Dean (Zain Taj) v Lord Advocate High Court of Justiciary, 23 September 2016
| Jurisdiction | Scotland |
| Judge | Lady Paton,Lady Clark Of Calton,Lord Drummond Young |
| Neutral Citation | [2016] HCJAC 83 |
| Date | 23 September 2016 |
| Docket Number | HCA/2014 |
| Published date | 23 September 2016 |
| Year | 2016 |
| Court | High Court of Justiciary |
APPEAL COURT, HIGH COURT OF JUSTICIARY
[2016] HCJAC 83
HCA/2014/003519/XM
HCA/2014/0003518/XM
Lady Paton
Lord Drummond Young
Lady Clark of Calton
OPINION OF LADY PATON
in
APPEALS UNDER SECTIONS 103 AND 108 OF THE
by
ZAIN TAJ DEAN
Appellant;
against
(FIRST) THE LORD ADVOCATE; (SECOND) THE SCOTTISH MINISTERS
Respondents:
Appellant: Bovey QC, Devlin; V Good & Co
First Respondent: D Dickson (sol adv); Crown Office
Second Respondents: Moynihan QC, Charteris; Scottish Government Legal Directorate
23 September 2016
Extradition to Taiwan: article 3 and prison conditions
[1] I refer to Dean v Lord Advocate 2015 SLT 419. As set out in paragraphs [71] to [75], it proved necessary to hold an evidential hearing in order to ascertain whether the conditions in which the appellant would be held in Taipei prison are article 3 (ECHR) compliant. The hearing took place on 27, 28, and 29 January 2016, 18 and19 May 2016, and 22 and 24 June 2016.
[2] The appellant gave evidence. Two witnesses, Professor Chin and Dr James McManus, were led on behalf of the first respondent. The witnesses referred to various productions. On 24 June 2016, a devolution minute (number 36 of process) was received, focusing on articles 5 and 8 of the ECHR and the fact that, contrary to the apparent meaning of an undertaking given by the Taiwanese authorities, custodial time served in Saughton prison, Edinburgh, might not count on a day-for-day basis towards the custodial Taiwanese sentence of 4 years (see paragraph [11] et seq below).
Joint minutes and section 202 of the Extradition Act 2003
[3] Joint minutes resolved many of the difficulties relating to the provenance and authenticity of productions. It was therefore unnecessary to decide the meaning and effect of section 202 of the 2003 Act (“received in evidence in proceedings under this Act if it is duly authenticated”: see paragraph [74] of Dean v Lord Advocate).
Relevant legislation
Section 57 Community law and Convention rights
… (2) A member of the Scottish Executive has no power to make any subordinate legislation, or to do any other act, so far as the legislation or act is incompatible with any of the Convention rights or with Community law …
[5] European Convention on Human Rights
Article 3 Prohibition of Torture
No one shall be subjected to torture or to inhuman or degrading treatment or punishment.
Section 87 Human rights
(1) If the judge is required to proceed under this section (by virtue of section 84, 85 or 86) he must decide whether the person’s extradition would be compatible with the Convention rights within the meaning of the Human Rights Act 1998.
(2) If the judge decides the question in subsection (1) in the negative he must order the person’s discharge.
(3) If the judge decides that question in the affirmative he must send the case to the Secretary of State for his decision whether the person is to be extradited.
Section 103 Appeal where case sent to Secretary of State
- If the judge sends a case to the Secretary of State under this Part for his decision whether a person is to be extradited, the person may appeal to the High Court against the relevant decision …
(4) An appeal under this section – (a) may be brought on a question of law or fact …
Section 104 Court’s powers on appeal under section 103
-
On an appeal under section 103 the High Court may –
- allow the appeal; …
- The court may allow the appeal only if the conditions in subsection (3) or the conditions in subsection (4) are satisfied.
-
The conditions are that –
- The judge ought to have decided a question before him at the extradition hearing differently;
- If he had decided the question in the way he ought to have done, he would have been required to order the person’s discharge.
-
The conditions are that –
- … evidence is available that was not available at the extradition hearing;
- the … evidence would have resulted in the judge deciding a question before him at the extradition hearing differently;
- if he had decided the question in that way, he would have been required to order the person’s discharge.
- If the court allows the appeal it must –
- order the person’s discharge;
- quash the order for his extradition.
Relevant tests
[7] I refer to paragraphs [7] to [11], and [71] to [75] of Dean v Lord Advocate cit sup. In my view, compliance with Kapri v Lord Advocate 2015 JC 30, 2014 SLT 557 requires the rules of criminal evidence and procedure to be applied to any facts which are to be established in relation to prison conditions.
