Appeals Under Sections 103 And 108 Of The Extradition Act 2003 By Zain Taj Dean Against (first) The Lord Advocate And (second) The Scottish Ministers

JurisdictionScotland
JudgeLord Drummond Young,Lady Paton,Lady Clark Of Calton
Judgment Date2015
Neutral Citation[2015] HCJAC 52
Published date25 June 2015
Date24 June 2015
Docket NumberHCA2014/3518
CourtHigh Court of Justiciary
Year2015

APPEAL COURT, HIGH COURT OF JUSTICIARY

[2015] HCJAC 52

HCA2014/3518/XM &

HCA2014/3519/XM

Lady Paton

Lord Drummond Young

Lady Clark of Calton

OPINION OF THE COURT

delivered by LADY PATON

in the APPEALS UNDER SECTIONS 103 AND 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, Devlin; V Good & Co

First respondent: D Dickson, Solicitor Advocate; Crown Office

Second respondent: Moynihan QC, Charteris; Scottish Government Legal Directorate

24 June 2015

Extradition to Taiwan
[1] This is the opinion of the court, to which each member of the bench has contributed.

[2] The appellant is a businessman and a British citizen. His date of birth is 16 November 1971. He is currently in prison in Scotland. For many years, he lived and worked in Taiwan (the Republic of China). On 25 March 2010 he was involved in a road traffic accident there. He was prosecuted. In 2011 he was tried by three judges in the District Court of Taipei, Taiwan. He was convicted of drink driving, negligent manslaughter, and leaving the scene of the accident. He was sentenced to two and a half years imprisonment. He appealed against conviction and sentence, and was granted bail. In 2012, after an unsuccessful appeal to Taiwan High Court and while his appeal to the Taiwan Supreme Court was still pending, he left Taiwan (using a friend’s passport) and came to Scotland. He was arrested in Scotland on 17 October 2013, and has been in custody since then. Following extradition proceedings, the Scottish Ministers made an extradition order returning him to Taiwan. He appeals first, under section 103 of the Extradition Act 2003, against the decision of Sheriff Maciver dated 11 June 2014 sending his case to the Scottish Ministers for their decision whether he should be extradited; and secondly, under section 108 of the 2003 Act, against the Scottish Ministers’ decision dated 1 August 2014 to extradite him. If the appeal under section 103 were to succeed, the appeal under section 108 would become unnecessary.

[3] There is no extradition treaty between the UK and Taiwan. There has never previously been an extradition of someone from the UK to Taiwan. A special memorandum of understanding relating to the appellant was entered into on 16 October 2013, as a result of which Taiwan is to be treated (so far as the appellant is concerned) as a category 2 territory in terms of the 2003 Act.

Events leading to the decision to extradite
[4] The events leading to the decision to extradite the appellant were as follows:

2010

25 March 2010: The appellant had been drinking in a club in Taiwan. In the early hours of the morning, he left the club under the influence of drink. Initially he was being driven home in his own car by a club driver, and CCTV footage from outside the club showed the appellant in the passenger seat (although the driver could not be seen). Subsequently, it was less clear who was driving. A witness who was a club driver gave evidence at the trial that he had been the driver, and after a few minutes the appellant ordered him out of the car and took over the driving. That witness was seen on further CCTV footage, walking back to the club. However the appellant gave conflicting evidence, namely that the witness was lying, and a different man had been driving, although the appellant could not say who the driver was (sheriff’s note of decision pages 17 and 26). At all events, the appellant’s car struck a motorcyclist on a newspaper round. The appellant’s car did not stop, nor did the appellant report the accident. No CCTV footage of the actual collision was produced or shown at the trial. The motorcyclist subsequently died.

19 April 2010: The appellant was prosecuted and charged with driving under the influence of alcohol, negligent manslaughter, and escaping after having caused a traffic casualty.

2011

March 2011: The appellant stood trial in the District Court of Taipei. As the sheriff explains (at page 25 of his note)

“The trial… hinged on the straightforward issue of identification of the driver of the offending motor vehicle which was owned by Mr Dean, and the court concluded that, on the evidence presented to it, Mr Dean was proved to be the driver at the time of the fatal impact with the motorcyclist”.

The appellant appealed to Taiwan High Court.

2012
26 July 2012: In the course of the appeal, some evidence was re-heard, and some fresh evidence introduced (pages 26 and 30 of the sheriff’s note). The appeal was refused, and the sentence increased to four years. The appellant appealed to the Taiwan Supreme Court.

14 August 2012: While his appeal was still pending, the appellant left Taiwan, using a friend’s passport. He came to the UK.

