Lord Advocate’s bid to appeal extradition ruling to UK Supreme Court refused

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.

The respondent, 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 contravene the European Convention on Human Rights because prison conditions in Taiwan were poor and that he was under threat of attack – despite assurances given by the authorities.

By a majority of two-to-one, judges in the High Court of Justiciary Appeal Court ruled that there were “substantial grounds” for believing that there was a “real risk” that his treatment would be incompatible with article 3 of the ECHR, even if it was assumed that every endeavour would be made to fulfil the assurances given.

Lady Paton – with whom Lady Clark of Calton agreed – held that the extradition order should be quashed, but Lord Drummond Young gave a dissenting opinion.

Following a hearing on an application by the Crown for leave to appeal to the Supreme Court, Lady Paton and Lady Clark of Calton said they were “not persuaded” that the appeal raised any “devolution issue of general public importance”.

Giving the majority decision, Lady Paton said: “s the majority of this court found in favour of Mr Dean on critical issues relating to Article 3 of the European Convention on Human Rights, this court did not consider it necessary to determine various devolution issue minutes raised on other matters by Mr Dean during the course of proceedings in appropriate form and intimated in accordance with our practice and procedure to various persons, including the Advocate General.

“None of these devolution issue minutes raised by Mr Dean sought to challenge any acts or omissions of the Lord Advocate as in some way incompatible with Article 3 Convention Rights.

“It is not disputed that there is no appeal to the Supreme Court from the decision of this court under section 103 of the Extradition Act 2003. This court accepts that if, prior to the determination of the section 103 appeal, a party had raised a devolution issue for determination, there is an appeal route to the Supreme Court.

“As it happens, we did not refuse to determine the devolution issues raised in the minutes by Mr Dean. We concluded that it was unnecessary to do so, because we had found in his favour, by a majority, in the section 103 appeal.”

She added: “In our opinion, if the Lord Advocate obtained leave to appeal to the Supreme Court and was successful in the appeal, it would be necessary, in fairness to Mr Dean, to determine the undetermined devolution issues which he raised. That would, of course, leave open the possibility of the unsuccessful party seeking leave for a further appeal to the Supreme Court.

“We consider that the mere fact that an issue is capable of being framed as a devolution issue does not mean that litigation should be allowed to continue over years and that, after final determination of the issues raised before this court, the unsuccessful litigant should be permitted to re-frame the issue as devolution issue as an method of obtaining a route to appeal to the Supreme Court otherwise denied by the statutory scheme.”

In any event, the majority did not consider that a devolution issue of general public importance had been identified and that the appropriate test had been met.

Lady Paton explained: “Unusually, this appeal court heard evidence over several days all as set out in the judgment of the court dated 23 September 2016. This court was therefore acting as judges in an assessment of the facts.”

Further, she continued, the arguments presented by the Lord Advocate in favour of allowing leave to appeal to the Supreme Court “demonstrate no error of law on the part of this court, but simply a difference of view, or opinion, or approach when applying the law and assessing the facts established in this case”.

Giving his dissenting view, Lord Drummond Young said he would have granted leave to appeal to the Supreme Court.

He said: “I consider that there is a very clear and obvious devolution issue in this case. Furthermore Article 3 of the European Convention on Human Rights was extensively discussed in the course of the opinions; indeed it was central to the arguments that were considered. Accordingly, as a matter of substance, there is a devolution issue involved.

“Treating the lack of a relevant Devolution Minute as decisive seems to me to cause niceties of form to triumph over the underlying substance. In my view the substance of the crucial issues in the appeal strongly favours the notion that a devolution issue exists.”

He also considered that the matters raised did involve questions of “general public importance”.