Lord Advocate (representing the Taiwanese Judicial Authorities) v Dean (Scotland) [2017] UKSC 44

Mr Dean, a UK citizen convicted in Taiwan of drink-driving manslaughter, fled to Scotland. The Supreme Court allowed the Lord Advocate's appeal, holding that Taiwan's assurances about prison conditions provided reasonable protection against article 3 ECHR breaches, permitting his extradition.

Facts

Mr Dean, a UK citizen who had lived in Taiwan for 19 years, was convicted in 2011 by the District Court of Taipei of driving while under the influence of alcohol, negligent manslaughter and leaving the scene of an accident after killing a motorcyclist. His sentence was increased on appeal to four years’ imprisonment. While his further appeal to the Supreme Court of Taiwan was pending, he fled to Scotland using a friend’s passport. Taiwan, with which the UK has no extradition treaty, entered into a memorandum of understanding under section 194 of the Extradition Act 2003, and sought Mr Dean’s extradition. The Sheriff and Scottish Ministers ordered extradition. The Appeal Court of the High Court of Justiciary, by majority, quashed the extradition order on the basis that extradition would breach article 3 ECHR due to prison conditions in Taipei prison.

Issues

The appeal raised two principal questions: (a) the competence of the appeal to the Supreme Court; and (b) whether the Appeal Court applied the correct legal test in assessing the risk of harm Mr Dean might face from non-state actors (other prisoners) in the requesting state, and the compatibility of his extradition with article 3 ECHR.

Arguments

Lord Advocate (Appellant)

The Lord Advocate conceded there were substantial grounds for believing Mr Dean would face a risk of harm from other prisoners absent protective measures, but argued that the correct test, derived from HLR v France and applied in R (Bagdanavicius) v Secretary of State for the Home Department, was whether the state had failed to provide reasonable protection against harm by non-state actors. He frankly conceded this argument had not been advanced before the Appeal Court.

Mr Dean (Respondent)

Mr Bovey QC challenged the competence of the appeal, arguing the Appeal Court had not determined a devolution issue. On the merits, he accepted the Bagdanavicius test but contended the Appeal Court had in substance applied it. He also advanced separate challenges under articles 5 and 8 ECHR concerning parole arrangements and interference with private life.

Judgment

Competence

Lord Hodge (with whom the other Justices agreed) held the appeal was competent. The functions of the Lord Advocate and Scottish Ministers under Part 2 of the 2003 Act are acts performed as members of the Scottish Government, and compatibility with Convention rights raised a devolution issue under paragraph 1(d) of Schedule 6 to the Scotland Act 1998. Paragraph 13(a) of that Schedule conferred a right of appeal to the Supreme Court against determination of a devolution issue by the High Court of Justiciary.

Correct Legal Test

The Appeal Court had erroneously applied only the Saadi v Italy test (real risk of treatment incompatible with article 3) without distinguishing between harm from state actors and harm from non-state actors. Citing Lord Brown in Bagdanavicius, Lord Hodge confirmed that where risk emanates from non-state agents, harm only constitutes article 3 ill-treatment where the state has additionally failed to provide reasonable protection. The court therefore had to assess: first, whether the Taiwanese authorities had undertaken to provide reasonable protection against violence by third parties; and secondly, whether the conditions of such protection themselves infringed article 3.

Application of the Test

The Taiwanese authorities had given detailed, specific assurances: Mr Dean would be housed in a separate, adequately equipped cell of 13.76 square metres shared with one non-violent foreign prisoner, supervised by English-speaking officers, with pre-screening of inmates with ill intent, separation from group activities if necessary, access to outdoor exercise and a work regime, and UK consular access to monitor compliance. The assurances came from senior officials including two Ministers of Justice. Taiwan was a developed society with respect for the rule of law and had not ill-treated Mr Dean previously. Dr McManus’s evidence confirmed the accommodation met CPT and ECtHR standards.

Applying the Othman v United Kingdom factors, Lord Hodge concluded the assurances offered reasonable protection. Regarding the second question, any resulting confinement would amount only to “relative isolation” at Mr Dean’s own option for his own protection, with cell-sharing, access to media and visits. Given the likely remaining sentence of approximately 13 months (after credit for time served in Scotland), the circumstances did not approach a breach of article 3. Lord Hodge noted the ECtHR had repeatedly stated the Convention does not require Contracting States to impose Convention standards on other states (Al-Skeini, Ahmad).

Articles 5 and 8

The article 5 challenge regarding parole credit failed: the Convention does not require foreign states to mirror UK sentencing or parole practices, and any disadvantage flowed from Mr Dean’s flight from justice. The article 8 interference was justified under article 8(2) as necessary for prevention of crime, given the strong public interest in extradition recognised in Norris and H(H).

Implications

The decision reaffirms the distinction, first set out clearly by Lord Brown in Bagdanavicius, between article 3 risk from state actors and from non-state actors: in the latter case, the test is whether the receiving state has failed to provide reasonable protection. Courts assessing extradition under article 3 must apply this distinction rigorously, and must not conflate the underlying threat with conduct attributable to the state.

The judgment also underscores the strong public interest in extradition as a tool for maintaining the rule of law nationally and internationally, even where the basis is a memorandum of understanding rather than a treaty. The existence of such an arrangement is a relevant factor in assessing the quality of assurances but does not displace the court’s duty to make an article 3 assessment in accordance with the criteria in Othman v United Kingdom.

The decision clarifies that “relative isolation” voluntarily adopted by a prisoner for protective reasons, with access to a cellmate, media and visits, does not readily engage article 3, particularly where the period is relatively short. It also reaffirms that the Convention is not a vehicle for imposing UK or Convention standards on non-Contracting States.

For practitioners, the case is significant as the first occasion on which Taiwan sought to extradite a UK citizen, and demonstrates how the courts will scrutinise specific, official assurances together with consular monitoring arrangements. It is of importance to extradition lawyers, human rights practitioners, and those advising on devolution issues arising from acts of the Scottish Government under Part 2 of the Extradition Act 2003.

Verdict: Appeal allowed. The Supreme Court held that Mr Dean’s extradition to Taiwan would be compatible with article 3 ECHR, given the assurances offered by the Taiwanese authorities providing reasonable protection against violence by non-state actors, and that the conditions of his confinement did not entail a real risk of treatment infringing article 3. The case was remitted to the Appeal Court to deal with Mr Dean’s appeal under section 108 of the 2003 Act and his associated devolution minute.

Source: Lord Advocate (representing the Taiwanese Judicial Authorities) v Dean (Scotland) [2017] UKSC 44