On appeal from [2016] HCJAC 83[2016] HCJAC 117

This appeal considered whether the extradition of the respondent to Taiwan would be incompatible with the ECHR, art 3. The Supreme Court unanimously rejected the respondent’s challenge to the competency of the appeal and allowed the Lord Advocate’s appeal on the devolution issue, thus  remitting the case to the Appeal Court. The Supreme Court considered that the Appeal Court, in assessing the compatibility of the extradition with ECHR, art 3, had applied the wrong legal test. The Appeal Court failed to draw a distinction between the threat from other prisoners, and the conduct for which the state was responsible, whereas the correct legal test when the threat comes from the acts of third parties is whether the state has failed to provide reasonable protection against harm inflicted by non-state agents. The Supreme Court determined that the assurances from the Taiwanese Government offered the respondent reasonable protection against violence by non-state actors and the circumstances of his confinement, should he be unable to mix with the wider prison population, would not entail a real risk of his being subject to treatment that infringes art 3. The Court concluded that the art 5 and art 8 challenges are without substance as there is nothing arbitrary for the purposes of art 5 in the respondent serving two-thirds of the remainder of his sentence in Taiwan and the interference with his art 8 rights are justified as necessary for the prevention of crime.

For judgment, please download: [2017] UKSC 44
For Court’s press summary, please download: Court’s Press Summary
For a non-PDF version of the judgment, please visit: BAILII

To watch the hearing, please visit: Supreme Court Website (6 Mar 2017 morning session) (6 Mar 2017 afternoon session)