British citizen wins appeal against extradition to Taiwan

Zain Dean was sentenced to four years’ imprisonment after being convicted of causing the death of a local newspaper delivery man when driving under the influence of drink in a hit-and-run collision in 2010, while he was living and working in the Republic of China.

When the Scottish Ministers granted the extradition order, they were not aware that the appellant was also facing a live criminal prosecution for allegedly absconding from Taiwan and using another person’s passport to do so.

The appellant, who absconded to Scotland in 2012 but was detained a year later after becoming the subject of Taiwan’s first-ever extradition case, argued that his removal would not comply with with the mandatory conditions of “speciality” set out in section 95 of the Extradition Act 2003, which aim to ensure that British citizens facing extradition for certain crimes “must not” be extradited where on their arrival in another territory they would find themselves being dealt with for other offences.

But by a majority of two-to-one, judges in the High Court of Justiciary Appeal Court ruled that the appellant’s extradition would be a “breach” of the mandatory requirement of speciality and therefore “illegal and ultra vires”.

‘Memorandum of Understanding’

Lady Paton, Lord Drummond Young and Lady Clark of Calton heard that the businessman had lived and worked in Taiwan for 19 years before coming to Scotland in August 2012.

He was detained in Edinburgh a year later following a “one-off” extradition agreement in a Memorandum of Understanding (MOU) between the UK Government and Taiwan.

The appellant, who had been in custody at Saughton Prison since 2013, challenged his proposed extradition, arguing that it would breach article 3 of the European Convention on Human Rights, which prohibits torture or inhuman or degrading treatment or punishment.

The case was originally heard at the Extradition Court in Edinburgh where a sheriff ruled that the appellant should be extradited to Taiwan.

However, he lodged an appeal under section 103 of the Extradition Act 2003, arguing that there was evidence available that was not available at the extradition hearing which would have resulted in the sheriff deciding the question differently.

He argued that his removal would contravene article 3 because prison conditions in Taiwan were poor and that he was under threat of attack

By a majority of two-to-one, the appeal judges ruled that there were “substantial grounds” for believing that there was a “real risk” of treatment of the appellant which would be incompatible with article 3 of the ECHR.

Following that decision and a failed appeal to the UK Supreme Court, further correspondence took place between Scottish Ministers and the Lord Advocate with the Taiwanese authorities, during which assurances and clarifications were sought.

‘Speciality’

The court was told that in the context of extradition, the Taiwanese authorities always had five criminal offences in mind, but the MOU specified only three, namely the conviction offences relating to the road traffic incident in 2010 comprising drink driving, negligent manslaughter, and leaving the scene of the accident. 

The MOU did not specifically include two outstanding charges awaiting trial in Taipei District Court, namely accusation offences of alleged absconding from Taiwan in 2012 and alleged use of another’s passport in so doing.

The extradition request in 2013 sought extradition of the appellant in order to serve his prison sentence for the three conviction offences, and did not mention that a separate prosecution had already been raised for the other two offences, for which he faced a further nine years in prison.

When matters were passed to Scotland in 2014 to be dealt with by the Lord Advocate and the Scottish Ministers, they were “wholly unaware” of the live criminal prosecution.

Furthermore, the letters of assurance appeared to suggest that it was a requirement in Taiwanese law for the appellant to pay compensation of £280,000 in respect of the road traffic accident and to issue a public apology in order to enable the Taiwanese prosecutor to withdraw an existing prosecution for absconding using another’s passport.

Dean – who was released on bail in 2016 and changed his name by deed poll to Callum Rafael Scott – lodged an appeal under section 108 of the Extradition Act 2003, arguing that when the Scottish Ministers ordered his extradition on 1 August 2014 to serve the four-year sentence for the road traffic offences, there were “no speciality arrangements” in place satisfying the mandatory terms of section 95 of the 2003 Act. 

As a result, it was submitted that the Scottish Ministers should have “decided differently” and not ordered his extradition in terms of section 109(3) and (4).

‘Extradition illegal’

Again by a majority of two-to-one, the judges ruled in the appellant’s favour.

Lady Paton, with whom Lady Clark of Calton agreed, observed that the letters of assurance were “too ambiguous” and that an undertaking to withdraw the prosecution for absconding using another’s passport – which was apparently conditional on a payment and a public apology – “did not provide the necessary comfort”.

In a written opinion, Lady Paton said: “In relation to section 95(4)(b), it is my opinion that no alleged absconding or passport offence was ‘disclosed by the same facts’ as the road traffic offences, all of which occurred on 25 March 2010. 

“On the contrary, the absconding and passport allegations relate to an entirely different and independent set of circumstances which are said to have occurred two years later in August 2012 when the appellant left Taiwan and came to Scotland. 

“Any purported reliance upon the different wording of paragraph 11(1)(b) of the MOU would, in my opinion, constitute a breach by Scottish Ministers of the mandatory section 95 of the Extradition Act 2003, and would, in my opinion, be illegal and ultra vires.”

She added: “Thus as soon as the appellant arrived in Taiwan, he would be vulnerable to that prosecution with a possible sentence of nine years in addition to the four-year sentence for which he was extradited. That is precisely the result which speciality arrangements should prevent.

“Accordingly, on the basis of the circumstances known to Scottish Ministers on 1 August 2014, it is my opinion that, in order to comply with the mandatory provisions of section 95 of the Extradition Act 2003, Scottish Ministers ought to have decided the question before them differently and not ordered the appellant’s extradition.

“For the reasons given in this opinion, I am persuaded that the provisions of sections 109(3) and 109(4) are satisfied. I propose therefore that the appeal be allowed, that the appellant be discharged, and that the order for his extradition be quashed.”

Dissenting, Lord Drummond Young considered that the appeal should be dismissed, having observed that the MOU between the UK and China formed the “legal basis” for the appellant’s extradition and the the courts must proceed on the basis that the requirements of an extradition agreement will be observed “in good faith”, adding that the subsequent assurances received should be treated as “validly given”.