On 23 February 2022, the Supreme Court allowed an appeal by Mr. James Craig, challenging the failure of Scottish Ministers to give effect to section 79(1) of the Extradition Act 2003 (‘2003 Act’) the ‘forum bar’, in Scotland. The ‘forum bar’ defence, which was brought into in force in England, Wales, and Northern Ireland on 14 October 2013, requires courts to consider whether it would be in the interests of justice to extradite a requested person to a Requesting State, where for example, a substantial measure of their conduct was performed in the UK.
Mr. Craig, who is accused of posting false information on Twitter to reduce the value of shares in US-based companies, and then purchasing and reselling them on advantageous terms, brought the judicial review against Scottish Ministers on the basis that where the forum provisions had not been brought into force, per the Criminal and Courts Act 2013 (‘2013 Act’) section 61, he could not mount a defence on the basis of that ground.
In the Scottish Courts
On 12 December 2018, the Scottish Court of Session Outer House (‘CSOH’) found the failure to implement the forum bar to be unlawful, and rejected the argument advanced on behalf of the Scottish Ministers that section 61 of the 2013 Act permitted the forum bar provisions to be brought into force at different times in different parts of the UK. Lord Malcolm, giving the CSOH judgment, held that Parliament intended that the forum bar would come into effect throughout the UK at the same time, and that the 2013 Act conferred no power for the bar to be enacted at different times, in different parts of the UK. Lord Malcolm also made a ‘declaratory order’ that in its continuing failure to bring the ‘forum bar’ into force in Scotland, , the UK Government was acting unlawfully and contrary to its duties. No appeal was made against that judgment, but the Government’s failure to commence the order continued.
Subsequent to the CSOH judgment, the extradition matter went before the Sherriff’s court, on 13 June 2019, where Mr. Craig argued that, per Article 8 of the European Convention on Human Rights (‘ECHR’), the requirement that any interference with a person’s private and family life be ‘in accordance with the law’ had not been met, by reason of the Government’s continuing unlawful failure to commence the forum bar provisions. On July 4, 2019, the Sherriff held that there was no bar to extradition under section 79 of the 2003 Act, and the case was subsequently sent to Scottish Ministers for their decision as to whether Mr. Craig should be extradited. As part of the Sherriff’s reasoning, he carried out a hypothetical exercise, considering whether Mr. Craig would have succeeded if the forum bar defence was open to him. In his conclusion that Mr. Craig would have been unlikely to succeed under the forum bar, he held that the argument on legality, under article 8, did not arise. On 6 September 2019, the Scottish Ministers decided, under section 93 of the 2003 Act, which provides for the Secretary of State to decide whether a person will be extradited, that the appellant would be extradited.
Mr. Craig appealed the order of the Scottish Ministers to the Scottish High Court under section 103 of the EA 2003, and argued that the Sherriff should not have embarked on a hypothetical application of the forum bar provisions, but rather, ought to have focused on the legal consequences of the Government’s unlawful failure to bring the provisions into force, thereby unlawfully depriving the appellant of the forum bar defence, thereby rendering the order for extradition incompatible with Article 8(2) of the ECHR; requirement of legality. These arguments were rejected by the High Court, which held that the legal consequences of the unlawful failure to commence the forum bar provisions depended on the extent to which Mr. Craig had been prevented from relying on arguments which could otherwise have been made.
Grounds of Appeal
In the Supreme Court, Lord Reed, giving the judgment, considered that the question which was ultimately raised by Mr. Craig’s appeal was whether the Scottish Ministers were acting ultra vires in performing their functions in relation to the appellant’s extradition. He noted however, as an important preliminary matter, that in September 2021, the Secretary of State brought the forum bar provisions into force in Scotland but noted that they would not apply if the Sherriff’s 2019 judgment was valid.
Effect of the Declaratory Order
The first substantive issue considered by the Supreme Court was the effect of Lord Malcolm’s declaratory order in the CSOH. First, the Home Secretary (‘SSHD’) on behalf of the UK Government, argued that the CSOH, by making a declaratory order and refraining from granting an order for specific performance (a remedy available in Scotland for the enforcement of statutory duties, by virtue of section 45 of the Court of Session Act 1988), had in effect told the SSHD that the failure to commence the provisions was unlawful, but not that the provisions had to now be commenced. Lord Reed rejected that submission and stressed that Lord Malcolm’s declaration in the CSOH was not merely a rejection of the contention that the 2013 Act permitted the commencement of the forum bar provisions in only part of the UK but was a clarification that the Scottish Minister’s opposition to the provisions was not a lawful justification for the failure to bring them into force in Scotland.
