for the
extradition of the appellant and ordering his extradition “when [the Lord Advocate and the
Scottish Ministers] know they procured the unlawful failure to make available the forum bar
provisions” is incompatible with the appellant’s Convention rights is not explained.
[48] The relevant question for the sheriff, in terms of section 87, was whether the
appellant’s extradition would be compatible with Convention rights. Accordingly, if it be
the case that the failure of the Secretary of State to commence the forum bar provisions
following Lord Malcolm’s decision in Craig is a breach of the appellant’s article 6 rights
because the State has denied him an effective remedy, as the appellant suggests under
reference to Chis v Romania [2010] EctHR 3360/03, that is beside the point; the focus of
section 87 is the requested person’s extradition giving rise to incompatibility, not anything
else.
[48] It is true, as the sheriff fully appreciated, that the appellant’s extradition will interfere
with the interests which are protected by article 8 and that such interference, if it is not to be
incompatible with Convention rights must be “in accordance with law”. Lord Malcolm held
the failure to commence the forum bar provisions in Scotland to be unlawful. It does not
follow, as the appellant would seek to suggest (at least in respect of a person a substantial
Page 32 ⇓
32
measure of whose relevant activity was performed in the United Kingdom), that extradition
to a category 2 territory is thereby rendered other than in accordance with law. There is no
Convention right to have the benefit of forum bar provisions, and I do not understand the
appellant to say that there is. What he does seem to say is that the unlawful failure to
commence the forum bar provisions so taints or disrupts the provisions of part 2 of the 2003
Act which are in force in Scotland that they no longer operate as law. That is simply not so.
The court has no power to strike down an Act of the United Kingdom Parliament and has
not purported to do so. Part 2 of the 2003 Act is in force in Scotland without the forum bar
provisions. Notwithstanding that, I can see that it can be argued that to apply those
provisions of the Act which are in force in Scotland without any regard to what Parliament
must be taken to have intended in respect of forum bar, might not be fully “in accordance
with law”. However, if before sending the case to the Scottish Ministers in terms of section
87(3) the sheriff has effectively afforded the requested person the protections that Parliament
intended that he should have, by considering whether had the forum bar provisions been in
force how this would have affected the appellant’s position, it appears to me that any
extradition which follows will be in accordance with law. That is what happened in the
present case.
Ground 4
[49] The appellant complains of oppression on the part of the Lord Advocate. The point
was taken before the sheriff; the appellant moved him to “uphold the plea in bar of
oppression” (report paras [25] to [28]). The argument involves two propositions: (1) that the
sheriff had, and should have exercised, an “ability …to intervene to prevent oppression”;
and (2) that as the holders of the office of Lord Advocate from time to time bear some
Page 33 ⇓
33
responsibility for the unlawful failure to commence the forum bar provisions in Scotland, it
would be oppressive and a breach of the principles of justice to allow the Lord Advocate to
obtain the extradition of the appellant in these proceedings by the application of the 2003
Act as it applies to Scotland (characterised by the appellant as the “unlawfully limited
legislation”). I do not accept either proposition.
[50] Part 2 of the 2003 Act is Parliament’s attempt to balance the interest in complying
with the United Kingdom’s international obligations and facilitating the bringing of alleged
offenders and convicted offenders to justice, on the one hand, and the interest in avoiding
manifest injustice or oppression being suffered by the individual who is the subject of a
request, on the other (Scott Baker Review paras 2.3 and 2.5). It does so by enacting a code
which allocates a role to the executive and a role to the court and which provides a precise
decision-making framework within which the two bodies must operate. It imposes certain
duties and it confers certain powers. These powers include the power of the court to
discharge a requested person in specified circumstances (but not otherwise). Among these
powers is the power conferred by section 87(2) to discharge the requested person if his
extradition would not be compatible with his Convention rights. That is potentially a wide,
albeit not entirely open-ended, power to ensure that the interests of the requested person are
protected. Given this structure I have difficulty in seeing any scope for extra-statutory
discharge on the ground of “oppression”. It is true that the English courts have felt able to
develop a jurisdiction to add considerations of allegations of abuse of process to extradition
to 94) but, as Sheriff Welsh QC in Lord Advocate (for the Government of the United States of
Page 34 ⇓
34
recognised in Scotland.
[51] Assuming in the appellant’s favour that the legislation allows room for a requested
person to argue that continuing with proceedings for his extradition, despite it being
permissible under reference to the relevant statutory provisions, would nevertheless be
oppressive, I do not consider that anything approaching such a case has been made out here.
Although subjected to vehement criticism by counsel for the appellant as having procured
an undermining of the rule of law, I find it difficult to see what the Lord Advocate (I include
in that reference the present office-holder and his predecessors and their representatives)
has done wrong. He opposed the introduction of the forum bar provisions for reasons of
policy which the Scott Baker Review considered to be sound. That position has no doubt
been maintained, but responsibility for commencing the forum bar provisions in England
and Wales and Northern Ireland but not in Scotland is that of the United Kingdom
government. The Lord Advocate has acted on behalf of the United States Government as
statute requires him to do but in doing so has been content that the appellant effectively be
given the protection that the forum bar provisions are intended to provide. More critically,
because the appellant has effectively been given that protection, the appellant cannot say
that he has suffered prejudice. That is what the plea of oppression, in the context of criminal
proceedings with which the appellant seeks to draw an analogy, is intended to prevent. The
appellant referred to the Full Bench decision in McFadyen v Annan 1992 JC 53. In that case
all of the five judges delivered opinions and all of them relied on what had been said by
Lord Justice General Emslie in Stuurman v HM Advocate 1980 JC 111 delivering the opinion
of the court in what was another Full Bench decision:
Page 35 ⇓
35
“The test which fell to be applied and which was applied in disposing of the plea in
bar is not in doubt. As the authorities show, the High Court of Justiciary has power
to intervene to prevent the Lord Advocate from proceeding upon a particular
indictment but this power will be exercised only in special circumstances which are
likely to be rare, The special circumstances must indeed be such as to satisfy the
Court that, having regard to the principles of substantial justice and of fair trial, to
require an accused to face trial would be oppressive. Each case will depend on its
own merits, and where the alleged oppression is said to arise from events alleged to
be prejudicial to the prospects of fair trial the question for the Court is whether the
risk of prejudice is so grave that no direction of the trial Judge, however careful,
could reasonably be expected to remove it.”
What oppression is about in this context therefore is conduct which produces prejudice of
such gravity that no action on the part of the court can obviate it. That cannot be said to
have occurred here.
Page 36 ⇓
36
APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Justice Clerk
Lord Brodie
Lord Turnbull
[2020] HCJAC 22
HCA/2019/009/XM
OPINION OF LORD TURNBULL
in
APPEAL UNDER SECTION 103 OF THE EXTRADITION ACT 2003
by
JAMES CRAIG
Appellant
against
HER MAJESTY’S ADVOCATE
Respondent
Appellant: O’Neill QC, Macintosh QC; Dunne Defence, Edinburgh
Respondent: M Richardson QC, AD representing the Lord Advocate on behalf of the American
Authorities; Crown Agent
3 June 2020
[52] I have read the opinions of your Ladyship in the chair and your Lordship. I agree
that the appeal should be refused for the reasons given by your Ladyship in the chair. There
is nothing further which I can usefully add.