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APPEALS UNDER SECTIONS 103 AND 108 OF THE EXTRADITION ACT 2003 BY ZAIN TAJ DEAN AGAINST (FIRST) THE LORD ADVOCATE AND (SECOND) THE SCOTTISH MINISTERS


Submitted: 24 June 2015

      

APPEAL COURT, HIGH COURT OF JUSTICIARY

 

[2015] HCJAC 52

HCA2014/3518/XM &

HCA2014/3519/XM

Lady Paton

Lord Drummond Young

Lady Clark of Calton

OPINION OF THE COURT

delivered by LADY PATON

in the APPEALS UNDER SECTIONS 103 AND 108 OF THE EXTRADITION ACT 2003

by

ZAIN TAJ DEAN

Appellant;

against

(FIRST) THE LORD ADVOCATE; and (SECOND) THE SCOTTISH MINISTERS

Respondents:

Appellant:  Bovey QC, Devlin; V Good & Co

First respondent:  D Dickson, Solicitor Advocate;  Crown Office

Second respondent:  Moynihan QC, Charteris;  Scottish Government Legal Directorate

 

24 June 2015

Extradition to Taiwan
[1]        This is the opinion of the court, to which each member of the bench has contributed.

[2]        The appellant is a businessman and a British citizen.  His date of birth is 16 November 1971.  He is currently in prison in Scotland.  For many years, he lived and worked in Taiwan (the Republic of China).  On 25 March 2010 he was involved in a road traffic accident there.  He was prosecuted.  In 2011 he was tried by three judges in the District Court of Taipei, Taiwan.  He was convicted of drink driving, negligent manslaughter, and leaving the scene of the accident.  He was sentenced to two and a half years imprisonment.  He appealed against conviction and sentence, and was granted bail.  In 2012, after an unsuccessful appeal to Taiwan High Court and while his appeal to the Taiwan Supreme Court was still pending, he left Taiwan (using a friend’s passport) and came to Scotland.  He was arrested in Scotland on 17 October 2013, and has been in custody since then.  Following extradition proceedings, the Scottish Ministers made an extradition order returning him to Taiwan.  He appeals first, under section 103 of the Extradition Act 2003, against the decision of Sheriff Maciver dated 11 June 2014 sending his case to the Scottish Ministers for their decision whether he should be extradited;  and secondly, under section 108 of the 2003 Act, against the Scottish Ministers’ decision dated 1 August 2014 to extradite him.  If the appeal under section 103 were to succeed, the appeal under section 108 would become unnecessary. 

[3]        There is no extradition treaty between the UK and Taiwan.  There has never previously been an extradition of someone from the UK to Taiwan.  A special memorandum of understanding relating to the appellant was entered into on 16 October 2013, as a result of which Taiwan is to be treated (so far as the appellant is concerned) as a category 2 territory in terms of the 2003 Act. 

 

Events leading to the decision to extradite
[4]        The events leading to the decision to extradite the appellant were as follows:

2010

25 March 2010:  The appellant had been drinking in a club in Taiwan.  In the early hours of the morning, he left the club under the influence of drink.  Initially he was being driven home in his own car by a club driver, and CCTV footage from outside the club showed the appellant in the passenger seat (although the driver could not be seen).  Subsequently, it was less clear who was driving.  A witness who was a club driver gave evidence at the trial that he had been the driver, and after a few minutes the appellant ordered him out of the car and took over the driving.  That witness was seen on further CCTV footage, walking back to the club.  However the appellant gave conflicting evidence, namely that the witness was lying, and a different man had been driving, although the appellant could not say who the driver was (sheriff’s note of decision pages 17 and 26).  At all events, the appellant’s car struck a motorcyclist on a newspaper round.  The appellant’s car did not stop, nor did the appellant report the accident.  No CCTV footage of the actual collision was produced or shown at the trial.  The motorcyclist subsequently died.

19 April 2010:  The appellant was prosecuted and charged with driving under the influence of alcohol, negligent manslaughter, and escaping after having caused a traffic casualty.

2011

March 2011:  The appellant stood trial in the District Court of Taipei.  As the sheriff explains (at page 25 of his note)

“The trial… hinged on the straightforward issue of identification of the driver of the offending motor vehicle which was owned by Mr Dean, and the court concluded that, on the evidence presented to it, Mr Dean was proved to be the driver at the time of the fatal impact with the motorcyclist”. 

The appellant appealed to Taiwan High Court.

2012
26 July 2012:  In the course of the appeal, some evidence was re-heard, and some fresh evidence introduced (pages 26 and 30 of the sheriff’s note).  The appeal was refused, and the sentence increased to four years.  The appellant appealed to the Taiwan Supreme Court.

14 August 2012:  While his appeal was still pending, the appellant left Taiwan, using a friend’s passport.  He came to the UK. 

20 December 2012:  The Taiwan Supreme Court confirmed the conviction and the four year sentence.

2013

March 2013:  Criminal proceedings in Taiwan were raised against the appellant in respect of his absconding from Taiwan.  Those proceedings are currently suspended.

9 October 2013:  The judicial authorities of Taiwan sought a provisional arrest warrant in respect of the appellant in terms of sections 73 and 74 of the 2003 Act.

16 October 2013:  In terms of section 194 of the 2003 Act, a memorandum of understanding concerning the extradition of the appellant was entered into between the Home Office and the judicial authorities of Taiwan.  Sheriff Maciver granted a warrant for the arrest of the appellant under sections 73 and 74 of the 2003 Act. 

17 October 2013:  The appellant was arrested.  Since then he has been in custody in Saughton Prison, Edinburgh.

28 October 2013:  A written request (dated per incuriam “October 28, 2014”, in fact signed on October 28, 2013) for the extradition of the appellant was sent by Chen Wen-Chi, Director General, Department of International and Cross-Strait Legal Affairs, Ministry of Justice, Taiwan, to Theresa May, the Secretary of State for the Home Department.

18 November 2013:  The Scottish Ministers certified the request in terms of section 70(1) of the Extradition Act 2003.  The request was sent to Edinburgh Sheriff Court. 

19 November 2013:  The request for extradition was served on the appellant in Saughton.

23 December 2013:  By letters dated 23 December 2013 Chen Wen-Chi, Director General, certified that time spent in custody in Scotland would be deducted from the total period of detention to be served in Taiwan as a result of the appellant’s conviction of the extradition offence;  the current four year sentence would not be subject to further review;  and the death penalty would not be imposed.

2014
8 January – 9 June 2014:  Extradition proceedings took place with several hearings in Edinburgh Sheriff Court.  There were some unavoidable delays (for example, when the appellant sought a change of legal representation).

11 June 2014:  Sheriff Maciver issued his decision, refused two devolution minutes relating to human rights, and sent the appellant’s case to the Scottish Ministers for their decision whether the appellant should be extradited in accordance with Part 2 of the 2003 Act.

25 July 2014:  A letter of assurance from Chen Wen-Chi, Director General of the Department of International and Cross-Strait Legal Affairs, confirmed that, in the context of speciality, if the appellant were to be extradited in terms of the request of 28 October 2013, the Taiwan authorities would not prosecute the appellant for an offence not included in that request (in particular for the offence of absconding from Taiwan) without first seeking and obtaining the necessary consent from the Home Secretary in terms of section 129 of the 2003 Act.

