Craig v Her Majesty’s Advocate (for the Authorities of the US of America) and one other (Scotland) [2022] UKSC 6 – UKSCblog

On this put up, Clare Montgomery KC of Matrix Chambers feedback on the choice in Craig v Her Majesty’s Advocate (for the Authorities of the US of America) and one other (Scotland) [2022] UKSC 6. The Authorities unanimously allowed Craig’s attraction, holding {that a} new extradition listening to could also be held earlier than a distinct sheriff.


James Craig is charged in the US with posting false info on Twitter with a purpose to have an effect on the value of shares and to commerce in them to his personal benefit. In 2017 the US utilized to extradite him. Mr Craig maintains that, for the reason that conduct befell in Scotland, he needs to be tried in Scotland. He seeks to invoke a ‘discussion board bar’ protection. It is a safety, really useful by the Committee reviewing US/UK extradition preparations in 2012, to appropriate the arbitrary use of US lengthy arm jurisdiction in extradition circumstances. It was thought-about to be within the pursuits of justice for choices about discussion board, in circumstances the place there was concurrent jurisdiction between States, to be taken by a choose in open courtroom, the place the individual whose extradition was requested would have the chance to place his case , fairly than in personal by prosecutors. The Committee really useful that the Authorities introduce a discussion board bar as quickly as doable. A discussion board bar was accordingly inserted into each elements of the Extradition Act 2003. Within the case of the USA, which is ruled by Half 2, part 83A comprises the detailed discussion board safety provisions.

The discussion board bar was introduced into pressure in England, Wales and Northern Eire on 14 October 2013. It was not introduced into pressure in Scotland. Mr Craig may subsequently not depend on it in his protection in 2017. In 2018 the Outer Home, Courtroom of Session (Craig v Advocate Basic for Scotland [2018] CSOH 117) held that the refusal to convey the discussion board bar into pressure in Scotland (for which no ample clarification was ever supplied) was illegal. Lord Malcolm made a declaration to that impact. The choice was not appealed however the Authorities continued to refuse to convey the discussion board bar into impact and Mr Craig was ordered to be extradited in 2020. In 2021 the discussion board bar provisions have been lastly introduced into pressure in Scotland however with none retrospective impact.

Procedural irregularity or affront to the rule of legislation?

The Authorities argued that its failure to begin the discussion board bar provisions made no distinction. Nevertheless, because the courts noticed, if that have been true, it might be laborious to see why they have been enacted, and the Scottish Authorities opposed their graduation. The supply clearly supplied an open justice safety from inappropriate lengthy arm jurisdiction.

Extra troubling was the argument that the Authorities was entitled to behave unlawfully within the absence of an order for particular efficiency. This was a beginning submission. The Authorities had no authorized justification for refusing to usher in the discussion board bar safety. It had been advised that within the 2018 declaration. It had an obligation to behave in conformity with that order. Its refusal to take action with out compulsion threatened the constitutional expectation underpinning the connection between the Authorities and the courts. The courts had at all times beforehand been prepared to forbear from making coercive orders in opposition to the Authorities, and to make declaratory orders as an alternative. However belief depending on the Authorities’s compliance with declaratory orders within the absence of coercion. As Lord Reed, President, writing for the Courtroom mentioned; “it’s as a result of ours is a society ruled by the rule of legislation, the place the Authorities might be trusted to adjust to courtroom orders with out having to be coerced, that declaratory orders can present an efficient treatment.”

The Authorities declare that any illegality was of a merely procedural nature obtained equally quick shift from Lord Reed. The process adopted was not “in accordance with the legislation” inside the that means of article 8 of the Conference in order that the extradition course of was incompatible with conference rights and subsequently invalid.

There may be an unlucky similarity between the strategy of the Authorities in Craig and the conduct to the Authorities in R (on the appliance of Majera (previously SM (Rwanda))) v Secretary of State for the House Division [2021] UKSC 46. Mr Majera had been granted bail by the First Tier Tribunal which permitted him to hold out unpaid voluntary work. The House Secretary ignored the order as a result of it was thought-about to be illegal. Lord Reed, President, once more writing for the courtroom, identified the authorized obligation to obey a courtroom order which has not been put aside. “It’s a primary precept {that a} choice of a courtroom is binding as between the events, and can’t be ignored or put aside by anybody, together with (certainly it might pretty be mentioned, least of all) the manager”. This is applicable to orders that are claimed to be invalid, in addition to to orders that are merely irregular.

It may be thought that these circumstances illustrate a profound unwillingness on the a part of the Authorities to respect particular person rights the place these rights seem to battle with some well-liked coverage targets. The case can also show the variations rising between the manager and the courts in regards to the significance of the rule of legislation. The brand new Lord Chancellor, whose oath requires him to respect the rule of legislation, is identical man who appeared to simply accept that the UK may however want to “break worldwide legislation in a really particular and restricted method”. The Lord Chancellor will now have to mirror on whether or not the rule of legislation continues to be a central function of the connection between the manager and the courts.


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