Trinity
Term
[2017] UKSC 44
On appeals from: [2016] HCJAC 83 and [2016] HCJAC 117
JUDGMENT
Lord Advocate (representing the Taiwanese Judicial
Authorities) (Appellant) v Dean (Respondent) (Scotland)
before
Lord Mance
Lord Sumption
Lord Reed
Lord Hughes
Lord Hodge
JUDGMENT GIVEN ON
28 June 2017
Heard on 6 March 2017
|
Appellant
Lord Advocate
David J Dickson
(Instructed by
Crown Office)
|
|
Respondent
Mungo Bovey QC
Graeme R Brown
(Instructed by GR
Brown Solicitors)
|
LORD HODGE: (with whom
Lord Mance, Lord Sumption, Lord Reed and Lord Hughes agree)
1.
This is an appeal about an extradition order. The Lord Advocate appeals
under paragraph 13 of Schedule 6 to the Scotland Act 1998 against the
determination of a devolution issue by the Appeal Court of the High Court of
Justiciary (“the Appeal Court”) on 23 September 2016. That court, by majority,
quashed an order for the extradition of the respondent (“Mr Dean”) to Taiwan.
The underlying question is whether his extradition to serve the residue of a
prison sentence there would be compatible with his right under article 3 of the
European Convention for the Protection of Human Rights and Fundamental Freedoms
(“the Convention”), which, as is well known, provides: “No one shall be
subjected to torture or to inhuman or degrading treatment or punishment”. The
Appeal Court held that his extradition would not be compatible with that
article of the Convention.
2.
The appeal raises two principal questions, namely (a) the competence of
the appeal and (b) whether the Appeal Court applied the correct legal test in
assessing the risk of harm which Mr Dean might face in the requesting state
from non-state actors. If the Appeal Court did not apply the correct legal
test, it is for this court to apply that test to the factual findings of the
Appeal Court.
3.
It is important to make clear at the outset that the Lord Advocate
argued the Crown’s case in a way in which the solicitor advocate who appeared
for him in the courts below had not. The Lord Advocate frankly conceded that
his argument on what was the correct legal test had not been presented before
the Appeal Court. It therefore involved criticising the judges of the Appeal
Court for not giving effect to an argument which they did not hear.
Background facts
4.
Mr Dean, a citizen of the United Kingdom, was born in Manchester. He
grew up in Edinburgh but had lived and worked in Taiwan for about 19 years
before he was involved in a road traffic accident on 25 March 2010. Following
that accident, he was convicted after trial in the District Court of Taipei on
15 March 2011 of driving while under the influence of alcohol, negligent
manslaughter and leaving the scene of an accident. The basis of his conviction
was that, while under the influence of alcohol, he drove into and killed a man
who was driving a motorcycle on a newspaper delivery round, that he did not
stop, and that he did not report the accident. He was sentenced to imprisonment
for two years and six months.
5.
He appealed against his conviction and sentence to the High Court in
Taipei, which, having heard further evidence, refused his appeal and increased
his sentence of imprisonment to four years. He then appealed to the Supreme
Court of Taiwan. He remained on bail before and during his trial and while his
appeals were pending. Before the Supreme Court of Taiwan had heard his appeal,
he fled Taiwan, using a friend’s passport, and came to Scotland. The Supreme
Court of Taiwan confirmed his conviction and sentence in his absence.
6.
The authorities in Taiwan then applied for his extradition. On 9 October
2013 the Ministry of Justice of Taiwan sought a provisional arrest warrant
under section 73 of the Extradition Act 2003 (“the 2003 Act”), which is
available if a person is accused in a category 2 territory of the commission of
an offence and he is alleged to be unlawfully at large after his conviction.
Because there is no extradition treaty between the UK and Taiwan, the Home
Office on behalf of the United Kingdom and the judicial authorities in Taiwan
entered into a memorandum of understanding in relation to Mr Dean under section
194 of the 2003 Act dated 16 October 2013. This had the result that a
certificate by the Scottish Ministers enabled the 2003 Act to apply in relation
to Mr Dean’s extradition as if Taiwan were a category 2 territory under that
Act.
7.