1 August 2014:  The Scottish Ministers made an extradition order returning the appellant to Taiwan.  The appellant appealed to the High Court 

 

The grounds of appeal
A.  Appeal in terms of section 103
[5]        The appellant’s grounds of appeal (read short, and not in the same order as in the amended note of appeal) are as follows: 

(1) Territory:  The sheriff erred in law in holding that Taiwan was a “territory” for the purposes of the 2003 Act.

 

(2) Article 6 of the European Convention on Human Rights (ECHR):  The sheriff erred in concluding that the appellant had received a fair trial in Taiwan.  The sheriff should have ordered the appellant’s discharge in terms of section 87(2) of the 2003 Act.

 

(3) Extraneous considerations (section 81 of the 2003 Act):  The sheriff erred in that he applied the wrong test when considering the evidence in the light of section 81.  Applying the correct test, the evidence established that there was a “reasonable chance” or a “serious possibility” that the appellant, if extradited, might be punished, detained, or restricted in his personal liberty by reason of his nationality and/or race (namely British, of Indian origin), and therefore his extradition was barred on that ground.

 

(4) Article 3 of the ECHR:  The sheriff erred in his decision that article 3 was not violated by the prison conditions in Taipei prison.  The sheriff should have ordered the appellant’s discharge in terms of section 87(2) of the 2003 Act.

 

A further ground of appeal alleging that the sheriff showed bias in favour of the Taiwanese judiciary in the course of the extradition proceedings was not insisted upon.  The appellant also contends that the sheriff erred in his refusal of the two devolution minutes concerning human rights issues. 

 

B.  Appeal in terms of section 108
[6]        The appellant’s amended note of appeal under section 108, read short, challenges the decision to extradite as an abuse of process, and in breach of his ECHR rights. 

 

The effect of Kapri v Lord Advocate
[7]        On 25 April 2014 , in the course of the extradition proceedings in the sheriff court, the judgment of the appeal court in Kapri v Lord Advocate 2015 JC 30, 2014 SLT 557, 2014 SCCR 310, became available.  In Kapri, Lord Justice Clerk Carloway gave guidance as to the law of evidence in extradition proceedings.  In particular, he explained:

“[125] the rules of criminal evidence and procedure are, in the absence of some special circumstance, normally applicable (HM Advocate v Havrilova 2012 SCCR 361) … If a fact, including a substantial ground, requires to be established, the normal rules must apply …

 

[126] The ECtHR [may feel free] … to look at ‘all the material placed before it, or, if necessary, material obtained proprio motu … This may be entirely sensible for a court which operates across several jurisdictions …[but] the stark position is that it is not the law of evidence in criminal cases, which… applies in extradition proceedings such as these.

 

[127] There are specific provisions regarding the proof of documents emanating from extraditing states under the 2003 Act (s.202).  However there is no general provision which allows the court to hold as proof of fact, merely by their production, the contents of reports or other papers emanating from foreign governments, international governmental or non-governmental bodies, or academic or research institutions.

 

[128] The approach of both parties was to put selected passages of reports and papers to one or other or both of the two witnesses, even if they had never seen the documents before, and ask them to confirm what was written in the document … this left the court in a quandary about just what to do with the mass of material lodged, insofar as a part of it may have been put to the witnesses.  In particular … it is not at all clear what status ought to be afforded to the work of [certain] organisations … [and the court] has difficulty with the concept that a judicial body should simply accept as true, and thus as proof of fact, the statements of officials in the executive of governments … or in international institutions … far less those in NGOs or groups with a particular human rights or other agenda …

 

[129] Whether, and to what extent, there is corruption in the judiciary in Albania is not a matter of opinion.  It is a matter of fact.  It is for the court (and not an expert) to decide that matter based upon competent and relevant evidence placed before it.  The role of the expert may be to interpret that evidence, where his or her special skills are required to do this.  However, in relation to the content of the documents, that was not the role played by the witnesses.  Rather, they were used almost as commentators to introduce material, most of which was never proved as fact, contained in the large range of documents lodged.  The witnesses were not using their expertise as lawyers to assist the court’s understanding of the material.  The court was essentially just as capable of reading and understanding the documents as they were…”

 

[8]        The sheriff was, of course, bound by the guidance in Kapri.  Nevertheless he was placed in a difficult position, as he explains at page 42 of his note of decision:

“… this hearing began before the High Court decision in Fatjon Kapri (2013) HCJAC 33, and the position which I adopted in relation to admitting productions was very much more flexible than is recommended by the High Court in that case.  However, I also have to be clear that, having started the hearing with a particular line in relation to acceptance of productions, I considered that it was necessary to maintain that position to the conclusion, and the line which I did adopt was one which favoured the position of Mr Dean.  I did however make it clear from the outset that allowing productions to be lodged did not necessarily mean that these productions would automatically be considered relevant, nor did it mean that I would not feel free to examine the provenance and origin of the items in order to decide whether I would in fact properly include them in my consideration.  As will be seen below, a number of items produced in this case had no provenance at all, and were simply extracts from internet discussions on topics such as prison overcrowding, and as such were clearly matters that cannot carry any weight in formal proceedings such as extradition hearings … [Parties] were in complete agreement that issues such as … judicial corruption and the integrity of a country’s justice system are matters which, in the context of an extradition hearing, cannot be decided by reference to the speculative uninformed and inexpert view or opinion of interested parties, nor on the commentary of contributors to the media or internet discussion …”

 

[9]        Senior counsel for the appellant submitted that the Lord Justice Clerk’s observations in paragraph [125] et seq of Kapri were obiter.  The more flexible approach outlined in paragraph [13] of HM Advocate v Havrilova 2012 SCCR 361, (namely bringing into play the evidential rules of criminal summary cause procedure “wherever circumstances allow”) was to be preferred, certainly in extradition cases concerning human rights, abuse of process and extraneous considerations (cf dicta of Lord Mance in R(B) v Westminster Magistrates’ Court [2014] 3 WLR 1336, paragraphs 22 - 23).  Section 77(2) of the Extradition Act 2003 did not say in terms that criminal evidential rules were to apply.  If Scotland were to adopt a stricter approach than England to evidential rules in extradition cases, that would put the Scottish courts at risk of breaching the ECHR:  cf Mamazhonov v Russia [2014] ECHR 1135 paragraphs 156 - 158.  The practical difficulties of finding, instructing, and funding an appropriate expert and reports, all within the extradition timescales, should be borne in mind.  The terms of section 202 of the 2003 Act (which assisted the requesting state) together with the more nuanced approach in Havrilova suggested a less rigorous approach to evidence than that set out in Kapri.  But when dealing, for example, with article 3 of the ECHR (prison conditions) the sheriff had not made clear whether he was rejecting certain documents lodged as not complying with the guidance in Kapri, or whether he was taking them into account despite Kapri.  But on any view, it would be unfair to apply the more rigorous approach set out in Kapri (and to find, for example, that insufficient evidence had been led relating to prison conditions) when the case had initially been conducted on the basis described in R(B) v Westminster Magistrates’ Court cit sup.  Senior counsel accordingly invited this court, when assessing extraneous considerations, human rights, and abuse of process in the context of extradition, to take into account all the information contained in documents which had been lodged in process, even if their provenance was unknown or doubtful, and even if no relevant witness had spoken to them. 

