JC v The Secretary of State for the Home Department

Articles 7 and 10 of the CL permit the Chinese state to prosecute or re-prosecute Chinese citizens for offences committed abroad (‘overseas offences’). Their operation and context is helpfully set out in Professor Fu’s main report –

Further guidance was available on the website maintained by the National People's Congress (NPC), China’s highest parliamentary body and legislative authority. The NPC itself met only once a year but had a Standing Committee working throughout the year. The NPC website guidance on Articles 7 and 10, published in 2002, was as follows –

Much of the information about the Chinese Court case law and reporting system provided by the expert witnesses in this appeal is entirely novel. In particular, and surprisingly in the light of the reputation which the PRC has for secrecy, all the witnesses referred us to at least one, and several to more than one, web-accessible database of decided cases. The website most frequently mentioned was http://www.chinacourt.org/ (‘Chinacourt’), which is sponsored by the Supreme People's Court and contains, in its Chinese version, over 25000 cases approved by the Supreme People's Court and edited for publication. Chinacourt is freely available to individuals and researchers all over the world, a significant advance on the position set out in WC and in SC. It came into existence in the early 21^st century, as did the BAILII website in the United Kingdom.

Professor Fu also had access to the www.chinalawinfo.com website (‘Chinalawinfo’) maintained by the Law Faculty of Peking University, a subscription-only site with much better indexed information and more decisions (50,000 and rising).

We were told by all the experts of published guidance on the website maintained by the NPC Standing Committee (‘the NPC website’), and in particular of what amounts to a practice direction held there since 2002, giving guidance to judges and lawyers on the application of Articles 7 and 10 of the CL.

We next considered the expert evidence. The trial bundles include two important written reports by Professor Jerome Cohen in 2005 and 2006 for the United States Congressional-Executive Commission on China. All of the other experts acknowledged Professor Cohen as the leading Western authority on the legal system in China. Unfortunately, Professor Cohen’s was not called on by the Commission after 20 September 2006 (that appears to have been its most recent sitting) and after September 2006 the Tribunal must seek to establish the present situation and later developments in China from the materials and evidence before us.

Professor Cohen’s evidence to the United States Congressional-Executive Committee

Professor Jerome Cohen is Professor of Law, New York University School of Law; Adjunct Senior Fellow on Asia, Council on Foreign Relations; and ‘of Counsel’ with Paul, Weiss, Rifkind, Wharton & Garrison. He is a leading expert on the Chinese legal system and the international relations of East Asia. There follows a summary of the written evidence given by Professor Cohen to the United States Congressional-Executive Commission on China on 26 July 2005 and 20 September 2006, which appears in bundle D of the documents before the Tribunal, at pages 33-47.

In 2005, Professor Cohen accepted that China had a formal legal system which had made significant progress compared with the situation in 1978. An increasingly robust NPC and its Standing Committee had enacted a huge amount of legislation, supplemented by regulations of the State Council, China’s leading executive institution, the central ministries and commissions under that, and the provincial and local People’s Congresses and governments. The Supreme People's Court and Supreme People's Procuracy were now vigorous organisations, all being subordinate to the NPC. The Supreme People's Court and the Procuracy had issued large numbers of interpretations and other guidance which are the substantive equivalent of supplementary legislation. There were now many bilateral agreements between the People's Republic of China and other governments: China now adhered to multiple multilateral treaties on international business law and human rights.

Professor Cohen described a nationwide Court system with over 3000 basic Courts and almost 200,000 judges, now increasingly recruited from law school graduates. The Supreme People's Court had laboured mightily to mould this group into professionally competent, honest, impartial and independent decision makers. Legal scholarship flourished; there were over 90 law magazines, full of law reform proposals, nationwide internet legal discussions, shelves of legal treatises and teaching materials and self-help books for those who preferred not to use lawyers. The legal developments were led by foreign trade, technology transfer and investment.

There was a burgeoning popular awareness of law and ‘rights consciousness’. Women, minorities, the disabled and other victims of discrimination invoked China’s Administrative Litigation Law and related legislation and farmers used the Courts to stop official land requisitions or financial imposition by local cadres. Urban residents used the law to try to prevent development and seek compensation. Such efforts failed often; legislation was inadequate and internally contradictory between national and local norms. There were still too few able lawyers and they were vulnerable to political pressure or disbarment if they were too bold in the cases they took. Judges were vulnerable to corruption, political control and the pressures of ‘guanxi’ (social connections).

The weakest point in the new legal structure was the criminal law. No fewer than 68 statutory provisions authorised execution; the Criminal Procedure Law provided few or ineffectual protections; police or prosecutorial investigators needed no authorisation to detain a suspect and there was no bail equivalent for most criminal cases. Access to lawyers was not a given, there was no right to silence, and those who did not confess were frequently subjected to torture although the Chinese Criminal Law expressly prohibited it. On the prospect of further law reform, Professor Cohen said this:

In further written evidence on 20 September 2006, Professor Cohen returned to that theme. He noted that ICCPR ratification seemed to be on the back burner and that several impressive drafts of a revision to the CPL had not been enacted yet, despite the upcoming 2008 Beijing Olympics. There was a very conservative climate for law reform. However, pressure from practitioners to reform the CPL remained:

Professor Cohen noted that the Supreme People's Court was trying to sustain the momentum for law reform and in January 2007 had taken back from the provincial High Courts the responsibility for final review of all death penalty cases. 300-400 new Supreme People's Court judges were being recruited to deal with death penalty reviews. Each new interpretation issued by the NPC after January 2007 had to be filed with the NPC’s Standing Committee, which had the power to amend it. Since July 1 2006, all death penalty appeals required a formal Court hearing. Standards for the application of the death penalty were in preparation which would call for the imposition of the death penalty only subject to new and detailed conditions. Restraints and pressures on trial lawyers in sensitive cases had increased and the Party’s rôle in criminal investigations had become more visible.

Professor Cohen’s report concluded with a consideration of the immediate future and what the United States should do in relation to the Chinese legal system as a whole –

Unfortunately, the Congressional-Executive Committee does not appear to have taken evidence after September 2006; thereafter, we rely on the other evidence before the Tribunal.

Professor Palmer’s report

Professor Michael J E Palmer, LLB (Cantab) BSc (Econ) MA LLD (London) is a senior Professor of Law with the School of Oriental and African Studies at the University of London (SOAS), and in 2006 was joint head of its LLM Course on ‘Modern Chinese Law’. He has knowledge of Chinese law, society and custom; in the past he has given expert evidence in various court proceedings (including WC and SC) and tribunal hearings in which matters of Chinese law have been at issue in England, Hong Kong and the United States. He is currently on sabbatical from SOAS. He speaks and reads Mandarin Chinese. From 1990-1993, Professor Palmer was seconded to Hong Kong as a fulltime advisor on Chinese law in the Hong Kong Attorney General’s Chambers. He was Secretary to, and a member of, the Hong Kong Governor’s Working Party on legal aspects of civil and commercial relations between Hong Kong and the mainland People's Republic of China. In 1999, he was a member of a Special Mission of the United Nations High Commissioner for Human Rights (UNHCHR), which visited the PRC to advise what changes to the law were necessary to enable it to accede to the International Covenant on Civil and Political Rights (which China had signed the previous year).

Professor Palmer visited a number of “Reform through Labour”, “Re-education through Labour” and other correctional institutions during the course of regular official visits to the PRC. He has worked with the Lord Chancellor’s Fellowship Programme for Young Chinese Lawyers, the Great-Britain–China Centre, the PRC Supreme People’s Court Training Programme for Young Chinese Judges, and the British Council’s EU-China Legal and Judicial Co-operation Programme.

Professor Palmer’s report showed reasonable, if not full, knowledge of the nature and character of the appellant’s criminal past. He set out the text of the 1997 People's Republic of China Criminal Law (CL) Articles 239 and 318 (kidnapping and people smuggling offences). Under Article 239, kidnapping for blackmail carries a sentence of 10 years to life in prison, plus fines and/or property confiscation. Higher penalties are contemplated where a kidnap victim is a child, or dies. Under Article 318 (people smuggling) an ordinary smuggler is liable to sentence of 2-7 years and a fine; where the defendant is a ringleader or the offence has aggravating features, the sentence is 7 years to life. If both offences are committed, multiple offence provisions apply. Transporting people over the border entails a sentence up to 5 years, with 5-10 years for repeat offences, unsafe transport vehicles, huge profits or other exceptionally serious circumstances. In the light of the appellant’s organised crime offence, Professor Palmer considered that a sentence at the higher end of the scale, life imprisonment, would have been imposed, and that the Chinese authorities would regard 14 years as unduly light. That comment was not sourced but we have regard to the expertise which Professor Palmer has accrued over the years.

The report then dealt with Articles 7 and 10 of the Criminal Law, which allow re-prosecution of overseas offences. In particular, we are here concerned with Article 10, which permits re-prosecution even where the offender was convicted and sentenced abroad:

Professor Palmer cited two recent North American articles in relation to judicial training and precedent in China:

Professor Palmer emphasised how small decision collections were in relation to the vast number of cases heard across China. No statistics are provided; these, we now understand, are not readily obtainable outside China. A Chinese source, Liu Nanping, described by Professor Palmer as ‘the leading academic authority on sources of PRC law’ stated that:

Professor Palmer explained that Chinese judicial decision making was not transparent; judgments provided only minimal information as to reasoning, with the supporting materials (notes of judicial discussions, replies to enquiries by superior courts and/or the Political and Legal Committee of the Communist Party) retained on the ‘internal volume’ of the case file and not subject to disclosure. The Communist Party’s Political and Legal Committee appointed and removed judges as necessary and might intervene in or determine the outcome of a particular case. He explained the NPC website guidance, and in his opinion, the purpose of that document for those working in the criminal justice system was to guide actual practice. Professor Palmer considered that the NPC website guidance would not have been given to those working in the criminal justice system if it were not intended to guide actual practice.

The report next considered the death penalty, repeating the emphasis on the secrecy of Chinese legal proceedings. Professor Palmer referred to an Amnesty International report 0f March 2004, reporting the extensive use of the death penalty in the ‘strike hard’ campaigns. The following excerpt from that report is helpful:

Professor Palmer’s opinion was that there was a risk to a person such as this appellant:

Professor Palmer next considered prison conditions. His analysis distinguished helpfully between laogai (reform through labour) and laojiao (re-education through labour). Laodong gaizao, commonly abbreviated to laogai, was a penalty intended for serious offences where the appellant failed to recognise his crime and repent it. For lesser offences, laodong jiaoyan, abbreviated to laojiao, was an administrative penalty without trial which could be imposed by the police, of up to 4 years in a labour camp. Previous powers to impose unlimited laojiao had been curtailed by the higher courts and 4 years was now the maximum period.

Information as to the operation of laogai and laojiao was hard to obtain because of the political sensitivities of the Communist Party, censorship and State secrets law. The institutions which Professor Palmer had been able to visit were carefully prepared model institutions. Conditions in them were very Spartan, the atmosphere oppressive and the prisoners fearful, but he saw no obvious signs of maltreatment in those particular detention facilities. Other evidence indicated that prison conditions could be extremely poor and breach international standards, in particular –

Professor Palmer considered these reports strongly suggestive of unacceptable prison conditions and treatment throughout China. Finally, Professor Palmer referred to the 2005 report of Manfred Nowak, the UNHCR Special Rapporteur on torture and other cruel inhuman and degrading treatment or punishment, as follows –

That concluded the evidence of Professor Palmer. We have not had the opportunity to examine him orally. That is regrettable: in March 2007, his chambers website records that Professor Palmer was made an Honorary Professor at the People's University Law School in Beijing. That would have given him increased database access (see Professor Fu’s evidence) but we do not have a later report from Professor Palmer prepared with that access.

Dr Gechlik’s report

Dr Mei-Ying Gechlik, LLM, JSD, MBA (Finance) (née Veron Mei-Ying Hung) is a law lecturer and Microsoft Rule of Law Fellow at Stanford University Law School. She teaches two courses: Introduction to the Chinese Legal System and Chinese Law and Business. Her undergraduate degree was awarded by Hong Kong University and she holds postgraduate qualifications from Washington College of Law, Stanford University Law School and the University of Pennsylvania. She is a member of the Bar in England and Wales, Hong Kong, and in the United States in both New York and the District of Columbia. She also was a visiting Professor at the People’s University of Beijing.

Dr Gechlik is Chinese, born in Hong Kong where she lived for almost 30 years before relocating to the United States. She has married in America and has a daughter. The rest of her family, mother, siblings, their spouses and all their children, are Hong Kong residents. Dr Gechlik speaks fluent Mandarin Chinese and Cantonese Chinese, and she reads newspapers and magazines from Hong Kong and mainland China every day. Since her childhood, she has made regular visits to mainland China to visit relatives or research the Chinese legal system; she has observed court trials and interviewed hundreds of judges, officials, professors, attorneys, and litigants.

Like Professor Palmer, Dr Gechlik was appointed by the UNHCHR in 2001, to advise on implementing human rights technical cooperation programs in China, including presenting a paper to a conference of senior Chinese officials in Beijing, explaining why laojiao breached not only international but Chinese legal principles and urging abolition of the system, or at least reform. The paper was later published in the Columbia Journal of Transnational Law. After this project, Dr Gechlik was twice appointed by the UNHCHR to work with Chinese officials to discuss Chinese prison reform. She presented a paper on training of prison staff in China and also served as an expert consultant accompanying a Chinese delegation to Switzerland for discussions on prison reform and prison visits there. The Chinese authorities invited Dr Gechlik to help with training on the theme “China: WTO and Judicial Review”. The training was delivered to legislative affairs officials from China’s provinces and to the State Council, the country’s highest executive organ.

