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Lord Advocate v Dean
CourtSupreme Court of the United Kingdom
Full case name Lord Advocate (representing the Taiwanese Judicial Authorities) v Zain Taj Dean
Decided28 June 2017
Citation[2017] UKSC 44
Case history
Prior action[2016] HJCAC 52
Court membership
Judges sittingLord Mance, Lord Sumption, Lord Reed, Lord Hughes, and Lord Hodge
Keywords
Extradition

Lord Advocate v Dean, [2017] UKSC 44, was a 2017 judgment of the Supreme Court of the United Kingdom concerning extradition to Taiwan and the applicability of European Court of Human Rights (ECtHR) case law on Article 3 of the European Convention on Human Rights (the Convention) in relation to the possibility of inhuman or degrading treatment by non-state actors. The Supreme Court held unanimously that the court below should not have applied the test in Saadi v Italy ("substantial grounds ... for believing that there is a real risk of treatment incompatible with article 3") but rather that in HLR v France (failure on the part of the receiving party "to provide reasonable protection against" that risk).

As the ruling concerned the first extradition request Taiwan had ever made to any foreign country, it was the object of widespread attention in Taiwanese media. From a legal perspective, the significance of Dean was that it was the first time that the Supreme Court had considered the role of diplomatic assurances.

Facts

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Trial and appeals in Taiwan

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Respondent Zain Taj Dean, a British expatriate in Taiwan, was convicted at trial in the Taipei District Court on 15 March 2011 of drunk driving, negligent manslaughter, and leaving the scene of an accident.[1] It was common ground that Dean's car had struck newspaper delivery man Huang Chun-teh (黃俊德) on 25 March 2010, resulting in the latter's death. The question of fact at trial was whether the driver at the time was Dean himself or his designated driver Chuo Jun-ching (卓俊呈), an employee of the club where Dean had been drinking.[2] Dean appealed his conviction to Taiwan's High Court, which on 26 July 2012 upheld his conviction and increased his sentence to four years.[3] He further appealed to Taiwan's Supreme Court of Taiwan, which upheld his conviction and sentence on 20 December 2012.[4]

Extradition request

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Whilst awaiting his appeal in the Supreme Court in Taiwan to be heard, Dean absconded to the United Kingdom on 14 August 2012 with the aid of his Taiwanese girlfriend and a fellow British expatriate. Subsequently, the Taipei District Court convicted the latter two individuals of harbouring a fugitive, falsification of documents, and violations of the Immigration Act, sentencing them to five and seven months imprisonment respectively.[5]

The Ministry of Justice in Taipei sought to have Dean extradited back to Taiwan to serve his sentence. Initial reports suggested that extradition might face difficulties due to the political status of Taiwan: Taiwan does not have formal diplomatic relations with the UK, and no extradition treaty exists between the two.[citation needed] However, the UK's Extradition Act 2003 provides for extradition to be carried out to "territories" (not just "countries"), and Section 194 permits special arrangements for the extradition of a specified person in the absence of a formal treaty. Taiwan entered into such an arrangement with the Home Office on 16 October 2013 in regards to Dean.[6] Pursuant to that arrangement, Scottish police arrested Dean the following day, and Taiwan's Ministry of Justice formally requested Dean's extradition on 28 October.[7] Dean did not seek bail.[8]

Judgment

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Sheriff Court

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Sheriff Kenneth Maciver rejected Dean's ECHR and devolution arguments in a decision on 11 June 2014, and the Scottish government made an extradition order against Dean on 1 August 2014.[9]

High Court of Justiciary

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Dean appealed from the sheriff's decision on four grounds: that Taiwan was not a "territory" for purposes of the Extradition Act 2003; that his trial in Taiwan had not been fair and thus his rights under Article 6 of the Convention had been violated; that he might be "punished, detained, or restricted in his personal liberty by reason of" his race or nationality in Taiwan, thus barring his extradition under Section 81 of the Extradition Act 2003; and that the conditions he would face in Taipei Prison amounted to inhuman or degrading treatment forbidden by Article 3 of the Convention. He further argued that the sheriff had erred in refusing his two devolution minutes.[10] On 24 June 2015, Lady Paton, delivering the unanimous opinion of the court, rejected the first three grounds of appeal, but continued the part of the appeal relating to the Article 3 argument.[11]

The court disposed of the first ground of appeal by ruling that it was "entitled to hold as a matter of judicial knowledge that Taiwan is a 'territory' for purposes of the 2003 Act". The court considered that the Extradition Act 2003's failure to define the word "territory" was deliberate, in order to permit extradition to any "entity" regardless of the exact manner in which it was administered, as long as it satisfied three criteria: the entity controlled an area of land, the land had some population, and both were subject to effective government. In particular the court considered that diplomatic recognition was not a relevant criterion.[12]

With regard to the Article 6 argument, the court held that Dean bore the burden of proving that his conviction in Taiwan was "the result of a flagrant denial of justice", following Soering v United Kingdom and R (Ullah) v Special Adjudicator.[13] Dean had argued before the sheriff that the hostile portrayal of him in Taiwan's media as a wealthy, unremorseful foreigner who was insulting Taiwan had created public pressure on the Taiwanese courts, leading them to render an unfair verdict.[14] The court held that the sheriff had made no error in concluding that the trial in Taiwan had not breached Dean's Article 6 rights.[15] Dean's Section 81 arguments also referred to the media coverage.[16]

