The requested person, a United Kingdom citizen resident in Taiwan, was convicted and sentenced in Taiwan to four years’ imprisonment in respect of driving while under the influence of alcohol, negligent manslaughter and leaving the scene of an accident. He fled to Scotland where the Taiwanese authorities sought his extradition. By a memorandum of understanding entered into between the Home Office and the judicial authorities in Taiwan under the Extradition Act 2003, that Act was applied to the requested person as if Taiwan were a category 2 territory. Following an extradition request by the Taiwanese Government he was arrested and remained in custody for the following three years. In extradition proceedings in Edinburgh the requested person complained, inter alia, that, given the prison conditions in Taiwan, including the risk of harm inflicted by other prisoners, his extradition would not be compatible with his Convention rights within the meaning of the Human Rights Act 1998 and would in particular breach his rights under article 3 of the Convention for the Protection of Human Rights and Fundamental Freedoms. The sheriff rejected his complaint, decided, pursuant to section 87(1) of the 2003 Act, that the requested person’s extradition would be compatible with such rights, and accordingly sent the case to the Scottish Ministers who made an order for the requested person’s extradition. The requested person appealed against the sheriff’s decision under section 103 of the 2003 Act and against the ministers’ order under section 108 of that Act. The Appeal Court of the High Court of Justiciary rejected most of his grounds of appeal, but sought evidence of prison conditions in Taiwan in respect of his claim that extradition would be in breach of his rights under article 3 of the Convention. Written assurances were given by the Taiwanese judicial authorities and those responsible for prisons in Taiwan that the requested person would be adequately housed in prison with appropriate facilities which he would share with only one, non-violent, other foreign prisoner, that he would be supervised by English-speaking staff, that he would have access to United Kingdom consular staff who would monitor his conditions and that credit would be given for his detention in Scotland in so far as it arose from the extradition request. In reaching its decision the Appeal Court, by a majority, considered that the appropriate test was whether substantial grounds had been shown for believing that there was a real risk of treatment incompatible with article 3. Applying that test the court held that, even if such assurances were strictly applied, there was still a real risk of ill-treatment contrary to article 3, and accordingly set aside the extradition order and discharged the requested person.
On the Lord Advocate’s appeal and on the requested person’s challenge to the Supreme Court’s jurisdiction to hear the appeal —
Held, (1) that, although the requested person’s appeal to the Appeal Court had been made in the context of section 103 of the Extradition Act 2003, the decision of that court had arisen by way of an appeal from the sheriff’s decision under section 87(1) of the 2003 Act as to whether extradition would be compatible with the requested person’s Convention right, and raised an issue as to the legal competence of the Scottish Government; that, since paragraph 1(d) of Schedule 6 to the Scotland Act 1998 included within the definition of a “devolution issue” a question whether a proposed exercise of a function of the Scottish Executive would be incompatible with any of the Convention rights, the compatibility of the requested person’s extradition with his Convention rights within the meaning of the Human Rights Act 1998 was a devolution issue which the Appeal Court had determined; and that, accordingly, the Supreme Court had jurisdiction to entertain the Lord Advocate’s appeal (post, paras 15, 18, 19, 22)
BH v Lord Advocate 2012 SC (UKSC), 308, SC(Sc) and Kapri v Lord Advocate 2013 SC (UKSC) 311, SC(Sc) applied.
(2) Allowing the appeal, that in assessing whether extradition was compatible with the requested person’s rights under article 3 of the Convention, the correct test where the risk of ill-treatment came from non-state actors was whether the state could provide reasonable protection against it; that the court could have regard to assurances given by the requesting state and should, in particular, assess not only the quality of such assurances but whether they could be relied on, having regard to the general human rights position in the country concerned; that the court was therefore required to assess whether the authorities were undertaking to provide the requested person with reasonable protection against violence by third parties and, if so, whether the conditions in which he was to be protected would themselves entail an infringement of article 3; and that, accordingly, the Appeal Court had applied the wrong test (post, paras 9, 24)
Othman v United Kingdom (2012) 55 EHRR 1 and R (Bagdanavicius) v Secretary of State for the Home Department [2005] 2 AC 668, HL(E) applied.
(3) That, having regard to the strong public interest in promoting and maintaining the rule of law by means of extradition, and on application of the correct legal test, there was no evidence that the Taiwanese authorities, which had acted in good faith and would make every effort to fulfil the assurances, would not give the requested person reasonable protection against harm from other prisoners; that the assurances, which enabled the requested person to choose for himself whether to remain in his cell or to mix with other prisoners, and the relative isolation which might occur for his own protection did not come close to solitary confinement such as would breach article 3; that the assurances as a whole offered reasonable protection and did not entail a real risk of the requested person being subject to treatment which would infringe article 3; that the requested person’s claims in respect of other Convention rights were without substance since (i) the requirement that he serve a substantial part of the residue of his sentence before becoming eligible for parole did not involve arbitrariness in breach of article 5 but resulted from his flight to Scotland and (ii), although imprisonment in Taiwan interfered with this right under article 8 to respect for his private life, it was justified because necessary both for the prevention of crime and the protection of the rights and freedoms of others; and that, accordingly. the case would be remitted to the Appeal Court to deal with the requested person’s appeal under section 108 of the 2003 Act (post, paras 39–48, 50–52)
Shahid v Scottish Ministers [2016] AC 429, SC(Sc) distinguished.
Decision of Appeal Court of the High Court of Justiciary [2016] HCJAC 117 reversed.
W James Wolffe QC, Lord Advocate and David J Dickson (instructed by Crown Office, Edinburgh) for the Government of Taiwan and the Scottish Ministers.
Mungo Bovey QC and Graeme R Brown (instructed by GR Brown, Glasgow) for the requested person.