Dr Gechlik testified before United States Congressional Committees on topics including human rights, legal reform, and political reform in China and has published widely on these specialist areas. Unfortunately we have not had the opportunity of hearing from Dr Gechlik in oral evidence but it is clear that she has significant expertise with which to assist the Tribunal.

Dr Gechlik’s report first considered internal re-prosecution of Chinese citizens who had not left China. Unfortunately, that throws no light on these proceedings. Dr Gechlik next dealt with the interpretation of Articles 10 and 7. There was no system of precedent in Chinese law and the reasoning parts of Chinese judgments were relatively short. However, judges of the SPC often wrote articles or books to discuss legal issues which, although not legally binding were considered persuasive and reflective of how law was applied in judicial practice. These publications were read closely to understand judicial analysis. Dr Gechlik quoted at length from a useful article written by two SPC judges and a Professor from the National Judges’ College in China, dealing with ‘China’s theory and practice on ne bis in idem’. The article concerned the application of Article 10 CL and, after concluding that ne bis in idem as a doctrine was inapplicable to re-prosecution for overseas crimes, set out the operation of Article 10 as a species of negative recognition of overseas judgements –

Dr Gechlik considered it significant that when the article was republished in Chinese in 2006, the authors added two more sentences at the end of the passage above –

The authors considered whether Article 10 should be abolished:

The authors offered no explanation as to what was meant by ‘apparently partial for some unlawful reasons’ but Dr Gechlik argued that its natural meaning was ‘unlawful in Chinese law’. Article 81(2) of the Criminal Law excluded serious offenders in some cases from parole –

Dr Gechlik argued that the decision to release the appellant after only 7 years of a 14 year sentence would likely be considered unlawful in Chinese terms, entailing a risk of Article 10 re-prosecution on return. Article 142(2) of Criminal Procedure Law stipulates that:

Dr Gechlik considered that Article 142 would not avail the present appellant as his offence was not minor and that accordingly the Procuratorate lacked discretion as to whether to initiate an overseas offences prosecution under Article 7 or Article 10 CL. She undertook an extensive internet search to try to find examples of the use of Article 10 of the Criminal Law. Strikingly, she could not find any. In particular, Dr Gechlik searched Chinacourt, which then contained 23100 criminal judgments reviewed and rewritten by the Supreme People's Court for the guidance of Chinese lawyers and judges. She could find no Article 10 cases at all on that database.

Dr Gechlik acknowledged that improvements in transparency had been made by the Chinese Courts especially since China joined the WTO in 2001. However, she considered that the transparency remained incomplete (giving an example of a public pronouncement relating to disclosure of Patent Court decisions which had only been complied with in about 30% of cases). It was possible that unreported cases were considered to involve State secrets or individual privacy. Elsewhere in her research, Dr Gechlik did find three possible Article 10 examples, which at best, could be described as inconclusive. Finally, Dr Gechlik considered the possibility of laojiao (the administrative penalty of re-education through labour). The police had a wide discretion and Dr Gechlik considered that they were likely to use it if the appellant were not otherwise prosecuted. The problem was particularly serious in rural areas or lower levels of government where respect for the law was scant.

There had been considerable public criticism of the laojiao system in the press and the Chinese Government was considering reforming it. In January 2007, the China Daily published an article entitled “End Legal Black Hole” inviting its repeal:

The article reinforced the message that laojiao related only to minor offences. This, on any view, was not a minor offence. That completed the evidence of Dr Gechlik. Again, the Tribunal did not have the advantage of hearing her oral evidence.

Dr Dillon’s reports and oral evidence

Dr. Michael Dillon BA PhD (Chinese Studies) FRHistS was Senior Lecturer in Chinese History at the Department of East Asian Studies, University of Durham when he prepared his report on 8 August 2007. His primary research interest was the Muslim minorities of north-western China, particularly the Hui and the Uyghurs. Dr Dillon reads Chinese fluently and speaks Mandarin. In addition, he had some knowledge of other Chinese languages and of the languages of some of China’s ethnic minorities. Dr Dillon had been teaching and researching on the PRC for over thirty years, and his expertise was based both on the written materials available (the Chinese press and other reports from China) and on interviews and information obtained during regular academic visits over that long period, some independent, and some in cooperation with the Chinese Academy of Social Sciences and Chinese universities. Dr Dillon had made research visits to many regions of China including the remote regions of Gansu, Ningxia and Xinjiang in the north-west.

Dr Dillon’s most recent visit to the PRC was in July 2005. Thereafter, he kept up-to-date via various organisations such as Minority Rights Group, whose conference he addressed in New York in July 2006. Dr Dillon had been preparing reports for British courts for returned asylum seekers and other Chinese nationals since 2004.

Dr Dillon explained that the modern Chinese legal system dated back only to 1978, after the previous Soviet-style model used since 1949 collapsed and during the opening up of China to the West, when a system of lawyers and Courts was constructed on the Western model. He drew heavily on Professor Cohen’s reports, which we have already considered, and on the UNHCHR Special Rapporteur report of Professor Nowak. Dr Dillon noted international concerns about the Chinese legal system, in particular torture, detention in conditions not meeting international norms, and the number of death sentences (albeit hard to compute given the lack of organised information provided by the Chinese Government). Dr Dillon described the court system in China:

In relation to prison conditions, Dr Dillon referred to many of the same texts as Professor Palmer: Harry Wu “Laogai: the Chinese Gulag” Boulder: Westview, 1992; Harry Wu (with Carolyn Wakeman) “Bitter Winds: a memoir of my years in China’s Gulag” New York: John Wiley, 1994; Jean-Luc Domenach “Chine: l’archipel oublié” Paris: Fayard, 1992 and he drew similar conclusions as to the history of China’s prison camps. All of these books antedate the westernisation which Professor Fu described as having accelerated in the late 1990s. However, their historical accuracy is widely accepted.

On the openness of the criminal process as a whole, Dr Dillon stated:

In relation to the specific risk of overseas offences prosecution in any one case, Dr Dillon’s opinion was that it was most likely where the accused was deemed to pose a particular threat to social order in China; where the authorities wished to make a public example of an individual or a group of individuals; or where the case was considered to tarnish the image of China. Trial and sentence in such cases were likely to be publicised in the media (which was State-controlled), specifically in local television news, in which case there would be no written record available. It was likely that the authorities would not wish to publicise them outside China. Where extorting telephone calls were made to relatives in China, such that part of the commission of the offence occurred within China, Dr Dillon considered that this might persuade the authorities that an overseas offences prosecution was more justified than in other cases.

In relation to the NPC website guidance, Dr Dillon considered that it reflected current political attitudes in China, consistent with a growing nationalism which had become apparent since the late 1970s:

Dr Dillon considered the Foreign and Commonwealth Office ‘double jeopardy’ letter to be of little assistance:

On return, the appellant could expect to be monitored by the Chinese authorities:

Those statements are not sourced. Dr Dillon did not feel able to state with confidence the likely sentence for this appellant on return. The information simply was not available outside China. Organised crime had a long history in China and Fujian was known as a centre of people trafficking, since it faced the island of Taiwan. He thought that, dependent on the status of the officer involved, the involvement of a police officer might increase the risk of overseas offences prosecution under either Article 7 or 10 CL. Such evidence as existed of overseas offences prosecution was anecdotal and Dr Dillon was unable to be more specific. He had never heard of a civil law right for the victims of kidnap-related crimes to bring proceedings themselves.

Dr Dillon did not consider laojiao to be a likely approach because of the seriousness of the appellant’s crimes. Prison conditions varied between model prisons which met Western standards, and poor conditions elsewhere, but there was consistency in the reports of poor conditions, ill-treatment and brutality in prisons and laojiao facilities. He considered that the arrest warrant which the appellant had produced looked authentic for its date and the charges in it were in line with the appellant’s account. The appellant’s account of his original 1994 difficulties was plausible.

Dr Dillon explained that the hukou system of personal identification was currently being reformed and was no longer an effective tool of social control. Its application was now erratic –

Dr Dillon gave oral evidence to the Tribunal, and adopted that report. He had read Dr Gechlik, Dr Sheehan and Professor Fu’s reports and maintained his own position after reading them. He was aware of Professor Fu and of Professor Cohen, whom he described as an extremely well-known academic in the United States. Dr Gechlik was not known to him; Dr Dillon commented in his oral evidence that a very large number of people had been granted the honorary title of Visiting Professor at the People’s University of Beijing.

Dr Dillon was asked supplementary questions about Professor Fu’s commentary on the differences between the WC report and his main 2007 report. Dr Dillon agreed with the earlier report but disputed the 2007 analysis. In particular, he considered that the Chinese authorities were particularly concerned about organised crime at present and remained secretive and unwilling to publicise the outcome of criminal cases. In relation to the effectiveness of hukou, Dr Dillon agreed that there were 80-120,000,000 migrant workers in China, some of whom did have hukou registration where they worked, and some did not. There had been a huge migration, making it difficult for the authorities to maintain the system. There was a strong lobby both from the police and from the Public Security Bureau to retain it and moves in other places to abolish it. Although its effectiveness was patchy, hukou could not be ruled out as a factor when considering internal relocation.

In cross-examination, Dr Dillon was asked to confirm that the Article 10 re-prosecution power was discretionary, not mandatory. He referred to the NPC website guidance. He had not analysed the relevant statutory provisions himself; he was not a lawyer. He was not entirely sure that discretionary and mandatory were useful or sensible concepts in the Chinese context. The Courts had Article 10 available and if they wanted to use it, they would do so.

Torture still existed but he was aware that the Chinese President was very much against it and senior figures in the Chinese Government did not consider torture to be a good idea any longer. Dr Dillon stated that:

Overall, the trend was one of improvement. There was great support for modernisers within the legal system in China and awareness in political and legal circles of the concerns of the West and of the UN. A lot of change had occurred when China was negotiating to join the World Trade Organisation in the period 1986-2001, the accession having been approved in 2001. Dr Dillon accepted that there had been changes in criminal justice practice since 2003/4 but the Government remained the same. Any real change was wishful thinking. There was no extradition Treaty between the United Kingdom and China, nor with the United States.

International cooperation on criminal matters was generally not available, although China sought it, because of international concerns about China’s use of the death penalty, particularly for cases not involving any violent crime. The written procedures might be changing, especially as many Chinese lawyers had been trained abroad, but Chinese patriotism and national pride made it very reluctant to be dictated to by foreigners in the interpretation of its legal system and the changes were more apparent than real. Normally these matters were not made public and if China were reasonably sure a matter would come to foreign attention, it would be likely to deal with it quietly. China was desperately trying to keep closed any information on prisons and the prison camp system.

Dr Dillon confirmed the distinction between laogai and laojiao and that kidnapping offences were likely to be tried by one of the 400 Intermediate People’s Courts in larger urban centres. Serious crimes were more likely to be punished by laogai than laojiao. Laogai prisons were well away from major urban areas and the prying eyes of foreign journalists and academics. Dr Dillon observed that the Special Rapporteur had been well aware of only being shown the star prisons, and even those were not particularly good.

There was certainly a move towards more reporting of Chinese Court judgements in the media, either because they had political impact (for example, trials of alleged separatists in other countries) or by journalists who had acquired a reputation for reporting despite the risks. Dr Dillon had not been able to find a single published reference to Article 10 CL on the Chinacourt database or elsewhere on the internet; he had researched a number of databases but not kept a record of which ones he had used.

There had been a significant change in availability of court reports in China over the last ten years, due in part to improvements in technology. Dr Dillon accepted that Chinacourt had on it 23100 criminal judgements or thereabouts. That was a drop in the ocean. (By way of comparison, the principal public websites for United Kingdom judicial decisions date back to the same period, the late 1990s and the open access website of the British and Irish Legal Information Institute was available only from 2000).

Dr Dillon was not a lawyer and had no knowledge of technical issues relating to the distinctions between complete and inchoate offences. There were powerful domestic reasons not to publish outside China details of overseas offences prosecutions. It was put to Dr Dillon that this was contradictory, if the purpose of prosecuting overseas offences were to deter Chinese nationals from offending outside China. His response was that if the Government perceived that its political interests were served by publicising the effect of Article 7 or 10 prosecutions outside China they would do so; he accepted that his evidence on this point was completely hypothetical. He had read through the six overseas offence cases identified by Professor Fu; they demonstrated that overseas offences prosecution was possible when the Chinese authorities considered it necessary, sometimes for political rather than legal reasons, as for example in the Kuwaiti case (relations between Kuwait and the PRC had been difficult at that time).

Dr Dillon was aware that the Chinese Embassy in London collected information on the Chinese community in London and on offences connected with that community. There was also police cooperation; British police officers had been seconded to the British Embassy in Beijing to help the British Government to deal with trafficked individuals and the trafficking gangs. It was unlikely to be a formal arrangement, given the lack of an extradition Treaty. Anyone thought likely to re-offend would at least be monitored.

Dr Dillon was asked what would be on a person’s hukou files. He said that the hukou was held by the local Public Security Bureau and its contents were not available to locals, still less to foreigners. His understanding was that it included who lived in the house, their names, relationships, and jobs, and from accounts he had read he understood that it would also include details of criminal convictions and other matters which the police might consider to be antisocial activities. He had never personally seen a hukou or Public Security Bureau file. If a person’s name had been drawn to the attention of the authorities, for example as a result of local public order disturbances, he would expect that to be on the Public Security Bureau file. Similarly, he would expect arrests to be recorded.

Dr Dillon accepted that it was now not unusual for people to work illegally in the big cities. People did migrate around China for work and for 20-25 years it had been known that many people would ‘go black’; there was a shadow world of people not known to the authorities, working without hukou, and in some cities there was a thriving black market. Dr Dillon was aware of the Chinese authorities’ focus on corruption; he had been involved with the case of a corrupt official whom the authorities would have liked to reach overseas. Corruption was a very longstanding problem. It was possible that there was now less focus on people trafficking; he referred to his previous evidence about liaison between the British police seconded to the Beijing British Embassy and local police. If a major case occurred, it would become more high profile.

