Lord Advocate v Dean

This appeal concerned an extradition order and whether extradition of Mr Dean to Taiwan to serve the residue of a sentence would be compatible with article 3 of the European Convention on Human Rights. The Supreme Court held that the Appeal Court had applied the wrong legal test: where the risk arises from non-state actors the correct test, derived from HLR v France and applied in Bagdanavicius, is whether the receiving state has failed to provide reasonable protection against harm by third parties rather than simply whether a real risk exists. The court assessed the Taiwanese undertakings (including specific prison accommodation and consular monitoring) under the Othman factors and concluded those assurances provided reasonable protection and that the likely conditions of confinement did not themselves amount to treatment breaching article 3.

The Lord Advocate's appeal on the devolution issue under Schedule 6 to the Scotland Act 1998 was allowed and the case was remitted to the Appeal Court to determine remaining issues under section 108 of the Extradition Act 2003 and the devolution minute.

The respondent, Mr Dean, a United Kingdom national, had been convicted in Taiwan of offences arising from a fatal road accident and sentenced to imprisonment. Before the Supreme Court he challenged an Appeal Court decision which had quashed an extradition order on the ground that extradition would contravene article 3 ECHR because of prison conditions and the risk of violence from other prisoners.

Background and procedural history

• Mr Dean was convicted in Taipei and sentenced; after appeals in Taiwan and while on bail he fled to Scotland. Taiwan sought his extradition and, by memorandum of understanding under section 194 of the Extradition Act 2003, sought to treat Taiwan as a category 2 territory for the 2003 Act.
• A sheriff decided under section 87(1) of the Extradition Act 2003 that extradition would be compatible with Convention rights and the Scottish Ministers made an extradition order. Mr Dean appealed under section 103 and 108 to the Appeal Court of the High Court of Justiciary. On 23 September 2016 the Appeal Court by majority held extradition would breach article 3 and ordered discharge.
• The Lord Advocate appealed to the Supreme Court under paragraph 13 of Schedule 6 to the Scotland Act 1998, challenging the Appeal Court's determination of a devolution issue.

Nature of the claim and issues before the Supreme Court

• Nature of claim: challenge to the compatibility of extradition with Convention rights, principally article 3 (prohibition of torture and inhuman or degrading treatment) but also issues under articles 5 and 8 were briefly raised.
• Primary issues framed by the court: (i) competence of the appeal as a devolution issue under the Scotland Act 1998, and (ii) the correct legal test for article 3 challenges where the risk arises from non-state actors and the application of that test to the factual findings of the Appeal Court.

Court's reasoning

• Competence: the Supreme Court held that the question whether acts by the Scottish Government (in this case by the Lord Advocate and Scottish Ministers) were compatible with Convention rights is a devolution issue for the purposes of Schedule 6 to the Scotland Act 1998; paragraph 13 of Schedule 6 therefore permitted the Lord Advocate to appeal to the Supreme Court.
• Legal test: the court determined that when the risk emanates from non-state actors it is not enough to show a real risk of serious harm; instead the court must ask whether the receiving state will provide reasonable protection against that harm. This approach derives from HLR v France as applied in Bagdanavicius and is consistent with the guidance in Othman on assessing assurances.
• Application to facts: the court accepted the Appeal Court's factual findings about overcrowding, understaffing and a risk of hostility towards Mr Dean, but concluded that the Taiwanese authorities had given specific, ministerial-level assurances about separate accommodation, supervision by English-speaking officers, pre-screening of inmates, consular access and remedial responses to breaches. Applying the Othman factors and relevant Strasbourg authorities, the court concluded the assurances afforded reasonable protection and that the likely regime of relative isolation, if chosen by Mr Dean for his own protection, would not in the circumstances amount to treatment breaching article 3. The separate article 5 and article 8 arguments were rejected on the facts and law provided.

Disposition The Supreme Court allowed the Lord Advocate's appeal on the devolution issue and remitted the case to the Appeal Court to determine the outstanding section 108 appeal and the devolution minute.

Appeal allowed. The Supreme Court held that (a) the Lord Advocate's challenge was a competent appeal to this court as a devolution issue under Schedule 6 to the Scotland Act 1998; (b) where the risk arises from non-state actors the correct test is whether the receiving state has failed to provide reasonable protection against such harm; (c) applying that test to the Appeal Court's factual findings, the specific assurances given by Taiwanese Ministers and officials, together with proposed consular monitoring, afforded reasonable protection and the conditions of confinement would not themselves constitute treatment breaching article 3; accordingly the Appeal Court's order discharging Mr Dean was set aside and the matter remitted to the Appeal Court to determine the remaining statutory appeal and devolution minute.

Sheriff decision (Note of Decision 11 June 2014) found extradition compatible under section 87(1) Extradition Act 2003; Scottish Ministers made an extradition order on 1 August 2014. Appeal to the Appeal Court of the High Court of Justiciary under sections 103 and 108 of the 2003 Act resulted in a majority decision on 23 September 2016 (Appeal Court citations: [2016] HCJAC 83 and 117) quashing the extradition order on article 3 grounds. The Lord Advocate sought and was granted permission to appeal to the Supreme Court under Schedule 6 to the Scotland Act 1998; this court heard the appeal and delivered judgment [2017] UKSC 44 allowing the appeal and remitting the case to the Appeal Court.