Success for Aidan O’Neil and Fred Mackintosh in Supreme Court extradition case
Terra Firma Chambers’ Fred Mackintosh QC and Aidan O’Neil QC of Ampersand Advocates have successfully represented the appellant in an appeal before the Supreme Court against the decision of the Scottish ministers to extradite him to the US.
The Supreme Court decided that the extradition proceedings against James Craig were not conducted by the Lord Advocate “in accordance with the law” and were incompatible with his rights under article 8 of the ECHR.
Mr Craig’s extradition was sought by the US government, where he is accused of committing an offence relating to securities fraud. He had argued that as the allegations were that he had acted from his home in Scotland and not the US, it would not be in the interest of justice to extradite him. He wished to rely on the forum bar provisions that were set out in the Crime and Courts Act 2013, but these had only been brought into force in England and Wales and Northern Ireland – not Scotland.
This was because the UK government had failed to comply with a declarator of the Court of Session obtained by Mr Craig in December 2018 that “in its continuing failure to bring into force in Scotland the extradition forum bar provisions… the UK government is acting unlawfully and contrary to its duties under section 61 of [the 2013 Act]” (Craig v Advocate General  CSOH 117 in which both Mr O’Neil and Mr Mackintosh were instructed.
In setting out the decision of the court, Lord Reed stated:
“The government’s compliance with court orders, including declaratory orders, is one of the core principles of our constitution, and is vital to the mutual trust which underpins the relationship between the government and the courts. The courts’ willingness to forbear from making coercive orders against the government, and to make declaratory orders instead, reflects that trust. But trust depends on the government’s compliance with declaratory orders in the absence of coercion. In other words, it is because ours is a society governed by the rule of law, where the government can be trusted to comply with court orders without having to be coerced, that declaratory orders can provide an effective remedy.”