In answer to questions from the Tribunal, Dr Dillon said that members of the Communist Party were very close to local businessmen and the legality of payments to them was often in question. There was a relationship between the Party and Government on the one hand, and between the Party and local business on the other. Many Party members were now involved in business themselves.

For a Chinese national returning from abroad, re-entry would be very complex. People were picked up at immigration and questioned; he had experienced it himself. The immigration authorities at the point of re-entry would be able to check with the Public Security Bureau in a person’s home area and might be requested to return him to the home area to be dealt with there. There might be a short period of detention in Beijing while they worked out which Court was most appropriate; Beijing would be delighted to get rid of a defendant to another area but might consider that a Chinese individual returning from abroad had useful information to give them first as to what was happening to Chinese nationals outside China.

Dr Dillon was aware of a certain number of Article 7 and Article 10 cases but considered that he did not properly understand the Chinese authorities’ motivation; he was not certain that it was deterrence, more a question of national pride and patriotism. If an overseas prosecution case were dealt with in Beijing, NGOs and Governmental organisations from abroad could probably track it. However, re-prosecution in Fujian province by a lower level Court would render it extremely difficult to find out what happened. Torture was less likely in Beijing than in Fujian.

In re-examination, Dr Dillon confirmed his strong agreement with the 2004 Fu report, especially at paragraphs 13-14 where Professor Fu stated that Fujian province would interrogate under duress or even torture. He could have written those paragraphs himself.

Dr Sheehan’s reports and oral evidence

Dr Jackie Sheehan, BA, PhD is Associate Professor in Contemporary Chinese Studies in the School of Contemporary Chinese Studies, University of Nottingham. She studied at Cambridge for her undergraduate degree and SOAS for her doctorate. Her specialist area is the People’s Republic of China (PRC) since 1949, in particular the development of autonomous social organizations in the PRC and the legal and political treatment they receive, the Chinese Communist Party Government’s responses to grassroots political initiatives, opposition and dissent, and contemporary Chinese concepts of and legal protection for civil, political, social and economic rights. She visits China two to three times a year and both reads and speaks Mandarin Chinese. Dr Sheehan prepared her report with the benefit of the reports of both Professor Palmer and Dr Dillon. Broadly, she agreed with both reports, commenting that in her opinion the most likely penalty would be life imprisonment or possibly death –

Dr Sheehan considered that the NPC website announcement would have been placed there for guidance and to indicate that Articles 7 and 10 might be used in appropriate circumstances. The Chinese authorities’ approach to the power to mitigate prosecution in Article 10 could perhaps be gauged by considering their approach to a similar power in Article 18 in relation to deaf-mute and blind citizens. In the case of Jin Ruchao, who was deaf-mute, and who was prosecuted for causing the deaths of 108 people by setting off four bombs within an hour (by taking taxis between the sites), he was convicted on the basis of his own confession and those of three corroborative witnesses who all admitted to supplying him with explosives. All four were executed. Mitigation was not always applied, especially in a high-profile case.

Dr Sheehan endorsed Professor Palmer’s opinion that the most likely penalty if this prosecution had occurred in China instead of the United Kingdom would have been life imprisonment. Although she spent some time in her report on the possibility of the death penalty, at its highest she considered that it ‘cannot be completely ruled out’ but that life imprisonment was a much more likely outcome. She also agreed that the offence was probably too serious for laojiao. Dr Sheehan’s opinion was that punishment of people traffickers was harsher than for those trafficked–

Dr Sheehan considered that the Chinese authorities would consider 14 years very lenient for such a crime and further, that release after only 7 years of what Western authorities consider ‘good behaviour’ would add to that impression –

The lack of any confession would make the offence worse in Chinese eyes and increase the risk of torture –

Dr Sheehan noted that a person would need to come to the attention of the Chinese authorities on return before there would be a risk, but considered that where an overseas Chinese national was deported, that would be axiomatic as

Dr Sheehan considered that the risk in the appellant’s home area would be increased if he were related to a member of the Chinese Public Security Bureau–

If the appellant’s account of his history in his home area were true, Dr Sheehan considered it likely to put him at increased risk as a troublemaker. The facts were consistent with what she knew of what happened in the rural areas, particularly Fujian province:

Dr Sheehan gave oral evidence. She had read Professor Fu’s evidence but maintained her position. She was asked some supplemental questions by the appellant’s Counsel. Dr Sheehan stated that there were over 4 million criminal cases annually in the Chinese Courts, as set out in China Daily, a state controlled English Language newspaper based on reports from the Xinhua news agency, an official Chinese Government Department. The published criminal conviction figures did not include minor public order offences. She accepted that use of torture was declining in major cities such as Beijing, Shanghai and Guangdong, but it remained a major problem because of the pressure on police forces to get confessions and wrap cases up quickly. The use of torture was a criminal offence and always had been (provided it was physical torture with lasting consequences). Judges liked confessions and punishment by imprisonment was considered not really legitimate without a confession. She did not deal with re-education through labour (laojiao).

Dr Sheehan referred to the NPC website guidance, which she considered quite a strong statement of China’s right to retry overseas offenders. China was enacting enormous amounts of new law and there was tremendous legal debate; there were many books, of which only this one had been chosen; the placing of that excerpt for general access was a statement in itself. Most databases on Chinese legal decisions were fairly recent and the majority were subscription-only or inaccessible, unless one were a member of the Law Department of a Chinese University which had an institutional subscription. Chinacourt, although public, held less than 25000 records for a period in which there were over 26 million criminal cases, and was highly selective. Only 20-35% of all prisoners were released early from prison; they were eligible after half the term but it was hard to say how that worked in practice. Sometimes there was a political motive and people might be released very early then. Dr Sheehan felt unable to give any general guidance; it was possible that all prisoners were released half way through their sentences, or that some might still be serving their entire sentences. Time off for good behaviour in China required something positive such as help with conviction, an invention, or heroism, rather than simply not getting into further trouble.

In cross-examination, Dr Sheehan was asked further questions about the NPC statement. The CL was sparely drafted with no examples; this excerpt from a published book gave both examples and criteria. She did not consider that its publication indicated that there would be any increased use of Article 10. Nothing should be read into it other than that the law remained in force and some guidance was given as to how it might be applied. Similar excerpts had been published for other provisions of the Criminal Law and Dr Sheehan considered it to be an attempt to fill in some of the unanswered questions with which one was left after reading the CL. Her view of Article 10 after reading it, and the NPC guidance, was that its application was discretionary.

It was her understanding that an Article 10 prosecution was a fresh prosecution, which would require evidence but not necessarily the United Kingdom evidence underlying the British conviction. Where there was insufficient evidence in China, a request could be made through diplomatic channels for access to the United Kingdom information. It was her understanding that during the trial of JC, the Fujian police were in direct contact with the British police. She did not know of any situation where such contact occurred without diplomatic intervention; it was simply outside her expertise.

Dr Sheehan concurred with Professor Fu’s premise that there were special procedures for foreign-related cases and that the rôle of Article 10 was diminishing because of the need for China to be assured of international cooperation, especially with the Olympics approaching. She was aware of some bilateral agreements between China and Western countries (specifically Spain and France) where information could be transferred. She gave an example from 2003/4 of a person who was extradited from Thailand with an undertaking not to execute him, then executed. There had been no recent high profile cases of multiple deaths involving snakehead gangs since the Morecambe cockle pickers in 2004.

Dr Sheehan considered that appeals of the type considered in this appeal fell to be treated as high profile because of the organised crime element involved with snakehead abductions and extortion. She knew of no media reports in China about the particular case; she considered that they would not have extended further than the local papers in Fujian province. Chinese people outside Fujian would not have access to those accounts. It was put to Dr Sheehan that the Government’s interest in organised crime related to corruption amongst civil servants, rather than the present type of case. She disagreed; the Government was capable of interest in more than one topic and they remained interested in those who organised people smuggling. They were much less interested in the customers of such people.

Dr Sheehan did not have access to the Peking Law Faculty website. She was aware that there were publicly available and subscription only databases but had confined her own research to printed material, in particular in relation to Article 18, for which she used a report in the South China Morning Post which she had in her office; the deaf-mute case had interested her, but she had not sought out any other Article 18 cases for comparison. Dr Sheehan confirmed that anyone in the position of Professor Fu, working in Hong Kong (now part of China) and for a Chinese University, belonging to the Chinese Faculty of Social Sciences would have access to parts of the Chinese system which she did not, whether legal, academic or governmental.

Dr Sheehan was then asked about the border procedures. She has crossed into and out of China many times. Her experience was that the border police used computerised systems into which passport data was manually entered, taking quite a long time: name, date of birth, address, the usual information. That would then bring up any visa information but not hukou information. Police records were gradually being added to computerised databases but she had not seen evidence of linkage between the local police data and that of the border police. They were still separate. When Harry Wu, the author of ‘Troublemaker’ and ‘Bitter Winds’ returned to China he was detained at the border, and had to be extricated with the help of the United States Government (Wu was a naturalised American citizen when he returned to China). Wu’s situation was unusual since he had become very well-known, and his case high profile, because he wrote books in the West. The Chinese authorities knew about him already and were prepared for his return.

Dr Sheehan reminded the Tribunal that reports by Mary Robinson and Manfred Nowak (the UNHCHR Special Rapporteur) had mentioned self-censoring and palpable levels of fear. The main risk in this appeal, in her opinion, related not to the claimed public order offences in Fujian, but was of Article 10 CL re-prosecution for the people smuggling and kidnap offences. Dr Sheehan considered it very improbable that the sister’s account of not understanding the risks of taking home a baby from the birth control clinic (see below) was true; any rural Chinese woman would know that to take in an abandoned baby invited scandal and complications, in particular the risk of compromising your entitlement to a natural child under the one child policy. There were very many abandoned babies in orphanages in China who would never be adopted, precisely for that reason. A birth inspector such as this appellant’s sister would certainly know that.

Dr Sheehan was asked about changes in the interrogation procedure: Professor Cohen’s report indicated that the Chinese Government had implemented a system of simultaneous audio-video recording of the interrogation of criminal suspects (by 1 October 2007); in Beijing, Shanghai, Guangdong and Jiangsu, more and more Public Security Bureaux had implemented it for homicide cases. Dr Sheehan considered that the introduction of audio-visual recording of hearings was too recent for any assessment of its operation.

In answer to questions from the Tribunal, Dr Sheehan said that if there were no police interest in this appellant in his home province, a person with a foreign-connected case would likely be tried at the Intermediate Court not in Beijing. However, if Fujian province wanted to try him, he could be forcibly transferred there even for an offence outside Fujian; if a serious penalty (such as the death penalty, whether or not suspended) were imposed, the case might well be transferred back to the higher levels in Beijing. Torture would only occur if there was a prosecution in China requiring a confession to be obtained.

It was true that since the mid-1980s the Supreme People's Court had published a range of judicial decisions, initially in its Gazette and now also on Chinacourt. There was debate within China as to whether a system of precedent was being constructed. The decisions which were published were heavily edited and could not be cited in legal argument but decisions published in the Gazette were treated as guidance for the purpose of shaping the jurisprudence of the lower courts. She could not assist the Tribunal as to the selection method used by the Gazette/Chinacourt or the University databases when deciding what to publish. Dr Sheehan did not agree that putting a case on a public database or in the Gazette would make an example of the person convicted. Members of organised crime syndicates did not read such publications; the Chinese media had an express public education function and if you were seeking to influence the general public, the press and broadcast media were where you would expect to find publication. Publication on University websites or in the Gazette or on Chinacourt would be for the guidance of judges and lawyers.

Professor Fu’s reports and oral evidence

Professor Fu Hualing, LLB, MA, JD is an Associate Professor at Hong Kong University. Professor Fu gave his evidence in English over the telephone from the British Embassy in Hong Kong. As an ‘insider’ in Chinese terms, he had access both to the Chinacourt database and to the better organised and more extensive Peking University database, as well as his own knowledge. His undergraduate degree was awarded by the South-Western University of Political Science and Law in Chongqing. Thereafter, he took his Masters at Toronto University and his Doctorate at Osgoode Hall Law School, also in Toronto. He is currently Associate Professor at Hong Kong University and a Visiting Professor at Washington University Law School; his taught courses include constitutional law, criminal law, criminology, cross-border legal relations between Hong Kong and Mainland China, human rights in China, People's Republic of China legal system, and introduction to Chinese law. He is also a practising lawyer in Hong Kong, and an editor of the Hong Kong Law Journal (Chinese Law) since 2003. He has published widely, both books and articles, and undertaken consultancy for the Asian Foundation (on legal aid projects in China in 2005), the Danish Centre for Human Rights (a criminal justice research project in Guangzhou University in 2005), the Foreign and Commonwealth Office (evaluating six of its rule of law projects in the mainland and Hong Kong in 2007), and the Raoul Wallenberg Institute (advising on its police and prosecution cooperation project in the Haidian District of Beijing in 2005 and 2007) .

We considered Professor Fu reports sequentially. In 2004, in his written evidence for the appellant in WC, Professor Fu cited two instances of re-prosecution involving hijackers who had hijacked Chinese aircraft flying from China to Taiwan. He went on to consider the risk of re-prosecution for this appellant:

Professor Fu referred to prolonged detentions, overcrowding and unsanitary conditions, noting that according to official reports only 15.1% (369) of the detention centres in China achieved the country's own minimum standards. The WC Tribunal did not place a great deal of weight on his evidence as he had not had access to much information about the offences. Professor Fu did not give evidence in SC.