[10]      The solicitor advocate for the Lord Advocate referred to practice pre-Kapri.  The courts had, in the context of human rights, taken into account reports from international organisations such as the Committee for the Prevention of Torture.  But the weight given to such productions might vary.  Section 202 of the 2003 Act permitted “a document issued in a category 2 territory” to be “received in evidence in proceedings under [the 2003 Act] if it is duly authenticated”.  It was accepted that the sheriff did not appear to state expressly in his note how ultimately he had reconciled practice to date, section 202, and the guidance in Kapri. 

[11]      In our opinion, we are bound by the guidance given in Kapri v Lord Advocate, cit sup.  While section 202 of the 2003 Act permits duly authenticated documents emanating from the requesting state to be “received in evidence in proceedings under [the 2003 Act] if … duly authenticated”, that provision applies only to documents “issued in a category 2 country” (i.e. the requesting state), and in any event, a document may be “received” but its contents are not necessarily thereby proved.  Accordingly it seems to us that section 202 does not elide the guidance in Kapri.  We do not therefore consider that a court in Scotland is entitled, in extradition proceedings, to hold facts proved by the methods disapproved of in paragraph [127] et seq of Kapri.  We acknowledge that the present extradition proceedings commenced prior to the issuing of the judgment in Kapri, but in our view that does not detract from the need to comply with Kapri.  As it happens, we consider that the only chapter in this case affected by the ruling in Kapri concerns prison conditions and article 3 of the ECHR, in relation to which, see paragraph [58] et seq below. 

[12]      Against that background we turn to the grounds of appeal. 

 

A.  Appeal in terms of section 103
(1) Territory

[13]      The request by the Taiwanese authorities for the appellant’s extradition is based on special extradition arrangements between the United Kingdom and Taiwan.  Special extradition arrangements are authorised by section 194 of the Extradition Act 2003; this section permits the Home Secretary to make such arrangements with any territory provided that certain conditions are met.  So far as material, the section is in the following terms: 

“Special extradition arrangements

(1) This section applies if the Secretary of State believes that-

(a) arrangements have been made between the United Kingdom and another territory for the extradition of a person to the territory, and

(b) the territory is not a category 1 territory or a category 2 territory.

(2) The Secretary of State may certify that the conditions in paragraphs (a) and (b) of subsection (1) are satisfied in relation to the extradition of the person.

(3) If the Secretary of State issues a certificate under subsection (2) this Act applies in respect of the person’s extradition to the territory as if the territory were a category 2 territory.

(5) A certificate under subsection (2) in relation to a person is conclusive evidence that the conditions in paragraphs (a) and (b) of subsection (1) are satisfied in relation to the person’s extradition”.

 

[14]      It is apparent from section 194 that special extradition arrangements can only be concluded between the United Kingdom and another “territory”.  For the appellant it was contended that Taiwan is not a “territory” for the purposes of this section; consequently the Home Secretary had no power to conclude any arrangements for the appellant’s extradition.  That argument was rejected by the sheriff.  He held that the word “territory” was not defined, but was used throughout the Act without explanation.  It was the only word used by the Act to refer to political entities, countries, states and the like.  The sheriff thought that the lack of a definition was not accidental; the word was used deliberately, avoiding terminology such as nation, country, state and the like, and avoiding any reference to borders or geographical clarity.  It meant a recognisable legal jurisdiction in a viable and settled area of populated land with a level of judicial authority stable and organised enough to be recognised and accepted by the United Kingdom.  On that basis the sheriff held that Taiwan was a territory.

[15]      Counsel for the appellant submitted that the sheriff erred in so holding.  While the sheriff’s description of a territory was accepted, it was contended that he had failed to make findings in fact that justified the conclusion that Taiwan was a territory.  The findings that he made went beyond the limits of judicial knowledge.  Moreover, Taiwan, or the Republic of China, was in dispute with the mainland of China, the People’s Republic of China, over a number of important matters.  The People’s Republic of China denied the Republic of China’s right to exist as a separate state, and disputes existed as to the ownership of certain islands lying between Taiwan and the mainland.  Taiwan was not a member of the United Nations, and was not recognised by the United Kingdom.

[16]      In our opinion, Taiwan, or the Republic of China, is a “territory” for the purposes of the 2003 Act;  consequently the foregoing submission for the appellant must be rejected.  We consider that the terms of section 194 make it clear that, if the Home Secretary issues a certificate under subsection (5), that is conclusive that the authority with which arrangements had been made in accordance with subsection (1)(a) is a “territory” for the purposes of the Act.  Subsection (1)(a) authorises arrangements between the United Kingdom and “another territory” for extradition to that territory.  Subsection (2) then permits the Home Secretary to certify that such arrangements have been made, and that in itself clearly involves recognition that the other party to the arrangements is a “territory” for the purposes of the Act.  If such a certificate is granted, subsection (5) provides that it is “conclusive evidence that the conditions in paragraphs (a) and (b) of subsection (1) are satisfied” in relation to the particular extradition.  The result of that in our opinion is that the certificate issued under subsection (2) is conclusive in determining that the entity to which extradition is to take place is a “territory”.  In the present case the Home Secretary issued a certificate in terms of section 194(2) on 16 October 2013.  We are of opinion that that document is conclusive evidence that arrangements had been made between the United Kingdom and another “territory” as required by subsection (1)(a), and it follows from that that Taiwan must be treated as a “territory” for the purposes of the Act.

[17]      In any event, we are of opinion that the court is entitled to hold as a matter of judicial knowledge that Taiwan is a “territory” for the purposes of the 2003 Act.  Judicial knowledge was defined by Lord Nimmo Smith in McTear v Imperial Tobacco Ltd, 2005 2 SC 1; [2005] CSOH 69, as follows:

“The judge will take notice of the matters… which can be immediately ascertained from sources of indisputable accuracy, which are so notorious as to be indisputable…”.

 

The critical question is whether Taiwan is a “territory” for the purposes of the Act.  As the sheriff observes, that word is not defined in the Act.  In our view this is deliberate; while most of the world’s land area is divided into states, parts are administered in other ways, including dependent territories, colonies and the like, and the intention underlying section 194 was to permit extradition to any such entity.  The essential features of a “territory” are in our opinion threefold: there must be an area of land; that land must contain some population; and the land and population must be subject to effective government, including a functioning legal system.  We note that as to the last of these requirements, it is difficult to understand how the United Kingdom could make extradition arrangements with any area where effective government was lacking.

[18]      In the case of Taiwan, a cursory examination of a world atlas discloses that it consists principally of a large island off the south-east coast of China.  Reference books indicate that it has a population of approximately 25 million.  They further disclose that it has a settled government.  These are matters that cannot seriously be in dispute, and indeed they were not disputed by the appellant’s counsel.  The sheriff made findings in fact to that effect, and in our opinion he was clearly entitled to do so.  That is sufficient to conclude that Taiwan is a “territory” for the purposes of the 2003 Act.

