The Supreme Court considers prison conditions assurances for the first time in Lord Advocate v Dean  UKSC 44
36 Extradition’s Saoirse Townshend discusses the implications of this judgment for extradition practitioners.
The Supreme Court allowed the Scottish Lord Advocate's appeal against a decision of the Appeal Court of the High Court of Justiciary that the extradition of Mr Dean to serve a prison sentence in Taiwan would be incompatible with his rights under Article 3 of the European Convention on Human Rights (ECHR). The Supreme Court held that the Appeal Court had applied the wrong test when it found that there were substantial grounds for believing that there was a real risk that the respondent would face treatment from fellow prisoners that was incompatible with Article 3 ECHR. The correct test was whether Taiwan had failed to provide reasonable protection against harm inflicted by those non-state agents. The Supreme Court concluded that the assurances of the Taiwanese authorities offered the respondent reasonable protection against violence by non-state actors and that the circumstances of his confinement did not entail a real risk of his being subject to treatment that infringed Article 3 ECHR.
What issues did the Supreme Court consider?
The Supreme Court considered two issues:
(i) Procedurally, whether the Supreme Court had the competence to decide the appeal on the grounds that that Appeal Court had not determined a devolution issue; and
(ii) Substantively, whether the Appeal Court had applied the correct test when determining whether the compatibility of extradition with Article 3 ECHR in the context of a threat of harm inflicted by non-state agents.
What did the court decide on those issues, and why?
Firstly, the Court found the challenge to the competency of the appeal “misconceived”. The Court considered the interpretation of the 2003 Act and the Scotland Act 1998 when deciding this issue. An appeal from the sheriff’s decision under section 87(1) of the 2003 Act as to whether extradition would be compatible with the Respondent’s Convention rights raises a question of the legal competence of the Scottish Government. Schedule 6 of the Scotland Act 1998, para. 1(d) includes within the definition of a “devolution issue” “a question whether a […] proposed exercise of a function of the Scottish Executive […] would be, incompatible with any of the Convention rights”. Paragraph 13(a) of Schedule 6 to the Scotland Act 1998 confers a right of appeal to the Supreme Court against a determination of a devolution issue by a court of two or more judges of the High Court of Justiciary. The Court concluded that the decision of the Appeal Court is such a determination. The question of whether the Scottish Government’s acts in seeking to extradite the Respondent are compatible with Convention rights is a devolution issue, had been determined properly by the Appeal Court.
Secondly, the Court held that the Appeal Court, in assessing the compatibility of extradition with Article 3 ECHR applied the wrong legal test. The test which was applied was the more general test which is set out in Saadi v Italy (2009) 49 EHRR 30, namely “whether substantial grounds have been shown for believing that there is a real risk of treatment incompatible with article 3”. In the Court’s view, the Appeal Court had not made the appropriate and clear distinction between the underlying threat from other prisoners (which the Appeal Court found to exist) and the conduct for which the state was responsible. In summary, the Court held that an assessment must be made, first, of whether the Taiwanese authorities are undertaking to provide the Respondent with reasonable protection against violence by third parties while he is in prison, and, secondly, if they are, whether the conditions in which he is to have such protection themselves entail an infringement of Article 3. The Court firmly relied upon Lord Brown’s speech in R (Bagdanavicius) v Secretary of State for the Home Department  2 AC 668 (para. 24); any harm inflicted by non-state agents will not constitute Article 3 ill-treatment unless in addition the state has failed to provide reasonable protection. The Court applied the well-known criteria laid down Othman v United Kingdom (2012) 55 EHRR 1 to find that the assurances given by the Taiwanese authorities were sufficient to find that reasonable protection will be afforded to the respondent.
It is perhaps somewhat surprising that no mention is made of the recent CJEU case of Aranyosi and Caldararu  QB 921 despite it having been recently considered in Part 1 and Part 2 extradition cases by the High Court in Kirchanov & Ors v Bulgaria  EWHC 827 (Admin) and Dzgoev v Russia  EWHC 735 (Admin). However, given that the Aranyosi test is very similar to that which had been applied previously by the High Court, the decision by the Supreme Court essentially represents a continuation in the Court’s approach to Article 3 arguments arising from prison conditions.
What should practitioners take from the judgment?
The Court’s reaffirmation of the test from Bagdanavicius will be not be new to extradition practitioners. The Court reiterated that the real focus of the court’s enquiry when deciding whether there is an Article 3 breach in respect of threats from non-state agents will be the protections in place by the State. It will therefore continue to be crucial to obtain expert evidence and the usual objective evidence from internationally recognised sources on this point.
However, perhaps what is more interesting about this case is that it is the first time that the Supreme Court has considered assurances in the extradition and Article 3 context. The important points to take from the judgment are firstly, how specific the assurances are, which may suggest more is needed in other cases; and secondly, the how the Court accepted that it was sufficient for the monitoring of assurances to be provided by consular staff only.
Firstly, what will be surprising to lawyers who regularly practice extradition, is the specificity of the assurances given. The recent cases on Article 3 which have considered prison conditions relate to overcrowding and material conditions of detention, e.g. cell size, time permitted outside the cell, heating, ventilation etc. Where assurances have deemed to be necessary to “dispel any doubts” as to Article 3 compliant conditions, these assurances typically will be fairly generic and concern cell size. However, in this case the assurances proffered were extremely specific. The assurances undertook that the respondent would be supervised by English-speaking officers with non-violent foreign inmates; a special assessment would be done to assess the level of protection needed; the would pre-screen inmates with ill intent towards him to prevent them having contact with them; he would have just under 7 square metres of personal space and nine hours per day out of his cell. Furthermore, if consular staff raised an issue concerning a breach the Taiwanese authorities would response to remedy them. The detail given goes far beyond what may be expected, even for a Part 2 case where the usual starting position of “mutual trust and confidence” for European Arrest Warrant cases cannot be relied upon. This may suggest that in other similar cases where prison conditions are an issue, a much more comprehensive assurance is required.
Secondly, the Court found that the Appeal Court’s concerns about the absence of an international system by which prison conditions in Taiwan are monitored, were unfounded. The Court held that consular staff could protect the respondent’s rights in this regard and in any case, those considerations do not outweigh other factors which point towards accepting the assurance. This will be of particular interest to extradition lawyers since there have been numerous recent cases where evidence has been provided of the authorities breaching the assurances (Romania in particular). In terms of future cases, despite the use of assurances becoming more prevalent and the evidence of compliance shakier, this case demonstrates that the court may only require a fairly weak level of monitoring if other elements of the Othman criteria are met.
The full version of this article is published by Lexis Nexis here: Click Here