Mr Dean was arrested in Scotland on 17 October 2013 and remained in
custody for almost three years. On 28 October 2013 the Ministry of Justice of
Taiwan delivered a written request for Mr Dean’s extradition to the Secretary
of State for the Home Department. The Cabinet Secretary for Justice, Mr Kenny
MacAskill, certified the request under section 70(1) of 2003 Act on 18 November
2013 and sent the request to Edinburgh Sheriff Court. An extradition hearing
before Sheriff Kenneth Maciver was scheduled to commence in January 2014. Mr
Dean mounted numerous challenges and lodged two devolution minutes. The
completion of the hearing was delayed by his withdrawal of instructions from
his legal representatives, the obtaining of an expert report and the engagement
of replacement legal representatives. By Note of Decision dated 11 June 2014,
the sheriff decided under section 87(1) of the 2003 Act that Mr Dean’s
extradition would be compatible with his Convention rights within the meaning
of Human Rights Act 1998, and refused the two devolution minutes. The Scottish
Ministers made the extradition order on 1 August 2014.
8.
Mr Dean appealed under section 103 of the 2003 Act against Sheriff Maciver’s
decision and under section 108 of that Act against the extradition order of the
Scottish Ministers. The Appeal Court (Lady Paton, Lord Drummond Young and Lady
Clark of Calton) heard challenges as to whether Taiwan was a “territory” within
the meaning of the 2003 Act, whether Mr Dean’s article 6 right to a fair trial
had been infringed, and whether, under section 81 of the 2003 Act, extraneous
considerations barred extradition - in this case whether there was a serious
possibility that the request to extradite was for the purpose of punishing him
by reason of his race or nationality. In its unanimous opinion dated 24 June
2015, the Appeal Court rejected those challenges. This appeal is not concerned
with those issues. On the issue with which this court is concerned, namely the
challenge under article 3 of the Convention concerning prison conditions in
Taiwan, the Appeal Court ordered an evidential hearing. It reserved its opinion
on the section 108 appeal until it had dealt with the article 3 challenge.
9.
After hearing evidence on the article 3 challenge, the Appeal Court on
23 September 2016 by a majority (Lord Drummond Young dissenting) held that Mr
Dean’s extradition to Taiwan would not be compatible with his article 3 right
and ordered his discharge. The Appeal Court, in assessing the compatibility of
the extradition, applied the test 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”. The majority
(Lady Paton and Lady Clark of Calton) concluded that there was such a risk.
Because I am satisfied that the Appeal Court applied the wrong legal test and
that this court must therefore make its own assessment of the facts found by
the Appeal Court, I mean no discourtesy in summarising the majority’s reasoning
briefly.
10.
The Appeal Court heard evidence from Mr Dean and also two legal
academics, Professor Mong Hwa Chin and Dr James McManus, who had been
instructed on behalf of the Lord Advocate. That evidence vouched the conclusion
that Taiwanese prisons were seriously overcrowded and that Taipei prison, where
the Taiwanese authorities proposed to keep Mr Dean, was both overcrowded and
understaffed. The Taiwanese authorities had given written assurances to the
Lord Advocate in which they undertook that Mr Dean would not be housed in the
overcrowded cells in the main prison block but would be housed in a separate
building in an adequately sized cell, which had a lavatory and a shower and
which he would share with only one other foreign prisoner. The majority of the
Appeal Court held that, if the Taiwanese authorities fulfilled their
undertakings to the letter, there was still a real risk of ill treatment in
accordance with the Saadi test because (a) Mr Dean suffered from some
notoriety in Taiwan, the other inmates and prison staff would view the
arrangements made for him as wholly exceptional, and this would give rise to
animosity from other prisoners, (b) the staffing levels were not sufficient to
protect Mr Dean if he were to mix with other prisoners, (c) therefore he was
likely to choose to stay in his cell for most of the time and would not be able
to work to earn parole, (d) he would also have only limited opportunity for
outdoor exercise or interaction with others and solitary confinement was
generally harmful to health, (e) the ratio of medical and pharmaceutical staff
to prisoners was too low and prisoners had to pay for non-emergency medical
treatment and non-standard drugs, (f) there was no formal system for a UK body
or an international body to inspect the prison, (g) United Kingdom consular
staff, who visited UK prisoners in Taiwanese prisons, did not assess prison
standards, and (h) there were no established procedures by which prisoners
could enforce their rights in the Taiwanese courts. Lady Clark also commented
on the ad hoc nature of the assurances which the Taiwanese authorities had
given and doubted the ability of the British consular staff to monitor those
assurances.
11.
