Thomas Ross KC

The application was opposed by RS on the basis that his extradition to Scotland would – as conditions in Scottish prisons currently stand – breach his human rights.

The public interest in the extradition of RS is substantial – the prosecution allege that he threatened a man with a firearm contrary to section 16A of the Firearms Act 1968 (maximum sentence 10 years’ imprisonment) and that he assaulted the man by stamping on his head and hitting him with a brick, to his severe injury and to the danger of his life.

Having considered the fact that RS would, if extradited, be remanded to one of Glasgow’s two prisons, where he would be confined for 22 hours a day with less than three square metres of personal space, Mr Justice McDermott refused the application for extradition on the basis that, if sent to Scotland RS would face “a real and substantial risk of inhumane or degrading treatment”. RS suffers from a medley of mental health conditions and the judge opined that he would have found prison “much more severe than those without those conditions”.

Confined for 22 hours a day – with less than three metres of personal space – in Scotland in 2023!

The Irish court didn’t need to get around to the length of confinement to decide that these conditions amounted to a breach of human rights. Let me add to its fund of knowledge. To take an example at random, I currently act for a man who was remanded to prison on 5 May 2022. His trial is due to end around 1 October 2024. Two-and-a-half years on remand before there is any prospect of any crime being proved against him.

The language used by Mr Justice McDermott resembled that used the very same day by the Court of Appeal (England and Wales) when finding the UK’s government’s insane Rwanda scheme unlawful. Sir Geoffrey Vos and Lord Justice Underhill found there were “substantial grounds for believing that there is a real risk that persons sent to Rwanda will be returned to their home countries where they faced persecution or other inhumane treatment …”

In other words, we all know that rogue nations exist, and that we can’t trust them to treat people humanely. But when did Scotland become one – and why?

Well, when all other aspects of civil society were making drastic alterations to their normal practices to meet the challenge of a global medical emergency, the remand machine in Scotland was just carrying on as normal. There was no softening of judicial attitudes so far as bail was concerned, no creative thinking to get cases out of the system, no obvious reduction in the number of cases being prosecuted. Business as usual. So remand numbers rose from around 1,000 in March 2020, to around 2,200 in April 2023. What other outcome was possible?

Scottish courts have made herculean efforts to stem the tide – sometimes running as many as 20 High Court trials in a single day at venues throughout Scotland – but Scottish courts have absolutely no control over the number of trials for prisoners on remand that come to the High Court. That is determined by procurators fiscal opposing bail and sheriffs refusing bail many months before the accused is indicted.

There is of course a very important difference between the potential effect of the Court of Appeal decision and that of the Irish High Court. As a result of the Court of Appeal decision thankfully no asylum seekers will wake up tomorrow in Rwanda. But Scots who are liberty today will wake up on Tuesday, Wednesday and Thursday of next week locked up in a cell for 22 hours a day. The Irish decision will have absolutely no effect whatsoever.

Is this remotely acceptable in Scotland in 2023? If not, what are we going to do about it?

This article first appeared on the Scottish Criminal Law Blog