[19]      The sheriff made certain further findings which were challenged by counsel.  He held that Taiwan had no boundary issues or disputes, but it was submitted that in reality there are disputes with the People’s Republic of China as to the ownership of certain islands lying between the main island of Taiwan and the Chinese mainland.  That in our view is irrelevant.  Many countries around the world have disputes with neighbours over the precise location of their boundaries, and the existence of such dispute could not possibly have the result that a country could not be considered a “territory”.  The sheriff further held that Taiwan has good international relationships, a flourishing export market and an internationally accepted democracy.  None of these, however, is essential for the existence of a territory; apart from land and population, effective government is all that is required.  Finally, the sheriff held that there were historic and long-standing political difficulties with the People’s Republic of China, which had taken the seat in the United Nations previously occupied by Taiwan.  That falls in our opinion within the category of judicial knowledge.  Indeed, matters go further: the People’s Republic of China denies the right of Taiwan to exist as an independent state.  Nevertheless these factors are, in our opinion, irrelevant to the question of whether it is a “territory” for the purposes of the 2003 Act; while effective government is essential, it does not matter whether that government is recognised by others, or even whether its right to govern is denied by others.  For this purpose “others” includes other states or territories or other parts of the same state or territory.  Recognition is irrelevant to the existence of a territory.  We accordingly reject the argument that Taiwan is not to be considered a “territory” for the purposes of the 2003 Act.

 

(2) Article 6 of the ECHR:  the right to a fair trial
[20]      It is convenient to consider the appellant’s article 6 submission (right to a fair trial) before his section 81 submission (extraneous circumstances, viz race and/or nationality).

[21]      Section 87 of the Extradition Act 2003 provides: 

Human rights

 

(1)        If the judge is required to proceed under this section (by virtue of … section 85 [i.e. where the requested person has been convicted]) he must decide whether the person’s extradition would be compatible with the Convention rights within the meaning of the Human Rights Act 1998 (c 42).

(2)        If the judge decides the question in subsection (1) in the negative he must order the person’s discharge.

(3)        If the judge decides that question in the affirmative he must send the case to the Secretary of State for his decision whether the person is to be extradited.”

 

[22]      In this context, we note that it is for the appellant to prove a contravention of article 6 by establishing that his conviction was the result of a flagrant denial of justice:  Soering v UK (1989) 11EHRR 439 at paragraph 113;  R (Ullah) v Special Adjudicator [2004] 2 AC 323 at paragraphs 17 and 24, where Lord Bingham of Cornhill observed:

“24.  While the Strasbourg jurisprudence does not preclude reliance on articles other than article 3 as a ground for resisting extradition or expulsion, it makes it quite clear that successful reliance demands presentation of a very strong case … Where reliance is placed on article 6, it must be shown that a person has suffered or risks suffering a flagrant denial of a fair trial in the receiving state … The lack of success of applicants relying on [article 6] before the Strasbourg court highlights the difficulty of meeting the stringent test which that court imposes …”

 

[23]      At the extradition hearing, the following material was available to the sheriff:

  • the appellant’s oral evidence (3 days), summarised at page 25 et seq of the sheriff’s note of decision dated 11 June 2014.
  • Mr Chen’s oral evidence by video-link (Mr Chen being the lawyer who represented the appellant in the Taiwan trial), page 34 et seq of the note.
  • the appellant’s girlfriend’s oral evidence by video-link, page 39 et seq of the note.
  • ·newspaper cuttings described as showing media hostility towards the appellant (sheriff’s note page 27).
  • a DVD production 22, including pieces of footage of the appellant’s various appearances in public in Taiwan before he left, all as described by the sheriff at page 46 of the note.
  • the judgments attached to the request for extradition, in particular (but not in this order) a translation of the judgment of Taiwan Taipei District Court dated 15 March 2011;a translation of the judgment of the Taiwan High Court (which re-hears the trial evidence) dated 26 July 2012;and a translation of the judgment of the Taiwan Supreme Court dated 20 December 2012.

 

[24]      The appellant did not lodge an expert report relating to the Taiwanese justice system, and led no evidence from an expert witness on that matter.  Thus the sheriff records at pages 43 and 44 of his note:

“… the Crown had produced an expert report on the Taiwanese justice system …its full content was never required because there is no argument before me in this hearing that the justice system in Taiwan is flawed to any extent which would permit an argument under extradition law, although there is an argument that Mr Dean claims that he did not receive a fair trial in his individual case.

… It is … the position that the closest that I came in this hearing to hearing or seeing anything which could be argued as being an expert view on trial related issues was contained within the evidence of Billy Chen, Mr Dean’s lawyer …”

 

[25]      What follows is a brief summary of the evidence referred to above.

[26]      The appellant’s evidence:  According to the appellant, there was hostile media coverage with a “massively biased characterisation of him as a ‘rich foreigner’ who was showing disrespect to Taiwan and who was refusing to accept his guilt” (pages 27 et seq of the sheriff’s note).  The appellant described being exposed to physical abuse from a mob outside the police station, in particular being pushed and poked with an umbrella, because he was “black” (a Taiwanese reference to Indian).  The appellant explained that the adverse publicity was responsible for his conviction, as

“the judges were bound to have read the press reports of his case and to be adversely influenced by these reports because the media can … have an effect on the judge’s career and ‘if they do the wrong thing the media can put them out of office’ … (page 28 of the note)”. 

 

Thus, as his senior counsel explained to this court, the appellant’s complaint was not that the judges themselves were prejudiced against a foreigner, nor that they had been influenced by organised crime such as the mafia, but that the judges had been afraid to deliver a true verdict because of the strength and vitriolic nature of the media coverage due to the fact that the appellant was a foreigner.  The media pressure had been particularly intense at the district court level.  The appellant also gave evidence that there had been a lack of continuity in the judges who heard his case;  a failure to disclose certain evidence, although by the conclusion of the proceedings all the evidence requested had been provided (pages 29-30);  incomplete CCTV coverage (attributed by the appellant to neglect by police officers and/or the suppression of evidence, rather than the non - availability, for one reason or another, of tapes from particular cameras);  corruption within the legal process generally (page 31);  a failure to provide an interpreter;  and a judge falling asleep (page 33), although those latter two matters were not included in the submissions to the sheriff.

[27]      Mr Chen’s evidence:  Mr Chen stated that the press had portrayed the appellant in a hostile manner as a rich foreigner who deserved all he got (page 34 of the sheriff’s note).  The adverse publicity had caused the judges to deliver an unfair decision, as it was inevitable that the judges read the hostile media reports and felt under such pressure from the public reaction that they “lost their confidence to give a fair verdict”(page 37).  Further, during the trial there had been preliminary difficulties about disclosure, although ultimately all the material was available.  The rejection of the defence case demonstrated the media pressure, unfairness and bias.  The longer sentence also reflected xenophobia. There was “an anti-foreigner mentality in Taiwan” which might affect the appellant if he were to be returned there.  However Mr Chen confirmed in cross-examination that in his view, the trial in the District Court had proceeded entirely properly and in accordance with Taiwanese law.  He had no complaint except in relation to the late provision of one area of evidence.  He gave no indication that he was even threatened or placed under any pressure by outside influences of any sort (page 38 of the sheriff’s note).