Lord Drummond Young in his dissenting opinion emphasised the
contribution which extradition makes to the rule of law both nationally and
internationally. He pointed out that the European Court of Human Rights (“ECtHR”)
had held that article 3 was not a means by which contracting states might
impose their own standards on other states: Ahmad v United Kingdom (2012)
56 EHRR 1, para 177. He argued that the court must proceed on the assumption
that the Taiwanese authorities would observe in good faith the assurances they
had given and he assessed the quality of those assurances against the criteria
which the ECtHR set out in Othman v United Kingdom (2012) 55 EHRR 1,
paras 177-190. Having assessed the evidence, Lord Drummond Young concluded that
Mr Dean had failed to establish that there was any real risk of his being
subject to treatment that would infringe article 3 of the Convention.
12.
After the Appeal Court (again by majority) refused to give leave to
appeal, a panel of this court granted the Lord Advocate permission to appeal on
21 December 2016.
Discussion
13.
I consider, first, the challenge to the competency of this appeal before
discussing the correct legal test for compatibility with article 3 of the ECHR
when the threat comes from the acts of third parties and applying that test to
the findings of the Appeal Court.
The competence of this appeal
14.
Mr Bovey, who appears for Mr Dean, challenges the competence of this
appeal on the ground that the Appeal Court has not determined a devolution
issue. For the reasons set out below I consider that challenge to be
misconceived.
15.
The decision of the Appeal Court which the Lord Advocate has appealed is
a decision “whether the person’s extradition would be compatible with the
Convention rights within the meaning of the Human Rights Act 1998 (c 42)”:
section 87(1) of the 2003 Act. The decision was made in the context of an
appeal under section 103 of the 2003 Act. There is no appeal to this court from
a decision of a Scottish court under section 103 because the provision
authorising an appeal to this court from decisions made under sections 103 and
108 (among others) does not apply to Scotland: section 114(13) of the 2003 Act.
But that is not the end of the matter because an appeal from a decision under
section 87(1) of the 2003 Act, which was the subject of this part of Mr Dean’s
section 103 appeal, raises a question of the legal competence of the Scottish
Government.
16.
Section 57(2) of the Scotland Act 1998 provides
“A member of the Scottish
Government 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 …”
17.
The functions carried out by the Lord Advocate and the Scottish
Ministers under Part 2 of the 2003 Act are acts that they perform as members of
the Scottish Government: BH v Lord Advocate 2012 SC (UKSC) 308, paras
33-34 per Lord Hope, and Kapri v Lord Advocate 2013 SC (UKSC) 311, paras
18-23 per Lord Hope.
18.
In Schedule 6 to the Scotland Act 1998 paragraph 1(d) includes within
the definition of a “devolution issue”:
“a question whether a purported or
proposed exercise of a function by a member of the Scottish Executive is, or
would be, incompatible with any of the Convention rights …”
19.
The question as to whether the Scottish Government’s acts in seeking to
extradite Mr Dean to Taiwan are compatible with Convention rights is thus a
devolution issue: BH (above), para 34, Kapri (above), para 22.
Section 116(1) of the 2003 Act provides the general rule that a decision under
Part 2 of the Act by a judge or the Scottish Ministers may be questioned in
legal proceedings only by means of an appeal under that Part, but subsection
(2) to that section excludes from that limitation an appeal against the determination
of a devolution issue.
20.
When pursuing his appeal before the Appeal Court to challenge the
sheriff’s decision under section 87 of the 2003 Act Mr Dean had the option of
proceeding either under section 103 of the 2003 Act or by means of raising a devolution
issue under the Scotland Act 1998: BH (above), para 26; Kapri
(above), para 19. He chose to proceed under section 103 of the 2003 Act and did
not raise a devolution minute in relation to his challenge concerning prison
conditions in the Appeal Court. The Lord Advocate was the respondent to Mr
Dean’s appeal before the Appeal Court. He therefore did not need to exercise
his right under paragraph 4 of Schedule 6 to the Scotland Act 1998 to institute
proceedings to determine the devolution issue raised by Mr Dean’s appeal.
21.
Where a devolution issue arises in proceedings, intimation of the issue
should be given to the Advocate General for Scotland and the Lord Advocate,
unless they are already parties to the proceedings: paragraph 5 of Schedule 6
to the Scotland Act 1998. Neither Mr Dean’s legal advisers nor the Lord
Advocate intimated the issue to the Advocate General for Scotland in relation
to the proceedings before the Appeal Court. The Advocate General was thus
deprived of his right under paragraph 6 of Schedule 6 to take part in the
proceedings in the Appeal Court. That omission, however, does not affect the
competence of any appeal to this court.