Second, the SSHD argued that that the effect of the declaratory order was not that the forum bar provisions were unlawfully excluded from the extradition scheme, but that they were “lawfully recognised as not part of the scheme…on a basis that could be relied upon to bring them within the scheme if desired”. Rejecting this second submission, Lord Reed emphasised that the order did not merely imply that the SSHD had, in the past tense, acted unlawfully, but expressed that in its continuing failure to bring into force the forum provisions, the UK Government was, in the present, acting unlawfully (court emphasis). On that basis, and in the absence of any further order declaring the failure to commence the provisions no longer unlawful, the SSHD remained under a duty to act in conformity with the court’s order.
Third, the SSHD argued that, where a statutory duty existed, capable of enforcement by a coercive order, a party should apply for such an order against a government minister, instead of relying upon compliance with a declaratory order. Lord Reed rejected this third argument and highlighted the important relationship of trust between the Executive and the Judiciary and clarified that the rule of law ought to provide a basis whereby court orders, through declarations, can provide effective remedy. Furthermore, that where a legally enforceable duty to act, or to refrain from acting, could be established, the court was capable of making a coercive order; although Lord Reed acknowledged that this was only done in exceptional cases attributable to mistakes and misunderstandings rather than deliberate disregard of declarations by the Executive.
In an important reiteration of UK constitutional law principles, Lord Reed cited Dicey, Introduction to the Study of the Law of the Constitution, 10th ed (1959), pp 193-194, and reminded parties that a minister who acts in disregard of the law as declared by the courts will normally be acting outside his authority as a minister and may consequently expose himself to a personal liability for wrongdoing.
Article 8 and the powers of the Scottish Ministers
Under this heading, Lord Reed set out the position in law, and the key questions to be addressed for the purposes Article 8(2); firstly, whether an interference was ‘in accordance with the law’; secondly, whether the interference pursued a legitimate aim; and thirdly, whether the interference was a proportionate means of achieving the legitimate aim pursued, balancing the competing public interests of the State against the private interests of the citizen. In Lord Reed’s judgment, any interference under Article 8 ’ must, in the first place, be in conformity with domestic law and must meet the requirements of the rule of law, so as to afford adequate legal protection against arbitrariness. In consideration of the first question, Lord Reed cited Halford v United Kingdom (1997) 24 EHRR 523, 544, para 49, where it was held that Article 8(2) not only necessitated compliance with domestic law, but also related to the quality of that law, and required ‘it to be compatible with the rule of law’.
Having clarified the correct approach, Lord Reed considered the lower courts to have been mistaken in their conclusions on this ground. Whilst they had accepted that the SSHD had acted unlawfully in failing to bring into force the forum bar provisions in Scotland, crucially, they had not treated this failure as a continuing breach of the law, resulting in an interference with Mr. Craig’s Article 8 rights: in ‘accordance with the law’. Rather, the lower courts had treated the unlawfulness of that failure, and any consequent prejudice suffered by Mr. Craig through his inability to invoke a forum bar defence, as a matter which could be fully taken into account in the balancing exercise between the public and private interests involved, i.e., the hypothetical assessment of whether Mr. Craig was likely to succeed under the forum bar. Lord Reed considered this approach to be wrong, and held that where it was an absolute requirement for an interference with an individual’s Article 8 right to be in accordance with the law (see re Gallagher and R (P) v Secretary of State for Justice  UKSC 3;  AC 185), and neither the Executive nor the Legislature enjoyed any margin of appreciation, discretion or judgment in relation to that requirement, the lower courts had incorrectly proceeded directly to the third question, namely whether the interference with a person’s right was ‘necessary in a democratic society’, and mistakenly treated the SSHD’s failure to comply with section 61 of the 2013 Act as having a potential bearing on that issue.
On appeal, the SSHD argued that whilst the provisions had not been implemented in Scotland, the acts of the Scottish Ministers were in accordance with the law, as the forum bar provisions were not in force. The Supreme Court rejected this argument as flawed, on the basis that, following Lord Malcolm’s declaration, which preceded the final extradition decision by Scottish Ministers, the procedure was not in compliance with domestic law and, therefore, not ‘in accordance with the law under article 8’ of the ECHR. The Supreme Court considered the consequence of its findings to be that the acts of the Scottish Ministers, in making the extradition order, were incompatible with the appellant’s Convention rights, and were therefore ultra vires, thus invalid.
Allowing the appeal, leave was given to the Scottish High Court to make such an order as necessary to enable a new extradition hearing to be held before a different Sherriff. At that hearing, the Supreme Court made clear that it would be open to Mr. Craig to rely on the forum bar provisions.