[28]      The appellant’s girlfriend’s evidence:  The sheriff summarises the appellant’s girlfriend’s evidence at pages 39 to 40 of his note.  In particular he records:

“ … Her evidence at this hearing was confined to what happened when they were both arrested in relation to the fatal accident and were taken to the (Da-an) Police Station.  She said that the manager of the KTV club arrived at the police station and that after he arrived the focus on Mr Dean as the offender hardened, and that shortly after that they were both charged.  Concerning Mr Dean’s evidence about what happened outside the police station she did not give the same account as he had about assault by a violent mob but she did confirm that when they went outside to go from the police station to the court they were ‘surrounded by all the media and they all rushed towards [them]’.  She did not suggest that the police had deliberately exposed them to that.”

 

[29]      Media excerpts:  Media excerpts, to which senior counsel did not specifically refer during the appeal, but which we understand were available in the sheriff court extradition hearing, can be found in the appellant’s productions at inter alia numbers 1 to 3, 16 to 18, 20 to 21, and 96 to 97.  There are references to “British businessman”, “chief executive officer of the Taiwan branch of NCL Media UK”, “British passport holder”, and “fugitive British merchant”.

[30]      In the appeal before us, senior counsel for the appellant lodged an additional inventory of excerpts from media coverage as number 17 of process.  Counsel advised that these excerpts had not been placed before the sheriff.  They are therefore, strictly speaking, irrelevant to the appeal.  However even if we were to take the new material into account, we note that the excerpts from the Taiwan media referred to the appellant as “Indian businessman”, “British businessman”, “businessman of British nationality”, “British businessman of Indian origin”, “a British businessman and CEO of Indian nationality”, “a man of Indian nationality”, “a foreign businessman” and similar terminology.  The media also referred to the allegation against him, namely that he had killed a newspaper delivery man while driving under the influence of drink in a hit-and-run incident;  the grief of the bereaved family;  the prosecutor’s submission that the appellant lacked the proper attitude and showed no remorse;  a reporter’s view that the sentence imposed on him was “lenient”, and similar matters.

[31]      At pages 20 and 57 of his note, the sheriff deals with the newspaper articles and television programmes as follows: 

“… [page 20] As detailed later, there were some newspaper articles and television programmes in Taiwan before his trial which could be seen as focusing on the fact that he was not a citizen of the country, but rather a rich foreigner who was responsible for the death of an innocent paper delivery man.  That type of publicity is not restricted to Taiwan:  it is very similar to what is seen here on occasions, and was not at a level which I considered was in any sense likely to influence professional judges in relation to either conviction or sentence.  Taiwan does not have a jury trial system, so there was no issue of prejudice against him by a jury as a result of pre-trial publicity.  [The appellant’s] own evidence was that during the 20 years or so that he lived in Taiwan he had no impression of it being a country where there was a particular problem in relation to racial prejudice, and he had not previously experienced such prejudice in his encounters with other races including local Taiwanese …

 

[page 57] … Mr Dean was himself a resident of Taiwan for many years, and conceded that [he] had no reason to believe that xenophobia there was a significant issue.  He had complete faith in the justice system which, on his own evidence, he was supportive of in his public relations work on behalf of the government, and which he had no reason to doubt until his own conviction … the press coverage was in any event not xenophobic … and did not mention his colour, referring mainly to his wealth and to him being foreign to Taiwan …”

 

[32]      The DVD:  At page 46 of his note, the sheriff refers to the media coverage contained in the DVD as follows:

“ … the third clip on production 22 [the DVD] was a compilation video of various pieces of footage surrounding Mr Dean’s various appearances in public in Taiwan before he left.  The part of this which he wanted me to see was the footage of him in custody presumably going to or from the court building and he asked me to note that these pieces of video were part of a TV programme which was broadcast to the public on 28 March 2010 (i.e. before his trial and soon after the event).  The commentary did not appear to me to be particularly significant in any respect other than that it made it very clear that he was accused of causing the death of the motorcyclist and displayed a crude reconstruction which was almost cartoon-like in its presentation showing a car hitting a motorbike.  There was however nothing in the translated version of this clip which suggested any language that was inflammatory or racially prejudicial, although a clear inference could be drawn from the compilation of these new programmes [namely] that he had been responsible for killing the motorcyclist.”

 

[33]      The Taiwanese judgments:  Full copies and translations of the judgments are attached

to the request for extradition.

[34]      The sheriff’s conclusions in relation to article 6 of the ECHR :  The sheriff summarises his conclusions relating to article 6 of the ECHR at pages 55 et seq of his note of decision as follows:

 

“… The simple fact is that all of the evidence that I have heard at this hearing indicates that Mr Dean had a very full and fair trial process, that even his own lawyers in Taiwan accept that every available piece of evidence was placed before the court and that the court was fully aware of unavailable pieces of evidence and could thus factor that into their decision … I have heard nothing in this hearing that suggests that there was any level of unfairness at all in relation to the provision of evidence in Taiwan far less a level of information which would suggest a blatant denial of his rights under article 6 of ECHR … [The sheriff then noted some aspects of the appellant’s evidence which he did not accept, for example, the appellant’s allegations of police corruption relating inter alia to the suppression of CCTV footage, a corruption apparently acquiesced in by the judiciary].”

 

[35]      At page 57 of his note, the sheriff refers to the argument about judicial corruption, bias, and racial prejudice.  He dismisses the suggestion that a bench of judges could be influenced by hostile publicity at the time of the accident and be “so overcome by bias against [the appellant] as a foreigner that they returned an unfair decision”.  In relation to judicial corruption, the sheriff refers (at page 58) to the evidence of Mr Chen, and states:

“… [Mr Chen] has made allegations of judicial corruption to me in his evidence [set out in pages 36-37 of the note], but I do not accept these as either credible or reliable, since he has not given any example nor is he talking from personal experience and I take no account of that area of his evidence since [Mr Chen] concedes that no such corruption is evident in Mr Dean’s trial.  He is effectively spreading rumour and speculation, and to that extent he is a completely unreliable witness on that matter.”

 

[36]      In relation to the appellant’s evidence about judicial corruption, the sheriff notes:

“… I think … that [Mr Dean] has been given some information since his own difficulties in this matter have arisen [set out at page 41 of the note], and he has chosen to believe it and to conclude that it may, by some remote possibility, apply to his case.  I am clear that I cannot find that such information as he has applies to this trial, and I have to find that he is grasping at straws in that connection and is doing a disservice to the Taiwanese justice system in putting forward an entirely unsubstantiated allegation about one or more or all of the judges in his case being corruptly influenced – effectively he is saying to me that they accepted money or favours from the mafia to have him wrongly convicted and there is absolutely no basis for such a belief.” 

 

[37]      The sheriff’s views in relation to the newspaper cuttings and DVD are noted in paragraphs [31] and [32] above.  In summary, the sheriff rejects allegations of xenophobia or hostility arising from race or nationality or wealth.

