British businessman could be first to extradited to Taiwan after judges refuse appeal, but further hearing required

A British businessman of Indian origin wanted by authorities in Taiwan to serve a prison sentence after being convicted of negligent manslaughter following a drink-driving accident could be the first to be extradited to the Republic of China from the UK.

Zain Dean, who is currently in prison in Scotland, appealed against a decision of a sheriff who held that Taiwan was a “territory” for the purposes of the Extradition Act 2003, but the Criminal Appeal Court rejected that ground of appeal.

The appellant also claimed that he had not received a fair trial and that the sheriff erred in concluding that there had been no breach of Article 6 of the European Convention on Human Rights, but the judges were “not persuaded” that there was any merit in that ground of appeal.

However, the appeal court considered that a further evidential hearing should be held before making a decision on the issue of whether article 3 of the ECHR would be violated by the prison conditions in Taipei prison.

Lady Paton, Lord Drummond Young and Lady Clark of Calton heard that in March 2010, while he was living and working in Taiwan, the appellant was involved in a road traffic accident and following a trial by three judges in the District Court of Taipei he was convicted of drink-driving, negligent manslaughter, and leaving the scene of the accident – for which he was sentenced to two-and-a-half years imprisonment.

He appealed against conviction and sentence, and was granted bail, but 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, where he was arrested in October 2013 and has been in custody since.

Following extradition proceedings the Scottish Ministers made an extradition order returning him to Taiwan, but the appellant appealed 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.

The sheriff heard that there is no extradition treaty between the UK and Taiwan and that there has never previously been an extradition of someone from the UK to Taiwan, but a special “memorandum of understanding” relating to the appellant was entered into in October 2013.

Counsel for the appellant submitted that the sheriff erred in holding that Taiwan was to be treated – so far as the appellant was concerned – as a “category 2 territory” in terms of the 2003 Act.

It was contended that he had failed to make findings in fact that justified the conclusion that Taiwan was a territory, and that the findings that he made went “beyond the limits of judicial knowledge”.

However, the appeal judges observed that the essential features of a “territory” were 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.

Delivering the opinion of the court, Lady Paton said: “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. 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.”

The appellant also claimed that he did not receive a fair trial due to “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.

But the judges agreed with the views of the sheriff, who rejected the appellant’s evidence, noting that that media reports “seem to us accurately to record details relating to the appellant, the allegations against him, and related matters” – all matters which one would “normally expect” to find in press reports about such an incident.

“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,” Lady Paton added.

However, the judges continued the issue of article 3 and prison conditions to an evidential hearing before the appeal court of three judges.

The appellant argued that there were substantial grounds for believing that he will face a real risk of being subjected to “inhuman and degrading conditions” in Taipei prison if extradited – contrary to article 3 of the ECHR – due to “serious overcrowding”, an “unsatisfactory staff-inmate ratio”, and “insufficient medical and pharmacy staff”.

It was submitted that the sheriff erred in deciding that there is “no strength” in the article 3 argument.

Lady Paton said: “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. 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…”