In his 2007 main report, Professor Fu set out Article 10 of the CL. China asserted sovereignty over Chinese people overseas, even those who had adopted another nationality. Offences committed abroad therefore engaged Chinese law. China had few international agreements requiring it to recognise foreign penal judgements:

The requirement to prosecute imposed by Articles 141-142 of the Criminal Procedure Law was modified by Article 15 of that statute, which exempts from mandatory investigation:

The mechanism of Article 10 gave rise to a new criminal prosecution which must be proved in all its elements to the relevant standard. Professor Fu considered that the difficulty of collecting evidence from abroad would be a substantial disincentive to the police in most cases in entering into Article 10 prosecutions. The Chinese Court was permitted to take account of the foreign sentence, but not to infer from or apply any evidence which was before the foreign Court. A special procedure for ‘foreign-related cases’ was set out in interpretation guidance in two documents both entitled “Interpretation of the Supreme People’s Court on Several Questions Concerning the Implementation of the Criminal Procedure Law of the People's Republic of China” and issued on 20 December 1996 (Article 291) and 29 June 1998 (Article 313).

In practice, it was often indispensable for the Chinese criminal justice organs to seek assistance of the foreign jurisdiction while gathering evidence for re-prosecution (witness statements, expert conclusions, confession statements made by the defendant, exhibits and documentary evidence). Overseas offences prosecution under Article 7 or Article 10 was most likely when the Chinese victims of the offence had also returned to China and could provide direct evidence. Crime was a serious social problem; the police were overloaded and an ordinary criminal offence committed 7 years ago was unlikely to attract serious police attention unless the victims or their representatives could exert strong influence. A police relative or friend was not enough; serious local influence was needed.

Professor Fu considered that the rôle of Article 10 was diminishing; China needed international cooperation and increasingly was moving to accept international norms in order to secure it. In the Spanish extradition agreement, China agreed not to seek repatriation of political offenders or to impose the death penalty. In the Bulgarian Treaty on mutual legal assistance, China agreed that extradition could be declined where a person had been convicted or acquitted on the same charge in Bulgaria. The more bilateral agreements were signed, the less use would be made of Article 10 in his opinion. Professor Fu identified only one example of a factually similar overseas offence prosecution: Xiang, who was prosecuted in China (under Article 7 as he had not been prosecuted in Yugoslavia) for a completed rather than an inchoate offence of kidnapping and extortion. Xiang was sentenced to 14 years laogai (prison). He appeared to have been acting independently not with a gang, and to have kidnapped only one person.

Professor Fu was asked to comment on the NPC website guidance from 2002. He said it was an extract of a book, ‘Xingfa Wenda (Zongze)’ (Questions and Answers about Criminal Law (General Provisions), published and edited in 2001 by the Legislative Affairs Commission of the Standing Committee of the NPC. There were other excerpts from the same book on the NPC website. Publication, he considered, was intended to restate the meaning of Article 10 of the CL, to support popularisation of law (pufa), and for ease of reference. The publication of this chapter neither enhanced nor diminished the effect of Article 10.

The CL was in a process of fundamental change. The focus had shifted and continued to shift from the circumstances of the offence to its legal elements. Special circumstances might warrant prosecution but even then, Chinese Courts would undertake a balancing exercise, between harm to China’s international image and the facts of the case.

Professor Fu’s written assessment of the likelihood of re-prosecution for this particular appellant, including factors which would increase or decrease that likelihood, was prepared on the basis that the offences were inchoate. An inchoate offence was an attempt or a conspiracy or an incitement to commit an offence, which fell short of commission of the offence. There was an error of fact underlying this part of Professor Fu’s opinion with which he dealt in his oral evidence. Overall, Professor Fu considered the present crime to be a rather ordinary one. There was nothing in it to attract special official attention. China’s criminal law had moved away from a focus on the status of the person who committed the offence to a more objective view, ‘gradually abandoning the practice of scrutinizing the motivation and personal status of offenders in determining liability and sentence’. Political offences remained an exception, but only for cases with out of the ordinary features. Taking part in rural protests would not have that effect; it was too ordinary and low-level. Professor Fu did not consider it likely that the police still had any knowledge about or interest in a demonstration 14 years earlier, when so many were then taking place.

Professor Fu considered the likely sentence should re-prosecution occur. Article 239 of the CL says that:

Re-education through labour (laojiao) was used for minor offences and the rehabilitation of drug addicts. Its legality was controversial; many Chinese academics and policy makers considered it unconstitutional and illegal. It was unlikely to be imposed in a foreign-related case for a serious offence, as here.

In order to work legally in the cities, a person should have an identification document issued through the police force in his local area (the hukou). In practice, the hukou was less significant than in the past: Professor Fu noted that almost 10% of China’s working population worked away from their home areas without a proper hukou (100 million of a total of 1,330 million). They were not monitored by the authorities; although they lacked the legal right to be in the cities where they lived, they remained, nevertheless, for as long as they wished. Hukou now mainly functioned as a means of delivery of education and medical care for hukou holders rather than as an effective mechanism of social control.

Professor Fu’s noted that the power of the police to monitor special groups of potential criminals was also much reduced:

Professor Fu set out the limitation period for various types of criminal offence in Chinese law:

Professor Fu agreed with the other experts that re-education through labour or laojiao was extremely unlikely given the serious nature of the offence. Laojiao was used for minor offences, and as a means of social control. Further, this was a case with a foreign element and the Chinese authorities were reluctant to impose laojiao on cases occurring abroad, or on foreigners, because of the international implications. The main report ended with a proper summary of the duties of an expert witness.

Professor Fu’s January 2008 commentary explained the change in his expert view between 2004 (the report in WC for the appellant) and 2007 (the report for the respondent in the present appeal). He had not been able to look at the WC report when preparing the main report because he had lost a number of old files in a computer crash. He had been provided with another electronic copy to refresh his memory. His explanation was accompanied by copious footnotes, sourcing the information on which Professor Fu relied to explain his modified opinion: he explored four areas of difference between the two reports:

Professor Fu gave oral evidence. He confirmed that his view now accorded with that set out in the main report and the 2008 report, which expanded and qualified the views he had expressed in 2004 in the WC report. He confirmed that he had seen, and had with him, a copy of Dr Dillon’s report. He was then tendered for cross-examination by the appellant’s Counsel.

Professor Fu was unaware of the article, ‘China’s theory and practice on ne bis in idem’ but agreed with its conclusion, and that of Dr Gechlik, that Article 10 was used sometimes, but not often. Chinese law did not recognise national boundaries, either for change of nationality or legal responsibility for criminal acts committed outside China. Professor Fu was asked whether he would have considered the risk to be the same for a person in the present appellant’s position, had he been asked in 2004; he drew the (incorrect) distinction that WC had committed a completed offence and the present appellant was involved only in an inchoate offence. The punishment was very different for a committed offence. He agreed with the other experts that publication on the National People's Congress website had no particular significance; the law was the law and the Article 10 guidance only served to inform, not to indicate any increase or decrease of actual re-prosecution.

In relation to secrecy, Professor Fu confirmed his opinion that the Chinese courts increasingly publicised criminal cases which were not politically sensitive, meaning that they did not involve national security law. All the courts had websites now, though the country court websites were poorly maintained. The likelihood of online reporting depended on where the trial took place. Professor Fu told the Tribunal that lawyers preferred to use the University databases such as Chinalawinfo, which were better indexed and contained more decisions, rather than the SPC website Chinacourt:

Professor Fu explained that he had not checked the county court websites, partly because they were poorly updated, but also because the county courts were the most basic level of court and would have little to add. There was a controversy between Professor Fu and the other witnesses as to the number of criminal cases in China each year. His opinion, which we accepted, was that of 7 million cases in the Chinese courts each year, only 700,000 were criminal cases. That figure originates from the government news agency Xinhua. It was surprising; but the evidence was properly sourced by a practitioner in daily contact with the relevant materials and we preferred it to the estimates provided by the appellant’s witnesses, whose research was much less careful and thorough.

Article 10 was unique. Professor Fu was aware of a total of between 10 and 20 cases in the past 10 years where a similar ability to prosecute Chinese who committed crimes in Hong Kong had been used. The discretion to prosecute an overseas offence under Articles 7 and 10 CL was for the prosecutor to exercise on a case by case basis. Professor Fu explained that although torture had reduced in frequency, it still could not be ruled out. At this point in his evidence, it was apparent that Professor Fu’s perception of the appellant as probably being a poor man committing ordinary crimes and the offences as being inchoate was operating on his perception of the likely outcome. The redacted information which the Secretary of State provided to Professor Fu excluded the details of the offence, the brother-sister relationship, and the overall gravity of the offences. Mr Mackenzie wished to ask more detailed questions about the precise details of this offence.

The Tribunal adjourned to discuss with the representatives how much more information it was appropriate to provide to Professor Fu about the gravity of the offence and its particular circumstances, and how that was to be managed, given that he was testifying over an international telephone line. We then reconnected the telephone call and an agreed version of the facts underlying this conviction was put to Professor Fu. He indicated straight away that he needed to consider the situation carefully. He considered that a completed kidnap would require more serious punishment and would be more likely to be investigated. The more serious the crime, in his opinion, the more likely it became that the authorities would indeed take an interest in the appellant. However, he considered that the police would still have difficulty obtaining the information they needed to mount a prosecution. If the Chinese authorities successfully requested the United Kingdom material through diplomatic channels, then in his opinion properly certified copies of the witness statements, the evidence in the case, the record of prosecution and the judgment would be accepted as part of the Chinese police investigation to build a case for a fresh overseas offences prosecution under Article 10 CL. He considered that the police would remain reluctant to engage in such a complex process without very strong motivation, especially given the high conviction rate expected for any prosecution (over 90%).

In relation to laojiao, Professor Fu maintained his position; it was retained on the statute book in China to enable the authorities to deal with things like the recurrence of mass movements such as Falun Gong. It was a routine law enforcement tool. In re-examination, Professor Fu said that re-prosecution had no deterrent value, as the reporting of cases was for lawyers, not the public. In answer to a question from the Tribunal, Professor Fu said that the court was under a statutory requirement to consider the sentence imposed abroad and shorten the Chinese sentence accordingly.

Professor Fu was asked to explain the reporting system in more detail. He said that that the Supreme People's Court would appoint judges in local Courts as their correspondents, who would report interesting cases to the Supreme Court for publication. The Supreme People's Court would then choose from these the most interesting, edit and publish them as guideline cases so that the Courts throughout China could look at those cases for guidance if they needed it. There were millions and millions of criminal cases in the system; those which were reported were the more interesting, which were considered important and engaged public law issues.

The Foreign and Commonwealth Office ‘double jeopardy’ letter

On 15 July 2005, in response to an enquiry from the Country of Origin Information unit of the Home Office, the Research Analysts of the North Asia and Pacific Research Group of the Foreign and Commonwealth Office (based in London) wrote setting out the position in Chinese law in relation to Articles 10 and 7 of the 1997 Chinese Criminal Code:

The ‘double jeopardy’ letter was broadly in line with the evidence of Professor Fu. It was partially cited at paragraph 10.14 of the 3 December 2007 Country of Origin Information Report on China prepared by the respondent.

The arrest warrant and the Foreign and Commonwealth Office response

There was doubt about the weight to be attached to the claimed arrest warrant. We reminded ourselves of the guidance given in Tanveer Ahmed [2002] UKIAT 00439:

The Tribunal must assess the reliability of this arrest warrant on the oral and physical evidence before it, which may be summarised thus: the photocopy of the arrest warrant in the hearing bundle was improved at our hearing by the production of what the appellant said was the original. The document produced was a red and white piece of paper which the experts agreed resembled a Chinese arrest warrant. On the appellant’s own account, it was never served, being allegedly retrieved by the appellant’s police station relative from a wastepaper bin and is completely clean, unmarked and uncrumpled despite the passage of approximately fourteen years since its creation. The ‘arrest warrant’ text was not very detailed, consisting only of the appellant’s name and an assertion that he is not sympathetic to the aims of the Communist Party. Obviously, if the appellant and his sister had a relative in the police station, that relative could easily have filled in an arrest warrant form to send to the United Kingdom (hence his letter asking whether it had been useful).

Paragraph 36.05 of the December 2007 Country of Origin Information Report on China sets out the conclusion of the Canadian IRB of 8 September 2005 that forged documents of all kinds were easily available. Paragraph 11.08 dealt with service of arrest warrants on family members (apparently a common practice) again relying on a response from the Canadian IRB, on 1 June 2004.

On 12 November 2007, in answer to a request from the Treasury Solicitor regarding authenticating Chinese arrest warrants, the Foreign and Commonwealth Office wrote to the AIT stating that Chinese arrest warrants are produced in a standard format (name, date of birth, offence and so forth) (the ‘arrest warrant’ letter). They all look very similar, on paper with a printed three-character red header and a stamp from the prosecutor's office which issued the warrant:

Unfortunately, that verification method is of no practical assistance to the Tribunal. If such checks were made, the Fujian police would then be on notice that a person with this appellant’s claimed old history of rural revolt intended to return to the area. Ms Broadfoot recognised that it would be irresponsible of the Secretary of State and contrary to Home Office policy to increase the risk to the appellant in that way. Having seen the warrant and heard conflicting accounts from the appellant and the sister regarding events surrounding, we do not consider that we have received a credible account of an arrest warrant being issued, let alone served. We place no weight on the alleged arrest warrant as probative or otherwise of the original offence.

Home Office Country of Origin Information Report on China 2007

The material in the Country of Origin Information Report dates back to 2004 and has been consistently so recorded in all recent People's Republic of China Country of Origin Information Reports. The relevant passages in the current report begin at paragraph 29.08 and 29.13. Paragraph 29.08 confirms that Fujian is the main source of overseas migration from China, powered by economic growth (and presumably compulsory purchase, as here alleged) in Fujian. There was also a robust tradition of outward migration from Fujian, and to a lesser extent from Guangdong, Zhejiang, and recently from north-eastern provinces:

That was the Secretary of State's published position on snakeheads and smuggling; that Fujian was the leading source of smugglers and migrants, and that snakehead gangs were a form of private enterprise without links to the triads, operating in a rather loose structure for personal gain.

