(Scotland) The respondent was to be extradited to Taiwan to serve the balance of a prison term. His appeal succeeded and the order quashed on the basis that his treatment in the Taiwanese prison system would infringe his human rights. The Lord Advocate now appealed.
Held: The question was a devolution issue, being ‘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’
Held: The appeal was allowed on the devolution issue, and the case remitted to the Appeal Court to reconsider the appeal.
The HCJ having misguided itself as to the assessment of the condition in a Taiwan jail, the Court reconsidered them, saying: ‘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. .’
Judges:
Lord Mance, Lord Sumption, Lord Reed, Lord Hughes, Lord Hodge
Citations:
[2017] UKSC 44, [2017] WLR 2721, [2017] SLT 773, [2017] 1 WLR 2721, 2017 GWD 21-345, [2017] WLR(D) 432, 2017 SCCR 388, UKSC 2016/0212
Links:
Bailii, Bailii Summary, WLRD, SC, SC Summary, SC Summary Video, SC 20170306am Video, SC 20170306pm video
Statutes:
European Convention on Human Rights, Scotland Act 1998 57(2), Extradition Act 2003 73
Jurisdiction:
Scotland
Citing:
Cited – Saadi v Italy (United Kingdom intervening) ECHR 28-Feb-2008
(Grand Chamber) When considering the appropriateness of a deportation order to a country with which the deporting country had a memorandum of understanding that the destination country would not torture the deportee, a court must look beyond the . .
Cited – Omar Othman (Abu Qatada) v The United Kingdom ECHR 17-Jan-2012
The applicant resisted his proposed deportation to Jordan to face charges of terrorism. He complained was that his retrial in Jordan would amount to a flagrant denial of justice because of a number of factors including a very real risk that . .
Cited – Babar Ahmad And Aswat v United Kingdom ECHR 10-Apr-2012
The applicants said that if extradited to the USA to face charges related to terrorism, they would risk facing either imprisonment by Presidential decree, or full life terms.
Held: Detention conditions and length of sentences of five alleged . .
Leave refused – Dean v The Lord Advocate and Another HCJ 23-Sep-2016
Application for Leave to Appeal to UK Supreme Court – refused . .
Leave refused (2) – Lord Advocate v Dean HCJ 24-Nov-2016
Application for Leave to Appeal to UK Supreme Court – refused . .
Cited – BH and Another v The Lord Advocate and Another SC 20-Jun-2012
The appellants wished to resist their extradition to the US to face criminal charges for drugs. As a married couple that said that the extraditions would interfere with their children’s rights to family life.
Held: The appeals against . .
Cited – Kapri v The Lord Advocate (Representing The Government of The Republic of Albania) SC 10-Jul-2013
The Court was asked whether it would be compatible with the appellant’s Convention rights within the meaning of the Human Rights Act 1998 for the appellant, who is an Albanian national, to be extradited to Albania. On 7 April 2001, while he was in . .
Cited – HLR v France ECHR 29-Apr-1997
‘Owing to the absolute character of the right guaranteed, the court does not rule out the possibility that article 3 of the Convention may also apply where the danger emanates from persons or groups of persons who are not public officials. However, . .
Cited – Bagdanavicius and Another, Regina (on the Application of) v HL 26-May-2005
The claimants said they had been subjected to harassment and violence from non-state agents in their home country of Lithuania, and sought asylum.
Held: It was for the person claiming the protection of the Convention provisions for . .
Cited – Gomes v Trinidad and Tobago HL 29-Apr-2009
Each appellant challenged orders for their extradition, saying that the delay had been too prolonged, and that detention in Trinidad’s appalling jails would be an infringement of their human rights.
Held: The House had to consider its own . .
Cited – HLR v France ECHR 29-Apr-1997
‘Owing to the absolute character of the right guaranteed, the court does not rule out the possibility that article 3 of the Convention may also apply where the danger emanates from persons or groups of persons who are not public officials. However, . .
Cited – Ramirez Sanchez v France ECHR 27-Jan-2005
The applicant complained that he had been held in solitary confinement for a period of nearly 8 years whilst in prison, and had not been given a remedy.
Held: There had been no breach of article 3 by the confinement, but article 13 had been . .
Cited – Ocalan v Turkey ECHR 12-May-2005
(Grand Chamber) – The applicant had been detained in Kenya. He had allowed himself to be taken by Kenyan officials to Nairobi airport in the belief that he was free to leave for a destination of his choice, but they took him to an aircraft in which . .
Cited – Shahid v Scottish Ministers (Scotland) SC 14-Oct-2015
The appellant convicted of a racially-aggravated vicious murder. Since conviction he had spent almost five years in segregation from other prisoners. The appellant now alleged that some very substantial periods of segregation had been in breach of . .
Cited – Norris v Government of United States of America SC 24-Feb-2010
The defendant faced extradition to the USA on charges of the obstruction of justice. He challenged the extradition on the basis that it would interfere with his article 8 rights to family life, given that the offence was merely ancillary, the result . .
Cited – HH v Deputy Prosecutor of The Italian Republic, Genoa SC 20-Jun-2012
In each case the defendant sought to resist European Extradition Warrants saying that an order would be a disporportionate interference in their human right to family life. The Court asked whether its approach as set out in Norris, had to be amended . .
Lists of cited by and citing cases may be incomplete.
Extradition, Human Rights, Constitutional
Updated: 16 August 2022; Ref: scu.588314