22.
Paragraph 13(a) of Schedule 6 to the Scotland Act 1998 confers a right
of appeal to the Supreme Court against a determination of a devolution issue by
a court of two or more judges of the High Court of Justiciary. The decision of
the Appeal Court is such a determination. The Lord Advocate has informed this
court that he had intimated the devolution issue, which he seeks to argue in
this court, to the Advocate General for Scotland, who has indicated that he
does not intend to take part in the proceedings. There is therefore no bar to
this appeal.
23.
It may be that the Appeal Court would have determined the other
devolution issues, which Mr Dean has raised, if it had been aware that the Lord
Advocate might seek to appeal its determination of the article 3 devolution
issue to this court. It did not do so. That is unfortunate because it may cause
further delay, but that cannot affect the competence of this appeal.
The merits of the appeal
Article 3 of the Convention:
summary
24.
The Lord Advocate concedes that, on the findings of fact by the Appeal
Court, there are substantial grounds for believing that there is a risk that Mr
Dean would suffer harm from other prisoners in Taipei prison if protective
measures were not put in place. But, he submits, the ECtHR laid down the
appropriate legal test in such a circumstance in HLR v France (1998) 26 EHRR 29, which the House of Lords applied in R (Bagdanavicius) v Secretary
of State for the Home Department [2005] 2 AC 668 (“Bagdanavicius”).
As I set out below, the test is whether the state has failed to provide
reasonable protection against harm inflicted by non-state agents. Mr Bovey
acknowledges that test but submits that in substance the Appeal Court has
addressed it. I do not accept that submission. In my view, the Appeal Court did
not address that test. This is unsurprising, because, as Lady Paton recorded at
para 8 of her opinion, counsel were agreed that the correct test was set out in
Saadi, to which I have referred in para 9 above. As a result no clear
distinction was drawn in her opinion (paras 8, 45, and 50-58) between the
underlying threat from other prisoners, which the Appeal Court found to exist,
and conduct for which the state was responsible. It is therefore incumbent on
this court to apply the correct legal test to the findings of fact of the
Appeal Court. In short, the court must assess, first, whether the Taiwanese
authorities are undertaking to provide Mr Dean with reasonable protection
against violence by third parties while he is in prison, and, secondly, if they
are, whether the conditions in which he is to have such protection themselves
entail an infringement of article 3.
The correct legal test
25.
Article 3 of the Convention enshrines one of the fundamental values of a
democratic society. It is therefore incumbent on the court to be assiduous in
its assessment of a challenge on this ground. A person asserting a breach of
this article must show that there are substantial grounds for believing that he
faces a real risk of being subjected to treatment contrary to article 3 if he
is extradited: Saadi v Italy (above), para 125. In addressing that
challenge, the court can have regard to assurances given by the receiving
state: Othman v United Kingdom (above), paras 187-189. In particular,
the court must assess not only the quality of the assurances given but also
whether they can be relied on, having regard to the general situation in that
country with regard to respect for human rights. In Othman (para 189)
the ECtHR set out eleven factors which, among others, a court could take into
account in making that assessment. I discuss several of those factors in para
38 below.
26.
In Bagdanavicius, Lord Brown of Eaton-under-Heywood, who gave the
leading speech in the House of Lords, observed (para 7) that it has long been
established that article 3 imposes an obligation on the part of a contracting
state not to expel someone from its territory where substantial grounds are
shown for believing that he will face in the receiving country a real risk of
being subjected to treatment contrary to that article. He cited Soering v
United Kingdom (1989) 11 EHRR 439 as the initial authority for the
principle that the act of expulsion in such a circumstance constitutes the
proscribed ill-treatment. The expulsion itself breaches article 3 if such risk
in the receiving country emanates either from acts of the public authorities of
that state or from persons or groups of persons who are not public officials.
In the latter circumstance, it is not sufficient to show that there is a real
risk of suffering serious harm at the hands of non-state agents. In para 24
Lord Brown deprecated a failure in such cases to distinguish between the risk
of serious harm on the one hand and the risk of treatment contrary to article 3
on the other. He said:
“In cases where the risk ‘emanates
from intentionally inflicted acts of the public authorities in the receiving country’
(the language of D v United Kingdom (1997) 24 EHRR 423, 447, para 49)
one can use those terms interchangeably: the intentionally inflicted acts would
without more constitute the proscribed treatment. Where, however, the risk
emanates from non-state bodies, that is not so: any harm inflicted by non-state
agents will not constitute article 3 ill-treatment unless in addition the state
has failed to provide reasonable protection. … Non-state agents do not subject
people to torture or to the other proscribed forms of ill-treatment, however
violently they treat them: what, however, would transform such violent
treatment into article 3 ill-treatment would be the state’s failure to provide
reasonable protection against it.”
