Introduction

Craig v Her Majesty's Advocate (for the Government of the United States of America) & Anor (Scotland) ([2022] WLR(D) 100) is a landmark case adjudicated by the United Kingdom Supreme Court on February 23, 2022. The case centers on the extradition powers of the Scottish Ministers, particularly in the context of the Scotland Act 1998 and the European Convention on Human Rights (ECHR). The appellant, Mr. James Craig, a British citizen residing in Scotland, faced extradition to the United States on charges of fraud related to manipulating stock values via social media. The crux of the case lies in the Government's failure to enact a commencement order for the Crime and Courts Act 2013's forum bar provisions in Scotland, rendering the extradition proceedings unlawful.

Summary of the Judgment

The Supreme Court upheld the High Court of Justiciary’s decision that the UK Government's persistent failure to implement the forum bar provisions of the Crime and Courts Act 2013 in Scotland was unlawful. This non-implementation was contrary to the duties imposed by section 61 of the Act. As a result, the extradition proceedings against Mr. Craig were deemed ultra vires, meaning they exceeded the legal powers of the Scottish Ministers. The case underscores that governmental bodies must adhere strictly to legislative mandates, especially those protecting individual rights under the ECHR.

Analysis

Precedents Cited

The judgment references several key precedents that shaped the court’s decision:

• R v Secretary of State for the Home Department, ex p Fire Brigades Union [1995] 2 AC 513: Established that failure to commence legislation without a valid reason constitutes an abuse of power.
• M v Home Office [1994] 1 AC 377: Affirmed that the executive is expected to comply with declaratory orders, reinforcing the principle of mutual trust between the courts and the government.
• H v Lord Advocate [2012] UKSC 24: Highlighted that devolution issues can be appealed to the Supreme Court, setting a framework for the present case.
• Vince v Advocate General for Scotland [2019] CSIH 51; 2020 SC 90: Demonstrated the government's expectation to comply with declaratory orders without coercive measures.

These cases collectively reinforce the judiciary's role in ensuring that the executive branch acts within its legal boundaries and adheres to established legislation.

Legal Reasoning

The court's legal reasoning was multifaceted, focusing on the following key points:

• Legislative Compliance: The Government failed to comply with section 61 of the Crime and Courts Act 2013, which mandates the Secretary of State to bring into force specific extradition provisions. This non-compliance rendered the extradition proceedings against Mr. Craig unlawful.
• Ultra Vires Actions: By proceeding with extradition without activating the forum bar provisions, the Scottish Ministers acted beyond their legal authority, making their actions null and void.
• Declaratory Orders: The court emphasized that declaratory orders, while not coercive, impose a legal obligation on the Government to act. The persistent non-compliance by the Government breached this obligation.
• Article 8 ECHR: The interference with Mr. Craig's right to respect for his private and family life was not in accordance with the law, as the Government failed to provide the statutory safeguards intended by the forum bar provisions.

The judgment meticulously dissected the statutory framework, emphasizing that compliance with legislative mandates is non-negotiable, especially when they are designed to protect fundamental human rights.

Impact

This judgment has profound implications for several areas of law and governance:

• Extradition Law: Reinforces the necessity for all parts of the UK to uniformly implement extradition provisions, ensuring that individuals' rights are uniformly protected across jurisdictions.
• Devolution and Constitutional Law: Clarifies the extent of devolved powers and underscores that devolved administrations cannot circumvent national legislative mandates, particularly when human rights are at stake.
• Government Accountability: Enhances judicial oversight over executive actions, ensuring that governmental bodies adhere strictly to their legal obligations.
• Human Rights Protections: Strengthens the enforcement of ECHR rights within domestic law, ensuring that individual rights are not undermined by procedural oversights.

Future cases involving extradition and devolution will reference this judgment to uphold the rule of law and ensure that legislative intents are faithfully executed.

Complex Concepts Simplified

Conclusion

The Craig v Her Majesty's Advocate case serves as a pivotal reaffirmation of the rule of law within the UK's constitutional framework. By deeming the Government's failure to enact critical extradition safeguards unlawful, the Supreme Court has underscored the non-negotiable nature of legislative compliance, especially concerning human rights protections. This judgment not only fortifies the judiciary's role in overseeing executive actions but also sets a clear precedent that governmental bodies must fully implement statutory provisions to ensure just and lawful proceedings. As extradition laws evolve and interact with devolved powers, this case will remain a cornerstone reference, ensuring that individual rights are vigilantly protected against procedural and administrative lapses.