“ It is not unusual for the families of the victims of crime to feel extremely aggrieved; that is as true in Scotland and the remainder of the United Kingdom as it is in Taiwan. Nevertheless, prison authorities are well aware that they must prevent private vengeance, and take effective steps to do so. That is one of the concerns that the Taiwanese authorities have sought to address in the assurances that they have given. ”

“ As noted above, I am working on the hypothesis that every effort would be made by the Taiwanese authorities, prison staff, and others, to fulfil and honour all the undertakings and special arrangements promised by the Taiwanese authorities. Thus I assume that the appellant would not be housed in the main prison building, but in the nearby building. He would occupy a special cell, in the company of one other foreign prisoner. He would have a bed, toilet and shower facilities, and a desk and chair. He would be able to choose whether or not to go to work during the day. ”

“ Great emphasis was placed in the appellant’s submissions on the fact that the main detention building in Taipei prison, and indeed the prison system in Taiwan generally, suffers from overcrowding, understaffing, problems of uncontrolled bullying of weaker prisoners, inadequate ventilation and lavatory facilities, and inadequate opportunities for prisoners to exercise in the open air. I do not doubt that these criticisms appear in general to be well founded; there are serious deficiencies in the general prison system in Taiwan, at least measured according to Western European standards. ”

“ In the light of the foregoing assurances, and on the assumption, which I consider must be made, that the assurances will be observed in good faith, I am of opinion that nothing in the proposed conditions in Taipei prison would amount to a breach of Article 3 of the European Convention on Human Rights. While overcrowding appears to be endemic in Taiwanese prisons, the appellant will not be kept in overcrowded conditions. ”

“ It was suggested in submissions for the appellant that Taiwan’s international status was a cause for concern in considering whether the Memorandum of Understanding and subsequent assurances are likely to be observed. The existence of Taiwan is not recognized by the United Kingdom, nor by the majority of other states. Nevertheless, as the court held in its earlier opinion, Taiwan has a functioning government and legal system; indeed, if those requirements were not satisfied Taiwan could not qualify as a “territory” for the purposes of the Extradition Act. ”

“ A real risk is “more than mere possibility but is something less than the balance of probabilities” (Saadi paragraph 147; Aldhouse v Thailand [2012] EWHC 2235, paragraph 26) . As was said in Florea v The Judicial Authority, Romania [2015] 1 WLR 1953 paragraph 21, quoting Torreggiani: “The burden of proof is less than proof ‘on the balance of probabilities’, but the risk must be more than fanciful.” ”

“ The overcrowding of prisons is recognized by the Government of Taiwan as an ‘urgent problem’ (para.146 of the initial report) . Overcrowded prisons lead to a variety of human rights problems, such as poor hygienic and health standards, lack of privacy, an increase of violence and often to conditions of detention that can only be qualified as inhuman or degrading treatment ... [Recommendations follow, including the construction of new prisons, measures to reduce the number of prisoners, and improvements in the prison health services] 62. ”

“ It is not in fact proposed that the appellant will be in total solitary confinement; he will share a cell with another occupant, who may obviously change from time to time. The inability to work might be unfortunate in itself, although there would be nothing to prevent the appellant from reading or listening to television or radio in his cell, subject to the limits of battery operated appliances. The inability to work would prevent the appellant from earning parole, but in my view that cannot reasonably be considered an infringement of Article 3. ”

“ The request to extradite the appellant to Taiwan is unique. There is no precedent. To date, the Taiwanese authorities have not sought the extradition of any person to Taiwan, including Taiwanese nationals who have fled the country accused of crimes. As Professor Chin explained in evidence, other countries have not entered into international treaties with Taiwan as a result of the dubiety attached to Taiwan’s status in the world. As Dr McManus observed, most countries enter into extradition treaties with recognised “states”, and not with “territories”. ”

“ Overcrowding is an issue of direct relevance to the CPT’s mandate. All the services and activities within a prison will be adversely affected if it is required to cater for more prisoners than it was designed to accommodate; the overall quality of life in the establishment will be lowered, perhaps significantly. Moreover, the level of overcrowding in a prison, or in a particular part of it, might be such as to be in itself inhuman or degrading from a physical standpoint.”
Restricted outdoor exercise: The CPT standard is a minimum of one hour’s outdoor exercise each day. ”

“ Adopting this approach, I find that it is not necessary to explore whether there have been ambiguities or misunderstandings about past undertakings (for example, concerning time spent in custody in Scotland, or additional requests for extradition) as it is my opinion that even if it is assumed that every endeavour would be made to fulfil the assurances, there are nevertheless “substantial grounds ... for believing that there is a real risk of treatment [of the appellant] incompatible with article 3” (Saadi paragraph 128) . ”

“ Dr McManus was careful to point out that a CPT inspection group would include a qualified doctor who would be better able to assess the prison’s medical cover and services. Without that authoritative assessment, on the information before this court, I have concerns that (a) there are insufficient medical staff available for the large prison population; (b) there are insufficient pharmaceutical staff and resources for that population; (c) prisoners have to pay for non-emergency medical and dental treatment; (d) prisoners have to pay for non-standard makes of drugs. ”