20 December 2012: The Taiwan Supreme Court confirmed the conviction and the four year sentence.

2013

March 2013: Criminal proceedings in Taiwan were raised against the appellant in respect of his absconding from Taiwan. Those proceedings are currently suspended.

9 October 2013: The judicial authorities of Taiwan sought a provisional arrest warrant in respect of the appellant in terms of sections 73 and 74 of the 2003 Act.

16 October 2013: In terms of section 194 of the 2003 Act, a memorandum of understanding concerning the extradition of the appellant was entered into between the Home Office and the judicial authorities of Taiwan. Sheriff Maciver granted a warrant for the arrest of the appellant under sections 73 and 74 of the 2003 Act.

17 October 2013: The appellant was arrested. Since then he has been in custody in Saughton Prison, Edinburgh.

28 October 2013: A written request (dated per incuriam “October 28, 2014”, in fact signed on October 28, 2013) for the extradition of the appellant was sent by Chen Wen-Chi, Director General, Department of International and Cross-Strait Legal Affairs, Ministry of Justice, Taiwan, to Theresa May, the Secretary of State for the Home Department.

18 November 2013: The Scottish Ministers certified the request in terms of section 70(1) of the Extradition Act 2003. The request was sent to Edinburgh Sheriff Court.

19 November 2013: The request for extradition was served on the appellant in Saughton.

23 December 2013: By letters dated 23 December 2013 Chen Wen-Chi, Director General, certified that time spent in custody in Scotland would be deducted from the total period of detention to be served in Taiwan as a result of the appellant’s conviction of the extradition offence; the current four year sentence would not be subject to further review; and the death penalty would not be imposed.

2014
8 January – 9 June 2014: Extradition proceedings took place with several hearings in Edinburgh Sheriff Court. There were some unavoidable delays (for example, when the appellant sought a change of legal representation).

11 June 2014: Sheriff Maciver issued his decision, refused two devolution minutes relating to human rights, and sent the appellant’s case to the Scottish Ministers for their decision whether the appellant should be extradited in accordance with Part 2 of the 2003 Act.

25 July 2014: A letter of assurance from Chen Wen-Chi, Director General of the Department of International and Cross-Strait Legal Affairs, confirmed that, in the context of speciality, if the appellant were to be extradited in terms of the request of 28 October 2013, the Taiwan authorities would not prosecute the appellant for an offence not included in that request (in particular for the offence of absconding from Taiwan) without first seeking and obtaining the necessary consent from the Home Secretary in terms of section 129 of the 2003 Act.

1 August 2014: The Scottish Ministers made an extradition order returning the appellant to Taiwan. The appellant appealed to the High Court

The grounds of appeal
A. Appeal in terms of section 103
[5] The appellant’s grounds of appeal (read short, and not in the same order as in the amended note of appeal) are as follows:

(1) Territory: The sheriff erred in law in holding that Taiwan was a “territory” for the purposes of the 2003 Act.

(2) Article 6 of the European Convention on Human Rights (ECHR): The sheriff erred in concluding that the appellant had received a fair trial in Taiwan. The sheriff should have ordered the appellant’s discharge in terms of section 87(2) of the 2003 Act.

(3) Extraneous considerations (section 81 of the 2003 Act): The sheriff erred in that he applied the wrong test when considering the evidence in the light of section 81. Applying the correct test, the evidence established that there was a “reasonable chance” or a “serious possibility” that the appellant, if extradited, might be punished, detained, or restricted in his personal liberty by reason of his nationality and/or race (namely British, of Indian origin), and therefore his extradition was barred on that ground.

(4) Article 3 of the ECHR: The sheriff erred in his decision that article 3 was not violated by the prison conditions in Taipei prison. The sheriff should have ordered the appellant’s discharge in terms of section 87(2) of the 2003 Act.

A further ground of appeal alleging that the sheriff showed bias in favour of the Taiwanese judiciary in the course of the extradition proceedings was not insisted upon. The appellant also contends that the sheriff erred in his refusal of the two devolution minutes concerning human rights issues.

B. Appeal in terms of section 108
[6] The appellant’s amended note of appeal under section 108, read short, challenges the decision to extradite as an abuse of process, and in breach of his ECHR rights.

The effect of Kapri v Lord Advocate
[7] On 25 April 2014 , in the course of the extradition proceedings in the sheriff court, the judgment of the appeal court in Kapri v Lord Advocate 2015 JC 30, 2014 SLT 557, 2014 SCCR 310, became available. In Kapri, Lord Justice Clerk Carloway gave guidance as to the
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1 books & journal articles
  • Vollstreckungshilfe zwischen Deutschland und Taiwan auf neuer Grundlage
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    • Eucrim. European Law Forum: Prevention. Investigation. Prosecution No. 1/2016, January 2016
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