[8] However, once those facts are proved, senior counsel and Mr Dickson were agreed that the test for compatibility with article 3 of the European Convention on Human Rights (ECHR) is as set out by the European Court of Human Rights at paragraphs 124-5, 128-9, and 140 of 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” (cf the “strong” grounds referred to in paragraph 24 of R (Ullah) v Special Adjudicator [2004] AC 323, [2004] 3 WLR 23). A real risk is “more than mere possibility but is something less than the balance of probabilities” (Saadi paragraph 147; Aldhouse v Thailand [2012] EWHC 2235, paragraph 26). As was said in Florea v The Judicial Authority, Romania [2015] 1 WLR 1953 paragraph 21, quoting Torreggiani: “The burden of proof is less than proof ‘on the balance of probabilities’, but the risk must be more than fanciful.” The court’s “examination of the existence of a real risk must necessarily be a rigorous one” (Saadi, paragraph 128). I should add that this court, in its previous opinion 2015 SLT 419 paragraph [73], made reference to Gaefgen v Germany (2010) 52 EHRR 1. However in the current evidential hearing, Mr Bovey submitted that Gaefgen applies to proof of past violations of article 3 (Gaefgen, paragraph 92), whereas assessment of the risk of future violations of article 3 is governed by inter alia Saadi and Aldhouse. I understood Mr Dickson to agree with that submission. I now also agree.
Taiwanese undertakings; official letters; and visit by Dr McManus to Taipei prison
[9] At various stages during the appeal hearing, undertakings were given by the Taiwanese authorities. Following upon this court’s first opinion (Dean v Lord Advocate cit sup, issued on 24 June 2015), Dr James McManus was instructed on 14 August 2015 by the Lord Advocate on behalf of the Taiwanese authorities “… to carry out an assessment of the conditions of detention it is proposed by the Taiwanese authorities that [the appellant] will be held should his extradition to Taiwan be ordered.”
[10] The sequence of undertakings was as follows:
- 16 October 2013:the Memorandum of Understanding between the Home Office, United Kingdom, and the judicial authorities of Taiwan concerning the extradition of one individual only, namely the appellant.
- 23 December 2013 [13/5]:an undertaking that all periods of detention arising from the execution of the request in Scotland would be deducted from the total period of detention required to be served as a result of the appellant’s conviction in Taiwan for the extradition offence.
- 23 December 2013 [13/5]: a certification that the 4-year sentence was not subject to further review, and that the death penalty would not be imposed.
- 25 February 2014 [13/11]:an undertaking that (1) appropriate correctional staff would be selected to supervise the appellant;(2) the appellant’s safety would be ensured by assigning him an appropriate cell with fewer inmates, pre-screening inmates to select nonviolent foreign inmates convicted of relatively minor offences and unconnected to criminal organisations (thus eliminating concerns regarding bullying);(3) establishing clear channels of communication for any complaints or requests;(4) assessing public feelings about the appellant, pre-screening inmates with ill intent towards him (thus eliminating the possibility of any contact with the appellant), managing the appellant’s care as a special case and if necessary separating him from group activities and interaction with other inmates, inspecting the appellant’s food, transferring an inmate suspected of ill intent to a different cell, providing additional prison staff and surveillance equipment (thus ensuring his safety in the prison).
- 7 May 2014 [13/12]:an acknowledgment that overcrowding in Taipei prison was about 32% in January 2014 (about double the national average overcrowding rate of 16.7%), with an explanation that steps were planned, aiming to reduce the total overcrowding rate to less than 10%.
-
22 October 2014 [11/12]:a letter from the Home Office, International and Immigration Policy Group, London, addressed to a friend of the appellant, responding to a request for information as to whether expert reports regarding Taiwan were obtained prior to the decision whether to enter into the Memorandum of Understanding relating to the appellant.The letter stated inter alia:
“I can confirm that no specific expert reports were commissioned prior to the Home Secretary making a decision on whether to enter into a Memorandum of Understanding with Taiwan, to give effect to the extradition request for [the appellant].
However we are able to confirm that the Home Office sought advice from the Foreign and Commonwealth Office (FCO) with regard to human rights in Taiwan. The FCO provided the Home Office with a note summarising the human rights situation in Taiwan as well as a number of previously published country reports which are in the public domain …
After careful consideration we have decided the country reports on Taiwan are exempt from disclosure … [the] information … is already in the public domain. [Reference is then made to relevant web-sites, and to an attached summary of the human rights position in Taiwan, provided by the FCO.]
As a general point, please note that the decision of...
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