27.
It is this test that the court must apply to the facts of this case in
relation to the harm which non-state actors might inflict, before asking
whether the circumstances of such protection are themselves compatible with
article 3.
Applying the tests
28.
The Appeal Court made findings that there were problems of over-crowding
and under-staffing in the main detention building in Taipei prison which gave
rise to uncontrolled bullying of weaker prisoners. There was also evidence,
which the Appeal Court accepted, of inadequate ventilation and lavatory
facilities which exacerbated the discomfort caused by the over-crowding, and
inadequate opportunities for the prisoners to exercise in the open air (para
44). There was also a finding that Mr Dean was at particular risk of being the
focus of hostility from prisoners within the prison (para 47). As against those
findings, it is necessary to assess the undertakings which the Taiwanese
authorities have made in support of their application for Mr Dean’s
extradition.
29.
Lady Paton in para 10 of her opinion recorded in summary the various
undertakings which the Taiwanese authorities have given. I summarise those
which are most relevant to prison conditions.
30.
First, in a letter dated 25 February 2014, Mrs Chen Wen-chi, the
Director General of the Department of International and Cross-Strait Legal
Affairs in the Ministry of Justice of Taiwan and signatory of the memorandum of
understanding (para 6 above), undertook that Mr Dean would be supervised by
English-speaking officers and that he would be housed in an appropriate cell
with persons selected from among non-violent foreign inmates, to avoid
bullying. The authorities would treat Mr Dean as a special assignment, take
account of his concerns for his safety, and assess the level of protection
which he needed. They would pre-screen inmates with ill intent towards him to
prevent them having contact with him. If necessary, they would separate Mr Dean
from group activities and restrict his interaction with other inmates. By
letter dated 14 November 2014, Mr Luo Ying-shay, the Minister of Justice of
Taiwan, confirmed Mrs Chen Wen-chi’s authority to give undertakings on behalf
of his ministry, which supervised the Agency of Corrections which was
responsible for managing prisons in Taiwan.
31.
Secondly, on 19 August 2015 Mrs Chen Wen-chi described and sent
photographs of the cell which she undertook to prepare for Mr Dean and which he
would share with one other foreign prisoner. The cell was located on the second
floor of the 11th disciplinary area in Taipei prison and had an area of 13.76
square metres. The cell was equipped with a desk, a chair, a four-shelf
cupboard, a bunk bed, and a bathroom with a toilet, a sink, a shower and a
shower curtain. There was good natural lighting through a large window,
electric lighting, an exhaust fan and an electric fan on the ceiling. Prisoners
had the opportunity to spend about nine hours per day out of their cells, which
included working, exercise time, rests and meals. Assurances were also given
about the quality of drinking water and diet. By letter of the same date Mr Wu
Man-Ying, the Director General of the Agency of Corrections, confirmed that his
agency would abide by those assurances. He confirmed this a second time in a
letter dated 2 June 2016.
32.
Thirdly, Mrs Chen Wen-chi by letter dated 25 December 2015 confirmed
that if the United Kingdom consular staff raised an issue concerning a breach
of an assurance about prison conditions, the Taiwanese authorities would
respond to remedy any breach.
33.
Finally, on 31 May 2016, the new Minister of Justice, Mr Chui Tai-san,
re-affirmed Mrs Chen Wen-chi’s authority to provide the assurances and to
undertake to put them into practice.
34.
Dr McManus’s visit to Taipei prison in August 2015 provided further
insight into the undertakings. The proposed cell measured 11.05 square metres,
excluding the toilet and shower annex, giving 5.5 square metres to each of the
proposed occupants. It was on the second floor of a reception area, where there
were classrooms for the assessment of new arrivals. On the same floor there was
an observation office and a 50-bed convalescent cell. The cell, which was
proposed for Mr Dean, had been created in 2013 as a protected cell but had
never been used. The proposed exercise area for Mr Dean was a tarmac basketball
court adjacent to the building. The basketball court offered ample space for
exercise and could be cleared of other prisoners when Mr Dean was using it. Dr
McManus concluded that the accommodation met all the standards set by the
Committee for the Prevention of Torture (“CPT”) and the ECtHR in terms of space
per prisoner, light, ventilation and toilet facilities. He also recorded that
assurances had been given that Mr Dean could have a minimum of one hour’s
outdoor exercise per day and that he would be entitled to access to newspapers,
radio and television. There was a work regime in the prison which, if Mr Dean
engaged with it, would allow him to mix with other prisoners and to be out of
his cell from 8.30 am to 5.30 pm.
