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

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

The extradition proceedings and order were not 'in accordance with the law' due to the Government's continuing unlawful failure to commence the forum bar provisions in Scotland, rendering the acts of the Lord Advocate and Scottish Ministers ultra vires and invalid under section 57(2) of the Scotland Act.

Parties
Appellant: James Craig; 1st Respondent: Her Majesty’s Advocate (for the Government of the United States of America); 2nd Respondent: Her Majesty’s Advocate General for Scotland
Jurisdiction
England and Wales
Judgment Date
23 February 2022
Procedural Posture
Appeal / Supreme Court Judgment
Outcome
Appeal allowed
Legal Topics
Commencement of Legislation, Forum Bar Defence, Ultra Vires Acts, Article 8 ECHR, Judicial Review, Declaratory Orders
Constitutional Law Human Rights Law Extradition Law Commencement of Legislation Forum Bar Defence Ultra Vires Acts Article 8 ECHR Judicial Review +1 more

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Parties

James Craig

Appellant

Her Majesty’s Advocate (for the Government of the United States of America)

1st Respondent

Her Majesty’s Advocate General for Scotland

2nd Respondent

Procedural Posture

Appeal / Supreme Court Judgment

Legal Issues

  1. 1 Whether the Scottish Ministers acted ultra vires in extradition proceedings due to incompatibility with Convention rights
  2. 2 Effect of unlawful failure to commence forum bar provisions in Scotland
  3. 3 Legal consequences of a declaratory order against the Government

Ratio Decidendi

The extradition proceedings and order were not 'in accordance with the law' due to the Government's continuing unlawful failure to commence the forum bar provisions in Scotland, rendering the acts of the Lord Advocate and Scottish Ministers ultra vires and invalid under section 57(2) of the Scotland Act.

Court Disposition

Appeal allowed

Orders

  • Remitted to the High Court of Justiciary to enable a new extradition hearing before a different Sheriff
  • Appellant may rely on forum bar provisions at the new hearing