Opinion of the Majority of the Court delivered by Lady Paton in Application for Leave to Appeal to UK Supreme Court by the Lord Advocate against Zain Taj Dean

[2016] HCJAC 117

HCA/2014/003518/XM

Lady Paton

Lord Drummond Young

Lady Clark of Calton

Applicant

Respondent

4 November 2016

[1]       First, I shall announce the majority decision. Then I shall invite Lord Drummond Young to give the minority dissent.

[2]       The majority decision of the court is that leave to appeal to the Supreme Court is refused, for the following reasons.

[3]       I deal firstly with “oppression”. We regard this as a new and separate issue, and do not rely upon submissions relating to oppression in reaching our decision today.

[4]       Secondly, competence. We have reservations about this matter, for reasons which we are about to give, but again we do not base our decision upon that issue.

[5]       Nevertheless, turning to competence, as 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. At no stage during the proceedings in the section 103 appeal did the Lord Advocate seek to raise an issue or focus submissions before this court in relation to whether and in what respect the Lord Advocate was acting compatibly or incompatibly with Article 3.

[6]       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. Paragraph 13 of Schedule 6 to the Scotland (Act) 1998 provides a right of appeal to the Supreme Court against the determination of a devolution issue by a court of two or more judges of the High Court of Justiciary, with leave of the court from which the appeal lies, or failing such permission with leave of the Supreme Court.

[7]       Had we determined or indeed refused to determine the devolution issues raised by Mr Dean, we accept that either party to the proceedings would be entitled to seek leave to appeal to the Supreme Court under and in terms of these provisions. 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.

[8]       We accept that it would have been possible and competent for either party to seek to focus issues canvassed in the section 103 appeal relating to Article 3 during the currency of the proceedings, by raising the issue and making submissions about the issue as a devolution issue. In the circumstances, however, where parties have not chosen to do that during the course of our proceedings, we have concerns that an unsuccessful party, after the conclusion of the decision‑making by this court, can for the first time merely assert:


 * “The court’s holding that the extradition of the appellant would be incompatible with the appellant’s Convention Rights determined a devolution issue. This is because it is the Lord Advocate who conducts extradition proceedings for the requesting state … and in any event because the extradition of the appellant would be an act of the Scottish Ministers (paragraph 5 of the Lord Advocate’s Application for Permission).”

We observe first, that there is no specification given of a devolution issue. We consider it, at best, premature to make reference to the decision‑making of the Scottish Ministers. But even assuming that a devolution issue was properly focused for the determination of the Supreme Court at this stage, we observe secondly that a disappointed litigant could routinely make such an assertion, at a very late stage of proceedings, and seek to change the focus of the litigation to date. That is not a practice which this court would favour. It may also lead to further delay and practical difficulties, as in this case.

[9]       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.

[10]     That said, we do not consider it necessary in this particular case to reach any concluded view about competence, as for the reasons which we are about to give, we do not consider that a devolution issue of general public importance has been identified and that the appropriate test has been met.

[11]     So we turn now to deal with the question of an issue of general public importance.

[12]     Applying the guidance given in the cases of Wlodarczyk v The Lord Advocate (5 April 2012 XC 470/11 unreported) and Kapri v Lord Advocate [2014] HCJAC 63, paragraph 1, we do not accept that a devolution issue of general public importance has been identified.

[13]     First, the decision in this appeal proceeds inter alia on an assessment of the facts as presented to the court. Unusually, this appeal court heard evidence over several days (27‑ 29 January 2016, 18 ‑ 19 May 2016 and 22 and 24 June 2016) all as set out in the judgment of the court dated 23 September 2016 [2016] HCJAC 83. This court was therefore acting as judges in an assessment of the facts. As was explained in McGraddie v McGraddie 2014 SC (UKSC) 12 and Henderson v Foxworth Investments Limited 2014 SC (UKSC) 203:


 * “67 … in the absence of some other identifiable error, such as (without attempting an exhaustive account) a material error of law, or the making of a critical finding of fact which has no basis in the evidence, or a demonstrable misunderstanding of relevant evidence, or a demonstrable failure to consider relevant evidence, an appellate court will interfere with the findings of fact made by a trial judge only if it is satisfied that his decision cannot reasonably be explained or justified”.

