Convention compatibility and devolution at issue in Scottish appeal to Supreme Court

On appeal from the High Court of Justiciary (Scotland)

The issue in this case is whether the extradition of the respondent to Taiwan would be incompatible with article 3 of the European Convention on Human Rights. The respondent raises a separate issue; whether the appeal court determined a devolution issue and, therefore, whether the Supreme Court has the jurisdiction to hear the Lord Advocate’s appeal.

The respondent was convicted in Taiwan of causing the death of another road user while driving a motor car under the influence of alcohol and ordered to serve a sentence of four years’ imprisonment. He was granted bail pending an appeal and while his appeal was pending he absconded to Scotland. Taiwan requested his extradition. The respondent was arrested on a provisional request for extradition on 17 October 2013.

On the 1 August 2014, the Scottish ministers ordered the extradition of the respondent to Taiwan to serve his sentence. The respondent appealed to the High Court of Justiciary under s.103 and s.108 of the Extradition Act 2003 arguing that his extradition would be in breach of his rights under the ECHR. Specifically, he argued that his article 3 right would be violated by the prison conditions in Taipei.

Following an evidential hearing, on 23 September 2016 the High Court of Justiciary allowed the appeal under s.103 and held that, notwithstanding undertakings given by Taiwan to the United Kingdom that the respondent would be detained in cellular conditions which were compatible with article 3 ECHR, extradition would not be compatible with article 3. It quashed the order for extradition and released the respondent on bail. The Lord Advocate, who represents Taiwan in these proceedings, now seeks permission to appeal to the Supreme Court.