Extradition, state assurances and article 3

DAVID BLAIR, TRAINEE SOLICITOR (WITH DOMINIC SCULLION, SOLICITOR ADVOCATE), ANDERSON STRATHERN LLP

 

The rule of law requires a robust system of extradition. Without such a system, domestic criminal law would lose much of its coercive power, allowing criminals indefinitely to escape punishment by fleeing the state in which they committed their offence. However, as a signatory to the ECHR, the UK has a duty to protect persons from inhuman or degrading treatment, as enshrined in article 3 of the Convention. These two priorities recently came into conflict in the Supreme Court judgment in Lord Advocate (representing the Taiwanese Judicial Authorities) v Dean [2017] UKSC 44 (28 June 2017).

 

Dean, a UK citizen who lived in Taiwan, was convicted in 2011 in a Taiwanese court of drunk driving and negligent manslaughter. While an appeal was pending, he fled Taiwan to set himself up in Scotland. 

Dean was subsequently arrested in Scotland and the Taiwanese Government issued a request for his extradition. The sheriff initially held that the extradition was compatible with his Convention rights. Dean appealed to the High Court, which held, by majority – having heard further evidence on the conditions within Taiwanese prisons – that his extradition would not be compatible with his article 3 rights. The basis for this decision was that there was a real risk of Dean being mistreated by his fellow prisoners. The Lord Advocate appealed this decision to the Supreme Court.

 

Lord Hodge, delivering the sole judgment, held that neither party had set out the correct test to be followed when the contention is that non-state actors will mistreat an individual in a manner contrary to article 3. Before the Criminal Appeal Court, both sides had agreed that the correct test was laid down in Saadi v Italy (2009) 49 EHRR 30, namely “whether substantial grounds have been shown for believing that there is a real risk of treatment incompatible with article 3”. The court had found that the potential mistreatment by other prisoners amounted to a real risk of such treatment, and further held that the voluntary isolation Dean would have to endure to avoid such treatment was also incompatible with
article 3.

The Supreme Court held, however, that the correct test where there is such a risk was to be found in the House of Lords case of Bagdanavicius [2005] 2 AC 668. Mistreatment by non-state actors, however violent, did not amount to a breach of article 3 unless the state had failed “to provide reasonable protection against it”. 

After combining the proper test with the evidence heard by the Appeal Court, the Supreme Court allowed the appeal. While the Taiwanese prison system in general was subject to overcrowding and understaffing, the authorities had undertaken to provide Dean with a suitable cell, amenities and an opportunity to leave his cell between 8.30am and 5.30pm. If he did choose to isolate himself for the sake of his safety, this isolation would not be sufficient to breach article 3.

 

It is notable that the Lord Advocate failed to cite the correct test during the initial appeal. It is perhaps also significant that the correct test is to be found in a domestic judgment and not a Strasbourg decision. This decision possibly lends further credence to the post-Osborn v Parole Board [2013] UKSC 61 line of case law, which emphasises the important role of domestic courts in interpreting human rights law. It is not enough, under this approach, to examine Strasbourg jurisprudence alone; as Lord Toulson said in Kennedy v Charities Commission [2014] UKSC 20, “the common law should not become an ossuary”. 

The Supreme Court also noted with sympathy Lord Drummond Young’s dissent. As his Lordship argued, the decision of the Appeal Court would prevent extradition of even the most dangerous criminals, despite state assurances of their safety. Of course, human rights of all individuals must be protected, regardless of the severity of their crime. However, the rule of law would be significantly inhibited if extradition could be prevented due to a fear of recriminations from individuals, despite credible assurances made in good faith by the state requesting extradition. It is submitted that the Supreme Court struck the appropriate balance between the importance of extradition and the article 3 rights of those facing imprisonment abroad.