Lord Advocate v Dean

Where a person facing extradition risks serious harm from non-state actors, the risk does not itself establish prospective treatment contrary to article 3. The receiving state must also have failed to provide reasonable protection against that harm.

Assurances from the receiving state require careful assessment for quality and reliability. Relevant matters include their specificity, the authority and good faith of those giving them, bilateral relations, monitoring arrangements and available remedies. Protective confinement must then be assessed separately and holistically to determine whether its conditions create a real risk of article 3 ill-treatment.

The Taiwanese judicial authorities sought the respondent’s extradition to serve the balance of a four-year sentence. A sheriff held that extradition was compatible with his Convention rights, and the Scottish Ministers ordered extradition. The Appeal Court of the High Court of Justiciary subsequently held by majority that prison conditions and the risk of violence from other prisoners created a real risk of treatment contrary to article 3.

The Lord Advocate appealed under paragraph 13 of Schedule 6 to the Scotland Act 1998. The principal questions were whether the Supreme Court had jurisdiction as a devolution appeal and whether the Appeal Court had applied the correct article 3 test where the anticipated harm would come from non-state actors.

1. Appeal allowed unanimously. Lord Hodge delivered the judgment, with which Lord Mance, Lord Sumption, Lord Reed and Lord Hughes agreed. The Appeal Court’s determination of whether extradition was compatible with Convention rights was a determination of a devolution issue. The Lord Advocate could therefore appeal under paragraph 13(a) of Schedule 6 to the Scotland Act 1998, notwithstanding the exclusion of an ordinary Scottish appeal under section 114(13) of the Extradition Act 2003.

2. The Appeal Court applied an incomplete legal test. A real risk of serious harm from other prisoners did not alone establish prospective article 3 ill-treatment. Where the risk emanates from non-state actors, the court must also determine whether the receiving state will fail to provide reasonable protection. The court must then consider separately whether the protective conditions themselves would infringe article 3. The approach in R (Bagdanavicius) v Secretary of State for the Home Department [2005] 2 AC 668 governed that inquiry.

3. Assurances from a receiving state may be considered, but their quality and reliability require assessment. The Taiwanese assurances were specific, issued by a senior authorised official, confirmed by responsible ministers and the prison authority, and supported by arrangements for consular monitoring and remediation. Their untested character and the limitations of external monitoring and domestic remedies did not outweigh those considerations. The assurances provided reasonable protection against violence by other prisoners.

4. Any protective regime would amount only to relative isolation. The respondent would share an adequate cell with another foreign prisoner, retain access to media and visitors, and have outdoor exercise. Isolation would be chosen for his protection rather than imposed as punishment and would apply during a sentence residue unlikely to exceed about 13 months. Viewed holistically, those conditions did not come close to the minimum severity required by article 3.

5. The article 5 challenge failed. The Taiwanese parole rules were neither arbitrary nor required to correspond with United Kingdom sentencing practice. The article 8 interference was justified by the prevention of crime, protection of others and the strong public interest in extradition.

6. The case was remitted to the Appeal Court to determine the outstanding appeal under section 108 of the Extradition Act 2003 and the associated devolution minute.

1. United Kingdom Supreme Court: The Lord Advocate’s appeal under Schedule 6 to the Scotland Act 1998 was allowed unanimously. The case was remitted to the Appeal Court to determine the outstanding section 108 appeal and devolution minute.

2. Appeal Court of the High Court of Justiciary: In decisions reported as [2016] HCJAC 83 and [2016] HCJAC 117, the court rejected several preliminary challenges but later held by majority that extradition would be incompatible with article 3, quashed the extradition order and ordered the respondent’s discharge.

3. Edinburgh Sheriff Court: The sheriff decided under section 87(1) of the Extradition Act 2003 that extradition would be compatible with the respondent’s Convention rights. The Scottish Ministers subsequently made the extradition order.