35.
Understandably, it was not suggested on Mr Dean’s behalf that the cell
accommodation was inadequate or exposed him to overcrowding if he were to share
it with one non-violent foreign prisoner. Nor was it suggested that he would
not be reasonably safe when in that cell.
36.
In agreement with the judges of the Appeal Court, I proceed on the basis
that the judicial authorities of Taiwan are acting in good faith in entering
into the memorandum of understanding and in giving the assurances which they
have. I also agree with the judges of the Appeal Court in so far as they
proceeded on the assumption that the Taiwanese authorities responsible for the
management of Taipei prison would make every effort to fulfil those
undertakings. As Lord Drummond Young observed in his dissenting opinion,
extradition assists in maintaining the rule of law both nationally and
internationally. The United Kingdom Government has chosen to enter into
extradition treaties with friendly foreign states or territories giving rise to
mutual obligations in international law. In Gomes v Government of Trinidad
and Tobago [2009] 1 WLR 1038, Lord Brown stated (para 36):
“The extradition process, it must
be remembered, is only available for returning suspects to friendly foreign
states with whom this country has entered into multilateral or bilateral treaty
obligations involving mutually agreed and reciprocal commitments. The
arrangements are founded on mutual trust and respect. There is a strong public
interest in respecting such treaty obligations.”
The Lord Advocate acknowledges that the memorandum of
understanding does not have the status of a treaty enforceable in international
law. That notwithstanding, there remains a strong public interest in promoting
and maintaining the rule of law by means of extradition.
37.
But that strong public interest, while carrying great weight, has no
paramountcy in the face of an article 3 challenge. In Othman v United
Kingdom (above) the ECtHR stated how it would assess the quality of the
assurances given by a receiving country in the context of deportation. The
existence of an extradition agreement - whether a treaty or a memorandum of
understanding - does not obviate the need for such an assessment in the context
of a human rights challenge. It is possible, for example, that adverse
political developments in a friendly foreign state might reduce the confidence
which our courts could reasonably have about an extradited person’s treatment
in that country, notwithstanding the continued existence of an extradition
treaty. In my view, it is incumbent on a court, which is addressing an article
3 challenge, to make such an assessment in the context of an extradition; and
the existence of the extradition agreement is a factor in that assessment. This
is consistent with the ECtHR’s guidance in Othman which identified as
relevant the length and strength of bilateral relations between the sending and
receiving states.
38.
In this case the assurances are given on behalf of the central
government of Taiwan, which is a developed society with a tradition of respect
for the rule of law. There is no suggestion that the Taiwanese authorities
ill-treated Mr Dean before he fled the country. The assurances are given by a
senior responsible official and have been confirmed by two Ministers of Justice
and by the Director General of the agency with responsibility for managing
prisons. The assurances, and in particular those about his accommodation and
separating him from group activities with other prisoners if that is necessary
for his safety, are specific rather than general. The assurances envisage that
United Kingdom consular staff will have access to Mr Dean in prison and include
an undertaking to remedy any breach of the assurances which the consular staff
raise with the prison authorities. The memorandum of understanding and the assurances
have given a role to the consular staff which they have not had in the past in
relation to United Kingdom citizens imprisoned in Taiwan. There is no reason to
think that the consular staff would not perform their obligations to monitor
the assurances if Mr Dean were to request their help. While there appears to
have been no examination of the access which Mr Dean might have to legal
advice, Dr McManus recorded the apparently successful operation of a complaints
system in the prison and that some prisoners had obtained access to the
domestic courts. This is the first occasion on which Taiwan has sought to
extradite a United Kingdom citizen and the memorandum of understanding and the
assurances are therefore untested; but that novelty is significantly outweighed
by the other factors which I have mentioned in this paragraph.
39.
