‘Real risk’ that extradition of Scottish businessman to Taiwan would be incompatible with Article 3 – Seonaid Stevenson

3 October 2016 by Guest Contributor

Zain Taj Dean v The Lord Advocate and the Scottish Ministers [2016] HCJAC 83 – read judgment

The High Court of Justiciary Appeal Court ruled last week that the extradition of Zain Dean to Taiwan would be incompatible with article 3 of the Convention as a result of the conditions in Taipei prison.

The appellant, a 44-year-old marketing consultant, had been living and working in Taiwan when he was involved in a road traffic accident in which a local delivery driver was killed. He was sentenced to four years in prison by the Taiwanese authorities. He absconded to Scotland and became the subject of Taiwan’s first ever extradition case.

The appeal was lodged under sections 103 and 108 of the Extradition Act 2003. Section 87 of this Act requires the judge to decide whether the person’s extradition would be compatible with Convention rights. The appellant argued that evidence was now available which had not been available at the initial extradition hearing. Under s.104 of the Act, the court may allow the appeal if evidence is available and this evidence would have resulted in the judge at the extradition hearing deciding a question before him differently, resulting in the person’s discharge.

It was therefore for the court to determine whether new evidence suggested that the conditions in which the appellant would be held in Taipei prison were not article 3 compliant.

Background

An extensive exchange of undertakings and assurances had occurred between the UK Home Office and the Taiwanese judicial authorities between October 2013 and May 2016 (see para.10). Inter alia, the Taiwanese authorities submitted undertakings that the appellant would be housed in a cell which would be prepared with a view to being article 3 compliant. The authorities gave assurances that the cell would be equipped with a desk, chair, bunk bed and bathroom; that the appellant would be able to exercise alone to ensure his own safety; that the appellant could choose not to work or be involved in an education group; and that the appellant would always have a member of staff seated outside his cell.

It was agreed by all parties that the test for compatibility with article 3 is set out 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.’ (para. 8)

An evidential hearing was held to determine whether the conditions the appellant would be subject to in Tapei prison presented a real risk of treatment contrary to article 3.

Arguments for the appellant

The appellant argued that Taipei prison suffered from extreme overcrowding and that the staff to prisoner ratio was very low. He submitted that sexual abuse, violence and suicide were all very much present in the prison and that there was a ‘cell-captain culture’ in which the strong ruled the weak. It was submitted that there were insufficient medical facilities and that his own personal notoriety was an additional problem in this case. The appellant was well-known and vilified in Taiwan and the special conditions proposed for his accommodation had caused further outrage in the local media. He submitted that, while the undertakings and assurances offered may have been made in good faith, there may be difficulties in delivering these assurances as they may not be feasible in practice (paras.16, 17 and 18).

Evidence for the first respondent, The Lord Advocate

Of particular importance for the first respondent was the evidence given by Dr James McManus, professor of law at Glasgow Caledonian University (2004-2009) and a current member of the Council of Europe Committee for the Prevention of Torture (the CPT).

Based on his experience with the CPT, Dr McManus prepared a report on the conditions in Taipei prison after a visit in August 2015. He emphasised that his remit was limited in that he was assessing only the conditions in which the appellant would be held – not the prison conditions in general. Dr McManus concluded that, assuming all the assurances given by the Taiwanese authorities would be honoured, the conditions for the appellant were article 3 compliant (para.32). Dr McManus did however conclude that overcrowding (at a rate of approximately 41%) did occur in Taipei prison and that there was understaffing, violence and restricted outdoor access, meaning that the conditions in the prison generally were not article 3 compliant (see paras. 33 to 35).

Majority Opinion

The majority of the court – Lady Paton and Lady Clark of Calton – concluded that there was a real risk of treatment of the appellant incompatible with article 3 (para. 50).

In addressing whether substantial grounds were shown for believing that there was a real risk of a violation of article 3, Lady Paton noted that she considered all the evidence on the hypothesis that every effort would be made by the Taiwanese authorities and their prison staff to fulfil all assurances given (para. 42). She noted that the standard conditions in the main detention building suggested a real risk of treatment contrary to article 3 (para. 44) and that the only live question before the court was whether the undertakings given by the authorities would create special circumstances meaning the conditions in which the appellant would be held did not risk being incompatible with article 3 (para. 45).