For the Secretary of State, Ms Broadfoot prepared a skeleton argument and also written closing submissions. The closing submissions were prepared overnight after the oral evidence had closed, superseding and incorporating the skeleton argument. After summarising the bundles and evidence before us, the history of the appeal, and the issues, Ms Broadfoot turned first to the s.72 certificate. S.72 was the statutory implementation of the Refugee Convention exclusion from non-refoulement (Article 33(2)), setting up a rebuttable presumption that the appellant is excluded from refugee protection. On these facts, the appellant had committed a “serious offence” and the only evidence to show that he was not dangerous was the 2005 Parole Report. The Parole Report was not sufficient to rebut the presumption of dangerousness, she argued: Ms Ludgam, who prepared it, did not have access to all the relevant material and was unaware of the seriousness of the offences, the identification of the appellant as a ringleader by the sentencing judge, or that he had been given a sentence at the highest end of the scale. Further, the report was now three years out of date. In her submission, the Ludgam Parole Report did not begin to rebut the presumption and should be disregarded. The s.72 certificate should be upheld: the appellant was not entitled to the protection of the Refugee Convention and his asylum appeal should be dismissed. The s.72 certificate was also fatal to any humanitarian protection claim.

The next issue was credibility. The respondent accepted that credibility remained in issue. Ms Broadfoot proceeded on the basis that there was an error of law by the previous Tribunal on credibility (DK (Serbia) and others [2006] EWCA Civ 1747). The respondent reminded the Tribunal of the credibility approach set out in Karanakaran v SSHD [2000] EWCA Civ 11, [2000] Imm AR 271, [2000] INLR 122, [2000] 3 All ER 449. The Tribunal:

The extension of the Karanakaran test to Article 3 ECHR had been approved in MT (Algeria) & Ors v Secretary of State for the Home Department [2007] EWCA Civ 808:

The respondent’s letter of refusal, to that standard, accepted that the altercation in April/May 1994 between the appellant’s friend and the son of a local bigwig might have occurred and that recourse to the local police had been fruitless; that on 2 October 1994 his home had been attacked by persons connected with his sister’s former employer because she had complained of her dismissal; that his shoulder injury was consistent with defending his home on that occasion (and with a number of other potential causes); and that on 10 October 1994 a local protest took place.

Having heard the oral evidence, the respondent now submitted that the protest account should be treated as wholly unreliable in view of the conflict between the evidence of the appellant and his sister, and the vagueness of his evidence about it. On any view, the appellant was not the organiser of that protest and the significance ascribed to it had varied with the passage of time from a ‘fracas’ in his original statement, to a violent demonstration in his second statement, and finally, in his oral evidence, to a brief demonstration which did not last long and dispersed when the officials drove off the crowd, with no violence and only one stone thrower (indeed, possibly only one stone thrown, not by the appellant). The appellant’s participation on the latest account seemed minimal.

Ms Broadfoot argued that the sister’s account of her dismissal should not be believed. It was simply nonsensical. Save for the destruction of his home as part of a land scheme, none of the claimed events in Fujian should be believed. If that were accepted, then the appellant and his sister were of no interest to the Fujian police, either in 1994 or now, 14 years later. The arrest warrant could not be genuine even if the paper was right (particularly since the police cousin had apparently discovered it in a rubbish bin at the police station). The appellant and his sister were simply economic migrants when they came to the United Kingdom, perhaps prompted by the 1994 land seizures in Fujian province.

The appeal would therefore have to stand or fall, Ms Broadfoot submitted, on the double jeopardy issue and/or the Refugee Convention or Article 3 risk on return in relation to the 1994 events. Dealing first with the double jeopardy risk of an overseas offences prosecution under Article 10 CL, Ms Broadfoot argued that the Tribunal should prefer the overwhelming evidence of all but one of the experts that Article 10 CL was discretionary, discounting the contrary view of Dr Gechlik, whose evidence could not be tested in cross-examination and whose report had omitted reference to the crucial provision of Article 141 (the mandatory prosecution provision) identified at paragraph 8 of Professor Fu’s report. Ms Broadfoot also observed that Dr Gechlik, who had notice of Professor Fu’s later report, had not contradicted his observations as to the effect of the Article 141 exemption.

Ms Broadfoot submitted that the primary issue for the Tribunal was whether there existed a real risk of re-prosecution of the appellant in China for crimes arising out of the same set of facts for which he had been convicted and sentenced in the United Kingdom, and if so, whether there was a real risk of Article 3 ECHR being breached in the course of such prosecution, including any investigation by the Chinese police.

The Secretary of State accepted that the Tribunal should take as its starting point the fact that overseas offences prosecutions, either prosecution (Article 7) or re-prosecution and double punishment (Article 10) were legally possible in Chinese law. However the Tribunal should then go on to consider the likelihood, if at all, of either occurring. The assessment of that likelihood was dependent upon the evidence before it (MT (Algeria) & Ors v Secretary of State for the Home Department [2007] EWCA Civ 808).

The Court of Appeal's decision in Adam v SSHD [2003] EWCA Civ 265 was of only limited assistance. The penalty for military service was an ordinary criminal penalty, the existence of which had been set out in the Secretary of State’s Country of Origin Report. The Secretary of State in Adam, having stated in her country report that such a penalty would be applied, therefore bore the burden of showing that in the particular factual circumstances of the Adam case, there was nevertheless no real risk of it being applied on return. Here, in contrast, there was discretion in the relevant statutory provision and it was for the appellant to show that it would in fact be applied to him. If the matter were to be appealed further, the Secretary of State reserved her position on whether the Adam decision, with its apparent shift in the burden of proof to the respondent, was good law.

Ms Broadfoot reminded the Tribunal of the evidence of Professor Fu, inviting us to prefer that to the evidence of the other experts, in particular with reference to the secrecy question. She noted that the other experts had both denied that there had been any significant announcements or changes in 2004, whereas both Professor Fu and Professor Cohen identified important changes and announcements on the reduction in the use of torture at that time.

There was much more information available now regarding the operation of the Chinese legal system. Professor Fu had been an impressive witness, knowledgeable and open in his evidence, giving spontaneous answers and when more of the detail of the crime was put to him he had considered it openly, agreeing that certain of those factors would probably increase the risk of an overseas offences prosecution under Article 10 CL. Further, Professor Fu had better resource access than the other experts: he accessed the database of Peking Law School which contains double the number of cases on the Supreme People’s Court’s website (which was generally accessible) as well as the main city court databases. Dr Sheehan accepted that he was more like an ‘insider’ than an ‘outsider’ (where this was defined by reference to access to information). Professor Fu’s evidence had increased in depth over time; that was to his credit and his evidence should be given greater weight than that of Dr Dillon, Dr Sheehan, Professor Palmer or Dr Gechlik both because it was better sourced, and because he was prepared to reconsider his opinion over time and in the light of changes in circumstances..

The Secretary of State did not accept that the appellant, if re-prosecuted, would be found guilty, convicted, and sentenced to an additional period in prison. Even if he were found guilty and imprisoned, prison conditions in China, although harsh, did not reach the Article 3 ECHR standard. (Batayav v Secretary of State for the Home Department [2005] EWCA Civ 366, TC (One Child policy – Prison Conditions) China [2004] 00138). Professor Nowak had considered the conditions in the prisons he inspected to be generally satisfactory in terms of food, medicine and hygiene. Any sentence would be proportionate and would have regard to the sentence already served; Professor Fu’s evidence on that was clear. There was no real risk of laojiao being imposed.

In relation to the 1994 events, they also did not give rise to a real risk. Millions and millions of people had been involved in the rural protests. For example, in 2004, ten years after the appellant’s alleged activities, there were 74000 protests involving 3.5 million people. If, despite her submissions, the Tribunal considered there was a real risk on this basis in the appellant’s home area, he could relocate internally; 100 million Chinese were living in the cities without hukou. The appellant was young and adaptable and could do the same if he had to; that was neither Robinson unreasonable nor unduly harsh.

In her oral submissions, Ms Broadfoot dealt first with the question of s.72. She accepted that the date of hearing was the appropriate date for assessment of risk and that the appellant had put forward materials in rebuttal which the Tribunal would need to evaluate. However, weight would also need to be given to the very serious nature of the crime. Save for the discount for his national origin, the trial judge had clearly considered that the appellant should be sentenced at the highest level available for that offence. There was no material after July 2005 to assist the Tribunal and Ms Ludgam’s report had clearly been prepared without a full understanding of the nature of the offences. The appellant had not shown remorse or understanding of the seriousness of his offence.

In this case, argued Ms Broadfoot, the appellant had not come close to rebutting the presumption. Although describing the likelihood of reoffending as low in 2005 (without full knowledge of the facts underlying the offences), Ms Ludgam had indicated that if the appellant re-offended it would be to commit another gang-related offence, a serious danger to the community and in that case the dangerousness test was met. If the Tribunal were unsure, or a more recent report would have been helpful, that counted against the appellant because the burden of rebutting the presumption was on him. Ms Broadfoot relied on the decision on Article 33(2), cessation and Article 1C (5) in SB (cessation and exclusion) Haiti [2005] UKIAT 00036, at paragraphs 44 and 52-95. Mr Justice Ouseley (then the President of the Immigration Appeal Tribunal) held that no question of balance arose in determining whether Article 33.2 applied or in relation to s.72; dangerousness was not a question of balance. The decisive provision was in s.34 of the 2001 Act.

The Secretary of State continued to challenge credibility as to the 1994 events, though not as to the events in the United Kingdom. For the reasons set out in the closing submissions, Ms Broadfoot argued that the Tribunal should conclude that at its highest, the protest was small, brief, insignificant and appellant’s participation minimal. The account of the sister’s baby was frankly incredible and inconsistent. The sister, a single woman and a birth control inspector, would have been well aware of the risks. A single woman taking home a child would invite scandal and social isolation. Having grown fond of the child it was most unlikely that she would have taken no interest in what happened to it after they left China. There would be no outstanding interest in these two people in Fujian province for reasons connected with the 1994 events. The appellant would not be at risk on return to China because of the lack of credibility of his 1994 account; if the events did not occur, there would be no record of them in his home area or on his hukou and no reason at all for increased risk on return.

The arrest warrant was no such thing, even on the appellant’s account: it had never got beyond the police station wastepaper bin. Such documents were easily forged and the Secretary of State could not seek to authenticate it without increasing the risk to the appellant to an unacceptable level. In the second Foreign and Commonwealth Office letter dated 12 November 2007 the Secretary of State had investigated the possibility of authenticating the arrest warrant, stating that the most reliable way to do so would be through the Prosecutor’s Office which issued the warrant and this would require a formal mutual assistance request and arguably put the appellant at risk. Ms Broadfoot accepted that this was not an option; it would be contrary to the Secretary of State’s policy to increase the risk to the appellant in that way.

The next question was the risk of double jeopardy. Article 7 CL should be distinguished; overseas offences prosecutions under Article 7 CL related to a crime where there had been no foreign prosecution and thus no question of double jeopardy. The double jeopardy risk arose out of Article 10 CL. All the experts, and all the current evidence before the Tribunal indicated that China not only had, but occasionally used, this power to re-prosecute. All save Dr Gechlik agreed that the power was discretionary (and Dr Gechlik had not responded to Professor Fu’s observation that she had overlooked the crucial provision of Article 141 CL). The Tribunal should accept and prefer the expert evidence of Professor Fu that both provisions were discretionary.

Ms Broadfoot referred to her written submissions in relation to BB and to MT Algeria. It was the Secretary of State's submission that the lack of reported examples of overseas offences prosecution was highly significant. Professor Fu found only six, three for Article 7 and three for Article 10, despite a wide internet search of relevant websites. The Secretary of State had identified 14 defendants in two similar crimes, all of whom were recommended for deportation and six of whom had been deported in 2003/4 at the height of the international snakehead kidnapping furore. There had been sufficient time for re-prosecutions to have occurred and been reported but all these experts, who had been searching for years, had found no such evidence and nor had the defendants’ legal advisers been informed of any.

The Adam decision should be distinguished: in Adam, it was the evidential burden not the legal burden which passed to the Home Office. Desertion from the army was an offence certain whereas here the Tribunal was dealing with a discretionary offence, the fundamental distinction being that it was for the appellant to show a real risk that the Chinese authorities will re-prosecute under Article 10 CL. The existence of that discretionary power did not shift the burden of proof to the respondent as in Adam, where the Country of Origin Information Report had taken a stance from which the Secretary of State's representative sought to depart on the particular facts of that appeal.

Ms Broadfoot contended that Professor Fu had resolved the conflict between his report in WC and in the present appeal. Much of his evidence was not challenged, for example the requirement under Article 10 for a fresh prosecution; the special procedure for foreign-related cases under Articles 10 and 7 ; and that the Chinese authorities would need the assistance of the British authorities to prosecute, making Article 10 re-prosecution less likely. If such re-prosecution occurred, diplomatic channels would be used to request the evidence, making it likely that the Foreign and Commonwealth Office would have been aware of any other re-prosecutions arising out of these events. No such request had reached them and it was reasonable to assume that Article 10 had not been triggered for any of the six offenders who went home voluntarily.

Ms Broadfoot asked the Tribunal to accept that the present offences, although unpleasant, were ordinary offences less likely to entail overseas offences prosecution, especially since, on the credibility findings she sought, there was no adverse history in Fujian. Snakehead crime was not necessarily politically significant, although Professor Fu had accepted that a central figure in the kidnap was at greater risk of re-prosecution. A completed kidnap was more serious than an inchoate or incomplete offence, but on any view, overseas offences prosecutions were vanishingly rare.

