If an extradited prisoner faces violence from other prisoners, what must the receiving authorities do to protect him? The Supreme Court distinguished the risk of violence from the adequacy of the protection offered. It also asked whether the conditions intended to keep Mr Dean safe could themselves amount to inhuman or degrading treatment.
Mr Dean was convicted in Taiwan of offences arising from a fatal road collision. After an appeal increased his sentence to four years, he fled to Scotland. Taiwan’s Supreme Court subsequently upheld the conviction and sentence. Its authorities sought his return to serve the outstanding term.
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In the absence of an extradition treaty, the UK and Taiwanese authorities made a special arrangement under section 194 of the Extradition Act 2003. A Scottish sheriff decided that extradition would be compatible with Mr Dean’s Convention rights, and the Scottish Ministers ordered his extradition.
Decision of the Appeal Court
The Scottish Appeal Court accepted that Taipei prison was overcrowded and understaffed. A majority considered that other prisoners might resent the special treatment proposed for Mr Dean, and that he might have to isolate himself to avoid harm. It found a real risk of treatment contrary to article 3 and ordered his discharge. Lord Drummond Young dissented, giving greater weight to the specific assurances from Taiwan.
Competence of the Supreme Court appeal
The Extradition Act provided no ordinary appeal to the Supreme Court from this Scottish decision. A separate route was available because Scottish Ministers had no power under the Scotland Act 1998 to act incompatibly with Convention rights. Whether they could lawfully order extradition therefore raised a devolution issue. Schedule 6 to that Act allowed the Supreme Court to hear the Appeal Court’s determination of that issue, and section 116 of the Extradition Act preserved that route.
The Article 3 test
The Lord Advocate accepted that, without protective measures, the Appeal Court’s findings showed substantial grounds for believing that other prisoners might harm Mr Dean. The correct test was not simply the Saadi formulation. In HLR v France, applied by the House of Lords in R (Bagdanavicius) v Secretary of State for the Home Department, harm by non-state agents is not itself Article 3 ill-treatment unless the state has also failed to provide reasonable protection against it. The Appeal Court had not drawn that distinction, because counsel there had agreed that Saadi stated the test. The Supreme Court therefore applied the correct test to the findings: whether the Taiwanese authorities were undertaking to provide reasonable protection, and, if so, whether the conditions of that protection themselves infringed Article 3.
The assurances
The authorities undertook to house Mr Dean with a selected non-violent prisoner and to supervise him through officers who spoke English. The proposed accommodation had been inspected. He could exercise separately if necessary. The undertakings identified who was responsible and provided for consular monitoring. That specificity enabled the Court to assess the protection in practice.
The Court considered both the standing of those giving the assurances and how compliance could be checked. Although the arrangements were untested and this was Taiwan’s first such request for a UK citizen, the Court found sufficient grounds for relying on them.
Reasonable protection and conditions of detention
It was not suggested that the proposed cell was inadequate or unsafe if shared with one non-violent foreign prisoner. There was no evidence that the authorities would fail to protect Mr Dean from other prisoners. The undertakings allowed him to remain in his cell and exercise outdoors alone. Nothing suggested that this regime would fail to prevent third-party harm.
Possible separation from the wider prison population did not amount to total isolation. Mr Dean would share a cell, retain access to media and visits, and could choose to exercise alone for protection. The authorities also undertook to credit his detention in Scotland against his four-year sentence, leaving an expected period of about 13 months at most. The Court assessed the likely duration, conditions and protective purpose together.
The evidence about access to medical treatment, complaints and external monitoring did not displace the assurances. The Court considered the actual arrangements offered to this prisoner. It did not give general approval to prison conditions in Taiwan.
Articles 5 and 8
The Court also rejected Mr Dean’s arguments under articles 5 and 8. The undertaking to credit time in Scottish custody did not promise parole or make the Taiwanese parole regime arbitrary. Return to prison would interfere with his private life, but the Court considered that interference justified by the prevention of crime and the protection of others.
Verdict: The Supreme Court unanimously upheld its jurisdiction and allowed the Lord Advocate’s appeal on the devolution issue. It remitted Mr Dean’s section 108 appeal against the Scottish Ministers’ extradition order, and his devolution minute, to the Scottish Appeal Court.
