“ In the context of xenophobia due to race and nationality, the sheriff had failed properly to assess Mr Chen’s evidence in relation to the powerful effect of the media coverage. Mr Chen had expressly stated that there was “an anti-foreigner mentality in Taiwan” which might affect the appellant if he were to be returned. The sheriff had not suggested that Mr Chen was lying or confused, and yet had preferred his own view of Taiwan to that of Mr Chen, despite the latter being resident in Taiwan. ”

“ In the absence of defence expert reports, the sheriff had wished to be as fair as possible to the appellant. Accordingly the sheriff had allowed a considerable number of documents to be lodged as productions, at the same time warning parties that if a document remained unspoken to, with its provenance unclear, he would attach little weight to it (see paragraph [8] above) . Mr Dickson submitted that, as a result of this approach, the sheriff (i) had applied pre-Kapri law and practice and had given weight to certain productions which, in terms of Kapri, should not perhaps have been relied upon ”

“ Counsel advised that these excerpts had not been placed before the sheriff. They are therefore, strictly speaking, irrelevant to the appeal. However even if we were to take the new material into account, we note that the excerpts from the Taiwan media referred to the appellant as “Indian businessman”, “British businessman”, “businessman of British nationality”, “British businessman of Indian origin”, “a British businessman and CEO of Indian nationality”, “a man of Indian nationality”, “a foreign businessman” and similar terminology. ”

“ Senior counsel accordingly invited this court, when assessing extraneous considerations, human rights, and abuse of process in the context of extradition, to take into account all the information contained in documents which had been lodged in process, even if their provenance was unknown or doubtful, and even if no relevant witness had spoken to them. ”

“ While the Strasbourg jurisprudence does not preclude reliance on articles other than article 3 as a ground for resisting extradition or expulsion, it makes it quite clear that successful reliance demands presentation of a very strong case ... Where reliance is placed on article 6, it must be shown that a person has suffered or risks suffering a flagrant denial of a fair trial in the receiving state ... ”

“ Extradition to Taiwan [1] This is the opinion of the court, to which each member of the bench has contributed.
[2] The appellant is a businessman and a British citizen. His date of birth is 16 November 1971. He is currently in prison in Scotland. For many years, he lived and worked in Taiwan (the Republic of China) . On 25 March 2010 he was involved in a road traffic accident there. He was prosecuted. In 2011 he was tried by three judges in the District Court of Taipei, Taiwan. ”

“ If the appeal under section 103 were to succeed, the appeal under section 108 would become unnecessary.
[3] There is no extradition treaty between the UK and Taiwan. There has never previously been an extradition of someone from the UK to Taiwan. A special memorandum of understanding relating to the appellant was entered into on 16 October 2013, as a result of which Taiwan is to be treated (so far as the appellant is concerned) as a category 2 territory in terms of the 2003 Act. ”

“ As for productions 23, 40, 45, and 46, we consider that these were good examples of the sorts of materials referred to in paragraph [128] of Kapri. Their provenance was not clear. Their accuracy was unvouched. They had been downloaded from the internet. They were not (so far as we were aware) spoken to by any witness, but were simply referred to during counsel’s submissions (sheriff’s note of decision page 43) . ”

“ Media excerpts, to which senior counsel did not specifically refer during the appeal, but which we understand were available in the sheriff court extradition hearing, can be found in the appellant’s productions at inter alia numbers 1 to 3, 16 to 18, 20 to 21, and 96 to 97. There are references to “British businessman”, “chief executive officer of the Taiwan branch of NCL Media UK”, “British passport holder”, and “fugitive British merchant”.
[30] In the appeal before us, senior counsel for the appellant lodged an additional inventory of excerpts from media coverage as number 17 of process. ”

“ It is sufficient to note that the oral evidence concerning prison conditions could not have been of much assistance to the sheriff, as the appellant and his girlfriend had never been in a Taiwanese prison, and Mr Chen spoke from the limited viewpoint of a lawyer. The DVD documentary programme was not, in our view, something that “a judicial body should simply accept as true, and thus proof of fact” (paragraph 128 of Kapri v Lord Advocate 2015 JC 30) , particularly as the sheriff commented at pages 44 and 45 of his note:
“ ... ”

“ In particular, he explained:
“ [125] the rules of criminal evidence and procedure are, in the absence of some special circumstance, normally applicable (HM Advocate v Havrilova 2012 SCCR 361) ... If a fact, including a substantial ground, requires to be established, the normal rules must apply ... ”