In our opinion, this court’s decision dated 23 September 2016 is fact‑based, with a related opinion as to whether the prison conditions are Article 3 compliant. No error in the findings of fact such as is described in Henderson v Foxworth Investments Limited has been identified.

[14]     Secondly, in the view of the majority, the facts with which this case is concerned are quite unique, involving first, a “one‑off” extradition treaty between the United Kingdom and Taiwan in respect of a single individual, Mr Zain Dean;  and secondly, a particular set of facts, including the current state of Taipei Prison as described by the evidence, all of which are unlikely to be replicated with any degree of similarity in any future case. Any other extradition treaty entered into by the Taiwanese authorities may be wholly different, involving different parties, different terms and a different factual background. It may be that, in such future treaties, Article 3 of the European Convention on Human Rights would not apply.

[15]     Thirdly, we consider that 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.

[16]     In all the circumstances, we are not persuaded that this appeal raises any devolution issue of general public importance.

[17]     I now invite Lord Drummond Young to give his dissenting view.

[2016] HCJAC 117

HCA/2014/003518/XM

Lady Paton

Lord Drummond Young

Lady Clark of Calton

Applicant

Respondent

4 November 2016

[18]     I regret that I must dissent from the Opinion that has just been issued. I would grant leave to appeal to the United Kingdom Supreme Court.

[19]     So far as competency is concerned it appears to me that the position is very clear in the light of authorities such as BH v The Lord Advocate [2012] SC (UKSC) 308 and Kapri v The Lord Advocate [2013] SC (UKSC) 311. 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.

[20]     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.

[21]     The critical question is whether matters are raised that involve a question of general public importance. As to the arguability of what would be said on appeal I simply refer to the opinion that I have already delivered on the merits of the case. So far as matters of general public importance are concerned I am of opinion that there are at least three of these. The first relates to the status of undertakings given by requesting states that are not parties to the system of European arrest warrants, and in particular to the application of the so-called Othman criteria to the undertakings that are granted. The manner in which those criteria are applied to the facts of particular cases is in my opinion a matter of general public importance. In view of the paucity of decisions on this issue I am of opinion that further clarification of the law would be of considerable assistance.

[22]     The second issue that I think is of general public importance is the extent to which the courts in assessing the application of the Othman criteria can rely on what might be called consular enforcement, that is, enforcement of undertakings as a matter of international law, using consular representation. This, I think, was an important point of division between my opinion and the opinions of the majority judges, and it is one where clarification by the United Kingdom Supreme Court would be welcome.

[23]     Thirdly, in my opinion there is a question about the compatibility of solitary confinement with Article 3 of the European Convention on Human Rights. I do not regard this as a matter of quite such great public importance as the two previous issues because it has been the subject of earlier cases which have given a degree of guidance. Nevertheless, it seems to me that it is nevertheless a matter of public importance that would justify permitting an appeal to proceed in this case.

[24]     In dealing with each of these three issues I am of opinion that the question is not one of fact, as the majority have suggested, but the application of important principles of law to those facts. That in my view raises a very clear question of law, and cases such as McGraddie v McGraddie and Henderson v Foxworth Investments, referred to in the majority opinion, do not appear to me to be in point. In a sense every case turns ultimately on its own facts, but it seems to me to be absurd to suggest that this can prevent a question of law from arising if such a question forms an important part of the court’s reasoning process. In the present case the application of the Othman criteria, consular enforcement and the application of Article 3 to solitary confinement all appear very obvious questions of law.

[25]     So far as the status of those questions as matters of public importance is concerned, I think it clear that matters of public importance can arise in a wide variety of individual factual scenarios. In each case the question of law must be identified, and if that question is of general public importance that is sufficient to satisfy the statutory test. In considering this test, the question of law may have to be addressed at a general and to some extent abstract level.

[26]     In my view both the status of undertakings given by requesting states and the question of consular protection are matters that are likely to arise in other cases in the future. This is most likely in a case where the system of European arrest warrants is not applicable. Nevertheless, such cases arise frequently, and for that reason the public nature and general importance of what is at stake seems to me to be clear. So far as oppression is concerned I am of opinion that this is a new argument to the extent that it goes beyond the basic Article 3 points that were discussed at length in the substantive part of the appeal. If anything is to be made of oppression, I concur with the majority that that is a matter for the United Kingdom Supreme Court.

[27]     For these reasons I would have dissented from the view of the majority and granted permission to appeal.