Supreme Court allows Lord Advocate's appeal in Taiwan extradition case

Appeal judges in Scotland applied the wrong legal test in deciding that it would infringe the human rights of a UK-born man to return him to Taiwan, from where he had fled, to serve a prison sentence, the UK Supreme Court ruled this morning.

Lord Mance, Lord Sumption, Lord Reed, Lord Hughes, Lord Hodge allowed an appeal by the Lord Advocate, representing the Taiwanese judicial authorities, in the case of Zain Dean, who was sentenced to four years' imprisonment by the District Court of Taipei for driving under the influence of alcohol, negligent manslaughter and leaving the scene of an accident. Mr Dean, who had lived in Taiwan for 19 years prior to the accident in 2010, fled Taiwan while his appeal was pending and came to Scotland. In his absence his conviction was confirmed and the Taiwanese authorities applied for his extradition.

Following a hearing, a sheriff decided that Mr Dean's extradition would be compatible with his Convention rights and refused his devolution minutes. On appeal the High Court heard further evidence in relation to article 3 of the Human Rights Convention (prevention of cruel or inhuman treatment or punishment) and, by majority, found that even if written assurances by the Taiwanese authorities to the Lord Advocate in respect of the conditions in which Mr Dean would be held were fulfilled, a real risk of ill treatment would remain and thus his extradition to Taiwan would be incompatible with article 3. There was a risk of animosity from other prisoners, his case being a notorious one, including if he were given special treatment to avoid the overcrowded conditions normally found in Taiwanese jails, and no established procedures by which prisoners could enforce their rights in local courts.

On the Lord Advocate's further appeal, Mr Dean also raised the issue whether the Appeal Court had determined a devolution issue and therefore whether appeal to the Supreme Court was competent.

All five judges rejected the challenge to competency, allowed the Lord Advocate’s appeal on the devolution issue and remitted the case to the Appeal Court to deal with the appeal against the extradition order under s 108 of the Extradition Act 2003, and a related devolution minute, on which that court had reserved its decision until it dealt with the article 3 challenge.

Lord Hodge, with whom the other Justices agreed, said the challenge to the competency of the appeal was misconceived. An appeal from the sheriff’s decision under s 87(1) of the Act as to whether extradition would be compatible with Convention rights raised a question of the legal competence of the Scottish Government in relation top the Convention, and therefore gave rise to a devolution issue. An omission by parties to intimate the issue to the Advocate General for Scotland did not affect the competence of any appeal regarding the devolution issue to the Supreme Court.

Although the Lord Advocate conceded that his argument as to the correct legal test, in assessing the compatibility of the extradition with article 3, had not been put to the Appeal Court, that court had applied the wrong test. The correct legal test when the threat came from the acts of third parties was whether the state had failed to provide reasonable protection against harm inflicted by non-state agents. The Appeal Court did not distinguish between the threat from other prisoners, and the conduct for which the state was responsible. The court had to assess, first, whether the Taiwanese authorities were undertaking to provide Mr Dean with reasonable protection against violence by third parties while in prison, and, secondly, if they were, whether the conditions in which he was to have such protection would infringe article 3.

There was no evidence that the authorities would not give reasonable protection against harm at the hands of other prisoners, and the relative isolation of such a regime, which Mr Dean might elect for his own protection, did not come close to a breach of article 3. The other factors which influenced the majority of the Appeal Court did not outweigh the factors which pointed towards accepting the assurances.

Further challenges under articles 5 and 8 of the Convention were without substance: there was nothing arbitrary for the purposes of article 5 in Mr Dean serving two-thirds of the remainder of his sentence in Taiwan before he would be eligible for parole, and his inability to obtain credit toward parole in Taiwan for the time spent in custody in Scotland was the result of his flight from justice in Taiwan. The interference with his article 8 right to private life which arose from his extradition and imprisonment was justified because it was necessary for both the prevention of crime and for the protection of the rights and freedoms of others.

Click here to access the judgment.