Craig v Her Majesty’s Advocate (for the Government of the United States of America) and another (Scotland)

A public authority’s interference with rights protected by article 8 of the Convention must comply with domestic law before questions of legitimate aim and proportionality arise. Legality is an absolute and logically prior requirement.

A final declaratory order binds the Government without any need for a further coercive order. Government ministers must act in conformity with it unless a material change of circumstances justifies further recourse to the court. Where devolved ministers act incompatibly with Convention rights because the governing procedure contravenes domestic law, section 57(2) of the Scotland Act 1998 renders their purported acts ultra vires and invalid.

The United States requested the appellant’s extradition from Scotland. Forum bar provisions enacted in section 50 of, and Schedule 20 to, the Crime and Courts Act 2013 had not been commenced in Scotland. In separate judicial review proceedings, the Court of Session declared that the UK Government’s continuing failure to commence them was unlawful. The Government nevertheless continued that failure for several years.

A sheriff rejected the appellant’s Convention challenge and sent the case to the Scottish Ministers, who ordered extradition. The High Court of Justiciary refused his appeal in [2020] HCJAC 22. The central issue before the Supreme Court was whether the Lord Advocate’s conduct of the proceedings and the Scottish Ministers’ order were incompatible with article 8 because the procedure contravened domestic law, and were therefore ultra vires under section 57(2) of the Scotland Act 1998.

1. The appeal was allowed unanimously. Lord Reed gave the judgment, with which Lord Lloyd-Jones, Lord Kitchin, Lord Burrows and Lord Stephens agreed. The High Court and the sheriff had incorrectly treated the unlawful non-commencement of the forum bar provisions, and any resulting prejudice, as matters for the proportionality balance under article 8.

2. A final declaratory order has binding legal consequences. It determines the declared legal issue and makes it res judicata. The established constitutional expectation is that ministers and government departments will comply without coercion. Courts ordinarily grant declarations against the executive in reliance on that expectation. The absence of an order for specific performance did not permit the Home Secretary to disregard Lord Malcolm’s declaration that the continuing failure to commence the provisions was unlawful.

3. Lord Malcolm’s order spoke to the Government’s continuing conduct. Unless circumstances materially changed, the Secretary of State was obliged to conform to it. Continued reliance on the Scottish Ministers’ opposition perpetuated the same error of law because Parliament had assigned the commencement decision to the Secretary of State and required the provisions to be brought into force throughout the United Kingdom.

4. Article 8(2) requires separate consideration of whether an interference is: first, in accordance with the law; secondly, directed to a listed legitimate aim; and thirdly, necessary in a democratic society. The first requirement is absolute. Only after legality is established can proportionality be considered: In re Gallagher [2019] UKSC 3 applied.

5. The extradition procedure did not comply with domestic law. Although the proceedings followed the provisions of the Extradition Act 2003 then operating in Scotland, section 61 of the Crime and Courts Act 2013 was also in force. The continued exclusion of the forum bar provisions contravened that section and the final declaration. The resulting interference with the appellant’s private and family life was therefore not in accordance with the law.

6. The Lord Advocate’s conduct of the extradition proceedings and the Scottish Ministers’ extradition order were incompatible with article 8. Section 57(2) of the Scotland Act 1998 rendered those acts ultra vires and invalid. The matter was left to the High Court of Justiciary for orders enabling a fresh hearing before a different sheriff. At that hearing the appellant could rely on the forum bar provisions because no valid decision on the pre-existing section 79(1) questions had been made.

1. United Kingdom Supreme Court: Allowed the appeal unanimously in [2022] UKSC 6. It held the relevant acts ultra vires and invalid and left consequential orders to the High Court of Justiciary.
2. High Court of Justiciary: Refused the extradition appeal in [2020] HCJAC 22; 2020 JC 258. It held that the unlawful non-commencement and resulting prejudice could be considered within the Convention balancing exercise.
3. Sheriff court: Found no bar to extradition, held extradition compatible with Convention rights and sent the case to the Scottish Ministers. The Scottish Ministers subsequently ordered extradition.
4. Court of Session, Outer House: In related judicial review proceedings, declared in [2018] CSOH 117; 2019 SC 230 that the UK Government’s continuing failure to commence the forum bar provisions in Scotland was unlawful and contrary to section 61 of the Crime and Courts Act 2013. That order was not appealed.