[38]      As for the Taiwanese judgments, the sheriff concluded that they:

“… disclose a full and careful assessment of the evidence and a reasoned conclusion that [the appellant] was indeed the driver of the vehicle at the time of the fatal crash.”

 

Submissions for the appellant in the appeal to the High Court
[39]      Before us, senior counsel for the appellant submitted that a flagrant denial of justice contrary to article 6 took place where the tribunal was not impartial (Brown v The Government of Rwanda [2009] EWHC 770 (Admin), paragraphs 20 et seq.)  As Lord Justice Laws pointed out at paragraph 23: 

“23.  Clearly the kind of bias contemplated by section 81(b) [of the Extradition Act 2003, viz in the present case, race and/or nationality], at least so far as it affects the trial process, might readily also constitute a denial of the right to a ‘fair and public hearing within a reasonable time by an independent and impartial tribunal’ pursuant to article 6;  and to that extent there is a potential overlap between the provisions …”

 

Reference was also made to Othman (Abu Qatada) v United Kingdom (2012) 55 EHRR 1;  Kapri v Lord Advocate 2013 SC (UKSC) 311 paragraphs 30-32.

[40]      In the present case, the tribunal had not been impartial, and as a result the appellant had not received a fair trial.  The appellant, being a rich foreigner (a British national of India origin perceived to be very wealthy) had been subjected to considerable and sustained hostile press coverage.  That press coverage must have influenced the judges in the trial and the appeal court.  The sheriff had heard both the appellant and Mr Chen giving evidence to that effect.  No coherent reason had been given for rejecting the evidence of Mr Chen (a lawyer who lived in Taiwan).  The appellant should not have been convicted, as he was not the driver at the time of the accident.  Even if convicted, he should have received a lesser sentence.  The sheriff had therefore erred in concluding that there had been no breach of article 6.

 

Submissions for the first respondent in the appeal to the High Court
[41]      The solicitor advocate for the first respondent submitted that, on the evidence, the trial had been fair and in accordance with Taiwanese law.  There was no evidence of corruption or of a corrupt criminal justice system.  There was nothing to suggest that there was undisclosed CCTV footage.  Nor was there anything to suggest that the judges had been influenced by media coverage.  The press articles described the appellant as a rich foreigner and accused him of causing the death, but that did not amount to xenophobia.  The sheriff was correct to conclude that the evidence did not establish that there had been a breach of article 6.

 

Discussion and decision:  whether the sheriff erred in his assessment of the case in terms of article 6 of the ECHR
[42]      As noted in paragraph [22] above, the onus is upon the appellant to prove that he has suffered a flagrant denial of justice (Soering v UK (1989) 11 EHRR 439 at paragraph 113;  R (Ullah) v Special Adjudicator [2004] 2 AC 323 at paragraphs 17 and 24). 

[43]      In this appeal, the appellant does not contend that the justice system in Taiwan is flawed to such an extent as to permit an argument under extradition law (sheriff’s note page 43, and the submissions before us).  The submission is that the evidence led before the sheriff established that the judges had been afraid to deliver a true verdict because of the strength and vitriolic nature of the media coverage due to the fact that the appellant was a foreigner.  Thus the appellant did not receive a fair trial in his particular case, and the sheriff erred in concluding that there had been no breach of article 6 of the ECHR.

[44]      We agree with the sheriff that the appellant’s trial in Taiwan

“hinged on the straightforward issue of identification of the driver of the offending motor vehicle which was owned by [the appellant]” (sheriff’s note page 26).

 

[45]      The evidence led before the sheriff in relation to what took place before, during, and after the trial in Taiwan is summarised in paragraphs [23] to [33] above.  In relation to the oral evidence, assessment of credibility and reliability of witnesses was, first and foremost, a matter for the sheriff.  He was entitled to accept or reject all or part of a witness’s evidence, and to give differing weight to different pieces of evidence.  Thus he was entitled, for example, to reject parts of the appellant’s evidence (see paragraphs [34] and [36] above).  He was entitled to accept Mr Chen’s evidence that the trial had proceeded entirely properly (page 38 of the sheriff’s note) but also to find Mr Chen unreliable in certain material respects (page 4 of the sheriff’s supplementary report dated 20 January 2015;  page 58 of the sheriff’s note).  The sheriff was also entitled to compare differing versions of events and to prefer one version to another.

[46]      In relation to evidence about media coverage (in particular the newspaper cuttings and the DVD), the media reports seem to us accurately to record details relating to the appellant, the allegations against him, and related matters (for example, the family’s reaction) – all matters which one would normally expect to find in press reports about such an incident.  They do not, in our view, substantiate the allegation of press coverage in which hostility is attributable to the race or nationality of the appellant.  We therefore agree with the sheriff’s views at pages 20 and 57 of his note, quoted in paragraph [31] above. 

[47]      In relation to the Taiwanese court judgments, the sheriff’s reasoning and conclusions cannot, in our view, be criticised or categorised as decisions which “cannot reasonably be explained or justified” (Henderson v Foxworth Investments Ltd, 2014 SC (UKSC) 203, 2014 SLT 775 paragraphs 66 and 67).

[48]      In the result, we have been unable to identify any error in the sheriff’s assessment of the evidence, his reasoning, or his conclusion that no breach of article 6 in connection with the appellant’s trial in Taiwan was established.  We are not therefore persuaded that there is any merit in this ground of appeal. 

 

(3) Section 81 of the 2003 Act:  extraneous considerations

[49]      Section 81 of the Extradition Act 2003 provides:

Extraneous considerations

A person’s extradition to a category 2 territory is barred by reason of extraneous considerations if (and only if) it appears that –

(a)        the request for his extradition (though purporting to be made on account of the extradition offence) is in fact made for the purpose of prosecuting or punishing him on account of his race, nationality, gender, sexual orientation or political opinions, or

(b)        if extradited he might be prejudiced at his trial or punished, detained or restricted in his personal liberty by reason of his race, religion, nationality, gender, sexual orientation or political opinions.”

 

[50]      Before us, it was agreed that the test to be applied in the context of section 81(b) was whether, on the evidence, there was a “reasonable chance” or a “serious possibility” that the appellant, if extradited, might be punished, detained, or restricted in his personal liberty by reason of his race, religion, nationality, gender, sexual orientation or political opinions (Tamarevichute v The Government of the Russian Federation [2008] EWHC 534 (Admin) paragraphs 12 and 112).  Accordingly both senior counsel for the appellant and the solicitor advocate for the first respondent submitted that the sheriff had erred when, at the foot of page 20 of his note, he stated:

“The terms of section 81 make it clear that this is a section specifically designed to deal with a situation where it is argued that the extraneous considerations detailed in the 2 sub-sections play a major role in the extradition request and the terms of section 81(a) make that very clear.  Section 81(b) which is the one argued here is also a section which would require a high level of certainty on the part of the requested state that there may be prejudice at any future procedure by reason of race or nationality before it would be proper to refuse extradition [italics added].”

 

[51]      We accept that the test to be applied in respect of the appellant is whether, on the evidence, there is a “reasonable chance” or a “serious possibility” that the appellant, if extradited, might be punished, detained or restricted in his personal liberty by reason of his nationality and/or race.  As the sheriff applied a different and stricter test, we propose to reconsider the matter in the light of the evidence available to the sheriff.