“ Whether the minimum level is attained in a particular case depends on all the circumstances, such as the nature of the treatment, its duration, its physical and mental effects and, possibly, the age, sex and health of the person concerned .... (5) The detention of a person in prison as a punishment lawfully imposed inevitably involves a deprivation of liberty and brings with it certain disadvantages and a level of suffering that is unavoidable because that is inherent in detention. But lawful detention does not deprive a person of his Article 3 rights”. ”

“ He might at times be offered “western” food, such as spaghetti and hamburgers. He might be able to have books and papers, and to watch a battery-operated television (there being no electrical sockets in the cell) . If and when taken out for exercise in the fresh air – which Dr McManus understood would, in the appellant’s case, be for up to an hour each day – other prisoners would be removed from the exercise area.
[47] Such arrangements would, in my opinion, be viewed by the prison community in Taipei prison (both staff and inmates) , and by the public in Taiwan, as wholly exceptional. ”

“ Understaffing is a problem, but the cell in which it is proposed that the appellant should be kept is in the hospital block, and the problems of understaffing should not have a serious impact on his safety. ”

“ It is obvious that the criminal law of a country could not be consistently and impartially maintained if those accused or convicted of crimes were able to escape due process of law by moving to another country. ”

“ Those assurances have been provided at a high level within the Taiwanese government. They are specific in their terms, and are clearly directed towards protecting the appellant against ill-treatment, whether through overcrowding or through attacks by fellow prisoners. The Foreign and Commonwealth Office has indicated that consular protection will be available in Taiwan. It is obviously important to any reasonable state or territory that its international undertakings and assurances should be observed; if they are not future dealings with other states are likely to be impaired. ”

“ I do not disagree with Lord Drummond Young about the importance of extradition in promoting due process of law. Nevertheless difficult questions may arise if, for example, a UK national seeks refuge in the UK to avoid being imprisoned under non‐compliant Article 3 prison conditions in circumstances where no effective legal remedy exists in a state or territory which is maintaining such non‐compliant prison conditions. ”

“ If it becomes clear that a state is failing to implement its international undertakings, it is likely that other states will be reluctant to conclude agreements with it in future, which is a sanction in itself. ”

“ If, for example, the Taiwanese authorities, despite their best endeavours, found themselves unable to fulfil any of the assurances given, there is no effective remedy, and therefore no fulfilment of criteria (6) to (9) in paragraph [189] of Othman v United Kingdom (2012) 55 EHRR 1. No external UK or international independent body (such as the Commission for the Prevention of Torture, or a committee from the United Nations) visits or inspects Taipei prison, or has any power to ensure that the assurances given by the Taiwanese authorities and set out in paragraph [10] above are enforced. ”

“ Medical services: availability of doctor, nurse, dentist, medicines and specialist services; Complaints system: operation, effectiveness, accessibility and fairness; Discipline system: offences, penalties, procedures; Contact with outside world: newspapers, radio, television, visits, phone calls, consular (or equivalent) access; Staffing: levels, training, specialists. [30] When giving evidence, Dr McManus emphasised his restricted remit, namely to assess, in the context of article 3 of the ECHR, the conditions in which it was said the appellant would be held. ”

“ It is truly a luxurious prison. The response from the Ministry of Justice is that because the UK has concerns over human rights in Taiwan’s prisons, the purpose of providing this document is for the Ministry of Justice to prove the prison conditions rather than to offer special treatment to Zain Dean ... Cheng Ming-tang, the deputy Minister of Justice, said, ‘This is not tailored for Zain Dean. [The British government] has concerns over our prison conditions. We are just demonstrating that our prison facilities are not inhumane’ ... ”

“ I am afraid that we are not in a position to provide you with an assessment of the treatment of British nationals in Taipei prison. Our consular staff are not experts on prison standards and do not have the access that would enable them to give factual evidence on this matter. ”

“ We do conduct consular visits to prisons in Taiwan. We consider that passing on to third parties information obtained during the provision of consular support to our prisoners goes beyond our consular remit and could therefore jeopardize our consular access in the future ... In this case, the information being withheld relates to conditions in prison in Taipei ... Disclosure of the information that was given to us in confidence would damage our relationships with the individuals concerned: they would be more guarded and less co-operative in their dealings with us ... ”

“ Dr McManus explained that this change was a direct result of his intervention and comments during his visit to Taiwan in August 2015. Violent incidents: The Inmate Treatment Planning Report [13/7] at page 8 noted: “ ... According to Taipei prison, from January 2011 to July 2015, there are 62 domestic prison violent incidents leading to injuries (57 minor injuries, 4 serious injuries, 9 deaths) ... It is inferred that the violent incidents caused by the foreign inmates are much slighter than the ones caused by the domestic inmates, and no death has resulted for foreign inmates so far.” ”