As regarded secrecy, Ms Broadfoot submitted that the Tribunal should give significant weight to Professor Fu’s levels of knowledge and access, which were much better (and better used) than those of the other witnesses. His account of the structure of the Chinese legal system and of the number of reported cases should be preferred. There was a range of sentence possibilities from total exemption to 10 years for inchoate offences, and a 10-year minimum for a committed offence. The only analogous example was an Article 7 prosecution of a similar range of offences, in which the Chinese Courts had imposed the same sentence of 14 years, despite the lack of any confession. On that basis the Chinese legal system was unlikely to regard the 14 years to which the present appellant had been sentenced as unduly lenient, reducing further the likelihood that they would bother with all of the complications required for re-prosecution. Laojiao was most unlikely, as all the witnesses had agreed in the end. It was essentially a tool for public order and social control, not for this kind of offence.

There was a black market in hukou-free labour in all the large cities of China. Millions of workers managed to arrange their lives without a hukou, which was largely a device for delivering education and social services now. The appellant, should there be any risk in his home area (which the Secretary of State did not accept) was at liberty to relocate to a large city and begin again there.

In addition to her closing statement, Ms Broadfoot reminded the Tribunal of the statements of Professor Cohen to the Congressional-Executive Commission on China in 2005 and 2006, emphasising progress (albeit with a long way to go). Dr Dillon had accepted that an unpublished decision did not make an example of someone, but he had argued that ‘making an example’ was more likely to be in the local papers rather than legal websites, which were for lawyers and judges. It depended whom one wanted to warn off. His view overall was very negative and in particular, he had been defensive and in places inconsistent in his approach to loss of face and the bilateral treaties.

Dr Sheehan’s evidence was of only limited assistance. Her brief Curriculum Vitae did not really meet the expert standard and as a whole, her report was based on rather old information (2000-2001). Her evidence about the border police and the computerised record systems was of interest. Ms Broadfoot asked the Tribunal to substitute a decision dismissing the appeal outright.

For the appellant, Mr Mackenzie prepared an amended skeleton argument and also made submissions. In his skeleton argument, he set out the appellant’s reconsideration arguments and summarised the Tribunal’s task as follows:

Mr Mackenzie reminded the Tribunal that the Chinese authorities do not recognise naturalisation to other nationalities: they continued to regard Chinese citizens overseas as being subject to Chinese punishment standards, even where, like Harry Wu, they have acquired another nationality. The appellant relied on a Canadian decision, R v Min Chen 2006 CarswellOnt 4073, the Ontario Superior Court of Justice considered the position of a Chinese national who had been convicted of murder in Canada. Mr Mackenzie acknowledged the paucity of evidence of re-prosecutions under Article 10, as opposed to prosecutions under Article 7. He argued, following Adam v SSHD [2003] EWCA (Civ) 265 and Modinos v Republic of Cyprus ECtHR 22/04/1993 16 EHRR 485, (i) that the burden was on the Secretary of State to show that there were no double jeopardy prosecutions under Article 10 CL; and (ii) that the total secrecy of Chinese jurisprudence meant that the Secretary of State could never do so.

In the event of an overseas offences re-prosecution, Mr Mackenzie contended that the evidence showed that the cumulative effect of the continuing use of torture to obtain speedy confessions, inadequate access to lawyers, lack of a presumption of innocence or a right to silence, and lack of ‘independent, fair and accessible courts and prosecutors’ which emerged from the expert evidence entitled the appellant to international protection. Should the appellant maintain his denial that he committed the offence, Mr Mackenzie argued that torture was virtually certain, and more so outside the largest cities. He relied upon Article 6 ECHR in relation to the trial process and the Secretary of State’s OGN at 3.13 on the question of prison conditions.

Mr Mackenzie submitted that if not re-prosecuted, the appellant would be liable to the administrative penalty of laojiao (re-education through labour) for which he could receive up to 3 years detention without trial. Finally, Mr Mackenzie’s skeleton argument dealt with the question of internal relocation and hukou. He directed the Tribunal to the US State Department Report for 2006 (published March 2007) which stated that –

Mr Mackenzie argued that Professor Fu’s report was partial, placing insufficient weight on the evidence of Professor Cohen and the documents set out above. Properly analysed, he contended that the risk of persecution or ill-treatment would extend wherever the Appellant went in China. The appellant would find it very difficult to relocate because of hukou, and if he did, he would be known across the country as a dissident and/or a convicted criminal.

In his oral submissions, Mr Mackenzie expanded his arguments to take account of the evidence the Tribunal had heard. In relation to the s.72 point, Mr Mackenzie accepted the Secretary of State's analysis that the crime was ‘particularly serious’ but argued that as at the date of hearing the Article 33(2) dangerousness test could be rebutted. Serious offence alone was not probative and this part of the test was essential. As at the date of hearing, the appellant had been out of prison for three years and had committed no further offences despite the unfortunate lack of probation supervision. The Secretary of State had not suggested that the appellant was lying when he said he had remained out of trouble since being released.

The appellant remained on licence. His conduct in prison had been excellent. He had not been considered suitable for courses in ATS (Advanced Thinking Skills) or Victim Awareness due to his perceived low risk of reconviction. He had completed the set courses on Citizenship and Budgeting, Personal Development and Assertiveness, and Decision Making. The high dangerousness threshold which SB Haiti entailed was simply not made out, and there was no evidence before the Tribunal that the appellant constituted any ongoing risk to the public.

On the double jeopardy question, all the experts now accepted that Articles 7 and 10 were used, though not often. The Tribunal’s previous position that Article 10 prosecutions never occurred was now unsustainable. The question was whether they would be used for this type of case. Mr Mackenzie asked the Tribunal to prefer the evidence of the appellant’s witnesses, in particular Dr Gechlik, a Chinese national who had practised law in China. It was unclear whether Professor Fu had ever had a Chinese, as opposed to a Hong Kong, practice. Even though the Chinese Government was making progress in the right direction, that must be considered against its previous catastrophic human rights position. WC and SC were no longer good law on the present evidence. The 2002 article by three senior judges was clear confirmation of the existence of re-prosecution in some cases, though less clear when it would be appropriate. The appellant’s experts all agreed with the position Professor Fu had taken in WC, but not with his revised view in 2007/8. He asked the Tribunal to prefer the evidence of Dr Sheehan and Dr Dillon that the Chinese state remained interested in snakehead activities abroad as well as in political corruption at home.

The reference in Professor Fu’s report to re-prosecution being ‘highly unlikely’ was unsustainable given the mistaken impression under which he had been labouring. In his oral evidence, Professor Fu had accepted that where an appellant was a central figure in a snakehead kidnap plot that would be more serious both in terms of punishment and in terms of investigation. Mr Mackenzie reminded the Tribunal that Professor Fu had not been aware that there was a link between WC and this appellant. Professor Fu’s opinion had been that 14 years would have been particularly severe for an inchoate kidnap offence, but his opinion was shot through with references to inchoate offences whereas this appellant had been a ringleader in a completed offence. The error was natural given the redacted facts with which Professor Fu had been presented.

The Article 7 prosecution of Xiang, the only example given by the experts which was similar to this appellant’s case, was nevertheless distinguishable. Xiang was not prosecuted in Yugoslavia and had only one victim. There was no indication that he had been involved in organised crime. He received a sentence of 14 years for a completed offence. The NPC website guidance was at least an indication of current Government policy. All the experts agreed that the publication of this guidance was neutral, just an announcement of Government policy. Mr Mackenzie relied on the December 2007 Country of Origin Information Report cited above. It was difficult to verify Chinese Government data. In particular, he relied on the March 2007 US State Department Report which listed penalties for people smuggling (five to ten year jail sentences and fines, with life imprisonment or death in ‘very serious cases’). There was insufficient evidence to justify Professor Fu’s change of opinion, he argued.

Mr Mackenzie reminded the Tribunal that the appellant had not admitted his guilt, although he admitted to having been present when the events took place and aware of what was going on; he had appealed his conviction (unsuccessfully as to conviction and sentence). It was reasonable to assume that he would continue to deny guilt, so that any investigation would have to involve interrogation. Despite the best intentions of the Chinese Government, torture had not been eradicated and remained widespread. The Fu report did not deal properly with the findings of the Special Rapporteur, Dr Nowak, or with the Amnesty International evidence cited in the Country of Origin Information Report. In 2004, in the WC report, Professor Fu had been firmly of the view that WC would be tortured but in the main report in these proceedings Professor Fu now considered the risk of torture well below the level of risk which engaged the various international protection conventions. The evidence of the other witnesses should be preferred on this issue.

It was not the appellant’s case that he would definitely be re-prosecuted: Article 10 was discretionary. On a proper reading of Dr Gechlik’s report, Mr Mackenzie argued that she was saying no more than that. The Canadian Courts appeared to have accepted the risk of re-prosecution in the child murder case. In SC, the Tribunal characterised the evidence of Dr Dillon as essentially speculative, but that was not the proper approach to expert evidence; experts were entitled to give opinions based on their own experience and understanding on matters outside common human experience. He reminded the Tribunal about the observations on analysis of evidence in Karanakaran and Kaja (paragraph 27).

Schiemann LJ in Adam had found that the existence of an extant law was likely to create a real risk of its use in an individual case, with all that entailed, unless there existed clear evidence to the contrary. Mr Mackenzie accepted that Professor Fu’s main report arguably did discharge the evidential burden of proof on the respondent but, he contended, this case turned on the workings of the Chinese judicial system and whichever way the evidential burden pointed, on the facts the answer would have to be the same. Plainly, the burden was not on the appellant in relation to the country guidance elements of establishing the categories of persons who would be at risk; that was a shared burden.

Mr Mackenzie commended the Secretary of State's decision to provide an expert of her own, following the advice given by the Court of Appeal in AH (Sudan) & Ors v Secretary of State for the Home Department [2007] EWCA Civ 297:

Mr Mackenzie reminded the Tribunal that the Foreign and Commonwealth Office letters could not be treated as evidence written in tablets of stone (LP (LTTE area, Tamils, Colombo, risk?) Sri Lanka CG [2007] UKAIT 00076 at paragraph 45), particularly as it was unsourced. They required the same scrutiny as any other expert evidence:

The high point of the Secretary of State's case was that some of the other co-defendants had been returned without apparent difficulty, but Mr Mackenzie reminded the Tribunal that the Foreign and Commonwealth Office had confirmed that they had no way of monitoring returnees and unless the Chinese police sought assistance, there was in practice no way of knowing whether any of those defendants had been re-prosecuted. The relative scarcity of reported examples would be significant only if it could be shown that Western observers would know of re-prosecutions which took place, but because of lack of transparency in the system, Mr Mackenzie suggested that the evidence was that they would not have that information. Professor Fu had agreed that there remained little reporting of re-prosecutions, despite his better access to Chinese sources. He had also agreed that the appellant, on the particular facts, would be at increased risk. The examples Professor Fu had given related to Hong Kong Chinese being prosecuted on the mainland, or mainland Chinese offenders prosecuted in Hong Kong and were not Article 10 cases. He had not been able to assist the Tribunal as to what would happen if a case did come to light.

Mr Mackenzie reminded the Tribunal also of the difficulty in compiling local press reports without being accused of violating Chinese state secrecy laws. Information which was freely available in China might not be available outside China; to take local newspapers abroad was sometimes a criminal offence. Amnesty International gave an example in its December 2004 article “China: human rights defenders at risk” where two documents faxed overseas, one by Xinhua, China’s official news agency which were publicly available in China were later classified as Chinese state secrets and the offender prosecuted. That example was also reported in Professor Cohen’s evidence to the Congressional-Executive Committee. There was no bilateral Treaty with the United Kingdom to protect the appellant. The hostages’ relatives were still in China and the prosecutions in the public domain. It would not be very difficult for the Chinese authorities to mount a prosecution on those facts and the offence was serious.

Professor Fu in his oral evidence had accepted that 14 years was not particularly harsh for such offences in China; Dr Sheehan and Dr Dillon thought the appellant would be sentenced to life imprisonment. It was of course possible that the Chinese authorities might be satisfied by the United Kingdom sentence, but much more likely that they would not. Article 10 prosecution remained a possibility in appropriate cases and following the oral evidence of Professor Fu, Mr Mackenzie submitted that all the witnesses had agreed that on the facts of the appellant’s case there was a heightened risk to him.

The appellant would not receive a fair trial. There was ample evidence to support a finding that few if any of the standards of a fair trial existed in China, including at paragraphs 10.05-10.06 of the current Country of Origin Information Report, in particular the presumption of guilt, the very high conviction rate, the absence of any right to silence, the lack of procedure rules, and the intimidation of defence lawyers. Professor Cohen, the Special Rapporteur, and the US State Department Report had all dealt with this issue. At paragraph 11.03 of the Country of Origin Information Report, the report quoted the US State Department Report indicating that there was no system of bail and that pre-trial detention could be up to 7 months. The Special Rapporteur had made similar points and Dr Dillon relied on his report, which included evidence of flagrant procedural interference.

Although the evidence (in particular Professor Cohen’s reports) indicated that the Chinese authorities intended to introduce audio-visual recording of hearings, there was as yet no evidence of that occurring and the Tribunal should be very slow to conclude that the intention to introduce a system of recording could have any significant impact on the likelihood of interrogation and torture.

In 1994, in the context of China-wide rural protests, the appellant had described an escalating sequence of problems between himself and local officials, culminating in destruction of his home; that account was consistent with what happened in Chinese villages around that time. Although there were some discrepancies, they should not affect the Tribunal’s assessment of credibility: the appellant’s evidence and that of his sister had been remarkably consistent over a long period, almost 14 years. There was no reason why the local police should not still remember this appellant today. The appellant did not claim to have paid for the arrest warrant and the police cousin’s question whether it had been ‘useful’ was not enough to demolish its credibility. Mr Mackenzie reminded the Tribunal that the cousin had said in the same letter that the appellant should neither return to Fujian nor even reply to the letter. The cousin was clearly worried.