She concluded that the special conditions being offered to the appellant would cause significant animosity (para 47) and that this would place the Taiwanese authorities in a difficult position. Lady Paton found that the exceptional arrangements would not remove the real risk of treatment incompatible with article 3 due to overcrowding and understaffing, meaning that it was highly doubtful that the prison would have the capacity to protect the appellant (paras. 51 and 52). Further, if the appellant stayed in his cell for safety reasons, he would not be able to work and thus earn parole; would not be able to exercise; and would in effect be held in solitary confinement (para. 53). If he were, however, to leave his cell he would risk his safety. Lady Paton was also concerned by the lack of sufficient medical staff and the lack of an established UK or international monitoring system for the prison (para. 55).

The majority therefore concluded, on the basis of evidence which was not available at the initial extradition hearing, that the appeal under section 103 should be allowed (para.59).

Lord Drummond Young’s Dissent

Perhaps the most interesting part of the judgment is in fact Lord Drummond Young’s strong dissent. In concluding that there was no real risk that the extradition would contravene article 3, he outlined five general propositions that he described as of ‘crucial relevance to this case.’ (para. 63)

Lord Drummond Young emphasised the importance of extradition in maintaining the rule of law and stated that the refusal of extradition on a ground such as a failure of the requesting state’s prison system to conform to article 3 should be ‘exceptional’ (para. 64). He further highlighted that extradition agreements are international agreements concluded between executive branches of government and stated that ‘it is likely that the Home Secretary will be better informed than the court can be as to whether it is desirable to enter into an extradition agreement with a particular territory, and as to what the terms of any such agreement should be.’ (paras. 65 -66) He also concluded that when the UK enters into an extradition arrangement with a foreign territory the  courts should ‘assume that the requirements of the agreement, together with any supplementary undertakings, will be observed in good faith by the authorities of that territory’ (para.67).

Referring to Ahmad v United Kingdom (2013) 56 EHRR 1, Lord Drummond Young stated ‘that the Convention, and in particular Article 3, is not to be treated as a means by which Convention countries may impose their own standards on other states.  The result is that, even if conditions in prison would amount to a breach of Article 3 if they occurred in the United Kingdom, they might not necessarily do so if present in another non-Convention country’ (para. 73). In light of this, he concluded that in an extradition scenario a strong case is required before conditions in foreign prisons will prevent extradition, particularly as it should be assumed that the authorities in the requesting state will act in good faith and observe undertakings given (para.75).

In relation to the present case, therefore, he concluded that there was no potential breach of article 3 and stated that the undertakings given by the Taiwanese government must be accepted in good faith (para 77). Lord Drummond Young made clear that he was satisfied that the assurances given should be accepted as they met the relevant Othman criteria that assurances should ‘provide, in their practical application, a sufficient guarantee that the applicant will be protected against the risk of ill-treatment’ (see paras. 90 to 95, and Othman v United Kingdom, (2012) 55 EHRR 1). He also held that the particular circumstances relied on by the applicant, including his notoriety and the lack of international monitoring of the prison, did not create a real risk of treatment contrary to article 3 (paras. 96 to 106).

Interestingly, Lord Drummond Young concluded his dissent by noting that the arguments presented by the appellant would be equally applicable to persons guilty of more serious offences and that ‘the law of extradition would be open to serious criticism if, say, a terrorist or other mass murderer could not be extradited in spite of assurances such as those given by the Taiwanese authorities in the present case.’ (para. 108) Evidently, there is a very real concern here that a precedent could be set which makes it more difficult to extradite in terrorism cases; a situation which has been much discussed by the UK government, courts and public in recent years.

Conclusion

This case is particularly interesting not only for the media attention it has drawn in Scotland (see BBC News http://www.bbc.co.uk/news/uk-scotland-edinburgh-east-fife-37450285 and The Herald http://www.heraldscotland.com/news/14242643.Scot_facing_extradition_to_Taiwan_over_fatal_hit_and_run_launches_bid_for_freedom/) but also because of the resounding differences between the opinion of the majority and that of Lord Drummond Young.

The case clearly demonstrates the tensions at play in this ever-developing area of law – particularly as to how to delineate between the roles of courts and the executive and to what extent Convention standards should be imposed outwith Convention states.

Seonaid Stevenson is a Trainee Solicitor.