Craig v Her Majesty's Advocate (for the Government of the United States of America) & Anor (Scotland) [2022] UKSC 6 (23 February 2022)
Citation:Craig v Her Majesty's Advocate (for the Government of the United States of America) & Anor (Scotland) [2022] UKSC 6 (23 February 2022)
Subjects invoked: 72. Executive, 86. Police Process
Rule of thumb: 1. If you commit a cyber-crime on a foreign country from the UK, will you be extradited to the foreign country to face trial? You can argue that you should face trial in the UK. 2. What if there is an Act of Parliament stating that a Government has to do something by a certain date and they do not do so? They should be judicially reviewed to force them to do so, and any cases where that pending law is relevant are delayed until the law is passed. .
Background facts:
This case invoked the subject of Government/Executive & Police Processes. In particular the principle of what happens when the UK Government passes an Act of the UK Parliament saying the devolved arguments have to pass a declaration/order in the devolved Parliament for one of the sections in the UK Act to come into force, but the devolved Government refuses to do so. It also considered extradition for cyber-crimes perpetrated in foreign countries from the UK.
The material facts of this matter were that Mr James Craig was alleged to have committed securities/share fraud on the American Stock Exchange. Prosecutors in America sought to have Craig extradited to America to stand trial. Craig stated that he did not want to go to America to stand criminal trial in a foreign country and wanted his criminal trial to take place in Scotland, and maintained he was within his rights to have this. The Attorney General, the legal member of the Scottish Government, therefore sought an extradition order to force Craig to go to America to stand trial.
Craig argued that there was UK legislation, s79 the 2013 Crime and Courts Act, ‘the forum bars provision’ section, stating that he did not have to stand criminal trial abroad because the majority of the criminal activity took place in Scotland, meaning this is where the criminal trial should – with the US foreign prosecutors having to travel to the UK to have their criminal trial. Craig sought to rely on this statutory provision to force his trial to be held in Scotland. The Attorney General, representing the SNP Sottish Government, argued that Craig could not rely on this section because the section technically did not apply in Scotland. S63 of 2013 Act stated that the devolved Government had to introduce a declaration/regulation for s79 to come into force and be exercisable, but the SNP Scottish Government did not do so, meaning that s79 on had not been introduced in Scotland, even though it had in England, Wales and Northern Ireland. The Attorney General therefore argued it was s73 the 2003 Extradition Act applied, and this gave the SNP Scottish Government the right to extradite Craig to the USA.
Craig maintained that he should not be forced to go to America when there was a UK statute that was in his favour with the legal position he was taking, but the Scottish Government had not bothered to introduce it for Scottish citizens in petty defiance of the UK Government. Craig maintained that it was ridiculous that Scottish citizens should be sent abroad to foreign countries to face foreign criminal trials because of a lack of co-operation between the Scottish Government & the UK Government. Craig argued this was unlawful.
Judgment:
The UK Supreme Court came to the rescue of Craig to save him from the Scottish Government. The UK Supreme Court noted that the Court of Session in a separate case declared that the Scottish Government refusing to introduce section 79 of the 2013 Act was a breach of section 57 of the Scotland Act. The Scottish Government then finally introduced s61 of the 2013 Act in Scotland after the Court of Session made this declaration, having point-blank refused to do so beforehand. The UK Supreme Court then upheld the arguments of Craig. The extradition order the Scottish Government issued against Craig was deemed to be unlawful and invalid. It was declared that there should be a new extradition order made against Craig where he could on s61 of the 2013 Act and make his arguments as to why his criminal trial should take place in Scotland rather than America.
Ratio-decidendi:
‘… a new extradition hearing to be held before a different Sheriff. At that hearing, it will be open to the appellant to rely on the forum bar provisions (in addition to any other arguments properly available to him), since the effect of this judgment is that the Sheriff has not yet decided the existing extradition bar questions, ie the questions in section 79(1) of the 2003 Act, as those questions stood before their amendment by the commencement order made in September 2021’, Lord Reed
Warning: This is not professional legal advice. This is not professional legal education advice. Please obtain professional guidance before embarking on any legal course of action. This is just an interpretation of a Judgment by persons of legal insight & varying levels of legal specialism, experience & expertise. Please read the Judgment yourself and form your own interpretation of it with professional assistance.