Mr Mackenzie reminded the Tribunal that the Secretary of State’s skeleton argument accepted that Chinese prison conditions were generally harsh and ‘sometimes’ degrading. The Special Rapporteur found prison conditions ‘generally satisfactory’ but was aware of visiting the best prisons, and even then of self-censorship and fear. The Special Rapporteur’s requests were honoured (paragraph 9 of the Nowak report), but at paragraph 10 of Professor Nowak's report, he had recorded that security and intelligence officials had attempted to restrict his access, and that potential informants were intimidated, placed under surveillance or instructed not to meet him. That was not a wholly open attitude on the part of the Chinese authorities.

Re-education through labour or laojiao remained very controversial with strong pro- and anti-abolition factions within China. Nevertheless, it remained available to the authorities: its use was arbitrary, punishing those whom the authorities considered displayed criminal tendencies even if not criminally liable. Mr Mackenzie suggested that laojiao would be the fall-back position if the appellant were not prosecuted. Dr Gechlik had considered re-education through labour likely, but Professor Fu’s opinion was that the police might be reluctant (paragraph 48, main report). Professor Cohen’s evidence in 2006 was that the Ministry of Public Security was keen to retain it. Use of laojiao, if it occurred, involved flagrant breach of Articles 5 and 6 ECHR and the treatment of offenders under laojiao was no better than those in the prison system. The Tribunal should assess the appellant’s offender profile; Mr Mackenzie argued that it was extremely unlikely that he would just be allowed to get on with his life.

Finally, on the question of internal relocation, Mr Mackenzie relied on his skeleton argument. The hukou system would prevent him relocating and information would reach Fujian, such that people would be sent to pick him up. There had not been any vast change in the hukou system (see the evidence of other academics to the Congressional-Executive Committee in December 2005). Professor Fu’s opinion was that the appellant could vanish within the larger Chinese cities but it would be difficult for him to work without registering and the appellant should not be expected to commit an offence in order to exercise his internal relocation option.

In conclusion, Mr Mackenzie asked the Tribunal to substitute a decision allowing the appellant’s appeal.

With the exception of Professor Cohen whose evidence to the Congressional-Executive Committee is reviewed on a different basis, all of the experts were asked if possible to provide examples of overseas offences prosecutions under either Article 10 (re-prosecution) or Article 7 (prosecution). We summarise below the examples provided. We excluded the Article 18 CL example Dr Sheehan provided; Article 18 is an internal Chinese prosecution exemption on an entirely different basis, and the single instance upon which she relied involved a bombing campaign where there had been a great many deaths. Dr Sheehan made no attempt to discover whether it was typical of the application of Article 18. Disappointingly, Professor Palmer, Dr Dillon and Dr Sheehan were unable to identify any examples of the use of Articles 7 and 10 at all.

In WC, the Tribunal was given the following possible examples:

Professor Hu [sic] documented two further cases involving Mainland hijackers who had been repatriated from Taiwan to the Mainland.

In the present appeal, only Professor Fu and Dr Gechlik were able to identify a handful of examples. In relation to Article 7 (prosecution where there have been no overseas proceedings for a foreign offence), the following examples were identified:

The Tribunal notes that the examples given are extremely sparse. The only one which is at all similar to the offence of this appellant is that of Xiang prosecuted in 2002 under Article 7 for kidnapping and extortion. He, like the present appellant, received a sentence of 14 years imprisonment. If that is so, the sentence given to this appellant may well not be regarded as disproportionate by the Chinese authorities.

The Tribunal, with the help of the Secretary of State, has analysed what occurred after the release of a number of snakehead defendants tried and convicted in London. We have details of eight removals and two who were not removed, from two or possibly three unconnected groups of offences.

Three from the same offender group as the appellant have been removed (one of these was described by the trial judge as a ringleader, as was the appellant). Two more defendants probably from the same offender group, who were sentenced with the appellant, were also removed. A further five individuals were sentenced to 15 years. They were from an offender group convicted in September 1997 (two years earlier) of the same offences: conspiracy to kidnap, blackmail and false imprisonment. At the end of their sentences, the 1997 offender group individuals raised no objection to removal and were removed.

WC and SC have not been removed. WC’s offences of kidnapping, false imprisonment and blackmail attracted three concurrent sentences of 6 years. He was probably not part of either appellant’s offender group, or the September 1997 group. SC was probably part of the appellant’s offender group: he was convicted and sentenced on the same date as the appellant, and his Court of Appeal hearing was the same day as this appellant’s unsuccessful appeal.

Of the eight removed, at least five voluntarily, there has been no indication whatsoever of difficulty on return. The Tribunal notes that the Foreign and Commonwealth Office is unable to monitor returns, but all eight were legally represented and had there been any re-prosecution, the Tribunal considers it likely that representations would have been made or there would have been publicity outside China. This analysis tends to confirm Professor Fu’s view that the snakehead cases are regarded by the PRC as commonplace and, provided they are considered to have been dealt with properly abroad, are unlikely to attract further interest on return once the foreign sentence has been served.

WC and SC

WC was heard on 24 February 2004 and the information on which its guidance is based is at least four years old. The appellant in WC did not satisfy the Tribunal that he was at risk of re-prosecution. So far as material to the present appeal, the Tribunal concluded as follows:

In SC, the Tribunal reconsidered and affirmed its approach in WC that on return to China, a Chinese citizen convicted of a crime in the United Kingdom was not at real risk of a breach of protected human rights whether by way of judicial or extra-judicial punishment, even if the crime had a Chinese element. After considering expert evidence from the same experts from whom we also have heard, and the international law framework, the Tribunal in SC concluded as follows:

That was the framework against which the expert and country background evidence was reviewed. It was clear from the evidence we heard that the previous position that there was no evidence whatsoever of overseas offences prosecutions was no longer sustainable. However, the significance of the evidence before the Tribunal was another matter: the Tribunal heard and read a very much wider range of evidence than that available in WC or in SC. We heard afresh from the appellant and his sister; they were unable to assist us with the general risk on return, since neither of them had lived in China for almost 14 years. Their evidence went only to the credibility of the appellant’s account, the assessment of paragraph 364 of the Immigration Rules, and whether he could rebut the s.72 dangerousness presumption and claim asylum or humanitarian protection.

Double jeopardy: assessing the experts and their evidence

We next consider what weight to attach to the expert evidence we heard. We reminded ourselves of the guidance in LP and bore in mind all of the evidence before us, written and oral:

The evidence of Professor Cohen stood unchallenged as international expertise on Chinese legal reforms. However, it did not take us past 2006. In 2005, he was very hopeful about Chinese legal reforms; in 2006, rather more pessimistic. Reforms existed in draft form but appeared to be on the back burner in reality. There was pressure towards reform from academics and practitioners, and growing public rights awareness, but also considerable resistance by the Chinese authorities to lose powers of social control, in particular laojiao.

In relation to Professor Palmer’s evidence, we had some sympathy with the original Tribunal’s assessment in WC and in SC that he had merely regurgitated older materials without adding his own expertise. Professor Palmer is an eminent man with significant connections and experience. His report was useful for the materials it assembled (in particular the observations of Liu Nanping) and in general the evidence on sources of law in China, and his literature survey on torture and laogai (Chinese prison experiences). In common with the other experts, he drew heavily on the report of the UNHCHR Special Rapporteur, Professor Nowak. However, given Professor Palmer’s enhanced access as an Honorary Professor at Beijing University, we would have hoped for more specific assistance on the Article 10 issue. We noted his views but, as the original Tribunal did, we did not consider that they advanced our knowledge of Chinese prosecution of overseas offenders much beyond that set out in his evidence in WC.

The next expert was Dr Gechlik. She retained strong links with China despite living in the United States and, as the appellant’s Counsel observed, she was entitled to practise in Hong Kong, where she was born. She has helped train prison staff and legislative affairs officials, and accompanied a Chinese delegation to Switzerland to discuss prison reform. She retained a wide family connection to mainland China and Hong Kong. Dr Gechlik presented the evidence from the American article written by two Supreme People's Court judges and a Professor from the National Judges’ College, with its interesting Chinese language addition assessing the use of Articles 7 and 10 as ‘conservative’ and ‘not often used in specific cases’. Like Professor Cohen, Dr Gechlik recorded strong pressure from the Chinese judiciary and legal profession for the reform of Article 10 CL to move from negative recognition to positive recognition of foreign judgements, and also a proposal further to reform laojiao. Dr Gechlik lacked the full internet access available to Professor Fu although her access to newspapers and magazines was extensive, by reason of her family links to China. She was unable to trace a single instance of overseas offences prosecution.

Dr Dillon was not a lawyer. He had not been to China since July 2005 and was unable to tell the Tribunal which websites he had used for an internet search for examples of overseas offences prosecutions. He drew heavily on Professor Cohen’s report and that of the UNHCHR Special Rapporteur, Professor Nowak. His summary of the court system in China was succinct and useful, placing criminal cases in at least the Intermediate People’s Courts where the rule of law is rather better than in the rural People’s Courts. His literature survey encompassed the same books identified by Professor Palmer, for the same reasons, but all the books identified antedate the westernisation which Professor Fu described as having accelerated in the late 1990s. However, their historical accuracy was not in dispute. Limited improvements to availability of case reports and death penalty trials were not emphasised in Dr Dillon’s report.

Dr Dillon considered that re-prosecution was most likely where the accused was deemed to pose a particular threat to social order in China; where the authorities wished to make a public example of an individual or a group of individuals; or where the case was considered to tarnish the image of China. If the authorities wished to make an example of someone, he considered that publicity for the decision and the punishment would be strictly in the regional court’s local media. He asserted that there was simply no reliable data to support the NPC website guidance, which was indicative of a growing Chinese nationalism. In effect, his non-lawyer’s perception was that China was more likely to re-prosecution now than before. He was unaware of the evidence presented by Professor Cohen, Professor Palmer and Dr Gechlik of the judicial, legal, and social pressures to restrict and eventually abolish its use. He agreed with the other experts that laojiao was not likely. He was unable to assist us on the likely sentence. The information simply was not available outside China.

Dr Dillon was also unable to give much assistance on the question whether re-prosecution under Articles 7 and 10 was mandatory or discretionary, or whether an offence was completed or inchoate. He thought it probably made less difference in Chinese law than in United Kingdom law. The question whether Articles 7 and 10 are mandatory or discretionary is, however, crucial to the question whether Adam is on all fours with the facts of this appeal.

Dr Dillon was aware of the anti-torture movement from modernisers within China, but like the other experts, was unable to say that it had yet had the desired effect. Despite so many of its lawyers and judges being overseas-trained, Chinese patriotism and national pride made it reluctant to be influenced by foreign views of its legal system and he considered the changes to be more apparent than real. He did not consider that it was likely that publication on the growing internet databases maintained by Chinacourt and others was to make an example of the defendant; local or national published media would be used for that, and the databases were a technical resource for lawyers and judges. To his knowledge there were links between the Chinese Embassy and China, and between the United Kingdom and Chinese governments on the diplomatic level, despite there being no international agreements.

Dr Dillon considered, as did Professor Fu, that there might be less interest in straightforward people trafficking now, with the focus being more on corrupt officials.

The next witness was Dr Sheehan. Her report is in essence a commentary on the reports of Professor Palmer and Dr Dillon. Her example of the deaf-mute assassin prosecuted under Article 18 was not on all fours, either as to gravity (108 deaths) or as to the nature of the Article 18 protection, which was that the authorities had a discretion in appropriate cases not to prosecute a deaf or mute person. All the experts agreed that the death sentence was mandatory where death had resulted from the crime; it was not a likely case for clemency and Dr Sheehan had not performed any kind of literature survey to determine whether it was typical. Like the other witnesses, she considered that torture remained a serious risk if an investigation of the appellant’s crimes was undertaken. She considered the NPC website guidance quite a strong statement of intent in her written report; however in her oral evidence she accepted that it was merely a restatement, not indicating any increased risk of the provisions being used.

There was a divergence between her written report and her oral evidence in relation to the likelihood of early release. Her final position was that she simply did not know. She endorsed Dr Dillon’s opinion that the case was likely to be tried in an Intermediate Court not a rural People’s Court or in a City Court. She had no access to the University websites and had undertaken no internet research at all.

Dr Sheehan considered that the sentence imposed, 14 years, was not outside the range of sentences which the Chinese Courts would have imposed, though the appellant would not have been paroled at less than 10 years in China. A Chinese life sentence was about 10 years and convicts were paroled at the halfway point only for high-level good behaviour. The authorities might consider that the United Kingdom sentence was sufficient; however, they also might consider, where an appellant had not pleaded guilty and was held to have used violence, that these should have been treated as aggravating factors. In view of the rather limited nature of Dr Sheehan’s researches, the Tribunal does not place great weight on her analysis of the legal system, which was derived from the other two reports and the work of Professor Cohen. Nor did we derive much assistance from her evidence on the likely penalty.

We then turned to Professor Fu’s evidence. Initially, we were concerned by the evolution from his opinion in WC (which Dr Dillon agreed with entirely and said he could have written himself) to the main report for this appeal. We read the 2008 report with some caution. However, having heard the oral evidence of Professor Fu and understood the care with which he researched the Chinese databases, we are satisfied that he is a careful and reliable witness with much greater practical knowledge and database access than the other witnesses. There is a difficulty in Professor Fu’s written reports which all, because of the severe redaction of facts against which his opinion was written, erred in considering the offence as an inchoate offence when it had been completed. However, when this was put to him, Professor Fu’s reaction was careful and cogently reasoned. We are satisfied that we can rely on his evidence.

