Lord Advocate (representing Taiwanese Judicial Authorities) v. Dean (Respondent) (Scotland) - (28 Jun 2017)

Person asserting breach must show that, there are substantial grounds for believing that he faces real risk of being subjected to treatment contrary to Article 3 of Convention

Criminal

Respondent was convicted by District Court of Taipei of driving under influence of alcohol, negligent manslaughter and leaving scene of an accident. Present is an appeal about an extradition order. Lord Advocate appeals under paragraph 13 of Schedule 6 to Scotland Act 1998 against determination of a devolution issue by Appeal Court. That Court, by majority, quashed an order for extradition of Respondent (“Mr Dean”) to Taiwan. Underlying question is whether his extradition to serve residue of a prison sentence there would be compatible with his right under Article 3 of European Convention for Protection of Human Rights and Fundamental Freedoms (“Convention”), which, provides that, “no one shall be subjected to torture or to inhuman or degrading treatment or punishment”. Appeal Court held that, his extradition would not be compatible with that article of Convention.

Court must assess, first, whether 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 conditions in which he is to have such protection themselves entail an infringement of Article 3.

Article 3 of Convention, enshrines one of fundamental values of a democratic society. It is therefore, incumbent on 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. In particular, Court must assess not only quality of assurances given but also whether they can be relied on, having regard to general situation in that country with regard to respect for human rights.

Assurances of Taiwanese authorities to offer Mr Dean reasonable protection against violence by non-state actors and (b) that circumstances of his confinement, should he be unable to mix with wider prison population, do not entail a real risk of his being subject to treatment that, infringes Article 3 of Convention.

Article 3 would be breached by extradition to serve a sentence, which receiving state imposed, only if the sentence was grossly disproportionate. Mr Dean’s inability to obtain credit towards parole for time, he has spent in custody in Scotland is result of his flight from justice in Taiwan. This involves no injustice.

This Court has recognised strength of public interest in extradition in context of an Article 8. 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, 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 justification of extradition.

Tags : EXTRADITION VALIDITY CONVENTION COMPLIANCE