Mr Dean’s case is both that he has gained notoriety in Taiwan as a
foreign businessman who was convicted of killing a local man through driving
while drunk and also that other prisoners would resent his privileged status in
the prison and wish to harm him. As a result, he may not be able to mix with
other prisoners and work to earn parole, which in Taiwan depends in part upon a
prisoner’s taking part in work activities in the prison. I cannot judge in
advance the extent to which Mr Dean’s fear of being harmed by other prisoners
will prevent him from mixing with them. But there is no evidence to support an
inference that the Taiwanese authorities will not give him reasonable
protection against harm at the hands of other prisoners: the undertakings would
allow him to elect to remain in his cell and exercise outdoors by himself.
There is nothing to suggest that such a regime would fail to prevent third
parties from harming him.
40.
I turn then to the second question, which is whether the confinement
which such a regime would entail would risk a breach of article 3. There is no
issue about the quality of the cell accommodation or the fact that Mr Dean
would share the cell with a non-violent foreign prisoner. But the majority of
the Appeal Court expressed concern that Mr Dean might have to elect to stay in
his cell and thus be subjected to a form of solitary confinement, which might
be harmful to his health.
41.
In Mr Dean’s case we are not concerned with complete sensory isolation
and total social isolation which the ECtHR has recognised as constituting a
form of inhuman treatment. But the Convention looks beyond such isolation. In Ahmad
at paras 207-210 the ECtHR stated:
“207. Other forms of solitary confinement
which fall short of complete sensory isolation may violate article 3. Solitary
confinement is one of the most serious measures which can be imposed within a
prison and, as the Committee for the Prevention of Torture has stated, all
forms of solitary confinement without appropriate mental and physical
stimulation are likely, in the long term, to have damaging effects, resulting
in deterioration of mental faculties and social abilities. Indeed, as the
Committee’s most recent report makes clear, the damaging effect of solitary
confinement can be immediate and increases the longer the measure lasts and the
more indeterminate it is.
208. At the same time, however,
the Court has found that the prohibition of contact with other prisoners for
security, disciplinary or protective reasons does not itself amount to inhuman
treatment or punishment. In many states parties to the Convention more
stringent security measures, which are intended to prevent the risk of escape,
attack or disturbance of the prison community, exist for dangerous prisoners.
209. Thus, whilst prolonged
removal from association with others is undesirable, whether such a measure
falls within the ambit of article 3 of the Convention depends on the particular
conditions, the stringency of the measure, its duration, the objective pursued
and its effects on the person concerned.
210. In applying these
criteria, the Court has never laid down precise rules governing the operation
of solitary confinement. For example, it has never specified a period of time,
beyond which solitary confinement will attain the minimum level of severity
required for article 3. The Court has, however, emphasised that solitary
confinement, even in cases entailing relative isolation, cannot be imposed on a
prisoner indefinitely.”
42.
In Mr Dean’s case, we are concerned with what the ECtHR has described as
“relative isolation” as he would share his cell with a non-violent foreign
prisoner and would have access to newspapers, radio and television. There would
also be opportunities for people to visit him. That relative isolation would
not be imposed on him by the prison authorities but would be at his option, if
he were to take the view that the risk of harm at the hands of other prisoners
required him to dissociate himself from contact with them. Thus, the objective
which might give rise to his relative isolation would be his own protection.
43.
Further, the period of Mr Dean’s imprisonment resulting from his
conviction is unlikely to exceed approximately 13 months because the Taiwanese
authorities have undertaken to give him credit towards his four-year sentence
for the period of almost three years which he has spent in prison in Scotland.
44.
When one has regard to the decisions of the ECtHR in other cases
concerning solitary confinement, such as Öcalan v Turkey (2005) 41 EHRR 45, Ramirez Sanchez v France (2007) 45 EHRR 49 and Ahmad v United
Kingdom (above), and the decision of this court in Shahid v Scottish
Ministers [2015] UKSC 58; 2016 SC (UKSC) 1; [2016] AC 429, the
circumstances of Mr Dean’s possible relative isolation do not come close to a
breach of article 3 of the Convention and do not contribute significantly to
his assertion of such a breach when other circumstances are considered. It is
necessary, of course, to take a holistic view of the circumstances of his
detention in reaching a view as to whether there is a real risk of his being
subject to treatment that infringes article 3 of the Convention. But the other
factors which influenced the majority of the Appeal Court do not materially
advance his case.
45.
