Craig v Her Majesty's Advocate (for the Government of the United States of America) & Anor (Scotland)

Factual and Procedural Background

The appeal concerns the attempted extradition of the Appellant, a British citizen residing in Scotland, to a foreign jurisdiction (“Foreign Government”) on allegations of securities fraud carried out via social media. Extradition proceedings in Scotland are conducted by the Lord Advocate (“Attorney General”), while the ultimate order is made by the Scottish Ministers.

Parliament had enacted the Crime and Courts Act 2013 introducing a “forum bar” defence to extradition, but commencement of those provisions required an order by the Secretary of State (“Minister”). The Minister brought the provisions into force for England, Wales and Northern Ireland on 14 October 2013 but, influenced by objections from the Scottish Ministers, withheld commencement in Scotland.

In December 2018 Judge Malcolm declared that the continuing failure to commence the forum-bar provisions in Scotland was unlawful. No appeal was taken, yet the Minister still took no action. Six months later a Scottish Sheriff (Judge McFadyen) proceeded with the extradition hearing, rejected the Appellant’s human-rights objections and sent the case to the Scottish Ministers, who ordered extradition on 6 September 2019. The High Court of Justiciary (Judges Dorrian, Brodie and Turnbull) upheld that decision on 3 June 2020.

The present appeal to the Supreme Court is a “devolution issue” appeal under Schedule 6 to the Scotland Act 1998 because it questions whether members of the Scottish Government acted ultra vires by breaching Convention rights guaranteed under the Human Rights Act 1998.

Legal Issues Presented

1. Whether the continued failure of the Minister to commence the forum-bar provisions rendered the ensuing extradition proceedings incompatible with Article 8 of the European Convention on Human Rights (“ECHR”) because the interference was not “in accordance with the law”.
2. Whether acts of the Lord Advocate and Scottish Ministers in pursuing and ordering extradition were ultra vires under section 57(2) of the Scotland Act 1998.
3. The constitutional effect of an unappealed declaratory judgment that Government conduct is unlawful, and the extent of the Government’s duty to comply without a coercive order.
4. The appropriate remedy where extradition decisions are made in breach of Convention rights and domestic commencement duties.

Arguments of the Parties

Appellant's Arguments

• The failure to commence the forum-bar provisions unlawfully deprived the Appellant of a statutory defence and meant the extradition process was not “in accordance with the law”, violating Article 8 ECHR.
• The declaratory order of Judge Malcolm established ongoing illegality; subsequent proceedings conducted in defiance of that declaration were invalid.
• The Sheriff and High Court wrongly tried to “replicate” the forum-bar test under Article 8 balancing; legality is an absolute pre-condition, not a mere factor in proportionality.

Respondents' Arguments (Attorney General & Scottish Ministers)

• The extradition process complied with the Extradition Act 2003 as it stood; the forum-bar provisions were not in force and therefore irrelevant.
• The failure to commence was a procedural irregularity that could be accommodated within the Section 87 Article 8 balancing test, which the Sheriff undertook.
• After Judge Malcolm’s declaration, it remained open to interested parties to seek a coercive order; absent such an order, the Minister was considering policy options, explaining the delay.

Table of Precedents Cited

Court's Reasoning and Analysis

1. Effect of Judge Malcolm’s Declaration. The Supreme Court (per Judge Reed) held that the December 2018 declaration stated that the Government “is acting unlawfully”, imposing an ongoing duty to act. The Minister’s continued inaction perpetuated the same error of law; reliance on Scottish objections could not override Parliament’s clear mandate that the forum-bar apply UK-wide.

2. Constitutional Status of Declaratory Orders. Citing M v Home Office, the Court emphasised that declaratory relief generally suffices because the executive is expected to comply without coercion. Suggesting that parties must seek further mandatory orders misconstrues the constitutional relationship between courts and Government and undermines the rule of law.

3. Article 8 “In Accordance with the Law”. The Court reiterated that legality is an absolute pre-condition. Extradition proceeded under domestic provisions that contravened section 61 of the 2013 Act; thus the process was not “in accordance with the law” for Article 8 purposes. The lower courts erred by treating the unlawfulness merely as a factor within proportionality balancing.

4. Ultra Vires Acts. Because the interference with the Appellant’s private life lacked lawful basis, the Lord Advocate’s conduct of the proceedings and the Scottish Ministers’ extradition order were incompatible with Article 8. Section 57(2) of the Scotland Act therefore rendered those acts ultra vires and invalid.

5. Remedy. Exercising powers under Supreme Court Rule 29, the Court allowed the appeal, set aside the extradition order and directed that the matter be remitted to the High Court of Justiciary to facilitate a fresh hearing before a different Sheriff where the now-commenced forum-bar provisions will be available to the Appellant.

Holding and Implications

APPEAL ALLOWED. The extradition order and related proceedings were declared invalid; the case is remitted for a new extradition hearing before a different Sheriff.

Implications: The judgment confirms that (1) ministers must obey declaratory court orders without coercion, (2) failure to commence enacted legislation can render subsequent executive action unlawful, and (3) the “in accordance with the law” requirement under Article 8 is absolute. While the decision primarily affects the parties by vacating the extradition order, it also reinforces constitutional principles governing commencement of statutes and Government compliance with judicial declarations.