Trinity Term [2017] UKSC 44 On appeals from: [2016] HCJAC 83 and 117

Lord Advocate (representing the Taiwanese
Judicial Authorities) (Appellant) v Dean
(Respondent) (Scotland)
Lord Mance
Lord Sumption
Lord Reed
Lord Hughes
Lord Hodge
28 June 2017
Heard on 6 March 2017
Appellant Respondent
Lord Advocate Mungo Bovey QC
David J Dickson Graeme R Brown
(Instructed by Crown
(Instructed by GR Brown
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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.
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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
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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.
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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
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
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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
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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 (1997) 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
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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
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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
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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, reaffirmed 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
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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
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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.
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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
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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
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 (2004) 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
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.
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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
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
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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
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.