First, the ratio of medical staff to prisoners, to which Lady Paton
referred in para 33 of her opinion, was well below the standard advocated by
the CPT, which is one doctor per 350 prisoners. But, as she also recorded, Dr
McManus concluded that there appeared to be “no great problem for prisoners
obtaining medical attention when needed”. The fact that prisoners have to pay
for non-emergency medical and dental treatment and also for non-generic drugs
is of little significance. It is important to recall that the ECtHR has
repeatedly stated that the Convention does not purport to be a means of
requiring the Contracting States to impose Convention standards on other
states: Al-Skeini v United Kingdom (2011) 53 EHRR 18, para 141; Ahmad
v United Kingdom (above), para 177.
46.
Secondly, I do not infer from the past practice of United Kingdom
consular staff of not pressing for the improvement of prison conditions for
United Kingdom prisoners that they would not act to protect Mr Dean. As I have
said, the existence of the memorandum of understanding and also the assurances
by which the Taiwanese authorities have recognised the role of the consular
staff in protecting Mr Dean’s interests have given the consular staff a role
which to date they have not had.
47.
Thirdly, the majority of the Appeal Court was concerned both by the
absence of an international system by which prison conditions in Taiwan were
monitored and that “there is no established route within the Taiwanese courts
whereby a prisoner can seek a remedy in respect of prison conditions” (paras 56
and 57). Those are among the factors which the ECtHR has identified as relevant
considerations in assessing the quality of the assurances of the receiving
state: Othman v United Kingdom (above) para 189. But in my view, those
considerations do not outweigh the other factors which point towards accepting
the assurances (para 38 above) and the role which the United Kingdom consular
staff will undertake in monitoring the assurances.
48.
I am therefore satisfied (a) that the assurances of the Taiwanese
authorities offer Mr Dean reasonable protection against violence by non-state actors
and (b) that the circumstances of his confinement, should he be unable to mix
with the wider prison population, do not entail a real risk of his being
subject to treatment that infringes article 3 of the Convention.
Articles 5 and 8 of the Convention
49.
Mr Bovey also advances separate challenges under articles 5 and 8 of the
Convention, which the Appeal Court did not need to decide. I am satisfied that
those challenges are without substance and can deal with them briefly.
50.
Article 5: Mr Bovey submits that Mr Dean’s detention in prison
would involve arbitrariness because the Taiwanese authorities would not give
him credit for the time spent in custody in Scotland in the calculation of his
entitlement to parole. One of the assurances which Mrs Chen Wen-chi gave (in a
letter dated 23 December 2013) was that all periods of detention in Scotland
arising from the extradition request would be deducted from the total period
which he would have to serve in Taiwan. That undertaking did not include any
reference to entitlement to parole and, contrary to counsel’s submission, I
detect nothing in it that was objectively misleading. In a later letter, dated
1 June 2016, Mrs Chen Wen-chi explained that only periods of imprisonment in
Taiwan would count towards the service of a minimum part of the sentence for
entitlement to parole. It appears therefore that Mr Dean would have to serve
two-thirds of the residue of his sentence in Taiwan before he would be eligible
to be considered for parole. I detect nothing arbitrary in this regime. The
Convention does not require United Kingdom courts to expect foreign states to
have similar sentencing practices to ours or a particular form of parole
system. Article 3 would be breached by extradition to serve a sentence, which
the receiving state imposed, only if the sentence was grossly disproportionate:
Willcox v United Kingdom (2013) 57 EHRR SE 16, para 74. Mr Dean’s
inability to obtain credit towards parole for the time he has spent in custody
in Scotland is the result of his flight from justice in Taiwan. This involves
no injustice.
51.
Article 8: Counsel also argues that Mr Dean’s extradition to and
imprisonment in Taiwan would interfere with his right to respect for his
private life. I agree that there would be such interference but am satisfied
that it is justified because it is necessary in a democratic society both for
the prevention of crime and for the protection of the rights and freedoms of
others (article 8(2)). This court has recognised the strength of the public
interest in extradition in the context of an article 8 challenge: Norris v
Government of the United States of America (No 2) [2010] 2 AC 487; H (H)
v Deputy Prosecutor of the Italian Republic (Official Solicitor intervening) [2013] 1 AC 338. Mr Dean has been convicted of a serious offence committed in Taiwan
where he had resided for 19 years. A term of imprisonment for such an offence
was clearly justified both as a punishment and to deter such behaviour by
others. It may be that the special protective measures which are proposed will
prevent Mr Dean from earning credit towards parole while serving the residue of
his sentence. But that does not undermine the justification of the extradition.
Conclusion
52.
I would allow the appeal on the devolution issue and remit the case to
the Appeal Court to deal with Mr Dean’s appeal under section 108 of the 2003
Act and his devolution minute in that appeal.