Professor Fu explained the databases available. We do not need to repeat that evidence here. He considered that 14 years was neither extreme nor lenient for a completed kidnap with extortion. He agreed with the other witnesses that laojiao was out of the question and laogai used only rarely. He did not consider this was one of the rare cases where re-prosecution would be undertaken, though given the altered nature of the factual matrix, he considered there to be more risk of official interest than he originally thought. We were particularly struck by his dismissive reaction to snakehead kidnappings in general as rather ordinary crimes of which there were very many, not especially interesting to the authorities. That is not the Western perception but given the significant people-trafficking industry out of China (Fujian in particular) the Chinese view is different. If there were a re-prosecution, Professor Fu considered that the assistance of the British authorities would be required for evidence. The police would be reluctant to bother unless they could get good evidence, given that they were expected to produce a conviction rate in excess of 90%. If investigated, torture could not be ruled out and the penalty would be ordinary incarceration (laogai) not laojiao.

Much of the appellant’s argument is directed at establishing the purpose of the NPC website publication and whether the experts agreed or disagreed that there were occasional prosecutions. Neither seems to us now to be really in dispute. The question we need to address is what distinguishes those cases where re-prosecution takes place from those where it does not. In oral evidence, all the experts agreed that the NPC website publication was a clarification and reassertion of the law, rather than a change in policy. Submissions in relation to the risk of re-prosecution relied on the NPC website restatement, the lack of any evidence that re-prosecutions did not occur, and the ‘complete lack of transparency’ in the Chinese legal system. We note that there were very few examples available, and that the only factually similar case was of a prosecution for an unpunished crime (under Article 7), not a double jeopardy case. Save as to sentencing, that does not really assist us in assessing the likelihood of a second trial and punishment under Article 10 CL.

We considered the Canadian Min Chen decision. That was a murder case: all the witnesses in the present appeal agreed that where there had been death, the death penalty was likely. In the Canadian case, the Agreed Statement of Facts included the concession by the Canadian authorities that:

The question whether Min Chen would be re-prosecuted was not fully argued before the Canadian court; further, this was a very high profile child abduction and murder case in Canada. The Tribunal derived little assistance from that decision.

After noting the Tribunal’s approach in WC and in SC, Mr Mackenzie relied on obiter dicta in FL and others (Rule 30: extension of time?) China [2005] UKAIT 00180 that it was open to an Adjudicator to consider that double punishment was a risk in at least some cases. That misstates what the Tribunal decided in FL (which was not a country guidance case on the double jeopardy point):

That decision does not, therefore, differ from the approach in WC and SC. The appellant in his skeleton argument warned the Tribunal not to dismiss the opinion of respectable experts as speculation (Karanakaran v SSHD [2000] 3 All ER 449 at 472). We have no intention of doing so and will give to the expert evidence the weight which it can properly bear. All of the experts from whom we heard are distinguished; some had prepared more thoroughly than others; some were better placed to access the new databases than others. We accept that they all agreed that Article 10 is sometimes used.

The appellant also relied on the decision of the Court of Appeal in Mohamed Adam v SSHD [2003] EWCA (Civ) 265 which was not cited either in WC or in SC. He contended that in the light of that decision, the evidential burden of proving that there was no real risk of a potentially persecutory law being applied rested on the respondent. The relevant passage, set out in full, from the decision of Schiemann LJ is as follows:

Again, the point made is different from that which we consider here. In the Adam decision, the Home Office evidence was in the appellant’s favour and Schiemann LJ observed that where the appellant had made his case based on evidence prepared by the Home Office, if the Secretary of State wished to assert the contrary position, he should have given proper notice of her intention to do so. That is a perfectly reasonable position but it does not amount to authority that the burden always shifts in favour of the Secretary of State in double jeopardy cases, as the skeleton argument contends.

Modinos v Republic of Cyprus ECtHR 22/04/1993 16 EHRR 485 is a case concerning whether a provision in Cypriot law criminalising homosexual acts in private between consenting adults remains in force, despite being in conflict with Article 15 of the Cypriot Constitution and Article 8 ECHR. It does not assist us greatly with the point in issue here.

In relation to prison conditions, even the Secretary of State admits that they are ‘harsh’. The evidence in the Secretary of State's OGN (paragraph 3.13) is that conditions in Chinese prisons are poor in general, and extremely Spartan even in model prisons:

Whilst the Tribunal has received evidence from the experts about prison conditions, it is not a question on which this appeal turns. For the reasons we explain at the end of this decision, we have found that the appellant would not be at risk of double jeopardy reprosecution under Article 10 CL if returned to China. The UNHCHR Special Rapporteur, Professor Manfred Nowak, was satisfied that the prisons he saw met international norms. There was evidence of much lower standards in the past, in particular in Professor Palmer’s literature survey and the books of Harry Wu, but there was also evidence of changes in the criminal justice system and modernisation within the Chinese legal system. We concluded that there was insufficient evidence before us of the current conditions in the majority of Chinese prisons to oust the guidance given in WC about prison conditions. That issue will need to be considered in detail in another appeal.

In the light of all the evidence and materials before the Tribunal, we give the following general guidance.

We turn now to consider this appeal.

We are required to consider s. 72 first, to determine whether the appellant has rebutted the statutory presumption that he remains a danger to the United Kingdom community. As set out in the Immigration Rules (HC 395 (as amended)) at paragraph 339D, the commission of a serious crime also takes the appellant outside the humanitarian protection provisions of the Refugee Qualifications Directive:

In SB (cessation and exclusion) Haiti [2005] UKIAT 00036 Ouseley J considered s.72 (2) and the ‘dangerousness requirement’ –

In the present case, the appellant did appeal his sentence, unsuccessfully. The appellant’s representatives accept that as he has served half of a fourteen-year sentence for conspiracy to kidnap, conspiracy to extort and conspiracy falsely to imprison, all contrary to s.1(1) of the Criminal Law Act 1977, that the Secretary of State has shown that the appellant committed a serious offence as defined by s.72. There remains the question of whether the dangerousness element has been satisfied. The evidence in this respect is that of the Ms Ludgam, his parole officer who knew the appellant for 17 months before his release. He was released in 2005 and has been on licence since then. We remind ourselves that the parole officer’s report was not based on full information as to the offences in which the appellant was involved. She noted that there was a low risk of reoffending but that if the appellant did re-offend it would be serious, gang-related offences. She was concerned, even on the limited facts available to her, that he should not be released unless the supervision of a probation officer was available. That was not done. We have no later report, and no evidence at all as to what the appellant has been doing since release, save that he has not apparently been arrested again.

The original Tribunal did not consider s.72. They regarded credibility as determinative, which was an error of law. At paragraph 43, however, they stated that had they engaged with Article 33(2) (and by implication s.72) they would have upheld the certificate. They did so on the basis of the sentencing judge’s remarks, Ms Ludgam’s report, and other information about the appellant’s current position (considered under paragraph 364, on which there is no challenge in this reconsideration). They noted Counsel’s assertion in those proceedings, as here, that there was a lack of evidence that the appellant was a danger to the community but took into account the serious nature of the offence. That was the basis on which they would have upheld the certificate.

We have considered s.72. The appellant was found to be one of the prime movers in a particularly nasty kidnap and extortion offence. He has not admitted his central rôle in the offence, and neither the trial judge in the criminal proceedings, the original Tribunal, or this Tribunal, considered him to be a witness of truth. The burden is on the appellant to show that he is not a danger to the community. His evidence to that effect consists of the usual certificates of various low-level qualifications obtained in prison, and then nothing at all for three years after that. The appellant has been on notice that the Tribunal would have wished to see up-to-date evidence on risk since the original determination in August 2006. There is still nothing. Under s.72, the appellant cannot show that he is no longer a danger to the public and, apart from his educational certificates in prison and a well-meaning but ill-informed Parole Report, has made no attempt to do so. We know absolutely nothing about what he has done while on licence, save that he was not arrested for it.

We uphold the s.72 certificate. The appellant cannot therefore rely on the refoulement provisions of the Refugee Convention or on humanitarian protection.

Having heard the appellant and his sister give evidence, and considered the credibility of their account, we find that we are even more concerned about their account of the 1994 events. The country materials record enormous numbers of rural protests at that time (about 3.5 million individuals a year) and the Secretary of State has accepted that the injuries the appellant sustained may well have been sustained defending his home from destruction. Their conflicting accounts of his rôle in the alleged demonstration fatally damaged the credibility of that part of the account, as the Tribunal held in 2006, and the evidence before us did not ameliorate that position. The appellant has not satisfied us to any standard that he was a writer of posters or a leader of a demonstration, or even that he threw a stone at a Government official. At best, he may have been present at a small demonstration but even that is doubtful.

The account of the family’s difficulties with the local police and the sister’s employer simply beggars belief. Beginning with the sister, as a birth control inspector she would have known the risks quite well; her evidence to the contrary was not credible. The account of what they did with the baby “Little Sister” was inconsistent and neither of them showed any interest in the child after leaving China. As regards the alleged confession, on the appellant’s account there was no need; he had been seen in the demonstration. Further, the threat by which the sister said that the authorities intended to extort a confession with which to arrest her brother was that if she did not confess they would arrest him. This part of the account is nonsensical and we do not believe it. It is much more likely, as the Tribunal held, that these two people are economic migrants. There was no error in the Tribunal’s credibility assessment in relation to the 1994 events.

There is an additional point as far as the alleged 1994 offences are concerned. They appear to be time barred based on Professor Fu’s evidence as to limitation periods for Chinese criminal offences. Although the United Kingdom offences are among those serious enough to engage the 20-year limitation period, and are in time, having been committed less than 15 years ago, the alleged 1994 offences, since there was no evidence that they were capable of entailing life imprisonment or a death sentence, appear to be outside the limitation period. There is a discretion to extend it but these offences are very low-level, even if they occurred. It is most unlikely indeed that they are the type of offence where the authorities would extend the limitation period to enable prosecution so long after the events occurred.

We have reviewed the paragraph 364 assessment at paragraph 56 of the determination. His Counsel’s presentation of him as a young man in bad company was dramatically at odds with the trial judge’s view of him as one of the instigators of the kidnap, extortion and blackmail for which he was imprisoned.

At the date of hearing the appellant was a 30-year old man who had entered the United Kingdom without leave and been given temporary admission pending determination of his asylum appeal, and who had committed a serious offence for which he had been punished. There was no record of his ever having been lawfully employed in the United Kingdom (nor, on his account, in China), although he may have worked illegally in a Chinese takeaway in Cambridge for about three years before committing this offence. His sister had a restaurant; however, he did not work there. He was reasonably fit and healthy, and there was no reason why he should not adapt to living in China again.

The Tribunal was entitled to find, as it did, that the public interest in deportation was not outweighed by the appellant’s rather limited engagement with the United Kingdom or any feature of his personal circumstances.

The risk on return under Articles 3, 5, 6, and 8 ECHR arose, if at all, from the Article 10 CL risk. The appellant would not be subject to Article 7 CL; he was prosecuted and punished. As to the Article 10 risk, although the appellant was a ringleader of a snakehead group, but he took part in what the Chinese state currently regards as a very common offence. Others who offended at that time were returned, some willingly, some not. All were legally represented and none of their representatives subsequently indicated that they came to harm on return. There had been no request through diplomatic channels for their trial documents by the Chinese authorities. There had been no international or local publicity, good or bad, identified in relation to these offences.

We reminded ourselves that the burden of proof of a real risk of a breach of a protected ECHR right remained on the appellant: the shifting burden of proof in Adam, if it existed, related to a situation where there was certainty of prosecution and a statement in the Country of Origin Information Report or otherwise by the respondent to that effect, such that it was for the respondent to provide evidence contradicting her own published material. That was not at all the same as a general duty on the Secretary of State to disprove the risk in all cases.

If the Chinese authorities were to take a positive interest in this appellant on return, there was no certainty that it would go as far as prosecution. Four of the five Article 10 examples provided by the experts appeared to have fizzled out without prosecution. The only example which was factually similar to that of the appellant, the Article 7 prosecution of Xiang, resulted in the same sentence. Despite vigorous attempts by the appellant’s experts and his Counsel to persuade us to the contrary, the appellant had not satisfied the Tribunal that the Chinese authorities would consider the United Kingdom proceedings so disproportionate that there was a real risk of a fresh prosecution, especially given that there had been a prosecution, conviction, and sentence.

We considered the weight to be given to Professor Palmer’s evidence above. We have taken it into account but we agree that it is based on older material than that available to the experts who gave oral evidence and that it takes matters little further than his evidence to the WC Tribunal.

Overall, when examined in the light of the country situation in China and the guidance in this decision, taking into account the credible part of this appellant’s account after his arrival in the United Kingdom, none of the errors in this determination entitled the appellant to have his appeal allowed. Accordingly, on the facts of this appeal, we substituted a fresh decision dismissing the appeal.

The Foreign and Commonwealth Office ‘double jeopardy’ letter and the evidence before us altered the position as the Tribunal understood it in WC and SC. In the light of our findings above, the decisions in WC (no risk of double punishment) China [2004] UKIAT 00253 and SC (double jeopardy – WC considered) China CG [2006] UKAIT 00007 are no longer factually accurate and SC should no longer be treated as country guidance.

The appellant applied for payment of costs from the Community Legal Service Fund under s.103D of the Nationality, Immigration and Asylum Act 2002 as amended by the Asylum and Immigration (Treatment of Claimants etc.) Act 2004. Reconsideration was granted on the basis of arguable errors of law in this determination. Nothing in these proceedings indicates that the reconsideration application was not properly made. The Tribunal orders that the appellant’s costs be paid from the Community Legal Service Fund.

The appellant is not a refugee as defined by the Geneva Convention and the Refugee or Person in Need of International Protection (Qualification) Regulations 2006;

The appellant is not entitled to humanitarian protection as defined in those Regulations;

The appeal is dismissed on human rights grounds; and

The Tribunal orders that the appellant’s costs be paid from the Community Legal Service Fund.

COUNTRY BACKGROUND DOCUMENTS