Submissions for the appellant in the appeal to the High Court

[52]      Senior counsel for the appellant submitted that the appellant’s conviction rested

upon a subjective assessment of credibility and reliability (the evidence of the appellant as against the evidence of the club driver), an assessment which (a) had been skewed by the vitriolic media coverage because the appellant was a foreigner and the judges were afraid to deliver a true verdict, and (b) was not susceptible to substantive review, being a decision at first instance.  In the context of xenophobia due to race and nationality, the sheriff had failed properly to assess Mr Chen’s evidence in relation to the powerful effect of the media coverage.  Mr Chen had expressly stated that there was “an anti-foreigner mentality in Taiwan” which might affect the appellant if he were to be returned.  The sheriff had not suggested that Mr Chen was lying or confused, and yet had preferred his own view of Taiwan to that of Mr Chen, despite the latter being resident in Taiwan.  It would be unfair in this case to apply the evidential standards advocated in Kapri v Lord Advocate 2015 JC 30.  Thus the evidence, including that of the appellant and Mr Chen, established that there was a reasonable chance or a serious possibility that the appellant, if extradited, might be punished, detained or restricted in his personal liberty by reason of his race or nationality.  As the sheriff had applied the wrong test, this appeal court should make its own decision.

 

Submissions for the first respondent in the appeal to the High Court
[53]      The solicitor advocate for the first respondent submitted that the media coverage simply described the appellant as a rich foreigner, and blamed him for the death.  That did not demonstrate xenophobia.  There was no evidence that the judges had been affected by the media, or that they had been influenced in reaching their verdict by issues of race or nationality.  It had not therefore been proved that there was a reasonable chance or a serious possibility that the appellant, if extradited, might be punished, detained, or restricted in his personal liberty by reason of his race or nationality.  

 

Discussion and decision:  whether the evidence established that there was a reasonable chance or a serious possibility that the appellant, if extradited, might be punished, detained, or restricted in his personal liberty by reason of his race or nationality
[54]      We refer to the summary of the evidence available to the sheriff, the assessment of the credibility and reliability of witnesses, the nature of the media coverage, and the content of the Taiwanese judgments, all as set out in paragraphs [23] to [33] above.  Focusing initially upon the media reports, it is our opinion that those reports simply recorded details relating to the appellant, the allegations against him, the reaction of the deceased’s family, and other similar matters – all issues which one would normally expect to find in press reports about such an incident.  Even if the most recent production of media extracts (number 17 of process) were to be taken into account, the media coverage does not, in our view, substantiate the allegation of press coverage in which hostility is attributable to the race or nationality of the appellant.

[55]      As for the three judgments of the Taiwanese courts, these do not, in our opinion, disclose any suggestion of xenophobia, or any evidence which might suggest that the authorities and courts in Taiwan, when taking decisions and actions, were in any way guided by xenophobic motives relating to race or nationality.  Rather, as the sheriff states, they demonstrate –

“… a full and careful assessment of the evidence and a reasoned conclusion that [the appellant] was indeed the driver of the vehicle at the time of the fatal crash.”

 

[56]      Thus the only evidence of xenophobic hostility arising from race or nationality came, in our opinion, from the evidence of the appellant and his lawyer Mr Chen.  As it was for the sheriff to determine matters of credibility and reliability (Thomas v Thomas [1947] AC 484), his assessment of their evidence is difficult to contradict.  Accordingly we are not persuaded that we may accept the assertions of the appellant and Mr Chen relating to an anti-foreigner mentality in Taiwan, standing the fact that they were disbelieved on those matters by the sheriff (see for example, the sheriff’s note pages 20, 46 and 57). 

[57]      Having reviewed the evidence available to the sheriff, and the submissions made to us, it is our opinion that the evidence does not demonstrate a “reasonable chance” or a “serious possibility” that the appellant “if extradited … might be … punished, detained or restricted in his personal liberty by reason of his race … [or] nationality” (section 81 of the Extradition Act 2003;  Tamarevichute v The Government of the Russian Federation [2008] EWHC 534 (Admin) paragraphs 12 and 112).  We are not persuaded therefore that the sheriff ought to have decided this issue differently (section 104(3) of the 2003 Act) or that this ground of appeal should succeed.

 

(4) Article 3 of the ECHR:  prison conditions
[58]      Article 3 of the ECHR provides:

“Prohibition of torture

 

No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

 

The parties’ respective positions

[59]      The appellant’s argument is that there are substantial grounds for believing that, if extradited, he will face a real risk of being subjected to inhuman and degrading conditions in Taipei prison, contrary to article 3 of the ECHR.  In particular he refers to serious overcrowding (with a prisoner’s personal space being restricted to anything from 1.6 square metres to 2.3 square metres), an unsatisfactory staff-inmate ratio, and insufficient medical and pharmacy staff.  Accordingly the sheriff erred in deciding, at pages 62-63 of his note, that there is no strength in the article 3 argument. 

[60]      The first respondent’s contention is that the appellant led insufficient evidence in his attempt to establish that risk (R(Ullah) v Special Adjudicator [2004] 2 AC 323 paragraph 24; Saadi v Italy (2009) 49 EHRR 30 paragraph 129;  Gaefgen v Germany (2011) 52 EHRR 1 paragraph 92).  In any event, the court has assurances from Taiwan, including an e-mail dated 8 May 2014 with certain undertakings about cell space, a bed, hours out of the cell, and toilet facilities. 

 

 The evidence led on behalf of the appellant
[61]      In relation to prison conditions, the evidence led before the sheriff for the appellant comprised:

  • the appellant’s oral evidence (pages 32 to 33 of the sheriff’s note).
  • Mr Chen’s oral evidence (pages 37 to 38 of the note).
  • the appellant’s girlfriend’s oral evidence (page 39 et seq of the note).
  • the DVD production 22, including a documentary programme focusing on conditions in Taipei North prison, filmed in about September 2013.
  • several documentary productions, namely production 23 (described as Taiwanese government figures recording overcapacity in Taipei prison at 47.6% in 2012);  productions 1A9, 1A14, and 1A15 (now productions 40, 45, and 46) described as articles compiled by an organisation called Taiwan Action for Prison Reform and downloaded from the internet.  These documents indicated inter alia a general overcapacity in Taiwan prisons of 30%, and a low guard-to-prisoner ratio. 

[62]      For reasons which will become clear from the paragraphs below, we do not consider it necessary to examine, rehearse, or analyse that evidence in any detail.  It is sufficient to note that the oral evidence concerning prison conditions could not have been of much assistance to the sheriff, as the appellant and his girlfriend had never been in a Taiwanese prison, and Mr Chen spoke from the limited viewpoint of a lawyer.  The DVD documentary programme was not, in our view, something that “a judicial body should simply accept as true, and thus proof of fact” (paragraph 128 of Kapri v Lord Advocate 2015 JC 30), particularly as the sheriff commented at pages 44 and 45 of his note:

“ … It was not in any sense wide-ranging filming, designed to cover prisoner conditions in any width or depth, and it was very much confined to one part of the prison … The scenes which were shown were quite limited, and it appears that the sanction to film within the prison was quite restricted, since a number of scenes and images were shown repeatedly, and I only ever saw one communal cell …”

 

[63]      As for productions 23, 40, 45, and 46, we consider that these were good examples of the sorts of materials referred to in paragraph [128] of Kapri.  Their provenance was not clear.  Their accuracy was unvouched.  They had been downloaded from the internet.  They were not (so far as we were aware) spoken to by any witness, but were simply referred to during counsel’s submissions (sheriff’s note of decision page 43). 