Finally, the court continued the proceedings to hold an evidentiary hearing about conditions in Taipei Prison in order to assess the Article 3 argument.[17] It was common ground between the two parties that the court should adopt the test in Saadi v Italy, "whether substantial grounds have been shown for believing that there is a real risk of treatment incompatible with article 3".[18] The court ruled by majority (Lord Drummond Young dissenting) that Dean had shown such grounds.[citation needed] Having ruled that Article 3 barred Dean's extradition, the court did not reach his argument on the devolution minutes.[19]

Supreme Court

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By majority (Lord Drummond Young dissenting), the High Court of Justiciary refused the Lord Advocate's application for leave to appeal to the Supreme Court on 4 November 2016.[20] However, a panel of the Supreme Court granted leave on 21 December 2016.[21]

Othman (Abu Qatada) v. United Kingdom.

Reception and later developments

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In June 2016, Taiwan's Ministry of Justice submitted another extradition request for Dean, with the charge of attempting to pervert the course of justice by absconding. The Edinburgh Sheriff Court ruled in October 2017 that the 2013 arrangement between Taiwan and the Home Office was inapplicable to this request and so Dean could not be extradited to answer to the additional charge.[22]

As of April 2018, the rehearing ordered by the Supreme Court is underway.[23]

Stephen Allen of Queen Mary University of London argued that the Supreme Court had erred in equating risk of ill-treatment by fellow prisoners with general risk of ill-treatment by private individuals in Bagdanavicius, given the far greater control that the authorities had over a prison. Allen further questioned whether the mechanisms by which UK consular officials could monitor Dean's treatment in prison were sufficient, given that the basis for extradition was a one-off memorandum of understanding; he considered that MOU not to be analogous to the one at issue in Othman, where a non-governmental organisation would monitor compliance with the diplomatic assurances and there was specific assurance of "recourse to judicial remedies".[24]

References

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  1. ^ Lord Advocate v Dean, [2017] UKSC 44. [4]
  2. ^ 99 Taipei District Court Jiao (交) Case 44, Facts (事實) para. 1
  3. ^ 100 Taiwan High Court Jiao (交) Appeal 49
  4. ^ 101 Supreme Court Tai (交) Appeal 6459
  5. ^ "British citizen goes on the run with fake passport in Taiwan". The Telegraph. 30 January 2013. Retrieved 11 July 2017. "助林克穎潛逃 邱凱判7月、董玉琪5月都可易科罰金" [Aided Zain Dean's flight: Churcher sentenced to seven months, Tung Yu-chi sentenced to five months and possible fine]. Eastern Television. 30 May 2013. Retrieved 28 April 2018. "助林克穎逃亡 英籍友人昨被驅逐出境" [Helped Zain Dean flee; British friend deported yesterday]. Apple Daily. 20 November 2013. Retrieved 11 July 2017.
  6. ^ [2017] UKSC 44 [6]
  7. ^ [2017] UKSC 44 [7]
  8. ^ "林克穎求保釋不成 英國法官裁定還押". Apple Daily. 21 November 2013. Retrieved 14 July 2017. "Minister optimistic on British drunken driver's extradition". Focus Taiwan. 21 November 2013. Retrieved 14 July 2017. Shih, Hsiu-chuan (19 December 2013). "Fugitive Zain Dean's bail request fails in Edinburgh". Taipei Times. Retrieved 14 July 2017.
  9. ^ [2017] UKSC 44 [7]
  10. ^ Dean v Lord Advocate, [2015] HCJAC 52. [5]
  11. ^ [2015] HCJAC 52 [77]
  12. ^ [2015] HCJAC 52 [18–19]
  13. ^ [2015] HCJAC 52 [22]
  14. ^ [2015] HCJAC 52 [22, 26–27]
  15. ^ [2015] HCJAC 52 [45–48].
  16. ^ [2015] HCJAC 52 [52]
  17. ^ Dean v Lord Advocate, [2016] HCJAC 83.
  18. ^ [2016] HCJAC 83 [8]
  19. ^ [2016] HCJAC 83 [61, 118]
  20. ^ Dean v Lord Advocate (application for leave to appeal), [2016] HCJAC 117.
  21. ^ [2017] UKSC 44 [12]
  22. ^ "Second extradition bid for convicted killer Zain Dean fails". BBC News. 9 October 2017. Retrieved 27 April 2018. "林克穎第二引渡案 英法庭判我敗訴" [Second extradition request for Zain Taj Dean fails in UK court]. Liberty Times. 14 October 2017. Retrieved 27 April 2018.
  23. ^ "Criminal Appeal Roll". High Court of Justiciary. 9 April 2018. Archived from the original (PDF) on 27 April 2018. Retrieved 27 April 2018.
  24. ^ Allen, Stephen (28 July 2017). "Non-State Actors and Non-Refoulement: The Supreme Court's Decision in Zain Taj Dean". EJIL Talk. Retrieved 9 February 2018.

Further reading

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Category:2017 in British law Category:2017 in case law Category:Supreme Court of the United Kingdom cases

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