Appeal Under Section 108 Of The Extradition Act 2003 By Zain Taj Dean Against (first) The Lord Advocate And (second) The Scottish Ministers
| Jurisdiction | Scotland |
| Judge | Lady Clark Of Calton,Lord Drummond Young,Lady Paton |
| Neutral Citation | [2019] HCJAC 31 |
| Court | High Court of Justiciary |
| Date | 06 June 2019 |
| Docket Number | HCA/2014/003519/XM |
| Published date | 06 June 2019 |
APPEAL COURT, HIGH COURT OF JUSTICIARY
[2019] HCJAC 31
HCA/2014/003519/XM
Lady Paton
Lord Drummond Young
Lady Clark of Calton
OPINION OF LADY PATON
in
APPEAL UNDER SECTION 108 OF THE EXTRADITION ACT 2003
by
ZAIN TAJ DEAN
Appellant
against
(FIRST) THE LORD ADVOCATE and (SECOND) THE SCOTTISH MINISTERS
Respondents
Appellant: Bovey QC, Haddow, Harvey; G R Brown Solicitor
First Respondent: D Dickson (sol adv); Crown Office
Second Respondents: Moynihan QC, Charteris; Scottish Government Legal Directorate
6 June 2019
Extradition to Taiwan: appeals in terms of sections 103 and 108
[1] The appellant appeals against an order for his extradition from Scotland to Taiwan.
There are two appeals: one, in terms of section 103 of the Extradition Act 2003 concerning the
sheriff’s decision; and a second, in terms of section 108 of that Act, concerning Scottish
Ministers’ decision. The section 103 appeal, which latterly focused on prison conditions, was
finalised by the Supreme Court ([2017] 1 WLR 2721, 2018 SC (UKSC) 1, 2017 SLT 773). The
Supreme Court remitted the outstanding section 108 appeal to the High Court of Justiciary.
2
[2] Procedural and informational difficulties were encountered in the course of the
section 108 appeal. On occasions, the court had to make specific requests for information
from the Taiwanese authorities. The ensuing responses, while graciously phrased, were not
always easy to understand. Taiwanese letters of assurance dated 6 and 12 December 2017,
12 January 2018 and 12 February 2018 appeared to conflict with evidence given by Dr Chang,
Scottish Ministers’ expert in Taiwanese criminal law, who stated that it was not a requirement
in Taiwanese law for the appellant to pay compensation of £280,000 in respect of the road
traffic accident and to issue a public apology in order to enable the Taiwanese prosecutor to
withdraw an existing prosecution for absconding using another’s passport (see
paragraph [11] below). Furthermore, the letters of 6 and 12 December 2017 appeared to
contradict each other: one letter indicated that the appellant’s abandonment of his section 108
appeal in Scotland was a prerequisite of the withdrawal of the Taiwanese prosecution,
whereas the other did not (see the texts of the letters, summarised in the appendix to this
opinion). Further difficulties arose when attempts were made to take evidence from persons
in Taiwan by live television link or other similar means, partly as a result of stringent
conditions imposed by the Taiwanese courts. Dr Chang was not immediately available to
visit Scotland, resulting in a postponement of the case for several months. Ultimately
evidence and submissions were completed by 21 December 2018.
[3] On 21 December 2018, certain important matters were clarified by senior counsel for
Scottish Ministers, and by the solicitor advocate for the Lord Advocate acting as agent for
Taiwan. In particular, the court was advised that:
In the context of extradition, the Taiwanese authorities always had 5 criminal
offences in mind. However the extradition agreement entered into between the
UK government and Taiwan on 16 October 2013 (“the MOU”) specified only 3 of
3
the offences, namely the conviction offences relating to the road traffic incident in
2010 and comprising (i) drink driving, (ii) negligent manslaughter, and (iii)
leaving the scene of the accident. The MOU did not specifically include two
outstanding charges awaiting trial in Taipei District Court, namely accusation
offences of (iv) alleged absconding from Taiwan in 2012 and (v) alleged use of
another’s passport in so doing. (The full terms of the MOU can be found in the
opinion of Lady Clark.)
The first extradition request made by Taiwan in a letter to Theresa May, Secretary
of State, dated 28 October 2013 (per incuriam dated “October 28, 2014”), sought
extradition of the appellant in order to serve his prison sentence for the conviction
offences (i) to (iii). While the appellant’s alleged absconding and use of another’s
passport were narrated as background in paragraph 4 (quoted in paragraph [44]
below), the letter did not request his extradition for those specific offences.
Importantly, the letter did not mention that a prosecution against the appellant for
allegedly absconding and using another’s passport had in fact been raised by an
independent prosecutor in Taipei District Court in March 2013, and had been
suspended pending the appellant’s return to Taiwan.
When matters were passed to Scotland in 2014 to be dealt with by the Lord
Advocate, the Ministers, and the Scottish courts, Scottish Ministers were not made
aware of that live criminal prosecution in Taipei District Court for absconding
using another’s passport raised in March 2013. Scottish Ministers, when making
their decision dated 1 August 2014 to extradite the appellant to serve the balance
of his sentence for the road traffic matters, remained wholly unaware of that live
criminal prosecution.
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