[64]      Thus neither the DVD nor the documentary productions could, in our view, be treated as equivalent to the evidence of a responsible expert witness seeking to assist the court.

 

Submissions in the appeal to the High Court

[65]      Against that background, Mr Dickson, on behalf of the Lord Advocate, submitted before us inter alia that the evidence led on behalf of the appellant did not satisfy the high tests set in R(Ullah) v Special Adjudicator [2004] 2 AC 323 at paragraph 24 and Gaefgen v Germany (2011) 52 EHRR 1 at paragraph 92, and moreover did not comply with the guidance in Kapri.  He acknowledged that, by the time the decision in Kapri became available on 25 April 2014, the appellant and Mr Chen had already given their evidence (in January and February 2014).  However he was also aware that the appellant had obtained two expert reports, yet had not lodged them.  In the absence of defence expert reports, the sheriff had wished to be as fair as possible to the appellant.  Accordingly the sheriff had allowed a considerable number of documents to be lodged as productions, at the same time warning parties that if a document remained unspoken to, with its provenance unclear, he would attach little weight to it (see paragraph [8] above).  Mr Dickson submitted that, as a result of this approach, the sheriff (i) had applied pre-Kapri law and practice and had given weight to certain productions which, in terms of Kapri, should not perhaps have been relied upon;  and (ii) had not made clear what, if anything, he had taken from the Crown’s expert report on the Taiwanese justice system (referred to at page 43 of the sheriff’s note, and paragraph [24] above).  In fact, in an endeavour to be fair to the appellant, the sheriff had gone to lengths which he should perhaps not have done. 

[66]      Mr Dickson further submitted that the appellant had had opportunities to obtain more and better evidence.  There had been various adjournments and continuations during the sheriff court proceedings.  No further time should be contemplated.

[67]      Finally, esto the court were persuaded to any extent by the evidence led on behalf of the appellant, the court should have regard to the various assurances provided by Taiwan, namely productions 26, 28, 31, 32, and 33.  In particular, production 32, the e-mail addressed to Mr Dickson dated 8 May 2014, from Pei-Chi Hong, Prosecutor’s Investigator, Department of International and Cross-Strait Legal Affairs, Ministry of Justice, gave details about cell space, a bed, hours out of the cell, and toilet facilities, none of which had been challenged by the appellant or his lawyers.

[68]      Mr Bovey QC on behalf of the appellant accepted that the evidence criticised, particularly the DVD programme and the articles downloaded from the internet, did not comply with the guidance in Kapri.  However as the appellant’s extradition proceedings had begun on the basis of R(B) v Westminster Magistrates’ Court [2014] 3 WLR 1336, paragraphs 22-23, it would be unfair to change the approach to evidence mid-case, and to exclude material made available to the court in such a way that the appellant’s argument about prison conditions was deemed to have failed.  Moreover, the more nuanced approach in HM Advocate v Havrilova 2012 SCCR 351 was preferable (see paragraph [9] above).  But if necessary, a further evidential hearing should take place before the appeal court (cf the procedure in Kapri).  The case should not be remitted back to the sheriff, as the detailed provisions of the 2003 Act did not permit such a step.

[69]      In relation to the assurances given by Taiwan, if these assurances were not worth having, then the general level of overcrowding in prisons was crucial and clearly breached article 3 of the ECHR (cf Orchowski v Poland, ECtHR 22 October 2009 17885/04, paragraph 122; Florea v Judicial Authority, Rumania [2015] 1WLR 1953, paragraphs 35-37, 39).  The assurances, and in particular the e-mail dated 8 May 2014 production 32, did not satisfy the criteria set out in paragraph 189 of Othman (Abu Qatada) v United Kingdom (2012) 55 EHRR 1.

[70]      Accordingly the sheriff had erred in law.  He was wrong to conclude that there was no real risk of a violation of article 3 arising from overcrowding and other conditions in prison in Taiwan.  He ought to have decided the question differently.  He should have ordered the discharge of the appellant.

 

Discussion and decision:  article 3 of the ECHR and prison conditions

[71]      First, we note that the decision in Kapri v Lord Advocate 2015 JC 30 did not become available until 25 April 2014, by which time, as we understand it, the oral evidence in this case had been completed.  The sheriff’s decision in this case was issued on 11 June 2014, some six weeks later.  It is perhaps a moot point whether the implications of the decision in Kapri should have been appreciated and raised in court once the judgment in that case became available.  So far as we are aware, those implications were not debated before the sheriff.  The sheriff accordingly proceeded to deal with this case, and issued his judgment on the basis of evidence which did not meet the criteria set out in Kapri

[72]      Secondly, we consider that sufficient questions have arisen from the materials and submissions put before the sheriff to suggest the need to hear appropriate evidence in the context of article 3 of the ECHR and the prison conditions in which the appellant will be detained.

[73]      As a result we are not persuaded that we should attempt to assess whether or not the sheriff could be said to have erred in relation to article 3 and prison conditions.  We consider that it is necessary to allow parties a further opportunity, at an evidential hearing before the appeal court, to lead such evidence on that issue alone (if so advised) as they consider appropriate, bearing in mind Kapri and the high tests in R(Ullah) v Special Adjudicator [2004] 2AC 323 at paragraph 24, Gaefgen v Germany (2011) 52 EHRR 1, paragraph 92.

[74]      It may be that, in preparation for the evidential hearing, the first respondent will wish to consider the nature, terms, and signatory of any assurance sought to be relied upon in this case, in the light of the factors listed in paragraph 189 of Othman and the criticisms made by senior counsel for the appellant in his address to us.  Moreover in relation to section 202 of the 2003 Act, counsel for the first respondent should be prepared to address the court on the meaning and effect of the phrase “received in evidence in proceedings under this Act if it is duly authenticated”.

[75]      In conclusion, we shall continue the issue of article 3 and prison conditions (but no other issue) to an evidential hearing before the appeal court of three judges.  We shall put the case out for a hearing to discuss procedural details.

 

B.  Appeal in terms of section 108
[76]      We were fully addressed on the appeal in terms of section 108.  We shall reserve our opinion on that matter until the issues outstanding in the appeal in terms of section 103 are dealt with. 

 

Conclusion

[77]      For the reasons given above, we continue that part of the appeal under section 103 relating to article 3 of the ECHR and prison conditions in Taiwan to an evidential hearing (see paragraph 75 above).  We shall arrange a hearing to discuss procedural issues.  In these circumstances, it would be premature to give our views on the appeal under section 108.  As noted in paragraph [76] above, we were fully addressed on that matter, and meantime we reserve our opinion.